Miss L Kashina v City of Edinburgh Council: 4103132/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103132/2019

Venue Edinburgh

Hearing 4 December 2019

Between

Miss Lungowe KashinaClaimant

City of Edinburgh CouncilRespondent

Before

Employment Judge Rory McPherson

A Hood (instructed by Solicitor) for claimant

Date 26 September 2022

JUDGMENT

[1]In terms of the Extension of Jurisdiction (Scotland) Order 1994 the Tribunal does not have jurisdiction to consider the claimant’s claim of breach of contract, and that claim is dismissed; and

[2]In terms of the Extension of Jurisdiction (Scotland) Order 1994 the Tribunal does not have jurisdiction to consider the claimant’s claim in respect of 25 asserted loss arising in consequence of alleged verbal response to a requested reference, and that claim is dismissed; and The Tribunal Orders that:

[1]The case should proceed to a Case Management Preliminary Hearing to consider further procedure including the respondent’s reserved position on 30 time bar in respect of the remaining aspects of the claimant’s claim; and

[2]the parties should respond to date listing schedules within the time frame set out in the notification to the parties.

REASONS

Conclusion

[1]The case called for Open Preliminary Hearing at Edinburgh on 4 December 2019 for determination of the Preliminary Issue of Jurisdiction on two of Miss Kashina’s complaints. The first complaint by Miss Kashina was in relation to an alleged Breach of Contract by the City of Edinburgh Council (the Council). The second complaint was the Loss which she says arises from, what is now clarified to be, an alleged verbal response on behalf of the respondent in response to a request by a third party and prospective employer for a reference. Reference is made to Tribunals letter of 14 October 2019 and paragraph 1.7 of the Tribunal’s Note dated 27 November 2019.

[2]The claimant, Miss Kashina, appeared on her own behalf. The Council were represented by Ms. Hood.

[3]The case is one in which Miss Kashina complains of various matters arising from her employment with the Council including the matters identified above, and what are understood to be complaints broadly stated to be breaches of the Working Time Regulations 1988.

The Issues

[4]The issues for determination by the Tribunal at this Open Preliminary Hearing was whether the Tribunal has Jurisdiction to hear the claimant’s claim of breach of contract, and further whether the Tribunal has jurisdiction to hear the claimant’s claim in respect of asserted loss arising in consequence of alleged verbal response on behalf of the Council to a requested reference. Findings in Fact

[5]On the oral and documentary evidence presented the Tribunal made the following essential Findings in Fact restricted to those necessary for the determination of the issues before the Tribunal.

[6]Miss Kashina started with the Council on 1 December 2014 and while there have been some changes in her role as an employee, including moving from full time to part time, she has remained an employee of the Council since that time. Submissions

[7]For the Council, Ms. Hood argued that as Ms. Kashina has continued to be an employee of the Council, in accordance with The Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994 the Tribunal does not have jurisdiction to consider the asserted breach of contract claim. Further the Tribunal does not have jurisdiction to jurisdiction to hear the claimant’s claim in respect of asserted loss arising in consequence of alleged verbal response to a requested reference. In addition, Ms. Hood referred to Ahir v British Airways plc

[2017] EWCA Civ 1392 (Ahir)

at para 16, per Underhill LJ “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”

[8]Ms Hood in addition referred to paragraphs 4 and 5 of the Tribunal Judge’s Note of the telephone Case Management Hearing which was sent to the parties 13 June 2019. That Note records that Kashina was advised by the Tribunal Judge that he “4 … noted that she had been in contact with a solicitor and was likely to get advice in the near future.” and further that he: “5. ... explained that that she could not make a claim for breach of contract as her employment was still continuing.”

[9]Ms. Hood, however, on consideration of the issues, and history of this case confirmed that the Council did not seek to insist upon an award of expenses against Ms Kashina in terms of Rules 74 to 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the 2013 Rules) in relation to Ms. Kashina’s pursuance of these two heads of claim and this hearing.

[10]In response to Ms Hoods’ submissions, and while Miss Kashina maintained that she was in dispute with the Council in respect of both matters (being the alleged breach of contract and what she considers to be a loss arising in consequence of an alleged verbal response to a requested reference), she did not seek to argue that the Tribunal did have the ability to decide upon either of those matters.

The Law

[11]The Employment Tribunals Act 1996 provides at ss (2) and (3) that: (2) Subject to subsection (3), this section applies to—(a) a claim for damages for breach of a contract of employment or other contract connected with employment

(b) a claim for a sum due under such a contract, and

(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract, if the claim is such that a court in … Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of 25 the claim. (3) This section does not apply to a claim for damages, or for a sum due, in respect of personal injuries.

[12]The Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994 provides that “3 Extension of jurisdiction Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which (s 3(2) Employment Tribunals Act 1996) applies and which a court in Scotland would under the law for the time being in force have jurisdiction to hear and determine;

(b) …

(c) the claim arises or is outstanding on the termination of the employee's employment. 13. Rule 37 of the 2013 Rules provides that “37 Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.” Applicable Law Discussion and Disposal

[14]The provisions which prescribe the Tribunal’s Jurisdiction (ability to consider) in respect of both claims considered at this hearing, are as set out in the paragraphs above.

[15]Ms. Kashima remains an employee of the Council. Miss Kashima has been provided with an opportunity to make representations. The Employment Tribunal does not have jurisdiction to consider Miss Kashima’s breach of contract claim. The Employment Tribunal does not have jurisdiction to consider Miss Kashima’s claim for alleged loss which she says arises from, what is now clarified to be, an alleged verbal response on behalf of the respondent in response to a request by a third party and prospective employer for a reference. That claim for loss is set out as a free standing complaint not as part of any statutory complaint which the Tribunal may have jurisdiction. Accordingly, both those claims are struck out and dismissed.

[16]While Ms. Hood made reference to Ahir, I do not consider that is open to this Tribunal to consider whether it is “satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established” as this Tribunal does not have jurisdiction to consider either complaint.

[17]It is understood, that the Council will continue to argue, as identified from the Note of the telephone Preliminary Hearing attended by Ms Kashina on 7 June 2019, that remaining aspects of Miss Kashina’s claims were not brought within the relevant time limit. Further, it is understood that the Council will argue, that there is no basis for the Tribunal extending that time limit. Those matters will require to be considered at a future hearing; however, I am satisfied in the meantime, that further procedure of Miss Kashima’s remaining claims should be considered at a further Case Management Preliminary Hearing.

[18]It will be a matter for Ms Kashina whether she seeks legal advice in relation to the issues which arise in relation to the remaining aspects of her claim. Date of Judgement: 4th December 2019 Employment Judge: R McPherson Date Entered in Register: 10th December 2019 And Copied to Parties ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4103132/2019 (V) Held remotely on 29 January 2021 Employment Judge W A Meiklejohn Miss L Kashina Claimant In Person City of Edinburgh Council Respondent Represented by: Ms A Hood – Solicitor

The Law

[1]This case was listed for an open preliminary hearing, conducted by means of the Cloud Video Platform (“CVP”), to determine an application by the 35 respondent to have the claimant’s claim of unlawful deduction of wages struck out in terms of Rule 37 of the Tribunal Rules 2013. The claimant participated in person. Ms Hood represented the respondent. Nature of claims

[2]In her ET1 claim form, the claimant brought complaints of unlawful deduction of wages, breach of contract and loss of earnings. She alleged that she had 5 been underpaid by the respondent while employed as a Care and Support Worker. She also alleged loss of earnings said by her to arise from the failure of the respondent to provide a suitable reference for a second job for which she had applied.

[3]These complaints were resisted by the respondent in their ET3 response form. Their position was that the claimant had been paid in accordance with her contractual entitlements. They took three preliminary points –(a) By virtue of Article 3 of the Employment Tribunals Extension of Jurisdiction 15 (Scotland) Order 1994 and section 3 of the Employment Tribunals Act 1996, only claims for breach of contract arising or outstanding on termination of employment could be brought in the Employment Tribunal. The claimant remained in the respondent’s employment and so there was no jurisdiction.

(b) To the extent that the claimant was claiming for alleged underpayments going back more than two years from the date of presentation of her complaint, that complaint was precluded by section 23(4A) of the Employment Rights Act 1996 (“ERA”) which limited the period for which 25 alleged unlawful deductions could be claimed to two years ending with the date of presentation.

(c) The claim was time-barred by reference to section 23(2) ERA as it had not been presented within three months of any alleged underpayment, 30 and no extension of time had been sought. Procedural history

[4]There had been four preliminary hearings. The first of these took place on 7 July 2019 (before Employment Judge Hendry). The Note (67-71) issued after that hearing recorded that EJ Hendry explained to the claimant that “she could not make a claim for breach of contract as her employment was still continuing”.

[5]The outcome of this preliminary hearing was that the claimant was ordered to provide further particulars of all the events or incidents upon which she was relying in support of her claims. This was to be done no later than 21 days after the date of the Order. The Note and Order were dated 10 June 2019 10 and were sent to the parties on 13 June 2019. The claimant did not comply timeously with the Order.

[6]The second preliminary hearing took place on 11 November 2019 (before EJ d’Inverno). The Note (89-96) issued after this hearing recorded that the 15 principal purpose was – “to determine the state of the respondent’s compliance with the Tribunal’s Order for the production of documents dated 18th July 2019 and to consider what further information parties might usefully provide to each other in order 20 to properly focus the issues in the case, including the issues set down for determination at the Open Preliminary Hearing of 4th December 2019.”

[7]The claimant had alleged that the respondent had failed to comply with an Order of the Tribunal of 18 July 2019 for production of documents. EJ 25 d’Inverno determined that the respondent had complied. He ordered the claimant – “to furnish the respondent with Further Particulars of Claim….within ten days of 11th November 2019 setting out each period of time, that is “from date x to 30 date y”, in respect of which the claimant maintains and offers to prove she had entitlement in law to further working time payments and, in respect of each such period, the sum which she asserts the respondent has withheld being the amount claimed by her, together with a note setting out the basis upon which each such amount is calculated.”

[8]The third preliminary hearing took place on 4 December 2019 (before EJ McPherson). The issue was determination of whether the Tribunal had 5 jurisdiction to hear the claimant’s breach of contract/loss of earnings claims (with which she had decided to proceed notwithstanding the explanation given by EJ Hendry – see paragraph 4 above). The outcome of this was a Judgment (99-105) determining that the Tribunal did not have jurisdiction to consider the claimant’s breach of contract and loss of earnings claims.

[9]The fourth preliminary hearing took place on 13 February 2020 (before EJ Young). The Note (106-110) issued after this hearing recorded as follows – “It became clear that the respondent had considered that the claim being 15 made by the claimant was that there had been unauthorised deduction in respect of payments in their scheme of payments known as “working time payments” (WTPs). Reference was made to the terms of the Note of a previous Preliminary Hearing (Case Management Discussion) held on 11 November 2019 at which time the claimant was ordered to furnish the 20 respondent with Further Particulars of Claim in respect of which she maintained and offered to prove entitlement to further “working time payments”. In the specification subsequently intimated by the claimant in response to that Order (being the specification intimated under email of 22 November 2019) the respondent had considered that her claim related to 25 “working time payments. However it became clear in the discussion and considering the terms of the specification that the claim by the claimant was essentially that she had worked more hours than had been recorded and in respect of the additional hours worked she was due overtime payment in terms of the respondent’s “Modernising Pay Handbook page 72 published 30 2010” (being the reference within the specification). Additionally the calculations that she had made in respect of unauthorised deductions were all based on the “overtime rate of time and a half”.

[10]The respondent’s position was that(a) the issue of alleged unauthorised deduction relating to overtime pay and

(b) the addition of a claim for alleged unauthorised deduction in the period 23 March 2019 – August 2019 were amendments to the claim as originally brought, to which amendments the respondent objected. The outcome was that a further preliminary hearing 5 should be fixed to decide if this was an amendment and, if so, whether it should be allowed. This preliminary hearing was scheduled to take place on 7 March 2021.

[11]On 8 April 2020 the Tribunal issued Orders (111-114) requiring the claimant 10 to provide(a) information in the form of answers to four questions which sought to clarify whether the alleged unlawful deductions related to (i) unpaid overtime and/or unpaid working time payments and (ii) weekend working only and

(b) a schedule of loss. The claimant responded on 19 April 2020 (51) stating that her claim related to unpaid overtime hours and was not restricted 15 to weekend work. At the same time she provided a schedule of loss. She submitted an application to amend on 15 July 2020 (52-53) to which the respondent objected on 3 August 2020 (54-60).

[12]The respondent submitted an application for strike out (or, in the alternative, 20 a deposit order) on 6 May 2020 (116-119). It was this application which came before me on 29 January 2021.

Evidence

[13]I heard evidence for the respondent from Mr G Craig, Employee Life Cycle Lead Consultant. I had a joint bundle of documents extending to 274 pages to which I refer above and below by page number. Shortly prior to the hearing the claimant submitted her own bundle of documents which replicated part of the joint bundle, and was used by the claimant at the CVP hearing for ease 30 of her own reference to the documents. Findings in fact

[14]The respondent issued a Statement of Employment Particulars to the claimant (191-196) under cover of their letter on 9 December 2014 (190). This made reference to the Modernising Pay Handbook (198-225) (the “Handbook”). The Handbook documented changes to terms and conditions 5 of employment of the respondent’s employees, implemented in 2010.

[15]The claimant’s payslips (of which 138, 140, 151 and 188 were examples) made reference to basic pay, holiday pay, shift arrangements/variable working, night hours, weekend hours and sleeping in. The first two items 10 were self-explanatory. Mr Craig provided explanations for elements of the claimant’s pay by reference to the Handbook.

[16]The claimant’s normal contractual working hours were 36 per week (213). Normal hours worked between 7am and 9pm were paid at single time. Hours 15 worked in excess of 36 were normally paid at an overtime rate of time and a half (214). The process for claiming overtime was that the employee made an online claim to his/her manager who authorised the claim and submitted it to payroll.

[17]Weekend hours (ie hours worked between midnight on a Friday and midnight on a Sunday) attracted a higher hourly rate which increased annually in line with the nationally negotiated pay award. They were described on the respondent’s intranet (229). An email from Ms L Windram to Ms Hood dated 2 December 2019 (231) detailed the higher hourly rate (ie the amount paid in 25 addition to basic pay) for weekend hours between 2016/17 and 2019/20. Where weekend hours were included on the claimant’s payslip, the amount shown reflected the difference between basic pay and the higher hourly rate.

[18]Working time payments (WTPs) (215-216) comprised disruption payments 30 (eg for working a split shift) and unsocial hours payments (paid for working at particular times, eg night hours). An employee could be eligible for both types of WTP. They were also described on the respondent’s intranet (227).

[19]For payroll purposes, WTPs were calculated on an annual basis, divided by 12 and paid monthly. Both the claimant’s Statement of Particulars of Employment (at 191) and the Handbook (at 215) stated that WTPs could change or stop if there was a change in working pattern. Mr Craig’s letter to the claimant dated 17 October 2017 (149-150) was an example of a change 5 in working pattern – this recorded(a) removal of shift payment,

(b) addition of unsocial hours payment,

(d) reduction in weekend hours. A change in working pattern would trigger a recalculation of the monthly WTP payment.

[20]If the claimant was required to sleep in as part of her duties, this attracted an additional payment at a fixed hourly rate.

Applicable law

[21]Section 13(3) ERA provides as follows – “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount 20 of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”

[22]Rule 37 of the Tribunal Rules 2013, so far as relevant, provides as follows – “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –(a) that it is scandalous or vexatious or has no reasonable prospect of 30 success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(c) for non-compliance with any of these Rules or with an order of the 5 Tribunal…. (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[23]Rule 39 of the Tribunal Rules, so far as relevant, provides as follows – “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little 15 reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s 20 ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential 25 consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out….” Submissions – respondent

[24]Ms Hood provided a written submission. Rather than paraphrase this, I have attached a copy to this Judgment. I refer to points made by Ms Hood and authorities relied on by her in my discussion below. Submissions – claimant

[25]The claimant submitted that her case was evidence based. She found it difficult to articulate but the Tribunal needed to hear all of that evidence.

[26]In relation to the application for strike out under Rule 37(1)(a), the claimant disagreed with the respondent’s assertion that her case had no reasonable prospect of success. She said that she had worked more hours than she had been paid for. She said that she had copies of the hours she had worked and 15 not been paid for. She wanted to put these before an Employment Judge.

[27]The claimant alleged that she had provided all her payslips and all her rotas. She had provided a diagram and had noted all the hours where she had been underpaid. Ms Hood disputed this – she said it was the respondent which 20 provided the claimant’s rotas and WTP forms. The claimant had not provided a breakdown.

[28]The claimant’s said that the details of the underpayment were contained in her ET1. However, when I questioned her about this, she was not able to 25 point to anything in her ET1 which supported this, and she acknowledged that the calculation set out in her ET1 was wrong.

[29]The claimant asserted that she had worked 11.5 hours every weekend rather than the 7.5 hours recorded by the respondent. She said that payroll did not 30 have a record of all of the hours she had worked. She said that her working pattern had changed but not her overtime. She appeared to allege that her overtime claims had not been submitted to payroll. She also alleged that her hours had been changed “in the system” but the hours she actually worked had remained the same. She said that she had only been paid for one weekend per month when she had actually worked three/four weekends per month.

[30]Turning to Rule 37(1)(b), the claimant disputed that she had failed to comply 5 with orders of the Tribunal except for the one made in June 2019. On that occasion she said that it had slipped her mind. In answer to the criticism of what she had said about the respondent’s representative, the claimant said that she had been upset by what had been said to the Tribunal. It had been “below the belt”.

[31]The claimant denied that she was trying to waste the Tribunal’s time. She accepted that her maths might need to be “sharpened up” and said that she could provide a month by month breakdown of the underpayments.

[32]With reference to Rule 37(1)(c), the claimant disputed that she had been, as stated by Ms Hood, one month and 18 days late in complying with the Tribunal’s order made in June 2019. She said it had only been a week or so. When I suggested to the claimant that she had been given a number of chances to explain her claim, she repeated that she had not articulated it well. 20 She accepted that she had “put it in a lump sum” but could “do it month by month”.

[33]In the context of the respondent’s application for a deposit order, the claimant gave me details of her monthly income and expenditure and indicated that 25 she was left with approximately £300 after paying her monthly bills. She had no savings, but no debt.

Discussion

[34]I reminded myself of Rule 2 of the Tribunal Rules 2013 (Overriding objective) – “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;

(b) dealing in cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

[35]I am grateful to Ms Hood for her comprehensive and helpful written submissions which identify with commendable clarity the issues I need to address in dealing with the respondent’s application for strike out. I will follow the structure of those submissions. Rule 37(1)(a) – no reasonable prospect of success

[36]Under reference to Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

and Balls v Downham Market High School & College 30

UKEAT/0343/10

Ms Hood acknowledged that “no reasonable prospect of success” was a high threshold. She argued that the claimant’s understanding of “weekend hours” and her calculations based on that understanding were fundamentally flawed. Those calculations did not acknowledge that the payment for weekend hours was an addition to her basic salary and did not represent her entire remuneration for working those hours.

[37]Ms Hood referred to Ahir v British Airways PLC

[2007] EWCA Civ 1392

. That case involved the dismissal of an employee for falsifying his CV. The 5 Employment Judge described the claimant’s allegations as “fanciful” and struck out the claim. The Court of Appeal said (at paragraph 16) – “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are 10 satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored.”

[38]It was, Ms Hood argued, “instantly demonstrable from the documents before the Tribunal that the claimant’s claim is….fundamentally flawed and that she has no entitlement in law to the sums that she maintains she has been underpaid”. The claim would have no reasonable prospect of success even if properly pled. The claimant had failed to provide the minimum information 20 needed to show how she calculated the alleged underpayment.

[39]Ms Hood submitted that it would not be proportionate nor in line with the overriding objective to allow the claimant to proceed with a claim which was fundamentally flawed. Rule 37(1)(b) – unreasonable conduct

[40]Ms Hood submitted that I should follow the approach set out in Bolch v Chipman

[2004] IRLR 140

. Three questions required to be answered –(a) whether the claimant had behaved scandalously, unreasonable or vexatiously when conducting the proceedings;

(b) whether a fair trial was still possible; and

(c) what the appropriate remedy was in the circumstances (including whether it was proportionate to impose a lesser penalty than striking out the claim or response).

Discussion

[41]Addressing the first question, Ms Hood made reference to(i) the claimant’s refusal to withdraw her breach of contract claim,

(ii) her unfounded allegations about the respondent’s solicitor in connection with the documents order dated 18 July 2019 and

(iii) the claimant’s dishonesty in her correspondence with 10 the Tribunal. These arguments were clearly articulated in Ms Hood’s written submissions and I will not rehearse them here.

[42]Moving to the second question, Ms Hood referred to Edmondson v BMI Healthcare and another

UKEAT/0654/01

where the issue was the conduct 15 of the claimant’s representative. The Employment Appeal Tribunal said this – “Further warnings were thought to be fruitless and the crucial issue, the acid test, for the tribunal was that it would be impossible for a just disposal of the case to occur given the behaviour of Mr Graham. We did not consider that 20 he would abide by his assertion that the conduct would not be repeated. The earlier final warnings had not worked.”

[43]Ms Hood also referred to Sud v Hounslow LBC [2015] 10 WLUK 651, a case where the claimant had failed to comply with case management 25 directions and falsified medical evidence. In relation to the falsification of medical evidence, the EAT found that the claimant had “fatally undermine[d] the trust that the Tribunal can have that she is acting truthfully and in good faith”. Ms Hood drew a parallel with what she described as the claimant’s willingness to make “false allegations” in the present case.

[44]The third question related to remedy. Ms Hood referred to James v Blockbuster Entertainment Ltd

[2006] EWCA Civ 684

and in particular Sedley LJ (at paragraph 7) – “[…] The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact if it is a fact that the tribunal is ready to try the claims; or as the case may be that there is still time in which orderly 5 preparation can be made. It must not of course ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead or if, 10 albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an 15 important check, in the overall interests of justice, upon their consequences.”

[45]Ms Hood argued that it would not be just or fair to require the respondent to allow the claim to proceed in circumstances where faith in the credibility of the claimant has been lost. Strike out was the only proportionate response. Rule 37(1)(c) – non-compliance with Rules or Orders of the Tribunal

[46]Ms Hood set out two questions that I had to answer –(a) Whether the claimant has failed to comply with orders of the Tribunal.

(b) Whether the Tribunal should exercise its discretion to strike out the claimant’s unlawful deduction from wages claim under this ground.

[47]Ms Hood highlighted those respects in which she contended that the claimant had failed to comply with the Tribunal’s orders of 10 June 2019, 11 November 2019 and 8 April 2020. Under reference to Weir Valves and Controls Ltd v Armitage

[2004] ICR 371

(at paragraph 17) Ms Hood set out the matters I had to consider –(a) The magnitude of the non-compliance.

(b) Whether the default was the responsibility of the party or his or her representative.

(d) Whether a fair hearing would still be possible.

(e) Whether striking out or some lesser remedy would be an appropriate response to the disobedience.

[48]Ms Hood argued that the magnitude of non-compliance was significant. The claimant had failed to make her case even slightly more understandable. She had failed to provide the minimum level of specification to give her any reasonable prospect of success or give the respondent fair notice of her claim. Being unrepresented did not exempt the claimant from strike out for 20 non-compliance with orders. Absent such compliance, the respondent did not have fair notice of the claim against it, a fair trial was not possible and strike out was the proportionate response.

[49]Ms Hood referred to Essombe v Nandos Chickenland Ltd

UKEAT/0550/06

25 (at paragraphs 17 and 18) – “[…] We acknowledge that strike-out is a draconian order to be deployed only in a clear and obvious case. This is such a case. The effect of the Claimant’s deliberate decision to disobey the disclosure order was to prevent the 30 Tribunal from having the best evidence on which to base their findings of fact and the Respondent to establish their factual case.” “Tribunal orders are there to be obeyed; otherwise cases cannot be properly case-managed and fairness achieved between the parties.” Significance of application to amend

[50]Ms Hood argued that I should decide the application for strike out based on the claimant’s case as currently pled, without regard to the application to amend. I considered that I should not focus on the merits of the proposed amendment but that it was proper to take cognisance of the existence of the application and that it was opposed. It was one of the matters which formed 10 the background to my decision on strike-out.

[51]That said, I was disappointed that the claimant did not appear in her application to amend to develop what was said by EJ Young to have become clear in discussion at the fourth preliminary hearing on 13 February 2020 – 15 “the claim by the claimant was essentially that she had worked more hours than had been recorded and in respect of the additional hours worked she was due overtime….”.

[52]The claimant has had various opportunities to explain what her claim is 20 about –(a) In her ET1 claim form.

(b) At the first preliminary hearing.

(d) At the second preliminary hearing.

(e) In her response to the orders issued following the second preliminary hearing.

(f) At the fourth preliminary hearing.

(g) In her response to the orders issued on 8 April 2020.

(h) In her application to amend.

(i) At the preliminary hearing on 29 January 2021.

[53]I will deal with the various strands of Rule 37(1). With regard to Rule 37(1)(a), I considered whether the claim had no reasonable prospect of success. There was considerable force in the arguments advanced by Ms Hood. The 10 way in which the claimant had set out her claim was difficult to understand and open to the criticism that her calculations were fundamentally flawed. However, “no reasonable prospect of success” was a high threshhold.

[54]The claimant told me that she could provide a month by month breakdown of 15 the alleged underpayments. I accept this begs the question of, if she is able to do this, why has she not already done so? I am sceptical as to whether the claimant is able to articulate her claim in this way. However, given that she has volunteered to do so, I consider that it would not be proportionate to strike out her claim as having no reasonable prospect of success without 20 affording her a final opportunity to provide the degree of specification necessary for her claim to be understood by the respondent and the Tribunal.

[55]Moving to Rule 37(1)(b), I was satisfied that there had been unreasonable conduct by the claimant. It was explained to her by EJ Hendry that she could 25 not bring a claim for breach of contract as her employment was continuing. Her failure to heed this, resulting in the third preliminary hearing on 4 December 2019, could not be explained by her being unrepresented. EJ Hendry could not have been clearer.

[56]There had also been unreasonable conduct in the claimant’s unfounded allegations in connection with the respondent’s compliance with the documents order and her correspondence with the Tribunal. In these respects, I felt it was necessary to allow the claimant some latitude as an unrepresented party. She had however strayed very close to the point where her behaviour might be judged as sufficiently unreasonable as to merit strike out.

[57]I came to the view that the claimant’s unreasonable behaviour, while 5 regrettable, did not of itself preclude a fair trial. I also decided that strike out because of the claimant’s behaviour would not be appropriate where a lesser penalty was available.

[58]Dealing finally with Rule 37(1)(c), I agreed with Ms Hood that there had been 10 non-compliance with orders of the Tribunal. I considered the magnitude of that non-compliance. There had not in my view been a deliberate decision (as was found in Essombe) of the claimant to disobey an order. There had been delay in relation to the order of 10 June 2019. Thereafter, it was not so much non-compliance but an inability on the part of the claimant to explain in 15 a way that could be understood what her case was about.

[59]Any non-compliance was clearly the responsibility of the claimant as she was unrepresented. She had caused some disruption in the sense that the proceedings had been unnecessarily prolonged by her insistence on taking 20 her ability to pursue a breach of contract claim to a hearing. There had been prejudice to the respondent in having to expend time and cost in preparing for and participating in that hearing.

[60]However, the claimant’s non-compliance did not in my view preclude a fair 25 hearing. I also considered that strike out would not be a proportionate response when a lesser remedy was available.

[61]Strike out is a draconian step and I had to consider whether it was proportionate. One element in that consideration was whether there was an alternative, lesser sanction available. The alternative sought by the respondent was a deposit order.

[62]The claimant has behaved unreasonably over an extended period, particularly in respect of her breach of contract complaint. That explains why her claim, presented on 23 March 2019, has not progressed beyond the preliminary hearing stage. There have now been five such hearings, with 5 another scheduled for 7 March 2021.

[63]I do not believe it can be said that a fair trial is no longer possible. However, if this is to be achieved, the respondent must have fair notice of the claim against it. Despite all of the opportunities the claimant has had, she has still 10 not articulated her claim in a way that can be sensibly understood. She came closest to doing so at the fourth preliminary hearing – see paragraph 51 above.

[64]I have come to the view that the claimant should be allowed one final chance 15 to explain what her claim is about. She must do so in compliance with my order below. She should note that this order is made under Rule 38 of the Tribunal Rules 2013. Rule 38, so far as relevant, provides as follows – “(1) An order may specify that if it is not complied with by the date specified 20 the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, 25 as the result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.”

[65]My order reflects the fact that section 23(4A) ERA applies. The effect of this provision is that the Tribunal cannot consider “so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint”.

[66]The issue of whether or not the claimant has complied with my order shall be decided by the Employment Judge at the preliminary hearing set down for 7 5 March 2021 (or, in the event that for any reason that preliminary hearing does not proceed, by any Employment Judge following the time limit for compliance with my order).

[1]A brief background to the hearing today is set out below.

[2]The Claimant has been employed by the Respondent since 1 December 2014 as a Care and Support Worker. The Claimant’s employment with the Respondent is continuing.

[3]The Claimant lodged a claim for Breach of Contract, Unlawful Deduction from Wages and Loss of Earnings on 23 March 2019. The Respondent lodged a response to this claim on 6 May 2019.

[4]A case management preliminary hearing took place by telephone conference call on 7 June 2019 (Note from Hearing, Document 10, Pages 67-71).

[5]A further case management preliminary hearing took place on 11 November 2019 (Note from Hearing, 25 Document 17, Pages 89 -96).

[6]An open preliminary hearing on strike out of the Claimant’s breach of contract and ‘loss of earnings’ claims took place on 10 December 2019. The Claimant’s breach of contract and loss of earnings claims were struck out (Judgment, Document 18, Pages 97 – 105).

[7]A further case management hearing took place on 13 February 2020 (Note from Hearing, Document 19, Pages 106 -110).

[8]The Respondent made an application to strike out the Claimant’s unlawful deduction from wages claim 35 on 6 May 2020 (Document 23, Pages 116-119).

[9]The open preliminary hearing on 29 January 2021 has been fixed to determine the Respondent’s application for strike out in terms of Rule 37(1)(a)(b)&(c) of the Employment Tribunal Rules of Procedure. B. THE APPLICABLE LEGISLATION AND RULES

[10]The Claimant’s unlawful deduction from wages claim is made under Sections 13 and 23 of the Employment Rights Act 1996 (ERA 1996) (Respondent’s Authority No. 1) “13.— Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision” , in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in 55 writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on 5 the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion. […] 23.— Complaints to [employment tribunals] . (1) A worker may present a complaint to an [employment tribunal] — 3 (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), […]”

[11]The Respondent’s application for strike out is made under Rule 37(1)(a)(b)&(c) of the Employment Tribunal Rules of Procedure contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules). “37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a 20 Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

[12]The first ground of the Respondent’s application is that the Claimant’s claim should be struck out as having no reasonable prospects of success under Rule 37(1)(a).

[13]In order for the Tribunal to determine whether the Claimant’s unlawful deduction from wages claim should be struck out under this ground, the Respondent respectfully submits that two questions will need to be answered:(i) One - whether the Claimant’s claim has any reasonable prospects of success; and

(ii) Two - whether the Tribunal should exercise its discretion to strike out the Claimant’s unlawful deduction from wages claim.

[14]The Respondent has made submissions in respect of each of these questions below. C1 . WHETHER THE CLAIMANT’S CLAIM HAS ANY REASONABLE PROSPECTS OF SUCCESS

[15]The first question for the Tribunal is whether the Claimant’s unlawful deduction from wages claim prospects of success. For the Tribunal to determine that the Claimant’s claim can be struck out it must find that it has no reasonable prospects of success, this is a high threshold.

[16]The Respondent refers the Tribunal to the well-established authority on this point of Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

, in which the Court of Appeal held that where there are facts in dispute, it would only be "very exceptionally" that a case should be struck out without the evidence being tested. It upheld the Employment Appeal Tribunal's decision that Tribunals should not be overzealous in 55 striking out a case as having no reasonable prospect of success, unless the facts as alleged by the claimant disclosed no arguable case in law (Respondent’s Authority No. 8), Paragraph 29, Page 29 of the Judgment).

[17]The Respondent also refers to the case of Balls v Downham Market High School & College

UKEAT/0343/10

in which the Honourable Lady Smith explains (Respondent’s Authority No. 4), Paragraph 6, Page 2 of Judgment) that: “Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant's claim is likely to fail nor is it a matter of asking whether it is possible that his claim 10 will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.”

[18]The Respondent submits that the high threshold established by these cases is met. It invites the Tribunal 15 to find that the Claimant’s unlawful deduction from wages claim discloses no arguable case in law and thereby has no reasonable prospects of success. The Respondent’s reasoning is considered below. Sums not properly payable

[19]The Claimant alleges in her ET1 that she was underpaid by the Respondent for working at the weekends during the claim period (Document 1, Page 15, paragraphs 1 and 3 of the Joint Bundle). The Claimant’s Schedule of Loss sets out the sums that the Claimant maintains and offers to prove that she is entitled to in law. (Document 61, pages 232 – 233 of the Joint Bundle).

[20]The Respondent submits that it is clear from the Claimant’s Schedule of Loss that(1) her claim is based on a flawed understanding of ‘weekend hours’ payments;

(2) the way in which she has calculated the sums that she alleges are due is fundamentally flawed; and

(3) that the Claimant’s claim, taken at its highest, does not disclose an arguable case in law.

[21]The Claimant’s Schedule of Loss refers to monthly payments that she received from the Respondent of £96 and £71 (page 232, paragraphs 1 and 2 of the Joint Bundle) for ‘weekend hours’. She uses these figures as the basis for the calculations of the sums that she alleges that she has been underpaid. These ‘weekend hour’ payments form the basis of the Claimant’s unlawful 35 deduction from wages claim.

[22]It is accepted by the Respondent that the Claimant received payments labelled as ‘weekend hour’ payments on her payslip during the claim period. The Respondent submits that the Claimant has fundamentally misunderstood how she is paid for working at the weekends and what the payments listed as 40 ‘weekend hours’ on her payslip represent.

[23]It can be understood from the Claimant’s Schedule of Loss that she believes the ‘weekend hours’ payments on her payslip to represent her total remuneration for any hours that she had worked at the weekend. This is evidenced in line 1 of paragraph 3 of this document (page 232 of the Joint Bundle) where 45 the Claimant refers to her ‘weekend hours’ payments at her ‘weekend pay’. The Claimant has also attempted to work out what her hourly pay for working at the weekends is using the ‘weekend hour’ payments on her payslips (line 8 of paragraph 1, page 232). This position is incorrect.

[24]The Claimant is contracted to work 36 hours a week. She is paid an annual salary by the Respondent. Her 50 shift pattern, which is subject to change to meet service demand, requires her to undertake some of those contractual hours at the weekends.

[25]In addition to an employee’s basic contractual salary, the Respondent pays its employees Working Time Payments to reward them for providing services outside the Respondent’s normal working hours 55 (Document 58, Page 215, paragraph 1 of the Joint Bundle). One type of these Working Time Payments is payments for ‘Weekend Hours’ (hours worked between midnight on Friday to midnight on Sunday) (Document 49, Page 229 of the Joint Bundle).

[26]The hourly rates in respect of ‘Weekend Hour’ Working Time Payments were £2.22 per hour in 2016/17, £2.24 per hour in 2017/18, £2.32 per hour in 2018/19 and £2.39 in 2019/20 over the Claimant’s claim 5 period. These payments are paid in addition to basic pay (Document 60, page 231 of the Joint Bundle).

[27]The Respondent submits that the ‘Weekend Hours’ payments listed on the Claimant’s payslips and referred to in the Claimant’s Schedule of Loss, reflect the Working Time Payments that her shift pattern attracted for weekend working. The payments were paid on top of her basic salary and do not represent the 10 entire remuneration that she received for weekend working.

[28]The Respondent submits that the Claimant’s failure to understand how she was paid for working at the weekends and her misunderstanding of what the ‘weekend hour’ payments on her payslips represent, go to the heart of her unlawful deductions from wages claim. This fundamental error is such, even if this case had 15 been properly pled, the claim would have no reasonable prospects of success.

[29]Further, the Respondent submits that the Claimant’s calculations as set out in her Schedule of Loss, which are all predicated on the misunderstanding of what the ‘weekend hour’ payments on her payslip represent, are also fundamentally flawed. It is not possible to calculate, as the Claimant has attempted, her hourly rate for weekend working by looking at these payments in isolation. It is also not possible to calculate any overtime payments that she alleges she is entitled to but has not been paid looking at the ‘weekend hour’ payments in isolation.

[30]Further, the Claimant has calculated the sums that she alleges she is owed without any reference to the number hours that she was contracted to work each month within the claim period or the alleged extent to which the hours she actually worked those hours each month. The Respondent submits that this is the minimum information that she would need to include in these calculations to evidence that the sums which she alleges are due were properly payable to her and that her claim has any reasonable prospect of success.

[31]The sums which the Claimant alleges have been deducted from her pay have been calculated using a method that has no bearing at all to her entitlement to pay under her contract of employment (Document 57, pages 190 – 197 of the Joint Bundle) or in the Respondent’s Modernising Pay handbook which sets out pay arrangements for local government employees (Document 58, pages 198 – 225).

[32]There cannot be a deduction unless the wages claimed are properly payable in the first place (section 13(3) of ERA 1996). The Respondent submits that it is clear from the Claimant’s Schedule of Loss that she has no contractual or other entitlement to the sums which she is claiming. Therefore, these wages cannot be said to be properly payable.

[33]The Respondent submits that if the Tribunal finds that the sums are not properly payable, the Tribunal should also find that the Claimant’s claim has no prospect of establishing liability against the Respondent and accordingly has no reasonable prospects of success. C2. WHETHER THE TRIBUNAL SHOULD EXERCISE ITS DISCRETION TO STRIKE OUT THE CLAIM?

[34]The second question for the Tribunal is whether it should exercise its discretion to strike out the Claimant’s unlawful deduction from wages claim. The Respondent respectfully submits that, all in the circumstances, this is a case where the Tribunal should exercise this discretion. The Respondent’s reasoning 50 is set out below.

[35]The Respondent refers to the Right Honourable Lord Justice Underhill’s judgment in the Court of Appeal case of Ahir v British Airways plc [2017] England and Wales Court of Appeal Civ 1392 (Respondent’s Authority No. 2). In this case, the Court upheld an Employment Judge’s decision to strike out the complaints 55 of an employee who had been dismissed for falsifying his CV. The Court accepted that the test for strike-out on this ground with its reference in rule 37(1)(a) to ‘no reasonable prospect of success’ was lower than the test in previous versions of the strike out rule, which referred to the claim being frivolous or vexatious or having ‘no prospect of success’. The Court concluded that the employment judge had rightly described the allegations as ‘fanciful’ and struck out the claims as having no reasonable prospect of success.

[36]The section that the Respondent wishes to refer to is paragraph 16 of the Judgment, as follows: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored."

[37]Ahir relates to a discrimination claim rather than an unlawful deduction from wages claim. However, it is submitted that the Tribunal can rely on the passage above to determine that, if the Claimant has no reasonable prospects of the facts necessary to liability being established (which the Respondent submits she does not), the Tribunal should not be deterred from striking out the claim.

[38]It is also noted that the cautious approach outlined in the Ezsias and Balls cases referred to above stems from the proposition that it is unfair to strike out a claim where there are crucial facts in dispute and there has been no opportunity for the evidence in relation to those facts to be considered.

[39]The Respondent submits that the Claimant’s unlawful deduction from wages claim can be distinguished from other, more fact sensitive claims, such as discrimination or whistleblowing claims. It is the Respondent’s position that it the Tribunal has the information before it, from the documents and the evidence that is led at the preliminary hearing, that it needs to determine whether the claim should be struck out.

[40]The Respondent refers to the Court of Session’s decision Mechkarov v Citibank NA

2016 ICR 1121

, EAT, (Respondent’s Authority No. 10, paragraph 20, page 5 of the Judgment ) where Mr Justice Mitting, referring the decision in Ezsias, observed that there may be cases where it is instantly demonstrable that the central facts in the claim are untrue — such as where the alleged facts are conclusively disproved by the 30 ‘productions’ (i.e. the disclosed documentation) such that is appropriate to strike out the claim.

[41]The Respondent submits that it is instantly demonstratable from the documents before the Tribunal that the Claimant’s claim is based is fundamentally flawed and that she has no entitlement in law to the sums that she maintains she has been underpaid.

[42]It is noted that where a Claimant is unrepresented the Tribunal needs to be particularly cautious before striking out their claim. The Respondent submits that in this case it is open to the Tribunal to exercise its discretion to strike out the claim before it proceeds to a full hearing, even though the Claimant is unrepresented. It is submitted that this case has been poorly pled by the Claimant, however, because the 40 basis of the claim is fundamentally flawed it would not have any prospects of success even if it had been properly pled.

[43]It is further submitted that an unrepresented Claimant must be able to express, in lay persons terms, how they have calculated the sums which they allege they have been underpaid. It is respectfully submitted 45 that allowing a claim to proceed where the Claimant is unable to provide this minimum information, would be to essentially allow a fishing exercise.

[44]It should also be noted that during the course of these proceedings, the Respondent has made several attempts to invite the Claimant to a meeting with a Senior Representative from its HR Department so that 50 the way that she is paid can be explained to her. The Claimant has declined all of these offers.

[45]The Respondent also refers to the overriding objective under Rule 2 which requires Employment Tribunals to deal with cases fairly and justly. The Respondent submits that it would not be fair or just to the Respondent to allow the claim to proceed in circumstances where the Claimant’s claim has no reasonable 55 prospects of success.

[46]The Respondent further submits that strike out is the only proportionate remedy in these circumstances, particularly having regard to the extensive case management, time and expense that has been required in connection with this claim so far. Other remedies such as allowing the Claimant a further opportunity to provide further particulars or issuing an unless order would not address remedy the primary issue - that the claim is fundamentally flawed.

[47]Finally, the Respondent notes that the Claimant has had the opportunity to make representations on the Respondent’s application at preliminary hearing on 29 January 2021. Therefore Rule 37(2) has been complied with. Conclusion

[48]The Respondent submits that the circumstances of this claim are such that, facts as alleged by the Claimant, taken at their highest, disclose no arguable case in law. The Respondent respectfully submits that the Tribunal should exercise its discretion and strike out the claim under rule 37(1)(a). D. UNREASONABLE CONDUCT

[49]The second ground of the Respondent’s application for strike out is that the manner in which the proceedings have been conducted by the Claimant is scandalous and unreasonable such that her claim 20 should be struck out under Rule 37(1)(b).

[50]In order for the Tribunal to determine whether the Claimant’s unlawful deduction from wages claim should be struck out under this ground, the Respondent respectfully submits that the Tribunal should follow the approach set out in Bolch v Chipman

2004 IRLR 140

(Respondent’s Authority No. 5) and that three 25 questions will need to be answered: (one) whether the Claimant has behaved scandalously, unreasonably or vexatiously when conducting the proceedings; (two) whether a fair trial is still possible; and 9 (three) what the appropriate remedy is in the circumstances (including whether it is proportionate to impose a lesser penalty rather than striking out the claim or response).

[51]The Respondent’s submissions in respect of question one, will address whether this ground is 35 established. Its submissions in respect of questions two and three will assist the Tribunal in determining whether it should exercise its discretion to strike out the claim. The Respondent has made submissions in respect of each of these questions below. D1. HAS THIS GROUND BEEN ESTABLISHED?

[52]The first question for the Tribunal is whether the Claimant has behaved scandalously, unreasonably or vexatiously when conducting the proceedings.

[53]The Respondent submits that this ground has been established. The Claimant’s scandalous and 45 unreasonable conduct has been grouped into three categories and considered in turn below:a. the Claimant’s refusal to withdraw her breach of contract claim;

b. the Claimant’s unfounded allegations about the Respondent’s solicitor in connection with the Documents Order dated 18 July 2019; and

c. the Claimant’s dishonestly in her correspondence with the Tribunal. Refusal to withdraw breach of contract claim

[54]A preliminary hearing took place by telephone conference call on 7 June 2019. The hearing was heard by Employment Judge Hendry. A note of the hearing was issued on 13 June 2019 (Document 10, pages 67 -71 of the joint bundle). During this hearing, the issue of whether the Tribunal had jurisdiction to hear the 55 Claimant’s breach of contract claim was discussed.

[55]At paragraph 5 in the Note from the Preliminary Hearing on 7 June 2019 (at page 69 of the Joint Bundle) Employment Judge Hendry states the following: “It appeared from the papers that there were live jurisdiction and time bar issues. I explained that she could not make a claim for breach of contract as her employment was continuing. She will no doubt with to discuss 5 this with her solicitor and take advice on this matter. She should write to the Tribunal within the next 14 days asking for that claim to be dismissed or if she intend proceeding with this claim its legal basis.”

[56]On 26 June 2019, the Respondent wrote to the Tribunal (Document 11, page 72 of the joint bundle) explaining that the Claimant had failed to comply with either the Tribunal’s direction to either withdraw her 10 claim or provide a legal basis for continuing with it, as she had been instructed to do within 14 days of the hearing. The Respondent called on the Claimant to withdraw her claim within the next 7 days and put the Claimant on notice that it may make an application for costs if she failed to do so.

[57]On 11 September 2019, some 3 months after the hearing, the Claimant wrote to the Tribunal (Document 15 13, page 76 of the joint bundle at the second sentence of paragraph 1] stating: “I can not make a informed decision to withdraw my claim of breach of contract without these documents which my contract states I’m legally entitled to see them, the claim maybe thrown out or maybe set a legal precedent either way I cannot make any decisions or construct my argument without seeing my working time patterns […].”

[58]The Respondent submits that this was an unreasonable attempt by the Claimant to stall matters. She had been informed that she would not be able to proceed with her breach of contract whilst she remained in the Respondent’s employment and had a significant period of time to undertake her own research on this point or seek legal advice if she wished to do so. The Claimant’s recognition in these paragraph that her claim ‘may be thrown out or set a legal precedent’ appears to the Respondent to indicate a complete 25 disregard for the time of the Tribunal and the Respondent and demonstrates that the Claimant had no intention of complying with what the Tribunal had asked her to do (i.e. either withdraw her claim or provide a legal basis for it to proceed).

[59]On 11 September 2019, the Respondent made an application for strike out of the Claimant’s breach of 30 contract claim (Document 13 at pages 77 & 78 of the joint bundle).

[60]Following a preliminary hearing on 4 December 2019, the Claimant’s breach of contract claim was dismissed by the Tribunal on the basis that the Tribunal did not have jurisdiction to consider it in terms of the Extension of Jurisdiction (Scotland) Order 1994. (Judgment at Document 18, page 99 of the joint 35 bundle).

[61]The Respondent submits that the Claimant’s unreasonable refusal to withdraw her breach of claim or provide a legal basis for continuing with it led to a delay in the case management of this claim, unnecessary use of the Tribunal’s time and resources and the Respondent being required to incur the costs associated 40 with the hearing of this issue at the preliminary hearing.

[62]The Respondent is accepting of the fact that the Claimant is unrepresented. However, the Respondent submits that on the issue of her standing to bring a breach of contract claim, if the Claimant was in any doubt about her ability to pursue this claim after it had been explained in detail by an Employment Judge, it 45 would have been reasonable for her to undertake some basic research to determine whether she could continue with her claim. She failed to do this. It is the Respondent’s submission that this behaviour was wholly unreasonable. Issues in connection with Documents Order

[63]On 18 July 2019, the Respondent was ordered to provide certain documents to the Claimant by 7 August 2019. The Respondent complied with this order.

[64]Over the following months, the Claimant made repeated requests that that the Tribunal impose a fine in 55 respect of the Respondent’s compliance with the Order without any basis to so.

[65]The Claimant also made a series of serious and unfounded allegations about the Respondent’s representative as follows:64.1 In an email to the Tribunal dated 19 August 2019 (Document 12 at the second paragraph, Page 74 of the joint bundle], the Claimant accused the Respondent’s representative of providing documents that were “either false or very misleading”;

64.2 In emails to the Tribunal dated 11 September 2019 (Document 13 at paragraph 2 of page 76 of the joint bundle) and 25 September 2019 (Document 14, at paragraph 4 on Page 80 of the joint bundle), the Claimant alleged that the Respondent was deliberately withholding documents outlined in the Court Order.

64.3 In an email to the Tribunal dated 25 September 2019 (Document 14 at the second paragraph on Oage 80 of the joint bundle), the Claimant alleged that the Respondent’s solicitor’s actions were ‘reckless and 10 illegal’ and alleged documents had not been disclosed because of ‘their objective of continuing to carry out pay roll fraud’.

64.4 In an email to the Tribunal dated 4 October 2019 (Document 15 at paragraph 1 p84 of the bundle), the Claimant alleged that the documents provided by the Respondent were ‘false records’ and alleges that the Respondent had tried to deceive the Claimant and the Tribunal.

64.5 In an email to the Tribunal dated 15 October 2019 (Document 16 at the last sentence of paragraph 1 p88), the Claimant alleges that the Respondent is ‘fully aware of their deception they are trying [to] pull over me and the Tribunal Services’.

[66]The issue ultimately required a further case management hearing to take place on 11 November 2019 to discuss whether the Respondent had complied with the Documents Order. At this hearing, Employment Judge d’Inverno recorded his determination that the Respondent had furnished the Claimant with all documents within its possession and which within terms of paragraphs 1 to 7 of the Tribunal’s Order, dated 18 July 2019, for the production of documents and the Respondent has thus complied with the Order 25 (Document 17, first paragraph on p89 of the joint bundle).

[67]The Respondent submits that the allegations made by the Claimant about the Respondent’s solicitor are not only unreasonable but go to the heart of whether the Tribunal can continue to place reliance on her veracity going forward in this case. The Tribunal has found that the Respondent did comply with the 30 Documents Order. The Respondent submits that by making baseless serious allegations about the Respondent’s solicitor the Claimant has fundamentally undermined the trust that the Tribunal can have in her.

[68]The Respondent refer the Tribunal to paragraph 55 on page 9 of the of the Employment Appeal 35 Tribunal’s judgement in the Bolch case (Respondent’s Authority No. 5), in which the Honourable Mr Justice Burton states: “We are by no means saying that there can be no finding that proceedings have been conducted in the relevantly objectionable ways, simply because the conduct that occurred is proven to have taken place 40 outside the curtilage of the Tribunal. It is not necessary that such objectionable conduct should either amount to the sending of legal documents, or the receipt of legal documents, or their non-receipt, or behaviour in the waiting room, or behaviour in the court room. There can no doubt be a finding in relation to conduct outside the court room and outside the ambit of legal correspondence which could be found to be a method of conducting the proceedings. For example, it may 45 well be, on appropriate facts, that a Tribunal might find that if there were a threat that unless proceedings were withdrawn some course or other could be taken, that that would amount to a scandalous method of conducting those proceedings. […]”

[69]The Respondent submits that the submission of correspondence to the Tribunal in connection with a 50 claim is conduct of the proceedings, even if it did not take place within a court room. The Claimant had a duty to be honest in her correspondence with the Tribunal. It is submitted that her repeated accusations regarding the Respondent’s solicitor amount to scandalous and unreasonable conduct of the proceedings. Being dishonest about the Respondent’s compliance with a case management order

[70]In correspondence dated 7 July 2020 (Document 24, Page 120 of the joint bundle), the Tribunal outlined Employment Judge d’Inverno’s practice direction which included various actions on both the Claimant and Respondent. The fourth part of the practice direction was as follows: “(Fourth) orders the Respondent’s Representative, within a further 14 days thereafter, that is within 28 days of the date upon which this order is sent to the parties, to submit and intimate to the Claimant updated grounds of objections, if objection is insisted upon, to the Application for Leave to Amend.”

[71]The Respondent was therefore required to lodge this document within 28 days of 7 July 2020 (the date 10 when the correspondence was received by the parties). The Respondent fully complied with this order lodging the its updated grounds of objection on 3 August 2020.

[72]The Claimant emailed the Tribunal on 3 August 2020 (Document 25 at page 122 of the joint bundle) incorrectly stating (at paragraph 1) that the Respondent had failed to comply with the Court Order dated 7 15 July 2020 and (at paragraph 4) that the Respondent’s was in ‘contempt of court’ and had ignored orders of the Tribunal.

[73]The Respondent submits that there has been a pattern of the Claimant’s behaviour throughout these proceedings, where she wilfully and dishonestly attempted to discredit the Respondent and its 20 Representative, without any basis to do so. The Claimant’s email dated 3 August 2020 is a further example of this behaviour.

[74]This behaviour is unreasonable, wastes the time of the Respondent (in respect of a need to clarify matters) and the Tribunal. It also shows a disregard for the Tribunal. The Respondent submits that this issue 25 again demonstrates that the Tribunal cannot place any weight on the Claimant’s reliability and credibility in the conduct of these proceedings. D2. WHETHER A FAIR TRIAL IS STILL POSSIBLE

[75]The second question for the Tribunal to consider is whether the Claimant’s conduct is such that a fair trial is no longer possible.

[76]The Claimant’s failure to comply with the Practice Directions and Orders that relate to her (which is considered in more detail under the Respondent’s third ground of strike out) and her attitude to 35 withdrawing her breach of contract claim led to significant delays to these proceedings and required unnecessary use of Tribunal time. It is submitted that this behaviour forms part of a pattern of conduct which demonstrates that a fair trial is no longer possible.

[77]The Respondent refers to the case of Edmondson v BMI Healthcare and anor EAT 0654/01 40 (Respondent’s Authority No. 6) in which the Employment Appeal Tribunal upheld an Employment Tribunal’s decision to strike out a claim on the basis that the conduct of the claimant’s representative had been scandalous, frivolous and vexatious, and had made it impossible for a fair trial to continue. One of the key issues considered by the Tribunal was that at the hearing, the Claimant’s representative called the employer’s solicitor a liar (considered at paragraph 26 of the Judgment on Page 6).

[78]The Respondent refers to the first paragraph on page 7 of the judgment where the EAT has set out the Tribunal’s reasoning for striking out the claim, as follows: “ 24. There were a number of reasons why the Tribunal considered that the behaviour of Mr Graham went 50 far beyond acceptable standards of behaviour and fell into the category of the frivolous, vexatious and scandalous. Firstly, the interruptions and the interference with the Applicant whilst she was seeking to give her evidence. The Tribunal considered this made it impossible for a fair trial to continue. Secondly, the allegation and accusation of the Respondent's Solicitor being a liar and the Applicant's failure to retract this and indeed the compounding of the problem by repeating it. We could not agree with his analysis that the 55 letter on page 358 of the bundle demonstrated that he had had been called a liar first by Mr White nor that there was anything improper in that letter […] Further warnings were thought to be fruitless and the crucial issue, the acid test, for the Tribunal was that it would be impossible for a just disposal of the case to occur given the behaviour of Mr Graham. We did not consider that he would abide by his assertion that the conduct would not be repeated. The earlier final warnings had not worked.”

[79]The Respondent submits that the comments that were made by the Claimant to the Tribunal over a number of months in relation to the Documents Order were scandalous, unreasonable and make it impossible for a fair trial to continue. The Tribunal recorded its determination at the hearing on 11 November 2019, that the Respondent had complied with the Order (Document 17, Page 89). Therefore, the Respondent submits that it is open to the Tribunal to find that the Claimant’s allegations had no truthful 10 basis and were an attempt to discredit the Respondent’s representative.

[80]The Respondent also refers to the Employment Appeal Tribunal case of Sud v Hounslow LBC [2015] 10 WLUK 651 (Respondent’s Authority No. 11). In this case, the Employment Appeal Tribunal found that an Employment Judge had been entitled to strike out a claim and order the claimant to pay a contribution 15 towards the defendant's costs where she had failed to comply with case management directions and had falsified medical evidence in order to secure a postponement of the trial. That conduct had fatally undermined the trust that the tribunal could have in the claimant's veracity and meant that a fair trial was no longer possible.

[81]The Respondent refers to paragraph 30 on page 8 of the Judgment, as follows: “30. The EJ went on to direct herself that her finding that there had been wilful disobedience would not allow her to strike out the case on that basis alone. She said there was also the question of whether a fair trial was still possible. She reminded herself that she had formed the view that the Claimant's conduct with regard to 25 the medical evidence had made a fair trial impossible. She said this: “37c. … The fact of her having misled the tribunal as to the existence of medical evidence supporting her adjournment application in May 2012 and her having manually altered the date on a document to bolster her position, fatally undermine the trust that the tribunal can have that she is acting truthfully and in good faith. I can see no way that a fair trial of the issues can take place in such circumstances. Strike out of a claim 30 should not be a form of punishment for having conducted a case in an unreasonable manner, particularly a case involving allegations of discrimination by an employer. But strike out where a fair trial is no longer possible because faith in the credibility of the claimant has been lost, is a different matter.”

[82]The Respondent contends that the comments made by the Claimant in correspondence to the Tribunal 35 demonstrate that she is willing to make false allegations to the Tribunal in an attempt to further her own position. Further, reporting to the Tribunal that the Respondent had not complied with an order without a basis to do so also adds weight to the argument that the Claimant’s veracity cannot be relied on by the Tribunal.

[83]The Respondent invites the Tribunal to find that it cannot have faith that the Claimant will be truthful in her correspondence and the evidence that she provides. Therefore, it is submitted that it is not possible for a fair hearing to continue.

[84]The Respondent submits that in all the circumstances a fair trial is no longer possible and that the 45 Tribunal should exercise its discretion to strike out the Claimant’s claim under rule 37(1)(B). D3. THE APPROPRIATE REMEDY

[85]The third and final question for the Tribunal to consider is what the appropriate remedy is in the 50 circumstances (including whether it would be proportionate to impose a lesser penalty rather than striking out the claim).

[86]The Respondent refers to the Court of Appeal’s decision in James v Blockbuster Entertainment Ltd

[2006] EWCA Civ 684

(Respondent’s Authority No. 9) in which the Court explained the importance of 55 considering the proportionality of strike out in cases where the Claimant’s conduct is unreasonable.

[87]The Respondent refers to Lord Justice Sedley’s findings in the fourth sentence of paragraph 21 at page 7 of the judgment. “[…]The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact if it is a fact that the 5 tribunal is ready to try the claims; or as the case may be that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without 10 unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”

[88]The Respondent submits that the Claimant’s conduct in relation to her breach of contract claim is significant but in isolation may not be sufficient to make strike out proportionate. However, this behaviour forms part of a course of conduct, which when considered as a whole, demonstrates that strike out is a proportionate response.

[89]In particular, the Respondent submits that once a Claimant has demonstrated that the Tribunal cannot rely on her veracity in respect of the conduct of the proceedings, such that a fair trial is no longer possible, this cannot be remedied.

[90]The Respondent a refers to the overriding objective under Rule 2 which requires Employment Tribunals 25 to deal with cases fairly and justly. The Respondent submits that it would not be fair or just to the Respondent to allow the claim to proceed in circumstances where faith in the credibility of the claimant has been lost. Therefore, it is submitted that, in all the circumstances, strike out is the only proportionate response.

[91]Finally, the Respondent notes that the Claimant has had the opportunity to make representations on the Respondent’s application at preliminary hearing on 29 January 2021. Therefore Rule 37(2) has been complied with. Conclusion

[92]The Respondent submits that the manner in which the proceedings have been conducted by the Claimant is scandalous and unreasonable. The Respondent respectfully submits that the Tribunal should exercise its discretion and strike out the claim under rule 37(1)(b). E. FAILURE TO COMPLY WITH ORDERS OF THE TRIBUNAL

[93]The third ground and final ground of the Respondent’s application for strike out is that the Claimant’s claim should be struck out under Rule 37(1)(C) because of her non-compliance with orders of the Tribunal.

[94]In order for the Tribunal to determine whether the Claimant’s unlawful deduction from wages claim should be struck out under this ground, the Respondent respectfully submits that two questions will need to be answered: One - whether the Claimant has failed to comply with orders of the Tribunal; and Two - whether the Tribunal should exercise its discretion to strike out the Claimant’s unlawful deduction from wages claim under this ground.

[95]The Respondent has made submissions in respect of each of these questions below. E1. HAS THE CLAIMANT FAILED TO COMPLY WITH AN ORDER OF THE TRIBUNAL?

[96]The first question for the Tribunal to consider under this ground is whether the Claimant has failed to comply with an order or orders of the Tribunal.

[97]The Respondent submits that the Claimant has repeatedly failed to comply with orders and directions of the Tribunal that have been made during the course of these proceedings. For the purpose of these submissions, the Respondent’s particular focus is those Orders which were made with the intended purpose of requiring the Claimant to provide adequate specification in respect of her claim.

[98]In particular, the Respondent draws the Tribunal’s attention to extent of the Claimant’s compliance with the following orders: Order dated 10 June 2019

[99]On 10 June 2019, the Claimant was ordered by the Tribunal to provide written further particulars in relation to her claims (at that time claims for breach of contract, ‘loss of earnings’ and unlawful deductions from wages). The Order was made in the following terms (outlined in the Note from Closed Preliminary Hearing, Document 10, pages 67 & 68 of the joint bundle): “1. No later than 21 days after the date of this Order, the Claimant shall send to the respondent, copied to the Tribunal, written further particulars containing full details (set out in chronological short numbered paragraphs and with page numbers if appropriate) of all the events upon which she relies in support of her claims, including in particular: i(i) the date of each event or incident; ii

(ii) the persons involved; and iii

(iii) what happened and what was done or said in each case.”

[100]The Claimant did not do what the Tribunal had asked her to do. Instead, on 19 August 2019, the Claimant provided the Respondent and the Tribunal with a 21-page document entitled “grievance 1”. This 30 was grievance that she had lodged with the Respondent in December 2018 (Document 51, Pages 160 – 181 of the joint bundle and Claimant’s cover email at Document 12, page 74 of the joint bundle).

[101]The Respondent submits that the Claimant did not comply with the Tribunal’s order. It was unacceptable to lodge a grievance that she had submitted to the Respondent several months before she 35 lodged her claim. The Claimant failed to make any attempt to further particularise her claims, explain which events she relied on in support in support of her claims or to set out these events in the way that the Tribunal had ordered.

[102]This document was lodged by the Claimant on 19 August 2019, 1 month and 18 days after the deadline 40 in the Order (1 July 2019). Order dated 11 November 2019

[103]On 11 November 2019, the Claimant was ordered to provide further particulars specifically in relation 45 to her unlawful deductions from wages claim.

[104]The Order was made in the following terms (outlined in the Note from Closed Preliminary Hearing, Document 17, Page 90) : “(Second) orders the claimant to furnish the respondent with further Particulars of Claimant with a copy to the Tribunal, within 10 days of 11 November 2019, setting out each period of time, that is “from date x to date y”, in respect of which the claimant maintains and offers to provide she had entitlement in law to working time payments, and in respect of each such period, the sum she asserts the Respondent has withheld being the amount claimed by her, together with a note setting out the basis upon which each sum 55 is calculated”.

[105]On 22 November 2019, the Claimant provided parties with a document entitled ‘Claim Statement 2019’ (Document 3, pages 37 – 39).

[106]The Respondent submits that although the Claimant provided information in response to the Tribunal’s order, the document that she submitted (and the calculations contained within it) was so unclear and 5 confused that in reality she did not comply with what the Tribunal had asked her to do. It was not clear from this document how the Claimant had calculated the sums which she maintains have been unlawfully deducted from her.

[107]The Respondent also submits that was not sufficient for the Claimant to break her claim period, which 10 spans from May 2016 – August 2019 (time bar issues being reserved to the full hearing), into only three periods. The Claimant is paid by the Respondent monthly. The Respondent submits that for the Claimant to give the Respondent fair notice of her claim she would have to explain how she has calculated that she has been underpaid for each month in her claim period. Orders dated 8 April 2020

[108]On 19 March 2020, in a further attempt to understand the basis of the Claimant’s unlawful deduction from wages claim, the Respondent made an application for orders for the Claimant to(1) provide information and

(2) a schedule of loss. These orders are made by the Tribunal on 8 April 2020.

[109]These Orders were made in the following terms: Order for Information (Document 11, pages 111 – 112) “On or before 29 April 2020, you shall provide the Respondent’s representative, with a copy to the Tribunal at the address shown in the enclosed letter, with the information set out in the attached Schedule overleaf 1. Is the unlawful deductions from wages claim for alleged unpaid overtime; 2. If the claim is for alleged unpaid overtime, does it relate to weekend working only’ 3. Is the unlawful deductions claim for alleged unpaid working time payments; 4. If the claim is for alleged unpaid working time payments, does it relate to weekend working only.” Schedule of Loss (Document 12, pages 113 – 114) 19 “On or before 29 April 2020, you shall provide the Respondent’s representative, with a copy to the Tribunal 35 at the address shown in the enclosed letter, with the information set out in the attached Schedule overleaf A Schedule of Loss which sets out how the sums that the Claimant maintains and offers to prove that she is entitled to in law have been calculated”.

[110]On the 19 April 2020, the Claim submitted documents in respect to these orders. It is the Respondent’s submission that the responses to these Orders are wholly inadequate such that the Claimant cannot be said 40 to have complied with them.

[111]The Claimant’s response to the Order to provide information (Document 5 at page 51) is unclear. The Claimant’s position as outlined in this document is that her claim is for both(1) overtime and

(2) working time payments for both the weekends and during the week. These are two separate payments which would 45 be calculated in different ways.

[112]This information is completely at odds with the information that the Claimant at the same time in the Schedule of Loss (Document 61, pages 232 – 233). The Claimant has not provided separate calculations in respect of overtime and working time payments. There are no calculations in the Schedule of Loss relating 50 to Working Time Payments at all. The calculations in the Schedule of Loss do not make any reference to pay for hours worked at any time other than at the weekend.

[113]The Respondent also submits that the Claimant’s Schedule of Loss, is almost entirely a word for word repetition of the paragraphs of the document that she lodged in response to the Order of the Tribunal dated 55 11 November 2019 (Document 3, Pages 38 and 39 under the heading ‘back pay of wages’).

[114]The Respondent submits that the Claimant has not complied with each of the Orders of the Tribunal dated 7 June 2019, 11 November 2019 and 8 April 2020 when considered in isolation and cumulatively. The Respondent submits that this t ground under Rule 37(1)(c) has been met. E2. SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO STRIKE OUT THE CLAIM?

[115]The Respondent submits that the next question for the Tribunal is whether it should exercise its discretion to strike out the Claimant’s unlawful deduction from wages claim under this ground.

[116]The Respondent refers to the case of Weir Valves and Controls (UK) Ltd v Armitage

2004 ICR 371

, EAT (Respondent’s Authority No. 12) which confirmed that in deciding whether to strike out a party’s case for non-compliance with an order under Rule 37(1)(c), a Tribunal should have regard to the overriding objective set out in rule 2 of seeking to deal with cases fairly and justly. This requires a Tribunal to consider all relevant factors (set out at paragraph 17 of page 3 of the Judgment), including:a. the magnitude of the non-compliance;

b. whether the default was the responsibility of the party or his or her representative;

c. what disruption, unfairness or prejudice has been caused;

d. whether a fair hearing would still be possible; and

e. whether striking out or some lesser remedy would be an appropriate response to the disobedience.

[117]The Respondent has considered each of these factors in turn below. The magnitude of the non-compliance.

[118]The Respondent submits that the extent and magnitude of the Claimant’s non-compliance with the orders of the Tribunal is significant.

[119]The Respondent submits that the Claimant failed to comply with the Order of the Tribunal dated 7 June 2019 at all.

[120]The Respondent further submits that although, on the face of it, the Claimant submitted additional information in response to the Orders dated 11 November 2019 and those dated 8 April 2020. In reality, she has made such little effort to do what the Tribunal had asked her to do, which was to adequately specify her claim, she cannot be said to have complied with the Orders.

[121]The Respondent refers to the case of EB v BA

UKEAT/0139/08

and

UKEAT/0138/08

(Respondent’s Authority No.3) in which a Claimant’s claim was struck out after she complied with a "literal construction" of the tribunal's order but, having understood the intention behind the order, was found to have "deliberately flouted" it (considered in paragraph 33 in Page 7 of the Judgment). In that case, The Employment Appeal Tribunal upheld the tribunal's decision to strike out her claim. The claimant had alleged that her employer's 40 failure to consider her for over 900 work projects was sex discrimination. The tribunal ordered her to narrow down the list with a view to making the claim more manageable. However, the claimant then told the tribunal that she still wished to pursue all 900 projects. Since the tribunal had explained why it was making the order, and the claimant had failed to make the case slightly more manageable, she was found to have breached the order, resulting in the striking out of her case.

[122]In relation to the most recent Orders dated 8 April 2020, the Claimant submitted two documents(1) in respect to the Order to provide information and

(2) a Schedule of Loss. These documents conflict with each other to the extent that they serve to significantly confuse matters rather than claim how the Claimant maintains and offers to prove that the Respondent has unlawfully deducted wages from her. Further, the Claimant’s Schedule of Loss for the most part, amounted a word for word repetition of the paragraphs of 50 the document that she lodged with the Tribunal on 22 November 2019 (at pages 38 and 39 of the joint bundle).

[123]The Respondent submits, with reference to EB v BA, that in the present case, the reason for these Orders was self-evident, there was an ongoing requirement for the Claimant to adequately explain the basis of her claim. The claimant has failed to make her case even slightly more understandable and in these circumstances, the Tribunal should find that although she complied with the literal interpretation of the order, she has deliberately flouted it and that the magnitude of her failure to comply with these orders is 5 significant.

[124]The Respondent submits that the Claimant’s non-compliance with these Orders should be considered cumulatively and that the Tribunal should find that the Claimant extent of the Claimant’s failure is significant. Whether the default was the responsibility of the party or his or her representative

[125]The Claimant in this case is unrepresented. It is clear that the responsibility to comply with orders of the Tribunal falls on her.

[126]The Respondent notes that, in some circumstances, unrepresented parties may struggle to comply fully (or at all) with Tribunal orders within the specified timescale and that the Tribunal will wish to take that into account when determining whether to strike out a claim for non-compliance with order(s).

[127]The Respondent submits that in having due regard to the Claimant not being legally represented, the 20 Respondent made a number of applications seeking adequate specification during the course of these proceedings, rather than making an immediate application for strike out for her non-compliance. This case has now been ongoing for almost two years and the Respondent submits that the Claimant has not provided the minimum specification required to give either(1) give her any reasonable prospects of success of liability being established (considered under the first ground of strike out above) or

(2) give the Respondent 25 fair notice of the claim against it.

[128]The Respondent submits that it is clear that the Claimant understands the importance of Orders and the need to fully comply with them. This is evident from her correspondence to the Tribunal where she repeatedly calls for the Tribunal to impose a fine on the Respondent for its alleged non-compliance with the provision of documents (Document 13, Page 76 and Document 15, Page 84 of the bundle).

[129]The Respondent submits that, although a factor for the Tribunal to consider, the Claimant’s unrepresented status does not exempt her from strike out for non-compliance of orders. It is submitted, that in all the circumstances, strike out is appropriate in this case. What disruption, unfairness or prejudice has been caused

[130]The Claimant’s claim was lodged in March 2019. The Respondent is in a position where, after almost two years, it still does not have fair notice of the claimant’s unlawful deduction from wages claim.

[131]The Respondent refers to the case of Essombe v Nandos Chickenland Ltd

UKEAT/0550/06

40 (Respondent’s Authority 7). In this case the Employment Appeal Tribunal upheld the strike-out of the Claimant’s claims due to his wilful disobedience of an order after he refused to comply with the Tribunal's order to disclose tape recordings he had made during a disciplinary hearing. The Respondent refers to paragraphs 17 and 18 of his Honour Judge Peter Clark’s Judgment: “17. […]We acknowledge that strike-out is a draconian order to be deployed only in a clear and obvious case. This is such a case. The effect of the Claimant's deliberate decision to disobey the disclosure order was to prevent the Tribunal from having the best evidence on which to base their findings of fact and the Respondent to establish their factual case. As Mr Difelice submits, it is unlikely that the Claimant would withhold the recording if it advanced his case on the disputed evidence. 18. We also accept the public policy argument advanced by Mr Difelice. Tribunal orders are there to be obeyed; otherwise cases cannot be properly case-managed and fairness achieved between the parties.”

[132]With reference to the Essombe case, the Respondent submits that the Claimant’s continued failure to comply with these orders has had serious consequences, including that the Respondent does not have fair notice of the claim against it.

[133]The Respondent also submits that there is a public policy argument in the present case. Tribunal orders 5 are there to be obeyed; otherwise cases cannot be properly case-managed, and fairness achieved between the parties.

[134]With reference to significant case management that has already taken place during these proceedings, the Respondent submits fairness cannot be achieved between the parties, if the Claimant’s claim is allowed 10 to proceed in these circumstances. Whether a fair hearing would still be possible

[135]As above, the Respondent submits that the Claimant’s failure to comply with these orders has resulted 15 in it not having fair notice of the claim against it. In these circumstances a fair hearing is not possible. Whether striking out or some lesser remedy would be an appropriate response to the disobedience.

[136]Whenever a tribunal is considering a strike-out on the ground of non-compliance with prior orders 20 pursuant to Rule 37(1)(c), it must consider whether such an order is a proportionate response to the noncompliance (Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA – Respondent’s Authorities No.9).

[137]The Respondent submits that in all the circumstances, strike out is a proportionate response to the 25 Claimant’s failure to comply with the orders of the Tribunal and that no lesser sanction will maintain the fairness between the parties for the following reasons:136.1 the Claimant has had repeated opportunities over a number of years to express her claim in a way that gives the Respondent fair notice of the claim against it and has failed to do so;

136.2 the Claimant is not even attempting to narrow down the issues or explain her claim in a different way (instead she is repeated providing the same information, thereby any prejudice to her is wholly self-induced; and

136.3 there is no reason to believe that any future orders made by the Tribunal which seek proper specification would be any more successful in eliciting the required information. The Claimant has shown that further chances to articulate her claim will not be of assistance. She will simply submit variations of the information already before the parties.

[138]The Respondent submits that in the circumstances, having regard to the background to this matter and the significant time and expense that has been incurred by the Respondent in trying to narrow down the issues and understand exactly what the Claimant believes she is entitled to and why, the only appropriate remedy is strike out.

[139]Finally, the Respondent notes that the Claimant has had the opportunity to make representations on 45 the Respondent’s application at preliminary hearing on 29 January 2021. Therefore Rule 37(2) has been complied with. Conclusion

[140]The Respondent submits that the Claimant has failed to comply with Orders of the Tribunal. The Respondent respectfully submits that the Tribunal should exercise its discretion and strike out the claim under rule 37(1)(c). A. F. DEPOSIT ORDER

[141]The Respondent in the alternative requests that, in accordance with rule 39 of the ET Rules, if the tribunal is minded not to strike out the claim under rule 37(1)(a)(b) or (c), the tribunal make an order that 5 the Claimant pay a deposit order of £750 in order to continue with the proceedings.

[142]It is the Respondent's case that the claim has no reasonable prospects of success for the reasons set out at Part C of these submissions above. It is submitted that the test for a deposit order is not as rigorous as the "no reasonable prospect of success" test in rule 37(1)(a) under which the Tribunal can strike out a 10 party's case.

[143]The Respondent submits that an order in the terms requested would assist the tribunal in dealing with the proceedings efficiently and fairly and in accordance with the overriding objective. Despite significant case management to date and repeated applications by the Respondent for Orders to require the Claimant 15 to adequately specify her claim, the Claimant has not provided the Respondent with fair notice of her unlawful deductions from wages claim. The Respondent submits that in the circumstances it would not be just to the Respondent to allow the claim to proceed without the Claimant paying a deposit. Submissions on behalf of the Respondent The City of Edinburgh Council 24 28 January 2021 ETZ4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4103132/2019 Held at Edinburgh on 12 September 2022 Employment Judge W A Meiklejohn Miss L Kashina Claimant In person City of Edinburgh Council Respondent Represented by: Ms A Hood - Solicitor

[1]This case came before me for a hearing to determine the application made by the claimant under Rule 38(2) of the Tribunal Rules to set aside the decision (of Employment Judge Jones) to dismiss her claim of unlawful deduction of wages . The circumstances in which that decision was taken are explained below. 410 3132/2019 Page 2

[2]The claimant participated in person. The respondent was represented by Ms Hood, Solicitor. Both sides provided bundles of documents. I refer to these by page number, prefixed by “C” in the case of the claimant and “R” in the case of the respondent. Preliminary issue

[3]In the outline submissions she provided in advance of the hearing, Ms Hood highlighted what appeared to be an administrative error on the part of the Tribunal in the letter dated 16 June 2022 (R141-142). That letter stated that 10 “the claimant is informed that her claim of unlawful deduction of wages has been dismissed in terms of Rule 38(2).

[4]The background to this was found in the Order made by the Employment Appeal Tribunal (“EAT”) dated 27 April 2022 (R140). This was in the 15 following terms- “The Tribunal orders that the Judgement of 2nd March 2021 be set aside and the case remitted to the Employment Tribunal with a direction that the Tribunal make an order under Rule 38 for dismissal of the claim for unlawful 20 deductions.”

[5]The “Judgement of 2nd March 2021” was a decision of EJ Jones (R134-135) dated 26 February 2021 and sent to the parties on 2 March 2021. That decision was to strike out the claim of unlawful deduction of wages under 25 Rule 37 of the Tribunal Rules on the grounds of “non compliance with an Order of the Tribunal in terms of rule 37(1)(c)”.

[6]On 16 March 2021 the claimant submitted an application for reconsideration of that decision (R136-138). On 23 March 2021 the Tribunal wrote to the 30 claimant (R139) stating that her application for reconsideration had been referred to EJ Jones. The letter continued – 410 3132/2019 Page 3 “Your application has been refused because the Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked. Although the Claimant did provide information in relation to her claim of 5 unlawful deduction from wages by email after the date on which there was to be compliance with the Unless Order, that information did not comply with the terms of the Order.”

[7]The claimant then submitted her appeal to the EAT. The outcome was the 10 Order referred to in paragraph 4 above. The Tribunal proceeded as directed and issued the letter of 16 June 2022 (R141-142). However, the reference in that letter to Rule 38(2) was incorrect. The letter should have referred to Rule 38(1).

[8]Ms Hood invited me to deal with this under Rule 69. Rule 69 provides as follows – “An Employment Judge may at any time correct any clerical mistake or other accidental slip or omission in any order, judgment or other document 20 produced by a Tribunal. If such a correction is made, any published version of the document shall also be corrected. If any document is corrected under this rule, a copy of the corrected version, signed by the Judge, shall be sent to all the parties.”

[9]I considered that this was the correct way to deal with the matter. The claimant agreed and so I was able to proceed by consent of the parties under Rule 69. I have amended a copy of the Tribunal’s letter of 16 June 2022 by substituting “38(1)” for “38(2)” and have signed this, and have directed that a copy of the corrected version be sent to the parties. Procedural history 410 3132/2019 Page 4

[10]I set out the procedural history of the case in my Judgment following the preliminary hearing which took place on 29 January 2021 (R91-128). I will not repeat that here, and will refer only to what has happened since that date.

[11]My Judgment contained an Order (the “Unless Order”) in these terms – “By virtue of the power to do so under Rules 29 and 38 of the Tribunal Rules 2013, I make the following Order – Not later than 5.00pm on 19 February 2021 the claimant shall provide to the 10 respondent and the Tribunal further and better particulars of her complaint of unlawful deduction of wages which comply with the following requirements –(a) For each month between March 2017 and February 2019, the claimant shall state the amount which she alleges she has suffered by way of 15 unlawful deduction of wages.

(b) For each amount so stated, the claimant shall provide an explanation of how that amount has been calculated by her.

(c) The claimant’s explanation for each amount said by her to be an unlawful deduction of wages shall be expressed in clear and unambiguous terms such that it can be readily understood by the respondent and the Tribunal. If this Order is not complied with by 5.00pm on 19 February 2021, the claimant’s complaint of unlawful deduction of wages shall be dismissed 25 without further order.”

[12]The claimant did not provide anything by way of compliance with the Unless Order prior to the deadline of 5.00pm on 19 February 2021. On 22 February 2021 the respondents’ solicitor wrote to the Tribunal (R129) requesting that 30(a) the claim be dismissed without further order and

(b) the preliminary hearing set down for 9 March 2021 be cancelled. That preliminary hearing had been fixed to deal with an application to amend made by the claimant. 410 3132/2019 Page 5

[13]The claimant sent an email to the Tribunal on 23 February 2021 (R130) in these terms – “my apologies to the respondent and the tribunal for the lateness in 5 responding to the court order set out by judge Meiklejohn I attach the document of particulars that the respondent requested, I have also created a visual diagram that represents how i worked out my sums and visual representation of my incorrect shift pattern which I base my calculations on which i will submit to the tribunal and respondent as evidence by Monday 1st 10 march 2021 in photographic form which sets out my working week, week by week from October 2017 to august 2019 in a diagram.”

[14]The claimant attached to her email a two page document (R132-134). This was virtually identical to the equivalent paragraphs in the Further and Better 15 Particulars (R41-43) submitted by the claimant on 22 November 2019. The events described in paragraphs 4-7 above then ensued.

[15]The claimant emailed the Tribunal on 20 June 2022 (R143) with her application under Rule 38(2) to have the dismissal of her claim set aside. 20 That application (R144) was in these terms – “In response to the court order of a strike out under rule 38(2) I’m writing to the tribunal to request to have the court order set aside on the basis that it is in the interests of justice to do so as I believe my case has substance to be 25 heard at a tribunal hearing, I require a hearing to be heard in front of a judge to present the reasons as to why my case should be reinstated” Rule 38

[16]Rule 38 of the Employment Tribunal Rules of Procedure 2013 provides, so far as relevant, as follows – 410 3132/2019 Page 6 “(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of 10 written representations….” Evidence and findings in fact

[17]I heard evidence from the claimant. She told me that she did not see the 15 Order contained in my Judgment following the hearing on 29 January 2021. She read only the first few pages of the Judgment. There was a further hearing due to take place some four weeks later and she decided to read the Judgment in full nearer the date of that hearing.

[18]Having read the first few pages (in which she would have seen that the respondent’s applications for strike out under Rule 37 or, in the alternative, a deposit order under Rule 39 had been refused) the claimant thought she did not need to read any further. She said that an Order was usually separate (in this case it was set out at page 20 of the Judgment) or was flagged up in an 25 email from the Tribunal. As soon as she received Ms Hood’s email of 22 February 2021 she submitted her “document of particulars”. This was her belated compliance with the Rule 38 Order.

[19]The claimant said that she had been “stupid” and that she should have read 30 every page of the Judgment. She accepted that(a) she knew she had to clarify the amount she was claiming and

(b) it would have been sensible to check if the Tribunal had issued an Order. The claimant accepted that she knew she would be asked for a breakdown, otherwise she would not have 410 3132/2019 Page 7 gone to the trouble of doing the spreadsheet. The claimant also accepted that she had, prior to the hearing on 29 January 2021, expressed her claim in a way that could not be understood by the Tribunal.

[20]The claimant said that the material she had “created” comprised the 5 spreadsheets contained in her bundle (C24-27). Unfortunately C24 was illegible but at the hearing the claimant provided a legible version. The main features of this were as follows –(a) It was arranged on a weekly basis covering the period from week 10 commencing 2 May 2016 to week commencing 25 March 2019.

(b) It contained the following column headings (with information in respect of each week under each heading) –

• Actual hours worked (weekday)

• Actual hours worked (weekend)

• Total actual hours worked

• Hours reported on HR rota (weekday)

• Hours reported on HR rota (weekend)

• Total hours reported on HR rota

• Hours worked/rota variance W.D.

• Hours worked/rota variance W.E.

• Hours worked eligible for overtime W.D. 410 3132/2019 Page 8

• Hours worked eligible for overtime W.E.

• Hourly rate (weekday)

• Hourly rate (weekend)

• Overtime hourly bonus W.D.

• Overtime hourly bonus W.E.

• Unpaid wages (I understood that “W.D.” and “W.E.” were abbreviations for weekday and weekend respectively).

[21]The claimant also provided more legible versions of C25-27. The main features were as follows –(a) The figures were again arranged on a weekly basis, covering more or less the same period.

(b) There were three column headings –

• Hours worked

• Hours reported on rota to HR

• Hours worked exceeding those reported to HR

(c) Below these column headings the claimant had set out the relevant numbers of hours on a daily basis for each week. 410 3132/2019 Page 9

[22]The claimant said that she had created these documents following the hearing on 29 January 2021. She had been assisted by an accountant. The documents were in existence at the time she emailed the Tribunal on 23 February 2021. She said that she had not submitted the spreadsheet 5 documents at that time because she thought they would be gone through at the hearing on her application to amend. She thought the document she did submit (R132-133) would be sufficient.

[23]The claimant’s bundle contained two pages from her Statement of 10 Employment Particulars (C5-6). She said that these confirmed her entitlement to overtime. The relevant paragraphs (under section 7 – Pay) were as follows – “The grade for the post is Grade 4, currently £16437 - £19067 (SCP 23 – 15 SCP 33) per annum. Your base salary will be £16437 (SCP 23) per annum, pro-rated if part-time. In addition to your base salary you will receive £2831.36 in working time payments. The payments and the way they are calculated are contained in 20 the Modernising Pay Handbook. Working Time Payments may change or stop if regular working patterns change…. Frequent overtime working is not encouraged. However, there may be occasions where overtime is required to meet the service requirements. The 25 rules for overtime and public holiday working are explained in the Modernising Pay handbook.”

[24]The claimant’s bundle also contained a number of documents which bore to relate to her working pattern (C7-12). The claimant’s position was that, 30 notwithstanding what these documents indicated, she had continued to work in accordance with her original working pattern. It is neither necessary nor appropriate for me to make any findings in relation to this, as it sits at the 410 3132/2019 Page 10 heart of what would need to be decided at a final hearing on the merits of the case. Submissions

[25]Although Ms Hood had submitted her outline submissions to the Tribunal, copied to the claimant, in advance of the hearing, the claimant told me that she had not read these. This became apparent at the start of the hearing when the claimant required time to read the paragraphs within the outline submissions dealing with the preliminary issue. Accordingly, once the 10 claimant’s evidence was concluded, I adjourned the hearing to give the claimant an opportunity to read Ms Hood’s outline submissions and to consider what she herself might want to say by way of submissions. Claimant

[26]The claimant acknowledged that she had made the mistake of not reading the Tribunal’s Judgment thoroughly. She said that she had listened to what I said at the hearing on 29 January 2021 and that was why she had the spreadsheets made up.

[27]The claimant questioned the respondent’s assertion that they did not know what her claim was about. It was about the hours she had worked and not been paid for. She wanted her “day in court” and to get justice. Respondent

[28]In her outline submissions and under reference to Wentworth-Wood and others v Maritime Transport Ltd

UKEAT/0316/15

Ms Hood identified the three judicial decision points in relation to unless orders –(a) Stage one - the decision to make the order and, if so, upon what terms. 410 3132/2019 Page 11

(b) Stage two - the decision as to whether there has been material compliance with the order.

[29]Ms Hood referred to Polyclear Ltd v Wezowicz and others

UKEAT/0183/20

where HHJ Tayler said this (at paragraph 57) – “At stage three, providing the defaulting party makes the necessary 10 application, a judicial determination is made as to whether it is in the interests of justice to grant relief from sanction. The mechanism by which relief is granted if the application under Rule 38(2) is granted, is by setting aside “the order”, which must mean the original Unless Order, with the consequence that once the Unless Order has been set aside there cannot have been 15 material non-compliance, and so the automatic strikeout is treated as not having occurred.”

[30]Ms Hood referred to Thind v Salvesen Logistics Ltd

UKEAT/0487/09

where Underhill P (as he then was) said this (at paragraph 14) in relation to 20 relief from sanction (the case predating the introduction of Rule 38) – “The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in 25 the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and 30 whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an 410 3132/2019 Page 12 important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But it is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its 5 own facts.”

[31]In relation to the reason for the default, Ms Hood said that if the Tribunal accepted the claimant’s explanation of the events that led her not to comply with the Unless Order, the respondent accepted that the default was not 10 deliberate. However, the claimant’s failure to read the Judgment was symbolic of the way she had conducted herself whilst pursuing her claim and went beyond a simple error on her part. The carelessness demonstrated a lack of regard for the time of the Tribunal or the respondent and her unwillingness to engage with her responsibility to adequately particularise her 15 claim. The claimant had not provided any reasonable explanation for her failure to comply with the Unless Order.

[32]Moving to the seriousness of the default, Ms Hood reminded me, under reference to Polyclear, that the Tribunal was not required to revisit the 20 finding at stage two that there had been non-compliance with the Unless Order. The position here was that there had been total non-compliance prior to the Unless Order deadline, and so the degree of non-compliance was significant.

[33]Ms Hood referred to Hylton v Royal Mail Group Ltd

UKEAT/0369/14

, quoting Langstaff P (at paragraph 22) – “It must usually be the case that, where a claim has been struck out because of a failure to provide such information but by the time of an application for 30 relief the information has been supplied, a court will grant relief. The purpose of the orders would have been achieved. Again, as observed in Johnson, the approach should be facilitative rather than penal. That cannot, however, 410 3132/2019 Page 13 apply where there has been no compliance even at the stage of seeking relief from the order which was made. Orders are made to be observed.”

[34]Ms Hood pointed out that the document provided by the claimant on 23 February 2021 was almost word for word identical to part of her Further and 5 Better Particulars of November 2019. No new calculations or explanation were provided. The claimant’s belated response did not comply with the Unless Order. Ms Hood referred to what EJ Jones had said when deciding the application for reconsideration – “Although the claimant did provide information in relation to her claim of unlawful deduction from wages by email after the date on which there was to be compliance with the Unless Order, that information did not comply with the terms of the Order.”

[35]Next addressing prejudice to the respondent, Ms Hood submitted that the Unless Order had been made against a background of the claimant having had numerous opportunities to articulate her claim. The Unless Order was her “one final chance” to do so. If the Unless Order were to be set aside, the respondent would still be in the position of not having fair notice of the claim 20 against it. It was a local authority with budgetary constraints. It had already incurred significant expense as a result of the claim. There would be significant prejudice to the respondent if the Unless Order were to be set aside.

[36]Turning finally to whether a fair trial remained possible, Ms Hood referred again to Hylton per Langstaff P (at paragraph 21) – “The purpose of case management orders is in general to secure, where that remains possible, that there should be a fair hearing of the allegations made 30 by one party against the other. Where accusations have been made on a very generalised basis, as here, clarity of the accusations is needed. The respondent is entitled to know what acts it is being accused of, and the 410 3132/2019 Page 14 Tribunal cannot adjudicate properly unless that is the case. Unless and until that is done, it is difficult if not impossible to have a fair trial….”

[37]Ms Hood also referred to Thind per Underhill P (at paragraph 36) – “….Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible….”

[38]Ms Hood argued that if the claimant was able to put her claim in a way that could meaningfully be understood by the respondent and the Tribunal, she would have done so already. The Unless Order had been her last chance to do so, yet she had chosen to resubmit a document which she had already provided, and which formed part of her previous failures to articulate her 15 claim in a way that could be sensibly understood. The Unless Order had been clear and set out exactly what was required of the claimant. There was an important interest in the Tribunal enforcing compliance. It would not be in the interests of justice nor in line with the overriding objective to allow the claimant relief from sanction even if a fair trial remained possible.

[39]Supplementing her outline submissions orally at the hearing, Ms Hood referred to the issue of seriousness of the default and accepted that the information provided by the claimant at the hearing (the legible versions of her spreadsheets) demonstrated some level of compliance with the Unless 25 Order. However, it was not full compliance so that the purpose of the Order was achieved. The spreadsheets were not accompanied by an explanation of how the amounts were calculated, which was what paragraph (b) of the Order required. There was no expression in “clear and unambiguous terms” of each amount said to be an unlawful deduction as directed by paragraph (c) 30 of the Order.

[40]It was, Ms Hood submitted, not clear how Working Time Payments made to the claimant were reflected in her spreadsheets. The claimant’s methodology 410 3132/2019 Page 15 in calculating her hourly rate of pay was not clear. Even with the introduction of the spreadsheets, there remained significant default in compliance with the Unless Order. Further clarification would be required before the case could proceed to a full hearing. It was likely that the respondent would incur further time and expense in any process to clarify the claim.

Discussion

[41]I began my deliberations by reminding myself that I was dealing with an application for relief from sanction under Rule 38(2). This was stage three of 10 the judicial decision points identified in Polyclear. Was it in the interests of justice to set aside the Unless Order?

[42]I approached this by considering the factors identified by Underhill P in Thind –(a) The reason for the default.

(b) The seriousness of the default.

(d) Whether a fair trial remained possible. Reason for the default

[43]The reason for the default – the claimant’s failure to comply with the Unless Order – was clear. She had not read it during the period of time allowed for compliance. The claimant described herself as “stupid” for not doing so. There was no suggestion of any external factor preventing the claimant from reading the Judgment containing the Unless Order.

[44]I considered that Ms Hood was arguably being generous to the claimant when she said that if the Tribunal accepted her (ie the claimant’s) explanation of why she did not comply with the Unless Order, the respondent accepted 410 3132/2019 Page 16 that the default was not deliberate. On one view, for the default to be “deliberate”, it would require the claimant to have read the Unless Order and then taken a conscious decision not to comply. The claimant had made no such conscious decision.

[45]However, having read the first few pages of the Judgment, the claimant did take a conscious decision not to read the Judgment in full. She decided to read it in full nearer the date of the next hearing which had been set (for 9 March 2021) to deal with her application to amend. It seemed to me that this could fairly be described as foolish and careless. It was the wrong decision. 10 It was disrespectful to the respondent and to the Tribunal. It was a decision no reasonable person, having the capacity and ability – as the claimant clearly did – to read the Judgment in full, would have taken.

[46]I next considered the seriousness of the default. Ms Hood said that the 15 Tribunal was not required to revisit the finding at stage two that there had been non-compliance with the Unless Order. I believed that was something of an over-simplification. In Polyclear HHJ Tayler said this (at paragraph 59) – “….I do not consider that at the stage three hearing the employment judge can determine of [if?] the stage two decision, that there had not been material compliance with the unless order, was incorrect. However, an important aspect of making the stage three decision is determining the extent to which there was an attempt at compliance with the unless order. The judge at 25 stage three may conclude that the material non-compliance was extremely limited, and might, with the benefit of more relevant information and better argument, find it difficult to put their finger on precisely what the non-compliance was.”

[47]I believed that I could not decide whether the interests of justice required the stage two decision - to dismiss the claim – to be set aside without revisiting that decision, at least to the extent of looking at it in the light of the information available to me, when considering the seriousness of the default. 410 3132/2019 Page 17 I took into account that(a) there had been no compliance within the period provided for in the Unless Order and

(b) there had been an attempt at compliance shortly after the end of that period.

Conclusion

[48]The reason for the stage two decision was expressed briefly – “The claimant’s claim of unlawful deduction of wages is struck out as she failed to comply with the Tribunal’s Unless Order of the Judgment of 29 January 2021.”

[49]It was not possible to determine from this whether the non-compliance was the claimant’s failure to do anything within the prescribed period, or whether this also reflected the claimant’s attempted compliance outwith that period. However, it was clear that the reconsideration decision (see paragraph 6 above) did take account of the information submitted by the claimant on 23 15 February 2021. EJ Jones found that this information “did not comply with the terms of the Order”.

[50]I considered that when looking at the seriousness of the default I should, in my assessment of whether the interests of justice required me to set aside 20 the stage two decision, weigh in the balance –(a) The claimant’s failure to do anything before the deadline of 5.00pm on 19 February 2021 set out in the Unless Order.

(b) The fact that the claimant made an attempt to comply on 23 February 2021.

[51]The claimant’s failure to do anything before the deadline I set for compliance with the Unless Order was inexorably linked with the reason for her default. 410 3132/2019 Page 18 She did not comply because she had not read the Order. That was a serious omission.

[52]That omission was mitigated to some extent by the claimant taking action towards compliance as soon as she became aware of the Order, on receipt of 5 Ms Hood’s email of 22 February 2021. However, the action the claimant did take was inadequate. Her “document of particulars” was a re-submission of material which had already been found lacking in sufficient content to give fair notice to the respondent of the case it had to answer.

[53]The difficulty for the respondent and the Tribunal in understanding what the claim was about was highlighted by EJ Young in his Note following the fourth preliminary hearing on 13 February 2020 – see paragraph 9 of my Judgment dated 1 February 2021. If the material previously provided by the claimant had been adequate, there would have been no reason for the Tribunal to 15 issue the Orders of 8 April 2020 – see paragraph 11 of my last-mentioned Judgment. Accordingly it had been inappropriate for the claimant to resubmit material she had originally submitted in November 2019 in purported compliance with the Unless Order. There had been serious default by the claimant.

[54]Moving on to the issue of prejudice to the respondent, I noted that the claimant’s ET1 had been lodged on 23 March 2019. In the ensuing three and a half years there had been six Tribunal hearings. While the disposal of the case by the Employment Appeal Tribunal had necessarily taken some time, 25 the claimant’s difficulty in articulating her claim in a way that could sensibly be understood by the respondent and the Tribunal had contributed significantly to this timescale.

[55]At paragraph 52 of my Judgment of 1 February 2021 I listed the nine 30 opportunities the claimant had had to explain what her claim was about. At paragraph 64 of that Judgment I said that I had “come to the view that the claimant should be allowed one final chance to explain what her claim is about”. Ms Hood was in effect saying that “one final chance” should mean 410 3132/2019 Page 19 just that. The interests of justice did not require that the claimant should be given more latitude. To give the claimant more latitude would necessarily require the respondent to devote more time and expense to the case, which was to their prejudice. I considered that this was a powerful argument in favour of refusing the claimant’s application.

[56]I looked next at the issue of whether a fair trial remained possible. On the positive side (ie that a fair trial was still possible) there was documentation such as payslips and rotas which would assist the Tribunal in assessing the evidence at a final hearing. On the negative side, the Tribunal would be 10 concerned with events which took place between March 2017 and February 2019 and the passage of time could make it more difficult for witnesses to recall those events. I came to the view that while the prospects of a fair trial had diminished with the amount of time which had elapsed, they had not entirely disappeared.

[57]I reminded myself that Underhill P said in Thind that the fact that an unless order has been made “will always be an important consideration”. Underhill P also referred to the fact that unless orders are “not to be used lightly”. There will always be a context within which the order is made – see paragraph 55 20 above. The context here was that the claimant was saying that she had worked more hours that had been recorded by the respondent and that she was entitled to be paid (at overtime rate) in respect of those hours. She told me during the hearing on 29 January 2021 that she could provide a month by month breakdown of the underpayments. I framed the Unless Order in terms 25 designed to give her the opportunity to do so.

[58]I considered that the interests of justice required that I should look at the material the claimant had chosen to place before me to see if there was enough there to give the respondent fair notice of her claim. I reminded 30 myself that this material had not been available to EJ Jones when she made the stage two decision and the subsequent reconsideration decision. 410 3132/2019 Page 20

[59]The spreadsheets submitted by the claimant were helpful in terms of drilling down to the level of detail that was required to gain an understanding of her claim. She had in effect provided a day by day record of the hours she claimed to have worked over a period which included the two years covered by the Unless Order. That went part of the way towards explaining her claim. 5 What the spreadsheets did not do was to explain where the “hourly rate” and “overtime hourly bonus” figures came from. These omissions were reflected in Ms Hood’s criticisms as described at paragraphs 39 and 40 above.

[60]I reminded myself, as I had done when deciding to make the Unless Order, of 10 the overriding objective set out in Rule 2 of the Tribunal Rules. Rule 2 provides as follows – “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, 15 so far as practicable –(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and 20 importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the 25 issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, 30 or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” 410 3132/2019 Page 21

[61]I found it frustrating that the claimant seemed(a) potentially to have a statable argument that she had worked more hours than she had been paid for, but

(b) incapable of articulating that argument in a way that could be understood by the respondent and the Tribunal. Of course, that argument might not prevail at the end of the day, but it was difficult to fathom why the 5 claimant was unable to express it with greater clarity despite the number of opportunities she had had to do so.

[62]That said, the claimant was the architect of the situation in which she now found herself. She accepted that she should have read in full the Judgment 10 following the hearing on 29 January 2021. If she believed that the “document of particulars” attached to her email of 23 February 2021 amounted to belated compliance with the Unless Order, she had no valid basis for that belief. If it was inadequate when first provided in November 2019, it was inevitably still going to be inadequate in February 2021. If she had already prepared the 15 spreadsheets following the hearing on 29 January 2021, why did she not provide these as part of her belated and purported compliance with the Unless Order?

[63]I found that the claimant’s explanation that she “thought these would be gone 20 through at the hearing on her application to amend” was not adequate to justify her failure to provide the spreadsheets as part of her purported and belated compliance with the Unless Order. If the spreadsheets were necessary for the respondent and the Tribunal to understand her claim – and clearly they were – then, once she had read the Unless Order, the claimant 25 should have appreciated that they would be required at the point of such compliance, ie on 23 February 2021.

[64]Having regard to the overriding objective, I took into account that –(a) The claimant was unrepresented. If she had been represented, legally or otherwise, it was reasonable to assume that her representative would have read the Judgment containing the Unless Order timeously. On the other hand, there had been no impediment which prevented the claimant 410 3132/2019 Page 22 from doing so. Accordingly I did not believe that she had been disadvantaged in terms of her ability to read and understand the Unless Order.

(b) It did not seem to me that the issues in this case were particularly 5 complex. If the claimant believed she had been underpaid, she should have been able to explain when and how this had occurred.

(c) Prior to the Unless Order, the Tribunal had shown flexibility by giving the claimant a number of opportunities to explain her case.

(d) There had been delay. A significant part, although not all, of that delay had been occasioned as a result of the claimant’s inability to articulate her claim in a way that could sensibly be understood.

(e) There would be further expense to the respondent if the Unless Order was set aside, compared with the level of expense which would be incurred had it been complied with.

[65]The question I had to answer was whether the interests of justice required me 20 to set aside the decision to dismiss the claim under Rule 38(1). Taking all of the foregoing into account, I decided that they did not do so. I considered that the material points were that –(a) The claimant had entirely failed to comply timeously with the Unless 25 Order.

(b) That failure was due to her not having read the Judgment of 1 February 2021 in full as she should have done. There was no excuse for that.

(c) The claimant’s attempt at belated compliance had not come close. She had simply resubmitted a document which had already been found wanting. 410 3132/2019 Page 23

(d) The material which the claimant had provided for the hearing on 12 September 2022 was helpful but fell short of giving fair notice of her claim.

(e) The Unless Order was made in circumstances where there had been 5 numerous opportunities for the claimant to give fair notice.

(f) It would be unfair to the respondent to give the claimant further latitude when she had already been given “one final chance” to articulate her claim.

[66]Accordingly I decided that the interests of justice did not require me to set aside the decision to dismiss the claim.