Mr G Marr v Energetics Design and Build Ltd: 4103549/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4103549/2018

Between

Mr Glenn MarrClaimant

Energetics Design and Build LtdRespondent

Before

Employment Judge L Wiseman

Date 6 November 2019

JUDGMENT

The Judgment of the Employment Tribunal is in 4 parts, namely,- (First) That the application made by the Claimant to amend his claim by adding allegations first made in either or both of an email sent by him to ETZ4(WR) the Tribunal on 8 July 2018 and an email sent by him to the Tribunal on 10 July 2018 - [emails which were both sent in response to Directions which were given by the Employment Judge who conducted a (closed) preliminary hearing on 21 June 2018 and are as recorded in the 22 June 5 2018 Note of that preliminary hearing] - is refused. (Second) That the application made on behalf of the Respondent in terms of Rule 37 as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to strike out the io Claimant’s claim in whole or in part on the ground that such claim or any part of such claim has no reasonable prospect of success is refused, it being the considered view of the Tribunal that there are no grounds on which it would be justifiable for it to find that the Claimant’s claim has no reasonable prospect of success. (Third) That because the Tribunal considers that the Claimant’s claim that he had been unfairly (constructively) dismissed by the Respondent has little reasonable prospect of success the Claimant is ordered to pay a deposit of One Thousand Pounds - (£1,000.00) - as a condition of 2o continuing to advance that allegation, the Claimant’s attention being drawn specifically to the provisions contained in sub-clauses (3), (4), (5) and (6) as contained in Rule 39 as set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. And (Fourth) That because the Tribunal considers that the Claimant’s claim that the Respondent had, contrary to the provisions of section 13 of the Equality Act 2010, discriminated against him by treating him less favourably than it treated or would treat others and did so because of his protected characteristic, his sex - (which, in the case of the Claimant is a reference to his being a man) - has little reasonable prospect of success the Claimant is ordered to pay a deposit of One Thousand Pounds - (£1,000.00) - as a condition of continuing to advance that allegation, the Claimant’s attention being drawn specifically to the provisions contained in sub-clauses (3), (4), (5) and (6) as contained in Rule 39 as set out in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

REASONS

[1]In his claim as presented to the Tribunal Office on 24 April 2018 - (hereinafter, “the ET1”) - the Claimant named the employer or the person or organisation he was claiming against as being “Energetics Design & Build” with an address at “Fenwick House” at Lister Way, Glasgow, alleged that he had been employed throughout the period which had begun on 5 October 2015 and had ended on 23 February 2018, that he had been unfairly dismissed by his employer and that his employer had discriminated against him on the ground of sex. The remedy that the Claimant sought in respect of both of his heads of claim was compensation. In the case of his discrimination claim he also sought a recommendation.

[2]In a paper apart annexed to - (and confirmed by the Claimant as intended to be part of and considered by the Tribunal to be part of) - the ET1 the Claimant reproduced a letter dated 18 September 2017 which, where the context permits, is hereinafter referred to as “the Claimant’s 18 September 2017 letter”.

[3]The Claimant’s 18 September 2017 letter, although purportedly providing some detail of what he was alleging when claiming that he had been discriminated against on the ground of sex, bore to have been written nearly five months prior to the alleged effective date of termination of his employment.

[4]In a response form ET3 received by the Tribunal Office on 24 April 2018 - (hereinafter, “the ET3 ”)- it was contended that the company which had employed the Claimant throughout the period specified in the ET1 had been the Respondent, a limited liability company known as “Energetics Design & Build Limited” with an address at “Fenick House” at Lister Way, Hamilton International Technology Park, Glasgow.

[5]The Claimant now accepts that throughout the period which had begun on October 2015 and had ended on 23 February 2018 his employer had been the Respondent and that the claim that he has made in the ET1 is properly directed against the Respondent. S/41 03549/1 8 Page 5

[6]The ET3 resisted the Claimant’s claim as made in the ET1 in its entirety. In a paper apart annexed to - (and deemed by the Tribunal to form part of) - the ET3 the Respondent denied, specifically, both that it had discriminated against the Claimant “on any basis because of or associated with his sex" - (or at all) - and 5 that it had constructively unfairly dismissed the Claimant.

[7]The Respondent alleged in the ET3 that, by letter dated 24 November 2017 - (hereinafter, “the Resignation Letter”) -t the Claimant had resigned from his employment, that he had given three months’ notice of the termination of his io employment and that as a result of that voluntary resignation with notice “the Claimant was placed on garden leave throughout his 3 month notice period \

[8]On the directions of an Employment Judge the Tribunal Office scheduled a routine, case-management-type (closed) preliminary hearing to take place on (5 21 June 2018 and invited the parties to submit agendas prior to that scheduled preliminary

Hearing.

[9]In a pre-preliminary-hearing agenda - (hereinafter, “the Claimant’s Agenda") - submitted by him to the Tribunal on 25 April 2018 the Claimant accepted that he 2d had been employed by the Respondent, confirmed that he was claiming direct discrimination contrary to the provisions of section 13 of the Equality Act 2010 - (hereinafter, “the Equality Act”) - and confirmed that he was also making a complaint of constructive unfair dismissal in which he would allege “procedural failings in both grievance & appeal”. S/41 03549/18 Page 6 1 0. The Claimant’s Agenda had been completed in such a way as to make it clear that he did not wish to make any claim of indirect discrimination contrary to the provisions of section 19 of the Equality Act, of harassment contrary to the terms of section 26 of that Act or of victimisation as defined in section 27 of that Act.

[11]In respect of his claim that he had been directly discriminated against on the ground of sex the Claimant’s Agenda alleged that the less favourable treatment that he had suffered was that he was "not considered for senior position due to sex” before adding that “the person that got the job did not meet the criteria laid down by the company”.

[12]The Note issued on 22 June 2018 following the 21 June (closed) preliminary hearing is referred to, generally, for its terms but the Employment Judge wishes to record within this “Background” section of this Judgment that that Note - (hereinafter, “the 22 June Note”) - makes it clear that during the course of the 21 June preliminary hearing various concerns were raised about the claims then stated to be being pursued by the Claimant, namely his claim of unfair constructive dismissal and his claim of direct ~ (Section 13) - discrimination on the ground of sex.

[13]The 22 June Note referred to the Claimant’s 18 September 2017 letter as being “the written case relied upon by the Claimant”, a letter written "before he resigned and “apparently ... before the comparator was even appointed to the job which is the subject of his complaints and recorded that “his written case consists only of S/41 03549/18 Page 7 that letter" and that he, the Claimant, “had not ... set out any summary of the case which he makes, or the legal basis".

[14]The 22 June Note recorded that at the 21 June preliminary hearing the Claimant accepted that he had not set out his claim in a way which would give the Respondent’s representative fair notice of the claims he was making and that “as things currently stand” his claim 1reveals no valid claim for constructive dismissal or sex discrimination", in which case he, the Claimant, would be required “to provide further specification of the legal basis of his claim and identify the evidence upon which he proposes to rely” it being recorded, too, that the Employment Judge who conducted the 21 June preliminary hearing advised the Claimant at it that “before doing so, he might like to seek legal advice from a solicitor, a law centre or the Citizens Advice Bureau”.

[15]The 22 June Note records that during the course of the 21 June preliminary hearing the Claimant agreed to submit a written summary of his claim providing the necessary specification within 3 weeks after the 21 June Preliminary hearing

[16]The 22 June Note records that during the course of the 21 June preliminary hearing the Claimant confirmed that the only comparator on whom he sought to rely when pursuing his claim of direct discrimination on the ground of sex was a Ms Alison Weir, this notwithstanding the Respondent’s representative’s argument that Ms Weir had been appointed to the role in question two weeks after the Claimant’s 18 September 2017 letter had been written. The 22 June Note also records that the Respondent’s representative contended that the role in question, S/4 103549/18 Page 8 the position to which Ms Weir had been appointed, had been a role in respect of which, prior to Ms Weir’s appointment to it, the Claimant had been given an opportunity to be considered.

[17]The 22 June Note records that at the 21 June preliminary hearing the Employment Judge who conducted it had noted that the Claimant had not “offered any evidence to support his contention that the Respondent’s recruitment policy favoured females for reasons related to their sex” and that the Respondent’s representative had argued that even if it had been the case that the Respondent had operated a policy which favoured females the Claimant had not identified any detriment which he had suffered.

[18]The 22 June Note records that during the course of the 21 June preliminary hearing the Respondent’s representative maintained the Respondent’s position that the Claimant's claim should be struck out in its entirety as having no reasonable prospect of success, that there should be a purpose-specific preliminary hearing to consider that matter and that at such (open) preliminary hearing the question of time bar should also be addressed.

[19]The 22 June Note records that at the 21 June preliminary hearing the Respondent’s representative, referring to the Claimant's unfair constructive dismissal claim, contended that the Claimant, “had failed to make any reference to a breach of contract, as required in a constructive dismissal claim” and “had made no reference to his resignation in his written case” but that the response of the Employment Judge who had conducted the 21 June preliminary hearing was to S/41 03549/18 Page 9 the effect that because the Claimant had agreed to submit a summary of his claim to the Tribunal, in writing, “which will be treated as further specification or an application to amend his claim” it “would be premature to set down a preliminary hearing to consider either the question of prospects of success and/or the question of time bar”. But the 22 June Note also recorded both that “Given that a preliminary hearing of some description will require to take place in this case, it was agreed that in order to ensure progress in this case that an open preliminary hearing to determine any substantive questions should be set down for 8 weeks’ time” and that such a purpose-specific preliminary hearing was scheduled to take place on 14 August 2018 on the basis that “in the event that there are at that stage no issues which require to be considered at an open preliminary hearing the Hearing will be converted to a closed preliminary hearing to consider case management issues”.

[20]On 8 July 2018 the Claimant sent an email to the Tribunal - (with a copy to the Respondent’s representative) - which purported to provide both further specification of his unfair constructive dismissal claim and his claim of direct discrimination on the ground of sex and a Schedule of Loss Where the context permits, that 8 July email and its attachments are hereinafter, collectively, referred to as “the July Further Particulars”.

[21]The July Further Particulars contained the statements that “I didn’t resign from my post due to concerns regarding my employment” and that “my resignation letter makes it clear I have resigned due to the botched grievance procedure which is a 25 fundamental breach of contract”.

[22]Discussing the Claimant’s unfair constructive dismissal claim, the July Further Particulars referred to a resignation letter dated 24 November 2017 which, as it was put, “states that I am resigning due to the botched grievance procedure", that “I sent my resignation to the company after close of business on 24/11/17”, that the Claimant had had a meeting with the Respondent on 27/11/17 “to finalise the initial interview notes” and that “at this point the company had not acknowledged receipt of my resignation letter nor had they accepted my resignation”.

[23]The Claimant’s resignation letter was dated 24 November 2017, stated, - “Following the compromised investigation into my grievance dated 18 September 2017, I feel my only option is to resign. Please accept my 3 months’ notice period as per my contract of employment. I will be raising an action in full with an Employment Tribunal regarding the unsatisfactory outcome of my grievance.” and was a resignation letter which, in terms, unequivocally identified that the reason why the Claimant was resigning was a reason relating solely to the investigation process following on from the grievance expressed in the Claimant’s 18 September 2017 letter. And not anything other than that.

[24]The July Further Particulars went on to refer to the Claimant’s 18 September 2017 letter as being “the grievance” and to the procedure which followed on from the submission of that letter, of “my grievance of 18 September", before referring to “an updated grievance" being made on 22 October. They also referred, at length, to alleged faults in the grievance process followed by the Respondent and to allege that "due process has not been followed”. S/41 03549/18 Page 11

[25]Under the heading “Constructive Dismissal Appeal Process”, the July Further Particulars alleged that at a time after the Claimant had tendered his resignation letter and “during my gardening leave” the Respondent had "continued to breach my contract, that what the Respondent had done during that period after he had tendered his resignation “was a material breach”, “was a breach of employers duties” and, specifically, that the Respondent had breached its duty "to act conscientiously and in good faith” and its duty "of implied mutual trust and confidence".

[26]The July Further Particulars went on to provide examples of what purported to be material breaches on the part of the Respondent but which, in fact, referred only to what he had said in the Claimant’s 18 September 2017 letter had occurred prior to that letter being written and to how the Respondent had reacted to the grievance expressed in the Claimant’s 18 September 2017 letter.

[27]On 10 July 2018 the Claimant sent a further email to the Tribunal - (with a copy to the Respondent’s representative) - to which he attached "Constructive Dismissal 2.docx” and which stated “Apologies, please use this document." That 10 July email and its attachments are hereinafter referred to as “the Second Set of Further Particulars”.

[28]The Second Set of Further Particulars related to the Claimant’s unfair constructive dismissal claim and to the “botched grievance procedure" stated within his resignation letter as being the reason for his resignation. S/41 03549/18 Page 12

[29]The Respondent’s representative responded to the July Further Particulars and to the Second Set of Further Particulars by providing the Tribunal and the Claimant with amended responses to the Claimant’s claim. Those responses - (hereinafter, “the Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars” included the acknowledgement that “the high threshold which must be met in connection with strike out applications and, more particularly, in connection with strike out applications in relation to discrimination claims”. But they also contended that "the strike out of both claims is justified, in particular when one considers the relevant authorities as they apply to the case either as pled or as purportedly pled, per the Claimant’s proposed amendments of 10 July".

[30]The Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars invited the Tribunal to consider the strike out of the claims in terms of Rule 37(1 )(a) as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 - (hereinafter, “Schedule 1 to the Regulations”) - and to do so “specifically on the basis that the claims have no reasonable prospects of success” before going on to submit, “in the alternative" that a Deposit Order be considered “pursuant to Rule 39(1) and in respect of which the Respondent invites the Tribunal to order the Claimant to pay £1,000 as a condition of continuing with either claim, on the grounds that the claims have little reasonable prospects of success”. S/41 03549/18 Page 13

[31]The Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars also invited the Tribunal “to consider time bar of the claims” for reasons set out, in detail, in such responses. 5 32. Dealing with the Claimant’s unfair constructive dismissal claim, the Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars made specific applications, namely, - “Rule 37(1)(a) - for strike out of the claim as pled as this has no reasonable prospect of success” io And,- “Rule 39(1) - for the payment of a Deposit Order (£1,000), on the basis that the claim as pled has little reasonable prospect of success.” And,- “The Respondent objects to the Claimant’s application to amend by the 15 Claimant's revised document submitted on 10 July 2018. it is contended (and has been accepted) that the claim as pled does not contain any valid claim for constructive unfair dismissal. Accordingly, the purported claim as set out in the Claimant’s email of July 201 8..must be considered an attempt to now present effectively a 20 fresh claim for constructive unfair dismissal. The Respondent objects to the Claimant’s application to amend the claim..’’

[33]In respect of the Claimant’s claim of direct discrimination on the ground of sex, the 25 Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars argued that “the Claimant’s claim for sex discrimination as presented .... is largely irrelevant", that the Claimant has "clarified that the claim he invites the Tribunal to consider is not foreshadowed within his ET/1 but instead relates to the internal recruitment of Alison Weir, which took place on 6th October 2017”, that “this incident post-dates the date of the Claimant’s grievance as referred to in his ET1 by almost 3 weeks, that “accordingly, there is no claim before the Tribunal at present regarding the issue identified by the Claimant now as the basis for his claim for sex discrimination”, that “.... the claim as pled contains no allegation of detriment by the Claimant in relation to this appointment” and that “this is a matter of particular relevance on the applicable authorities and to which the Tribunal will be referred”.

[34]Dealing with the Claimant’s claim of direct discrimination on the ground of sex the Respondent’s responses to the July Further Particulars and to the Second Set of Further Particulars contained specific applications to the Tribunal namely, - “Rule 37(1)(a) - strike out - no reasonable prospect of success” And, - “Rule 39(1) - Deposit Order - little reasonable prospect of success” And, - “The Claimant’s Application to Amend - Direct Sex Discrimination - the Respondent objects to the Claimant’s application to amend his claim as set out in his document entitled “Direct Sexual Discrimination” by email dated 10 July 2018", the Respondent’s responses to the July Further Particulars contending that ‘the proposed amendment is not an attempt to ‘re-label’ facts and circumstances already pled for consideration before the Tribunal nor is it linked to the claim as pled” but that “the purported amendment application is in effect the presentation of a new and distinct claim for direct sex discrimination, not foreshadowed within the terms of his ET1, nor could this be, again given that the Claimant’s letter of grievance dated 18 September 2017 predates the recruitment with which the Claimant now takes issue, by some three weeks” and that "that issue simply had not happened when his grievance was presented.”

[35]On 2 August 2018 the Respondent’s representative sent an email to the Claimant stating that “as you are aware, we are instructed for the Respondent .... and our client intends, amongst other applications, to invite the Tribunal to issue a Deposit Order as a precondition of continuation of your claims” and explaining that “one of the considerations the Tribunal shall make is your current financial position”. That 2 August email went on to seek to obtain from the Claimant details of his disposable capital and capital assets, the Respondent’s representative explaining to the Claimant that “in the event you intend to invite the Tribunal to have regard to your ability to pay, it is in your interests to make full information available”.

[36]On 9 August 2018 the Respondent’s representative sent an email to the Tribunal - (with a copy to the Claimant) - which stated, - "Amongst other matters, the Tribunal is to consider issuing a Deposit Order in respect of both claims, during the course of Tuesday’s Hearing In that regard, and particularly given the Claimant is unrepresented, we sought to assist the Claimant and to determine whether he intends to invite the Tribunal to have regard to ability to pay, We asked for provision of information..” And, - “We confirm that we have had nothing further from the Claimant in this regard nor any indication as to his position on ability to pay.”

[37]At 1438 on 10 August the Claimant sent an email to the Respondent’s representative stating, “I am opposing the Respondent’s Motion for a Deposit Order" and, “you will have my objections by 1600 today ’.

[38]At 1441 on 10 August the Respondent’s representative replied to the Claimant stating, “you do not need to provide grounds for your opposition right at this stage. Noting your objection is adequate. I think you do need to make it clear if you do not seek to oppose the Order on the basis of your ability to pay ... .”

[39]At 1519 on 10 August the Claimant sent an email to the Respondent’s representative which included the statements that “I see a Claimant could be liable for costs if a Deposit Order is paid and the case fails on a point identified in the Deposit Order”, that “I won’t proceed with the case unless I have at least a 65% chance of success” and that “I confirm I am not opposing this Order on the basis of my ability to pay but rather on objections to be detailed later".

[40]The scheduled (open) preliminary hearing took place at Glasgow on 14 August 2018 and is hereinafter referred to as “the 14 August Preliminary Hearing”. It had been convened with the specific purposes of considering and determining, - S/41 03549/18 Page 17• Whether, if the July Further Particulars and I or the Second Set of Further Particulars respectively or collectively constituted an application or applications by the Claimant to amend his claim as made in the ET1, such application or applications should be granted or should be refused.

• Whether, in terms of Rule 37 as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Tribunal should strike out all or part of the Claimant’s claim on the ground that it or that part has no reasonable prospect of success.

• Whether, if the Tribunal was not minded to strike out all or part of the Claimant’s claim it, the Tribunal, should make an Order requiring the Claimant to pay a deposit not exceeding £1,000.00 as a condition of continuing to advance each part of his claim, i.e. £1,000.00 in respect of his claim of unfair (constructive) dismissal and £1,000.00 in respect of his claim of direct discrimination on the ground of sex.

[41]The Claimant was present but not represented at the 14 August Preliminary Hearing. The Respondent was represented at it by Mr Lee.

[42]During the course of the 14 August Preliminary Hearing the Respondent’s representative invited the Tribunal to take account of the guidance given in the cases of, -• Seikent Bus Co Limited v Moore 25 ED&F Man Liquid Products Limited v Patel & another

• Ezsias v North Glamorgan NHS Trust

• Shestak v The Royal College of Nursing and others

• Norma Eastman v Tesco Stores Limited

• Tayside Public Transport Company Limited (t/a “Travel Dundee”) v James Reilly

• Ahir v British Airways Pic 2017

• Wright v Nipbonkoa Insurance (Europe) Limited as well as the provisions of the relevant legislation. Where appropriate and relevant to the determination of the matters in respect of which determination was required at the 14 August Preliminary Hearing the Tribunal did so.

[43]At commencement of the 14 August Preliminary Hearing, at a stage when preliminary matters were being discussed and prior to any evidence being provided to the Tribunal or legal submissions being made to it, the Respondent’s representative made it clear to the Tribunal and to the Claimant that the Respondent did not wish to seek determination of any time-bar issue at the 14 August Preliminary hearing but reserved its position so far as time bar was concerned on the basis that that is an issue which may arise again for determination at an eventual final hearing of the Claimant’s claim.

[44]Also during the course of such preliminary discussions, at a stage prior to any evidence being heard or legal submissions being made, the Claimant confirmed that although he objected to the substance of the Respondent’s arguments in respect of a Deposit Order or Deposit Orders he did not seek to argue that if the Tribunal made Orders not exceeding £1,000.00 in respect of each of his heads of claim he was not in a financial position to pay such Deposits as a condition of continuing to pursue those heads of claim.

[45]The preliminary discussions prior to evidence being heard or legal submissions being made also resulted in it being made clear by the Claimant to the Tribunal and to the Respondent's representative that when submitting the July Further Particulars and the Second Set of Further Particulars he. the Claimant, did seek to amend the claims as made by him in the ET1 by adding additional allegations. Findings in Fact

[46]During the course of the 14 August Preliminary Hearing the Claimant gave evidence which helpfully clarified what he had alleged in the ET1, in the July Further Particulars and in the Second Set of Further Particulars.

[47]No evidence was led on behalf of the Respondent at the 14 August Preliminary Hearing.

[48]The Tribunal has preferred to limit the findings in fact set out in this section of this overall document to only those findings in fact which might not have been readily apparent from the pleadings but which will have a bearing on the matters before the Tribunal for preliminary determination, i.e., - S/4 103549/18 Page 20

[49]The Claimant was not dismissed by the Respondent, i.e. not “actually” dismissed in the sense that the Respondent took any steps to bring his employment with it to an end at its instance.

[50]The Claimant voluntarily resigned from his employment with the Respondent but when doing so set out in his 24 November 2017 resignation letter - (hereinafter, “the Resignation Letter”) - that “following the compromised investigation into my grievance dated 18 September 2017, I feel my only option is to resign”, the Claimant adding in the Resignation Letter that “I will be raising an action in full with an Employment Tribunal regarding the unsatisfactory outcome of my grievance”. 51< The Resignation Letter was intimation on 24 November 2017 of termination by the Claimant of his employment with the Respondent but with the effective date of termination of that employment being 23 February 2018.

The Issues

[52]The Tribunal identified the issues which it considered to be relevant to either the Claimant’s application - (as constituted by the July Further Particulars and/or the Second Set of Further Particulars) - to amend his claim or to the Respondent’s application for strike out of that claim or to the Respondent’s, alternative, application for Deposit Orders to be made against the Claimant as being, - Re Proposed Amendment of Claim• Whether the amendments sought are arguable and substantial

• Whether the proposed new claims were out of time

• Whether an amendment was necessary and appropriate to the Claimant's claim S/4103549/1 8 Page 21

• Where the balance of hardship and injustice lay if, on the one hand, the application to amend was granted or, on the other hand, the application to amend was refused

• Whether the proposed amendments amounted to being new causes of action or, on the other hand, were merely an attempt by the Claimant to relabel his claim. Re Strike Out

• Whether, in terms of Rule 37 as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Claimant’s claim has no reasonable prospect of success Re Deposit Orders

• Whether, in terms of Rule 37 as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Claimant’s claim of unfair (constructive) dismissal has little reasonable prospect of success and, if so, whether a deposit not exceeding £1,000.00 should be ordered to be paid by the Claimant as a condition of continuing to advance that allegation or argument.

• Whether, in terms of Rule 37 as contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, the Claimant’s claim of direct discrimination on the ground of sex has little reasonable prospect of success and, if so, whether a deposit not exceeding £1,000.00 should be ordered to be paid by the Claimant as a condition of continuing to advance that allegation or argument. S/41 03549/18 Page 22 The Relevant Law

a. A. Legislation

• The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, particularly Rules 37 and 39 as set out in Schedule 1 to those Regulations.

• The Employment Rights Act 1996, particularly Sections 94, 95, 97 and 98.

• The Equality Act 2010, particularly Sections 4, 1 1 and 13.

b. B. Relevant Cases

• Reuters Limited v Cole,

UKEAT/0258/17/BA

• Selkent Bus Co. Limited v Moore,

1996 ICR 836

, EAT.

• Trimble and another v North Lanarkshire Council and another, EATS 0048/12.

• Foxtons Limited v Ms Ruwiel, EAT 0056/08.

• Anyanwo and another v Southbank Student Union and another,

2001 ICR 391

, HL

• Ezsias v North Glamorgan NHS Trust,

2007 ICR 1126

, CA.

• Timbo v Greenwich Council for Racial Equality, 2013 ICR D7, EAT.

• Three Rivers District Council and others v Bank of England (No 3), HL 23 Mar 2001.

• Balls v Downham Market High School & College,

UKEAT/0343/10/DM

• Reilly v Tayside Public Transport Company Limited t/a Travel Dundee,

UKEATS/0065/10/BI

• Williams v Real Care Agency Limited, 2012 ICR D27, EAT.

• Shestak v The Royal College of Nursing and others, 2008 WL3909388

• Ms Norma Eastman v Tesco Stores Limited, 2012 WL4888601 .

• Mr Ashok Ahir v British Airways Pic, 2017 WL02978862.

• Short v Birmingham City Council and others, EAT0038/13.

• Mr J Wright v Nipbonkoa Insurance (Europe) Limited, 2014 WL495908. S/4 103549/18 Page 23 Discussion Re Proposed Amendment of Claim

Discussion

[53]In the view of the Tribunal provision by the Claimant of the July Further Particulars and of the Second Set of Further Particulars did constitute an attempt by him to amend his claim as made in the ET1 .

[54]The Tribunal considered whether an amendment, as such, was either necessary or appropriate in this case. Having done so, it felt that to add the allegations that the Claimant sought to introduce in either the July Further Particulars or in the Second Set of Further Particulars was, on the one hand, unlikely to enhance the Claimant’s prospects of success at an eventual hearing of his claim and, on the other hand, was unlikely to detract from the Respondent’s arguments that such allegations were irrelevant to the claim as made by him.

[55]Before reaching its conclusion that provision by the Claimant of the July Further Particulars and of the Second Set of Further Particulars did constitute an attempt by him to amend his claim the Tribunal considered whether, in the alternative, what the Claimant had done, or was intent on doing, amounted to no more than an attempt to relabel the claim already made by him in the ET1. When doing so the Tribunal bore in mind the guidance given by the Employment Appeal Tribunal - ("EAT”) - in the case of Reuters Limited v Cole that new heads of claim require consideration of different facts, factual inferences, and different legal onuses” and that “if the amendment is allowed the Tribunal will require to 25 determine the full factual, and legal, basis of the new claims”. It also took into S/4 103549/18 Page 24 account the earlier guidance of the EAT in the case of Selkent Bus Co. Limited v Moore in that context and considered whether it was appropriate for the Tribunal to take account of what the Claimant, an unrepresented party at the stage of submitting his ET1 and throughout the Tribunal proceedings, believed he was doing so far as any attempt at amendment was concerned and whether he had understood the consequences of what he was doing to be.

[56]Having concluded that provision by the Claimant of the July Further Particulars and of the Second Set of Further Particulars did constitute an attempt by him to amend his claim, the Tribunal considered what prejudice would be caused to the Claimant if his application to amend was not granted and, as a balancing exercise, what prejudice would be caused to the Respondent if it was granted.

[57]The concept of the Claimant being deprived of the right to amend his claims being disproportionate was also borne in mind.

[58]The Tribunal took guidance from the relevant case law including those cases of Reuters Limited v Cole and Selkent Bus Co. Limited v Moore. Having considered the relevant law and heard evidence from the Claimant the Tribunal was satisfied that there was no reason why the allegations which the Claimant sought to introduce in the July Further Particulars and / or in the Second Set of Further Particulars as amendments could not have been made in the ET1 and the Tribunal was of the view that that question of timing was relevant. S/41 03549/18 Page 25

[59]The Tribunal bore it in mind that it is relevant to consider whether any claim implicit within an application being made either within the July Further Particulars or in the Second Set of Further Particulars might be time barred because what was alleged within those attempts at application to amend must have happened some time prior to the termination of the Claimant’s employment on 23 February 2018. Indeed, bearing in mind that he had been on garden leave since 24 November 2017, must in all probability have happened prior to his tendering his resignation, by letter, on 24 November 2017.

[60]Which begs the question of why the application made by the Claimant, whether in the July Further Particulars or in the Second Set of Further Particulars, was not made sooner. 61 . The Tribunal bore it in mind so far as the time bar issue was concerned that this is a case where time bar, if not an insurmountable problem, is at least an issue and that no argument has been put forward by the Claimant that the time limit for presenting a claim based on the allegations which he sought to introduce in the July Further Particulars or in the Second Set of Further Particulars should be extended.

[62]The Tribunal bore it in mind that when determining whether to grant an application to amend a claim any Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. S/41 03549/1 8 Page 26

[63]When making his submissions at the 14 August Preliminary Hearing the Respondent’s representative referred the Tribunal to the guidance given in the case of Selkent Bus Co Limited v Moore, a case in which the EAT held that where a proposed amendment pled facts which had not previously been pleaded and where fresh primary facts would have to be established then, in the circumstance that no explanation was offered as to why those facts - (which must have been within the knowledge of the employee at the time) - were not alleged in an original application, and where refusal of leave to amend would not cause hardship to the employee in that such refusal would not prevent the employee from pursuing the original complaint, the likelihood would be that, on balance, the risk of hardship by way of increased costs caused to the employer would be greater if the amendment was granted than if it was refused. In the view of the Tribunal, that guidance is relevant to the circumstances of the present case.

[64]The Tribunal took the view that, in the present case, for the Respondent to have to defend a claim which, if the Claimant’s amendments were allowed, would include allegations which might be out of time and not properly particularised would tilt the balance of hardship against the Respondent.

[65]As guided by the EAT in the case of Trimble and another v North Lanarkshire Council and another, the Tribunal bore it in mind at it is rarely enough to look only at the downsides or “prejudices” themselves without putting them into context of the whole surrounding circumstances. S/4 103549/18 Page 27

[66]Having taken the guidance given in Trimble and another v North Lanarkshire Council and another and having applied the balancing exercise envisaged by the EAT, particularly in the cases of Selkent Bus Company Limited v Moore and of Foxtons Limited v Ms Ruwiel, the Tribunal determined that the proposed amendment to the Claimant’s claim should not be permitted and is refused. Re Strike Out

[67]So far as the Respondent’s application for strike out of the Claimant's claim is concerned, the Tribunal bore it in mind that an Employment Tribunal has power to strike out a claim on any of the grounds set out in Rule 37 as contained in the Schedule to the Regulations and that that power may be exercised at any stage of the proceedings, either on the Tribunal’s own initiative or on the application of a party.

[68]One of the grounds specified in Rule 37 as contained in the Schedule to the Regulations - (and in this case the only ground on which the Respondent’s representative relies) - is that the Claimant’s claim has no reasonable prospect of success.

[69]The Tribunal bore in mind that where strike out is sought on such a ground - (the Rule 37(1)(a) ground that it “has no reasonable prospect of success’’) - 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 prospect of success. S/41 03549/18 Page 28

[70]The word “no” is stressed to emphasise 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 will fail, nor is it a test which can be satisfied by considering what is set out in the ET3 or, indeed, in submissions made on behalf of the Respondent. It is, in short, a high test, the application of which must result in the Tribunal finding that there is no reasonable prospect of success before it can strike out the Claimant’s claim on that ground.

[71]The Tribunal also bore it in mind that the legislature created this standard as one different from the standard required to comply with the Deposit Order provisions referred to in Rule 39 as contained in the Schedule to the Regulations - (that lower standard as applied in the making of a Deposit Order being that the claim has little reasonable prospect of success).

[72]Applications for strike out of claims or heads of claim are not unusual. The Tribunal did, however, take cognisance of the fact that although it is open to an Employment Tribunal at a purpose-specific preliminary hearing to strike out a claim or heads of claim under Rule 37 as contained in Schedule 1 to the Regulations on the basis that it has no reasonable prospect of success the Authorities suggest that an Employment Tribunal should only strike out a discrimination claim in exceptional circumstances, not least because discrimination cases are generally fact-sensitive, so much so that any issues should usually only be decided after all the evidence has been heard at a final hearing of a claimant’s claim.

[73]This concept was discussed, in detail, by the House of Lords in the case of Anyanwo and another v Southbank Student Union and another to which the Respondent’s representative referred in his submissions. 5 74. And in the case of Ezsias v North Glamorgan NHS Trust - (to which the Respondent’s representative also referred in his submissions) - guidance was given by the Court of Appeal that a whistleblowing claim - (with which a discrimination claim has much in common) - should only be struck out on the ground that it has no reasonable prospect of success in exceptional io circumstances, for example where an employee seeks to establish facts that are totally and inexplicably inconsistent with undisputed contemporaneous documentation.

[75]The case of Timbo v Greenwich Council for Racial Equality added to the (5 emphasis by finding that it is inappropriate for a first-instance Employment Tribunal to strike out a claim on the ground that it has no reasonable prospect of success where there is a crucial core of disputed facts which cannot be determined other than by evaluating all the evidence at a final hearing. 20 76. When giving evidence at the 14 August Preliminary Hearing the Claimant referred to both the Claimant’s 18 September 2017 letter and to a further grievance expressed by him and he sought to refer, at length, to what his employers had or had not done during the course of the grievance investigation process, including the eventual grievance appeal hearing. S/4 103549/1 8 Page 30

[77]The Tribunal has borne in mind the guidance given by Lord Hope in the House of Lords case of Three Rivers District Council v Bank of England (No.3). That case involved discussion of the English law of tort and was therefore discussing the concept of strike out in the context of English Civil Courts’ powers to strike out. That notwithstanding, the Tribunal considers that it is valid to take cognizance of Lord Hope’s comment that, “I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly but the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is - what is to be the scope of that inquiry?” In answer to his own question Lord Hope went on to state that, “the method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead that evidence so that the trial Judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis of the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence.”

[78]The Tribunal has taken into account the guidance given by the Honourable Lady Smith in the case of Balls v Downham Market High School & College in which, discussing the concept of the power of strike out, she explained that, “to state the obvious, if a Claimant’s claim is struck out, that is the end of it. He cannot take it any further forward. From an employee Claimant’s perspective, his employer has ‘won’ without there ever having been a Hearing on the Merits of his claim. The chances of him being left with a distinct feeling of dissatisfaction must be high.” The Honourable Lady Smith went on to say that, "..strike out is often referred to as a draconian power. It is.” She did, however, accept that “there are, of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge’s available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached.”

[79]In the even more recent case of Reilly v Tayside Public Transport Company Limited t/a Travel Dundee the Honourable Lady Smith again addressed the need for an Employment Judge to have regard to the draconian impact of an Order for strike out, again reminding us that, “such an Order is, put shortly, the end of matters..”.

[80]These Employment Appeal Tribunal cases of Balls v Downham Market High School & College and of Reilly v Tayside Public Transport Company Limited t/a Travel Dundee both involved consideration of decisions being taken by an Employment Judge at preliminary stages of a first instance Tribunal process and the criticisms made by the Honourable Lady Smith, particularly in the case of Reilly v Tayside Public Transport Limited t/a Travel Dundee, were based on strike out having been effected at such a preliminary stage, i.e. without a full Tribunal having sat at a Hearing on the Merits to consider evidence. Which is the stage reached in the present case where no evidence has yet been heard at a final hearing - (hearing on liability) - of the Claimant’s claim.

[81]In this context the Tribunal also bore in mind the guidance given by the EAT in the case of Williams v Real Care Agency Limited to the effect that the power of strike out must be exercised in accordance with reason, relevance, principle and justice and that that care must be exercised even in a circumstance where an Employment Judge might be tempted to take a view that it is pointless even to continue with the hearing of evidence on which a claimant’s claim is based.

[82]In the context of his application for strike out of the whole or part of the Claimant’s claim as made in the ET1 the Respondent’s representative referred the Tribunal to the guidance given by the EAT in the case of Mrs B Shestak v The Royal College of Nursing and others as to the approach to be adopted by firstinstance Tribunals when considering an application for strike out. He referred particularly to paragraphs 34 to 36 of that Judgment.

[83]The Respondent’s representative referred, too, to the guidance given by the EAT in the case of Ms Norma Eastman v Tesco Stores Limited in which the case of Ezsias v North Glamorgan NHS Trust was distinguished The Respondent s representative suggested that the facts implicit within that case of Ms Norma Eastman v Tesco Stores Limited were on-all-fours with the facts of the present case.

[84]The case of Tayside Public Transport Company Limited (t/a Travel Dundee) v James Reilly to which reference has been made earlier in this Judgment was accepted by the Respondent’s representative at the 14 August Preliminary hearing as being authority for the argument that a first-instance Tribunal should strike out a claim at a purpose-specific (open) preliminary hearing only where it, the first-instance Tribunal, determines that the claim “has no reasonable prospect of success - (which is what Rule 37 as set out in Schedule 1 to the Regulations requires) - and that even if a Tribunal determines that a case has no reasonable prospect of success it retains a discretion not to strike out the claim.

[85]By referring in his submissions to the guidance given in the case of Tayside Public Transport Company Limited (t/a Travel Dundee) v James Reilly the Respondent’s representative was clearly inferring that, as was discussed at paragraph 30 of that Judgment, there may be cases where it is instantly demonstrable that the central facts in a claim are untrue, for example where alleged facts are conclusively disproved by the productions.

[86]That argument is something which the Tribunal has borne very much in mind. But it has also borne in mind that later in that same paragraph 30 of that Judgment in the case of Tayside Public Transport Company Limited (t/a Travel Dundee) v James Reilly the guidance given was that “... in the normal case where there is a ‘crucial core of disputed facts’ it is an error of law" for a first-instance Tribunal “to pre-empt the determination of a full Hearing by striking out”.

[87]The guidance given in the case of Tayside Public Transport Company Limited (t/a Travel Dundee) v James Reilly is such that in the view of the Tribunal it would not be in accordance with that guidance for it to strike out either element of the Claimant’s claim when evidence is still to be given at a final hearing of it.

[88]But the case of Mr Ashok Ahir v British Airways Pic - (to which the Respondent’s representative also referred the Tribunal in his submissions) - is one which, not only because of its recent issue but also because of what Lord Justice Underhill said in it, has given the Tribunal considerable cause for thought.

[89]In that case of Mr Ashok Ahir v British Airways Pic the Court of Appeal decided that strike out can be justified if a claim is based on only mere assertions and where no clear argument or substance is demonstrated.

[90]As was pointed out by the Respondent’s representative, what was said by Lord Justice Underhill in that case of Mr Ashok Ahir v British Airways Pic was that “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 and that "whether the necessary test is met in a particular case depends on an exercise of judgment”.

[91]The Tribunal has noted, however, that Lord Justice Underhill repeated that, "..it remains the case that the hurdle is high” and, specifically, that it is higher than the test for the making of a Deposit Order, which is that there should be "little reasonable prospect of success".

[92]In the view of the Tribunal, it may well be the case that the Claimant may ultimately struggle to demonstrate either that his resignation amounted to termination, with notice, of the contract under which he was employed in circumstances in which he was entitled to terminate it without notice by reason of the Respondent’s conduct - (which is the test for dismissal set out in section 95(1)(c) of ERA 1996 or that in terms of section 98 of that Act such (constructive) dismissal was unfair or that in terms of section 13 of the Equality Act the Respondent had discriminated against him by treating him, a man, less favourably than it treated others and did so because of his sex. But, having heard evidence from the Claimant and considered the submissions made by the Respondent’s representative at the 14 August Preliminary Hearing, the Tribunal has found that, based on the information before it, it cannot find that the Claimant’s claims as made in the ET1 have no reasonable prospect of succeeding, i.e. either the claim of unfair (constructive) dismissal contrary to the provisions of ERA 1996 or the claim of direct discrimination on the ground of sex contrary to the provisions of the Equality Act. In this context, the Tribunal took guidance from the EAT in the case of Short v Birmingham City Council and others where it was found that an , S/4103549/1 8 Page 36 Employment Judge who had considered whether, on the balance of probabilities, a Claimant was unlikely to succeed in her claims had misdirected herself in law and that the correct position to have been taken was that strike out was not justified because it could not properly have been said that the claims being made in that case had no reasonable prospect of success.

[93]In the view of the Tribunal, these are matters in respect of which it may prove to be the case that the Claimant is, metaphorically, building the foundation of his arguments on weak ground. Nevertheless, the Tribunal believes that they are matters which will require to be tested at a final hearing of the Claimant’s claim before it can be determined whether his claim is successful. And that comment relates to both the Claimant’s claim of unfair constructive dismissal and to his claim of direct discrimination on the ground of sex.

[94]Having considered the Authorities - (including what Lord Justice Underhill said at paragraph 16 of the Judgment in the case of Mr Ashok Ahir v British Airways Pic and also what he also said at paragraphs 19 and 24 of that Judgment) - the Tribunal has maintained its view that, on balance, there are sufficient allegations made by the Claimant to encourage it, the Tribunal dealing with the preliminary matter of strike out at the August Preliminary hearing, to defer to the ultimate decision of a full Tribunal at a final hearing of the Claimant’s claim.

[95]The Tribunal has determined that the Respondent’s application for strike out of the whole or parts of the Claimant’s claim shall be refused. S/4 103549/18 Page 37 Re The Making of Deposit Orders

[96]Reference has been made earlier in this Judgment to the fact that the standard, the threshold, which justifies a Tribunal in deciding that a party - (in this case the Claimant) - should be required to pay a Deposit not exceeding £1,000.00 as a condition of continuing to advance an allegation or argument is that the claim or response is a lower standard or threshold than that required for a Strike Out Order. The standard applicable to Deposit Orders is, in fact, in fact that such a claim has little reasonable prospect of success.

[97]Earlier in this Judgment the Tribunal expressed the views that it may well be the case that the Claimant may ultimately struggle to demonstrate either that his resignation amounted to termination, with notice, of the contract under which he was employed in circumstances in which he was entitled to terminate it without notice by reason of the Respondent’s conduct - (which is the test for dismissal set out in section 95(1)(c) of ERA 1996 or that in terms of section 98 of that Act such (constructive) dismissal was unfair or that in terms of section 13 of the Equality Act the Respondent had discriminated against him by treating him, a man, less favourably than it treated others and did so because of his sex. Those views were expressed in the context of the Respondent’s representative’s application for strike out of the whole or part of the Claimant’s claim as made in the ET1 but although made earlier in that specific context the Tribunal believes in the context of the Respondent’s application for a Deposit Order or for Deposit Orders that the Claimant may well struggle to demonstrate to the Tribunal dealing with his claim at final hearing either that he was constructively dismissed - (and that any such S/41 03549/1 8 Page 38 constructive dismissal was unfair) - or that he was subjected by the Respondent to direct discrimination on the ground of his sex.

[98]Which is another way of expressing the Deposit Order criterion required by Rule 39(1) as contained in Schedule 1 to the Regulations, a Rule which states that, - “(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 reasonable prospect of success, it may make an Order requiring a party ('the paying party’) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”

[99]In the present case, the Respondent’s representative has asked the Tribunal to make an Order that in respect of each head of claim made by the Claimant in the ET1 - [i.e. in respect of each of his unfair (constructive) dismissal claim and his direct sex discrimination claim] - he should be required to pay a deposit not exceeding £1,000.00 as a condition of continuing to advance the allegation or argument in question.

[100]When making his submissions the Respondent s representative has referred the Tribunal to the guidance given by the EAT in the case of Mr J Wright v Nipponkoa Insurance (Europe) Limited, a case in which the way in which a Claimant had put his case before the first-instance Tribunal had not been taken into account by the Employment Judge who conducted that first-instance Hearing and where it was determined that Rule 39(1) as contained in Schedule 1 to the Regulations entitled a first-instance Tribunal to make separate Deposit Orders in respect of individual arguments or allegations provided, when doing so. it the firstinstance Tribunal, had regard to both the question of proportionality in terms of the total award made and proper regard to the total sum awarded. 5 101. The Tribunal believes that the facts in the present case are such that the Claimant has little reasonable prospect of succeeding in persuading a Tribunal at a final hearing of his claim either that he had been unfairly (constructively) dismissed by the Respondent or that the Respondent had directly discriminated against him on the ground of his sex. In which case, the Tribunal has determined that it is, in this to case, appropriate to make one Deposit Order in respect of the Claimant's claim of unfair (constructive) dismissal a separate Deposit Order in respect of his claim of direct sex discrimination.

[102]The Claimant has stated in correspondence and again at the 14 August j5 Preliminary Hearing that he accepts that so far as each of his heads of claim is concerned “I cannot prove either 100%” that “at present I am in a 50/50 situation where the Respondent disputes my version of events and that although his hope is that presentation of his case at Final Hearing will result in the percentages changing to “70 and 80 percent respectively” by casting “serious doubt on the 20 Respondent’s version of events" “if I didn’t think I had at least a 65% chance of success I wouldn’t have started the process” and that he would not be willing to continue to a Final Hearing by paying a Deposit Order if, after the August Preliminary hearing, he felt that he had less than a 65% chance of success. S/41 03549/18 Page 40

[103]So far as these observations made by the Claimant, both in correspondence and at the 14 August Preliminary Hearing, are concerned, the Tribunal wishes to stress - (indeed, cannot stress too strongly) - both that the decision as to success or otherwise will, in the end of the day, rest with the Tribunal considering the 5 Claimant’s complaint at final hearing and that the Tribunal dealing with the issues with which it was charged to deal at the purpose-specific 14 August Preliminary Hearing is not intent on attributing any percentage figure to the likelihood - (or otherwise) - of either of the Claimants heads of claim succeeding at final hearing. io104. The Tribunal has noted that the Claimant had been warned by the Respondent’s representative, in writing, that the Respondent’s representative would seek Deposit Orders at a figure of £1,000.00 in respect of each head of claim, i.e. a total of £2,000.00. 15

105. The Tribunal was satisfied from what he had said both in writing and during the course of the 14 August Preliminary Hearing that the Claimant did not seek to argue that he would be unable to pay the Deposit sought in respect of each head of his claim, a total of £2,000.00. 20

106. The Tribunal has therefore determined that the Claimant shall be ordered to pay a deposit of £1,000.00 as a condition of continuing to advance his allegation or argument that he had been unfairly (constructively) dismissed by the Respondent and, separately, a deposit of £1,000.00 as a condition of continuing to advance his allegation or argument that he had been discriminated against by the Respondent 25 on the ground of sex.

[107]The decision as to whether or not to go ahead with his claim in the face of and in the realisation of Deposit Orders being made against him is a decision which must rest entirely with the Claimant. That said, however, it is appropriate for the Tribunal to refer the parties to the provisions of sub-sections (4), (5) and (6) of 5 Rule 39 as contained in Schedule 1 to the Regulations, provisions, to which, in part at least, the Tribunal Office will no doubt refer when sending the Claimant a covering letter with the Deposit Orders that will follow on from the promulgation of this Judgment. IO Employment Judge: C Lucas Date of Judgment: 06 September 2018 Entered in register: 17 September 2018 and copied to parties E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103549/2018 Held in Glasgow on 24 July 2019 Employment Judge L Wiseman Mr Glenn Marr Claimant In Person Energetics Design and Build Ltd Respondent Represented by: Mr J Lee - Solicitor

Discussion

[1]This was a preliminary hearing to determine the respondent’s application to have the claim struck out. A Deposit Order was made on the 13 September 25 2018, ordering the claimant to pay a deposit of £1000 as a condition of being allowed to continue with his claim of constructive dismissal and a deposit of £1000 as a condition of being allowed to continue with the claim of direct sex discrimination.

[2]The deposit had to be paid by 5 October 2018. The claimant, by email of the 30 27 September, made an application to vary the Order and subsequently appealed to the EAT. There is a dispute between the parties regarding the effect of the claimant’s email of the 27 September: the respondent’s position is that the deposit was not paid, and accordingly the claims should be struck out. The claimant’s position is that the application to vary the Order has not yet been heard and that his claims should not be struck out until that application has been heard. Respondent’s submissions

[3]Mr Lee referred the tribunal to the preliminary hearing on the 14 August 2018 which was arranged to determine the claimant’s application to amend the claim and the respondent’s applications for strike out of the claim failing which a deposit.

[4]The Employment Judge refused the claimant’s application to amend the claim and the respondent’s application to have the claim struck out, but made a Deposit Order. The Deposit Order was dated 13 September and ordered the deposit to be paid on, or by, 5 October 2018.

[5]Mr Lee drew my attention to the notes attached to the Deposit Order which provide as follows: “(1) Unless the deposit is paid within the time limit, the allegation or argument to which this order relates, will be struck out. (2) You may apply to have this order varied, suspended or set aside. You must confirm when making such an application that you have copied it to the other party(ies) and notified them that any objections to your application should be provided to the Tribunal as soon as possible.”

[6]The claimant, sent an email to the Employment Tribunal on the 27 September 2018. The email was in the following terms: “I am out of the UK until Sunday I haven’t read the judgment of the 17 September Please could I have an additional two weeks to consider how best to proceed.”

[7]Mr Lee submitted the email from the claimant was not a competent application to vary the Order because it had not been copied to him. In the alternative, the application was for an extension of two weeks in which to pay the deposit (that is, by the 11 October 2018). The claimant has not paid the deposit.

[8]The tribunal sent an email to both parties, dated 17 October 2018, in the following terms: “I refer to the above named proceedings and acknowledge the claimant’s correspondence dated 27th September 2018. On the expiry of the 2 weeks requested and on checking with the relevant department that the deposit order had not been paid, the case was referred to Employment Judge McLean. Employment Judge McLean who has stated that she believes the claimant’s email appears to be an application to vary the order which was issued and request that we copy this to the respondent for comments.”

[9]Mr Lee responded on the 17 October 2018 in the following terms: “We understand that the claimant has requested, by email of the 27 September, an extension of time in which to consider his position. This has been treated as an application to vary the Tribunal’s Order that a deposit be paid in respect of both of the claimant’s claims dated 13 September. We would make the following observations in respect of the claimant’s application …”

[10]Mr Lee went on in his letter to refer to the terms of the Deposit Order and the notes (set out above). He further referred to the fact the claimant had previously been reminded by an Employment Judge of the need for him to copy the other side into all correspondence sent to the tribunal.

[11]Mr Lee argued the application to vary was incompetent because it had not been copied to him, and accordingly there was no valid application to vary the Order, presented to the tribunal for consideration prior to the 5 October 2018. Mr Lee referred to the fact the Employment Judge making the deposit order had discussed with the claimant, the effect of making the order.

[12]The claimant was asked by the tribunal to comment on the respondent’s letter, but did not respond. The claimant did lodge an appeal with the EAT.

[13]The tribunal wrote to both parties on the 7 November 2018, noting correspondence had been received from the EAT and stating: “The claimant’s email dated 27th September 2018 has at this stage been treated as an in-time application to vary the order dated 13th September issued by Employment Judge C Lucas. The respondent’s response to that application 30 dated 17th October 2018 has been received but not yet considered by the tribunal. In light of the claimant’s appeal lodged on the 23rd October 2018, Employment Judge Robison has decided to take no further action in regard to the application pending the outcome of that appeal.”

[14]Mr Lee advised the tribunal, by email of the 12 June 2019, that the EAT had rejected the claimant’s appeal. He made an application to remove the current sist and to strike out the claim pursuant to the Deposit Order made on the 13 September 2018.

[15]The claimant, in response to that email, wrote to the tribunal on the 16 June 2019, stating he was applying for the Deposit Order to be set aside.

[16]Mr Lee referred the tribunal to the cases of Taylor v University Hospitals Birmingham NHS Trust

UKEAT/0039/14

at paragraph 36,where it was stated that if an appeal against a deposit order is being made, the employee should also make an application for an extension of time in which to pay; and to Scottish Ambulance Service v Laing UKEATS/00381/12 where the EAT stressed a tribunal had no discretion regarding strike out in circumstances where there had not been compliance with an unless order. Mr Lee submitted the same was true of a failure to pay a deposit order.

[17]Mr Lee, in conclusion, submitted the application to vary made on the 27 September 2018, was not competent. The claimant had not paid the deposit, and accordingly the claim should be struck out. Claimant’s submissions

[18]Mr Marr explained that on the 27 September he had been out of the UK, and was contacted by his son who told him he had lost at the preliminary hearing. Mr Marr sent the email dated 27 September because he needed time to read and process the Judgment. Mr Marr only had use of his mobile phone and did not have the respondent’s email address available, and this was why it had not been included on the email. Mr Marr accepted he had been reminded by an Employment Judge to copy correspondence to the other side, and he had complied with this except on this one occasion where he had been unable to do so.

[19]Mr Marr acknowledged the terms of the deposit order, but referred the tribunal to rule 5 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, (the Rules) which deals with extensions of time.

[20]Mr Marr referred to the tribunal’s letter of the 7 November 2018: he understood from that letter that the 5 October date had been put on hold.

[21]Mr Marr stated it had not been clear to him whether he had to pay the deposit in order to appeal, or be able to argue that it should be set aside. He still was not clear on this.

[22]Mr Marr noted he was a litigant in person and could not be expected to know the rules to any great degree. Discussion and Decision

[23]I noted there was no dispute regarding the fact a Deposit Order was made on the 13 September 2018, ordering the claimant to pay the sum of £1000 as a condition of being allowed to proceed with the complaint of (constructive) unfair dismissal and £1000 as a condition of being allowed to proceed with the complaint of sex discrimination. The deposit had to be paid no later than 5 October 2018. The claimant has not paid the deposit.

[25]The issue in this case focussed on whether, in circumstances where the deposit has not been paid, the claims should be struck out; or whether the claimant’s email dated 27 September 2018 prevented that.

[26]I had regard firstly to the fact the claimant was entitled to apply to have the Order varied, suspended or set aside. The claimant’s email dated 27 September informed the tribunal he was out of the country and had not read the Judgment. He asked if he could have an additional two weeks to consider how best to proceed.

[27]This email was not processed by the tribunal until the 12 October, when it was referred to an Employment Judge. I noted that in the intervening period the time limit for making payment had passed. I also noted that the claimant, having made his request on the 27 September, did not have a response from the tribunal until after expiry of the time limit for payment.

[28]The email sent from the tribunal to the claimant on the 17 October, noted the Employment Judge believed the email to appear to be an application to vary the order, and that comments were invited from the respondent (to whom we sent a copy of the claimant’s email). Mr Lee responded immediately to the tribunal’s letter.

[29]I considered the letter to both parties, from the tribunal dated 7 November 2018, to be crucial. That letter stated the claimant’s email of the 27 September 2018 had been treated as an “in time application to vary the order dated 13 September”. Further, it noted the respondent’s response to the application had been received but not yet considered. However, in light of the claimant’s appeal, no further action would be taken “in regard to the application pending the outcome of the appeal”.

[30]I did not doubt that if the claimant had not paid the deposit and had not taken any action, his claim would have been struck out automatically upon the failure to pay. However, the claimant did take action in this case: he emailed the tribunal on the 27 September asking for an additional two weeks to consider how best to proceed.

[31]I acknowledge the respondent may wish to argue whether this was a competent application to vary the order, but it was clear from the tribunal’s letter to parties dated 7 November, that(i) the claimant’s email of the 27 September 2018 has, at this stage, been treated as an in time application to vary the order dated 13 September 2018;

(ii) the respondent’s response to that application has been received but not yet considered and

(iii) the matter was put on hold pending the outcome of the appeal to the EAT.

[32]I considered the parties’ arguments regarding the application to vary the order are still to be heard and in those circumstances I concluded the respondent’s application to have the claim struck out is premature.

[33]I directed that this case be listed for a one day preliminary hearing to determine the claimant’s application to vary the order dated 13 September. The claimant will, at that hearing, have an opportunity to explain why he considers the order should be varied (or set aside) and the respondent will have an opportunity to respond to that application. I acknowledge some of the arguments advanced by the respondent today (for example in relation to the competency or otherwise of the application) may have to be repeated.

[34]I decided for all of these reasons to refuse the respondent’s application have the claim struck out. Employment Judge: L Wiseman Date of Judgement: 25 July 2019 Entered in Register, Copied to Parties: 01 August 2019 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103549/2018 Preliminary Hearing at Glasgow on 1 1 September 2019 Employment Judge: M A Macleod Glenn Marr Claimant In Person Energetics Design and Build Limited Respondent Represented by Mr J Lee Solicitor

[35]The claimant said that the appeal was rejected by the EAT at the sift stage because he had not presented certain documents. He did not ask for a hearing before the EAT. He said that what he was appealing against was that Mr Lee had referred to the claim not having been foreshadowed, but that was incorrect and the deposit orders were issued on that basis.

[36]The claimant pointed to the terms of C47, his letter of resignation, in which he said that his only option was to resign: “Following the compromised investigation into my grievance dated 18 September 2017, I feel my only option is to resign. Please accept my three months notice period as per my contract of employment. I will be raising an action in full with an employment tribunal regarding the unsatisfactory outcome of my grievance. ”

[37]The grievance had, he said, made reference to constructive dismissal, and therefore it was reasonable to assume that that would form part of this Tribunal claim.

[38]He then referred to correspondence between himself and the respondent which demonstrated, he said, that his contract of employment had been breached by them. The Judge said that he did not think that the claimant would be able to prove constructive dismissal, but the claimant said that he thought it was a very clear showing of constructive dismissal. He also complained that the Tribunal refused to accept that the grievance documents were part of the ET1, but he argued that they did, and in any event, the respondent answered the points in the ET3.

[39]He said he did not believe that there was any time bar issue, notwithstanding that the Tribunal took that matter into account in their

[40]He said that when he received the Tribunal’s judgment, the best course of action was to appeal. He was a bit confused, he said, and wondered if he had to pay the deposits within two weeks. He did not seek advice but said that he misunderstood the position. When he saw Mr Lee’s application for strike out two hours after receiving the appeal decision, he realised that he should have applied to vary the Order, and could have done that all along. His application was treated as an in-time application to vary the order. 41 .The claimant invited me to set aside the Orders.

[42]Mr Lee responded, briefly. He said that the root issue here is that this matter arose from the PH on 21 June 2018.

[43]Employment Judge Lucas did consider the issue of time bar, but only because the authorities required him to do so. He did not make any determination either way on that point.

[44]He said that the application now before the Tribunal is to set aside the Orders, and he was unclear as to where this leaves matters. There was no application to vary time for compliance, and accordingly the claims fall to be struck out. The claims, he concluded, should be struck out with effect from 5 October 2018, and not the date of this hearing.

The Relevant Law

[45]1 was referred to the Employment Appeal Tribunal decision of Lady Smith in Scottish Ambulance Service v John Laing UKEATS/0 038/1 2/BI, a decision relating to the effect of an Unless Order, at paragraph 35. In that paragraph, Lady Smith observes that looking at matters in the round, considering issues of fair notice, remembering that strike out was a power which ought not to be readily exercised, considering proportionality and reaching a decision by means of the exercise of a discretion are all features which are relevant in considering whether or not to order strike out of a claim. However, they are not relevant when considering whether an Unless Order, a conditional judgment, has been complied with. In that situation, by issuing the Unless Order, the Tribunal had already decided that the draconian sanction of strike out was appropriate in the event that the Unless Order were not complied with.

[46]Both parties referred to Taylor v University Hospitals Birmingham NHS Trust

UKEAT/0039/14/DA

(& Others). Mr Lee referred to paragraph 36, in which it was said that a litigant who wishes to have an extension of time for paying a deposit pending appeal ought to make an application to that effect.

[47]The claimant referred to paragraphs 27 and 28 of that Judgment, which referred to Rule 20(4) of the Employment Tribunals Rules of Procedure 2004, the predecessor of the Rule to which this case refers. Discussion and Decision

[48]This case has had an unusual history, and it is important before drawing any conclusions that I establish clearly the issue which is before me in making this decision.

[49]The hearing of 11 September was fixed, by Notice of Hearing dated 21 August 2019, to determine the claimant’s application to vary the Order dated 13 September (understood to mean 2018).

[50]The Order dated 13 September 2018, set out above, was issued by Employment Judge Lucas following a Preliminary Hearing on 14 August 2018. Under normal circumstances, an application to vary an Order would be heard by the same Employment Judge who issued the Order, but in this case, the Employment Judge having retired, this was not possible, and accordingly the hearing was allocated to me.

[51]The context in which the deposit orders were granted is important, as it seems to me.

[52]The hearing of 14 August 2018 was listed to address an application by the claimant to amend his claim, and an application by the respondent for strike out of the claimant’s claims of constructive unfair dismissal and sex discrimination, which failing for deposit orders in respect of the continued advancement of those claims.

[53]The application to amend the claim was refused. That may have been the subject of the claimant’s appeal to the EAT, but that is not a matter which comes before me at this stage. The claimant appears, in his submission, to have drawn my attention to aspects of the decision taken by Employment Judge Lucas in considering the application to amend, but those matters are irrelevant to the question of whether or not the deposit orders should be varied. For example, the claimant's reference to the passage which dealt with the issue of time bar is not related to the deposit orders, but to whether the principles to be applied from the case of Selkent Bus Company Ltd v Moore in deciding whether or not to grant the application to amend.

[54]It is also important, in my judgment, to note that a deposit order is not made because a claim is considered to have no reasonable prospect of success, but because the Employment Judge considered that it had little reasonable prospect of success. The claimant has, it seemed to me, attempted to use this hearing to reopen the entire argument about whether or not his claim had any reasonable prospect of success, but that would be a misunderstanding of the basis of the decision. Employment Judge Lucas did not consider that the case was, to put it colloquially, completely hopeless, but he did have serious reservations as to its strength given what he had heard at that Preliminary Hearing.

[55]Having said all of that, the application before me is to vary the deposit orders. The scope and nature of that application appears to have changed in the course of the hearing. The original application was to vary the orders by allocating further time to allow the claimant to consider the matter and decide how to respond. Now, it appears that the claimant, at the very end of his submission before me, wishes the Tribunal to revoke the orders altogether.

[56]It is important to consider where we are with the applications. Mr Lee has submitted that the original application for an extension of time was not, in fact, a competent application for an extension of time. In my judgment, there are two reasons why this submission cannot be sustained. Firstly, the claimant, as an unqualified and unrepresented party, may not have used the specific language of the Rules of Procedure, but it is perfectly clear that in plain language he wished to vary the order by asking for more time to respond to it. That was a reasonable and legitimate request, and I do not find that it was incompetent. Secondly, in any event, that matter has been resolved by the Tribunal. It is perhaps understandable that the respondent has expressed a degree of frustration with the way in which this was developed by the Tribunal, but in my judgment, the decision has been taken by the Tribunal that the application was in time, and amounted to an application to vary the date by which compliance was to be granted. The matter is put beyond doubt by the decision of Employment Judge Wiseman dated 25 July 201 9 when she refused to strike the claim out and allocated this hearing for the purpose of addressing the application to vary the orders.

[57]There was, unquestionably, an air of uncertainty as to what all of that meant, but in time it was clear enough that the Tribunal intended to allow the matter to remain live while the appeal was dealt with. When that was concluded, the claimant renewed his application to vary the deposit orders.

[58]The claimant has not, however, in my judgment, effectually made an application for a further extension of time within which to comply with the Orders. He has not complied with the Orders, and therefore in the absence of the payment of the deposit orders is at risk of losing the right to proceed with them.

[59]The claimant has now decided to seek to have the orders set aside completely. His reasons for doing so are that the original decision issued by Employment Judge Lucas was wrong for a number of reasons. However, it is plain that he appealed against that decision to the Employment Appeal Tribunal, and he accepts that his appeal was rejected. On that basis, it appears to me quite clear that it is not open nor competent for the claimant to seek to argue these matters before me.

[60]Accordingly, I am not persuaded that the claimant has demonstrated any clear or valid basis for overturning the deposit orders, nor that he has undermined in any event the reasons taken by Employment Judge Lucas for issuing the orders in the first place.

[61]This case has now endured a long and tortuous history, which has allowed the situation to develop whereby there is a significant degree of uncertainty as to the proceedings. It is therefore time to bring certainty to the matter, in the interests of justice and in accordance with the overriding objective of the Employment Tribunal.

[62]The claimant was ordered on 13 September 2018 to pay deposits as a condition of being permitted to continue with his claims of constructive unfair dismissal and sex discrimination. He has been given very considerable latitude by the Tribunal over a period now exceeding 12 months, and has been permitted to continue with this claim in the meantime, but without paying the deposits or providing any clear basis upon which he has declined to do so.

[63]1 accept that failure to comply with an Order in the terms set out by Employment Judge Lucas would normally make it inevitable that the claim should be struck out. My hesitation in moving to that decision is that while there is no doubt that the claimant was ordered to pay deposits as a condition of being allowed to continue to pursue the case before the Tribunal, there has been some doubt (in the minds of all concerned) as to when the date for compliance expired.

[64]Having reflected carefully upon this, however, it is my judgment that it is in the interests of justice, in refusing the application to vary or revoke the deposit orders, that the claimant has failed, over a period of more than 12 months, to comply with the Orders, and having done so, his claim must be struck out, in light of the clear and unambiguous terms of the Orders. That there was some uncertainty about the precise date for compliance can no longer be used by the claimant as an argument for further time, since this hearing was allocated for the precise purpose of determining that issue once and for all. There is an interest in finality in litigation, and the interests of justice require that I pay heed not only to the claimant’s interests but also those of the respondent, who have waited a very considerable time for this matter to be addressed and determined.

[65]Accordingly, it is my judgment that the claimant’s claims of unfair constructive dismissal and sex discrimination are struck out on the basis of his failure to comply with the Deposit Orders issued on 13 September 2018. The date upon which that strike out comes into effect is the date of this 5 Judgment, given the extensions of time which have been given to the claimant in respect of his compliance with the orders.