Mr C G de Oliveira v The City of Edinburgh Council and others: 4103605/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103605/2022Venue EdinburghHearing 26 April
Between
Mr C G de OliveiraClaimantThe City of Edinburgh Council and othersRespondent
Before
Employment Judge M A MacleodDate 27 July 2023
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claims should be struck out in their entirety under Rules 37(1 )(a) and (b) of the Employment Tribunals Rules of Procedure 2013. ETZ4(WR)
REASONS
[1]This case has a lengthy and complex history, and is one of a number of claims presented to the Tribunal by the claimant against the first 5 respondent.[2]A Preliminary Hearing was listed to take place on 26 and 27 April 2023 in the Employment Tribunal, Edinburgh, in order to determine a number of preliminary issues set out in the Notice of Hearing.[3]The claimant did not attend, nor was he represented. The respondents were 10 represented by Ms Sutherland, solicitor.[4]It is important to set out some of the relevant background, the circumstances of this Hearing, the issues before this Hearing, summarising the respondent’s submissions and then the Tribunal’s decision and reasons therefor.
Background
[5]The Notice of Hearing in respect of this Preliminary Hearing was issued to the parties on 29 December 2022.[6]On 27 March 2023, the claimant submitted an application for postponement of this Hearing, on the basis that he was medically unfit to attend, that he had other commitments in relation to appeals before the Employment Appeal Tribunal and that he was planning to travel to Brazil between May to August 2023 to visit family. He produced a letter from his GP in support of the first part of his application.[7]The application was not granted, but the Tribunal set out a number of questions which the claimant was to direct to his GP, by letter dated 28 March 2023.[8]The claimant renewed his application for postponement on 4 April 2023, adding to the list of grounds for postponement the fact that he had been contacted by Police Scotland, PIRC and the Procurator Fiscal in connection with his having reported criminal matters while working for the respondent. On 11 April 2023, he submitted a further email to the Tribunal, and attached thereto a further letter from his GP, in which he maintained that he had set out the “required wording” for his postponement application.[9]That application was refused by order of Employment Judge J d’lnverno dated 21 April 2023, with detailed reasons which were sent to parties on 24 April 2023. It was confirmed that the Preliminary Hearing listed for 26 and 27 April 2023 would proceed as listed, and that the Tribunal would have regard to the terms of Rule 47 of the Employment Tribunals Rules of Procedure 2013 in the event that the claimant did not attend the Hearing.[10]No further communications were received from the claimant before the commencement of this Hearing after the order refusing the application to postpone had been issued to the parties. The Circumstances of this Hearing[11]The Hearing was due to commence at 10am. At that time, I as the sitting Employment Judge was informed by the clerk that Ms Sutherland, the respondents’ solicitor, was in attendance, but that the claimant had not arrived. I invited the clerk to make contact with the claimant to ask whether or not he intended to appear. She advised me that the Tribunal file did not disclose a telephone number for the claimant, but that she would send an email to him. She duly did so, and no response was received at any stage during the course of the morning. 12.1 explained to Ms Sutherland the circumstances of which the Tribunal was aware at that point, and, noting the terms of Rule 47 which requires the Tribunal to “consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence, asked her whether she had had any contact with the claimant which might shed light on the matter. She advised that she had sent the claimant a copy, electronically, of the bundle for this Hearing, and had also arranged for a hard copy of the bundle to be delivered, recorded delivery, to his home address. She received no response from the claimant, and no notification that the electronic bundle had been downloaded by him, which would be automatically generated once the recipient did so. She was unable to provide any further information as to the reasons for the claimant’s nonattendance.[13]Ms Sutherland submitted that the claim should be dismissed on the basis of the claimant’s failure to attend, particularly in light of the clear statement in the order refusing the application to postpone that the Hearing would proceed, and referring the claimant to the terms of Rule 47. That Rule provides that the Tribunal may dismiss the claim or proceed with the Hearing in the party’s absence. She also argued that the claim should be struck out due to the claimant’s conduct of the proceedings and for the other reasons set out by the respondent, and maintained that the claimant has demonstrated a clear pattern of disrespect towards the Tribunal, both in these proceedings and in the 3 other cases which he has raised against the first respondent before this Tribunal. She observed that in one Hearing the claimant walked out before the conclusion.[14]She added that failing to attend this Hearing was an example of the claimant’s failure to pursue his claim under Rule 37(1 )(d).[15]On the basis that the respondent had presented a skeleton submission in relation to the outstanding preliminary issues, and notwithstanding that the claimant’s non-attendance had been raised under Rule 47, I asked Ms Sutherland to proceed to present her submissions on the preliminary points in order to ensure that matters were fully ventilated.
The Issues
[16]In the Notice of Hearing for this Hearing, the issues were set out as follows (143):(a) Determine the Respondents’ Application for Strike out in terms of Rules 37(1 )(a) and 37(1 )(b);(b) Determine the Preliminary Issue of Jurisdiction to consider the claim;(c) The Determination of the opposed elements of any application for leave to amend if brought forward and if opposed; and(d) Consider any other Preliminary Issues as the Tribunal may in the interim appoint for determination at Open Preliminary Hearing.[17]So far as points (c) and (d) are concerned, no further issues arise since that Notice of Hearing, and accordingly this Hearing was only to deal with (a) and (b).[18]As to the points referred to in (b), these were expanded upon in the Note following Preliminary Hearing on 14 December 2022 by Employment Judge d’lnverno (137): 1. Does the Tribunal have jurisdiction to hear the following claim set out in the claimant’s ET1 claim form “Breaches of Rights to mutual dignity, respect, trust under Contract of Employment Legislation (ERA 1996)”, given the claimant’s employment continues and which it was recorded in Case Number 4101091/2022 the Tribunal did not have jurisdiction to hear? 2. Does the Tribunal have jurisdiction to hear the following claim set out in the claimant’s ET1 Claim Form: “Modern Slavery: free and legally entitled to work in a safe place free from bullying, harassment, victimisation and from being forced into working at remotely or not various primary schools, nurseries infected with Covid-19 virus past and presently through threats made by senior EYOs Laura Maguire and Faye-Maria Shumba who stated were following on orders by Senior Education Officer Shona Murray and they said publicly ‘Donna is the boss’ she can do that, it is written in Contract of employment T&Cs” which it was recorded in Case Number 4101091/2022 the Tribunal did not have jurisdiction to hear? 3. To the extent that the claimant’s claim noted at (2) above relates to him being asked to work at other nurseries, is this a repetition of the part of the claimant’s claim Case Number 4101091/2022 namely does the Tribunal have jurisdiction to hear it in this case 4103605/2022? 4. Is the following claim set out in the claimant’s ET1 Claim Form already being pursued by him in Case Number 4101091/2022: ‘‘Unlawful deduction or reduction of monthly wages due to new sickness leave occurred into new financial year starting 1 st October 2021 and/or new sickness leave occurred at the previous End of year ended 31 st September for annual holidays and Sickness Absence Leave purposes at City of Edinburgh Council, following threatening letter from Payroll Manager”? If so, does the Tribunal have jurisdiction to hear it in this case (4103695/2022)? 5. If the Tribunal does have jurisdiction to hear the claimant’s unlawful deduction, does it have jurisdiction to hear it against the 2 nd and 3 rd respondents?[19]This represents the issues for determination at this Hearing. Submissions for Respondents[20]For the respondents, Ms Sutherland presented a written submission, to which she spoke briefly. A summary of that submission follows.[21]She summarised the procedural history of the case, emphasising that the claims for unfair dismissal, redundancy payment and notice pay had been dismissed following withdrawal; that this is the claimant’s 4th Employment Tribunal claim against the first respondent; that the claimant was required in September 2022 to provide further and better particulars of his claim; and that no application to amend has been made by the claimant.[22]Firstly, she advanced an application for strike-out of the claim under Rule 37(1 )(a), on the ground that the claim is scandalous or vexatious, or has no reasonable prospect of success; and under Rule 37(1 )(b), on the ground that the manner in which the claimant had conducted the proceedings had been scandalous, unreasonable or vexatious. Having set out the legal framework to be considered by the Tribunal, she submitted that the claimant had, at various stages, failed to engage properly with the questions he was asked to answer. For example, the claimant has, she said, repeated the same answers for both direct and indirect discrimination, and has repeated the same answers for every protected characteristic which he is relying upon. As a result, the claimant has not properly considered the claims which he is seeking to make, and has made a number of claims in which he relies upon a list of 5 protected characteristics without properly identifying which he is relying on, in the hope that one might be successful.[23]The respondents argue that it is not possible to have a fair trial of the case because the respondents have not had fair notice of the claims against them.[24]Ms Sutherland then took the Tribunal through the different claims made, and set out why the respondents submit that they have no reasonable prospect of success.[25]She submitted that the Tribunal lacks jurisdiction to hear the two claims identified by Employment Judge d’lnvemo (and set out above). The claimant’s employment is continuing and accordingly he cannot maintain a claim of breach of contract, notice pay or constructive unfair dismissal (though he does not seek to do the last two as it stands). With regard to the modern slavery claim, the claimant has already made such a claim in an associated case and been advised by the Tribunal that it lacked jurisdiction to hear it.[26]Similarly, since case no: 4101091/2022 has been dismissed (156/7) the claimant cannot pursue a claim that he was asked or required to work in other schools or nurseries by the respondents, since that claim is res judicata; and he cannot pursue a claim in respect of unlawful deductions from wages in relation to pay reduced or deducted due to sickness absence leave after September 2021, since that was also dismissed under that case number.[27]Finally, the Tribunal lacks jurisdiction to hear the claimant’s unlawful deductions from wages claim as against the 2 nd and 3rd respondents, who were not his employer but employees of the 1 st respondent.[28]In her oral submission, Ms Sutherland added that under Rule 37(1 )(d), the claim should be dismissed on the grounds that his failure to attend this Preliminary Hearing demonstrates that he is failing to pursue his claim properly.[29]She submitted that if the Tribunal were not minded to grant the strike out application, a deposit order should be issued to the claimant.
The Relevant Law
[30]Rule 37(1) of the Employment Tribunals Rules of Procedure 2013 provides: “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). ” 31 .Rule 37(2) provides: “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. ”[32]In this case, plainly, the claimant was given the opportunity to attend a hearing but did not do so.[33]In Blockbuster Entertainment Ltd v James 2006 IRLR 630 CA, the Court of Appeal found that for a Tribunal to strike out a claim based on unreasonable conduct, it has to be satisfied that the conduct involved deliberate and persistent disregard of required procedural steps or has 10 made a fair trial impossible; and in either case, striking out must be a proportionate response.[34]The court went on to say (paragraph 21): “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 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. ”[35]Sedley LJ, in Bennett v Southwark LBC [2002] ICR 881, considered the question of proportionality in the context of that appeal: “But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the descriptions scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it. Here, as elsewhere, firm case management may well afford a better solution.. .. ”[36]The case of Faron Fariba v Pfizer Limited & Others UKEAT/0605/10/CEA was a case in which the EAT found that an Employment Judge was entitled to strike out claims by a claimant who had demonstrated by her disregard for Tribunal orders and the allegations made in correspondence against the respondent, their solicitors and the Tribunal that she was incapable of bringing her complaints to a fair and orderly trial.[37]In reviewing the claimant’s conduct, Mr Justice Underhill noted: “Dr Fariba said at this hearing that the Tribunal was being distracted from dealing with her employment claim. I entirely agree with that statement, but in my judgment it is Dr Fariba who has not been focussing upon the specific legal claims that she wishes to have the Tribunal determine, but has consistently sought to divert attention from them by raising peripheral issues and making extensive and excessive allegations. ” 10 38. At a later stage in the judgment, Mr Justice Underhill said: “This is not... a case of the (not uncommon) kind where a litigant in person fails to meet deadlines and/or behaves unreasonably or offensively but is nevertheless doing his or misguided best to comply with the directions set by the tribunal in order to get to trial. Instead, the scatter of allegations of misconduct, the applications for a stay, the pursuit of other proceedings, the threats of resort to criminal or regulatory sanctions, clearly indicated that the Appellant’s focus was entirely elsewhere and that if the case remained live she would, if I may use my own language, continue to thrash around indefinitely. That is why, and the sense in which, the Judge concluded that a fair trial was impossible. ” Discussion and Decision Should the claim be dismissed under Rule 47?[39]The first issue for determination is whether or not the claim should be dismissed under Rule 47, on the basis that the claimant did not attend the Hearing on 26 April 2023.[40]As will be apparent from what is stated above in paragraphs 11 to 15, this matter was addressed at the outset of the Hearing, but I decided that the Hearing should proceed in the claimant’s absence rather than dismiss the claim outright at that stage. 41.lt is, however, an important factor in the decision which follows that the claimant did not, in the circumstances, attend this Hearing.[42]Accordingly, the claim is not dismissed under Rule 47 for the claimant’s non-attendance at the Hearing. Should the claim be struck out under Rule 37(1)(a) or (b)?[43]The respondent’s submission was that the claim itself was scandalous, vexatious and/or had no reasonable prospect of success (37(1 )(a)), and that the manner in which the claimant had conducted the proceedings was vexatious and/or unreasonable. 44. 1 deal with these two aspects separately, though they are linked.[45]The claimant’s claim has been formed from the original claim form, from which withdrawals have been made by the claimant, together with the further and better particulars submitted by him in response to Orders issued by the Tribunal.[46]The respondent’s position is, essentially, that the claims have not been properly specified and that they lack fair notice of the case which they are faced with. Further, they maintain that there are aspects of the case which are so confused, and confusing, that they are incomprehensible to the respondent in seeking to prepare for a Hearing in this case.[47]The Tribunal well understands that the claimant is representing himself, without the benefit of legal advice; and that strike-out is the most draconian penalty which can be imposed upon any party in litigation, and as a result is only to be contemplated in exceptional circumstances.[48]That said, it is well-established that a claimant cannot ignore the requirements of either the law or the Rules of Procedure in presenting his claim. The interests of justice apply to both parties, and as Ms Sutherland eloquently argued, the respondents are entitled to know the case against them. This is perhaps particularly so where the 2 nd and 3 rd respondents are individuals employed by the 1 st respondent, rather than a large organisation which may be taken to accept the need, from time to time, of defending litigation, without feeling that it amounts to a personal attack.[49]This claim is an experienced litigant. This is his 4th claim against the 1 st respondent before this Tribunal, and he has engaged in not only raising 5 Employment Tribunal claims but also lodging appeals against the decisions of the Employment Tribunal, without any apparent success.[50]Although he has entered the field of complex litigation by raising proceedings alleging discrimination in relation to a number of protected characteristics, and therefore requires to be granted a degree of latitude 10 which a professional legally qualified practitioner would not, there is a limit to the latitude which he may reasonably expect to be given. He has chosen to engage in litigation, and cannot now be said to be ignorant of what is involved.[51]Not only has he engaged in litigation against the same 1 st respondent on a 15 number of occasions, he has also indulged himself in raising the same claims more than once, despite being told by this very Tribunal (in the person of at least 2 other Employment Judges) that those claims - relating to modern slavery and breaches of contract or trust - have no prospect of success and must be struck out. The claimant’s attitude appears to be that either he can simply repeat his earlier claims in the hope that the next Employment Judge to address his case does not notice that the claimant has raised the complaints before, or that he knows better than the Employment Judges who have made clear what claims he can and cannot bring are. 52. 1 take each of the claimant’s claims in turn in order to assess whether it can be said that they have no reasonable prospect of success.[53]The claimant complains of detriments under section 47B of the Employment Rights Act 1996 (ERA). The further and better particulars set out his purported detriments at paragraph 5 (93). What the claimant sets out in paragraph 5 are a number of effects which he claims the treatment had upon him, but he does not specify what treatment can be said to amount to detriments. He refers to “discriminations” and “harassment”, but does not say what he means by this. Paragraph 5 corresponded to question 5 under this heading set out by the respondent, as ordered by Employment Judge d’lnverno, to ask him for the further specification required, in which they asked the claimant what detriment or detriments he had been subjected to on the ground of having made a protected disclosure (82).[54]In my judgment, the claimant has singularly failed to answer this question, and has left the Tribunal and the respondent without any understanding of the basis of this claim. As a result, this complaint has no reasonable prospect of success.[55]The claimant then complains of discrimination arising from disability under section 15 of the Equality Act 2010 (EqA). His further and better particulars set out the answer to the respondent’s question about this at paragraph 2 (94). What he says there is that the “something” was “being fobbed off as mine numerous letters and emails went unanswered satisfactorily by the Respondents.” He maintained that he was treated with contempt and suffered hurt feelings post whistleblowing and being unwell when being told by Pat Brack that he was seeking guidance from HR.[56]It is not clear what unfavourable treatment the claimant is complaining of here. It is notable that his further particulars tend to emphasise the effect of treatment upon him, rather than delineating exactly what the treatment was. In addition, there appears to be some confusion as to whether or not he is attributing the hurt feelings to his having engaged in whistleblowing or due to disability.[57]The claimant complains of a failure to make reasonable adjustments under section 20 EqA. The respondent complains that the claimant has not set out a provision, criterion or practice upon which he relies. In paragraph 2 (95), he narrates actions taken by the respondent, including arranging Occupational Health referrals, a failure to address emails and paying for a private consultancy to investigate the claimant post-whistleblowing to intimidate and discredit him. In addition, he seems to suggest that there were errors made in the calculation of sick pay.[58]These do not appear to amount to PCPs, but actions taken against him which he regards as unfair and perhaps discriminatory (though precisely how is unclear).[59]He also refers, in paragraph 3, to “physical features”, which include descriptions of his illness rather than of physical features of the workplace. 60.lt is entirely understandable that the respondents cannot work out what the claim under section 20/21 is in this case. 10 61. The claimant complains of direct discrimination under section 13 EqA, in relation to the protected characteristics of disability, age, race, religion and sex.[62]The respondent denies that there has been less favourable treatment and maintains that the claimant’s descriptions of the events under consideration do not reflect the terms of contemporaneous documents and emails. His response also refers to whistleblowing disclosures rather than any protected characteristic.[63]Essentially, the claimant appears to be taking a very broad brush to allege that he was discriminated against on the grounds of 5 different protected characteristics. At paragraph 4 (96), he provides some detail about the illness from which he suffered. However, the response is very confused and difficult to follow, and lacking in substance; for example: “Any employee who may not had made Whistleblowing Protected Disclosures nor been subject to Discriminations, Hurt to Feelings, harassment, distress, inconvenience they caused but unfairly, insult to my injuries, aggravated damages, clinical depression and financial detriments by the Respondents.”[64]That was, in essence, his complaint of direct discrimination on the grounds of disability. For the characteristics of age, race, religion and sex, the claimant simply noted that the same answers should be applied, but did not in any way explain how those characteristics could be said to have been engaged.[65]In his complaint of indirect discrimination, the claimant simply refers to his answers under direct discrimination (85). As Ms Sutherland points out, those answers cannot be transmitted across between the two different heads of claim.[66]The claimant then claimed that he was harassed on the grounds of all 5 protected characteristics under section 26 EqA (98). Ms Sutherland pointed out that the claimant’s assertions were again inconsistent with contemporaneous emails, and argued that what the claimant asserts as unwanted conduct cannot amount to a stateable claim. In addition, the claimant’s answers to the question of why he related the unwanted conduct to his disability were less than clear. He maintained that the OH department of the respondent reported that he remained absent from work in June 2022 due to anxiety and depression, which were all attributed to perceived workplace stressors at St Cuthbert’s Primary School and Nursery. That may be so, but of itself that does not provide a clear link between the claim of harassment and the claimant’s disability. It simply indicates that the OH department was prepared to report that the claimant’s absence was due to anxiety and depression, and that there may have been some connection between his illness and the issues ongoing at the workplace. There is nothing explicit about the actions of the respondents amounting to harassment and the claimant’s condition, other than, perhaps, to suggest that the claimant’s condition was caused, exacerbated or otherwise affected by his treatment by the respondent. However, that is rather a different matter from an allegation that the treatment was visited upon him because of his disability.[67]The claimant then went on to apply the answers given under harassment to age, religion, race and sex, but without distinguishing between the different protected characteristics or identifying what acts amounted to harassment, for example, on the grounds of age as distinct from disability. The claimant’s practice of simply stating “same answers given above” is an inadequate response to the detailed questions put to him by the Tribunal, in my judgment.[68]So far as the victimisation claim is concerned, under section 27 EqA, the claimant’s answers (99) are a repetition of the answers given under previous headings. The respondent argued that what he relies upon cannot be categorised as a protected act. Reading the claimant’s responses under this heading, it appears that the claimant is declining to classify or specify the basis of his claims, but instead is asserting broadly that he considers that the protected acts were all of those set out at 2.1 to 2.4 of the respondents’ questions. He makes no attempt to define what act belongs in which category.[69]There is also a degree of obscurity in the claimant’s claim that he was subjected to detriment on the grounds of having raised a protected act or acts.[70]In summary, it is clear that the claimant’s claims have been presented, in response to the opportunity to clarify and specify his complaints, in a sweeping, broad-brush approach, which fails to do what the claimant was being asked to do. As a result, there is, at best, a lack of clarity about what the claimant is actually claiming and seeking to bring before the Tribunal. 71 .As it stands, there are many aspects of the claimant’s claims which have no reasonable prospect of success. In particular, where the claimant sets out some assertions, and then seeks to apply them to all 5 protected characteristics which he relies upon, he has completely failed to understand the need to provide fair notice of his claim. If he is, for example, that an act by the respondents amounts to both disability and age discrimination, he needs to be clear as to how that act affects him in relation to both categories. He cannot simply say “see answers above”. By doing so, he fails to understand the Tribunal process and fails, more importantly, to provide the Tribunal with clarity as to what his claim is. So far as the disability complaints are concerned, for example in the harassment claims, it may be possible to draw out from the information provided by a claimant that he wishes to link the respondent’s actions to their knowledge about his having a disability (though he has not done so here), but at the same time it is difficult to see, without any specification having been provided, how that same act could be said to amount to an act of harassment on the grounds of age.[72]The claimant’s position is clearly that he has now presented a response to the Order, in detail. However, on close inspection, his response is not detailed, and is not directed at the questions put to him. His response is simply an attempt to broaden the allegations, but emerges as a litany of 10 complaints about the effects of the respondents’ alleged failures upon him. In order for the Tribunal to be brought to the point where we would consider the question of remedy, there has to be a good understanding of what it is that the claimant says were the unlawful acts from which the Tribunal could attribute liability in these proceedings, in order to allow the Tribunal to decide what remedy should be awarded to him.[73]Put short, it appears to me that the claimant’s claim under most, if not all, headings, is extremely weak, and poorly pled. I do take account of the claimant’s lack of legal qualification, but on the other hand I note that this is the claimant’s 4th claim before the Tribunal against the 1 st respondent. He cannot be said to lack experience of litigation, and he cannot rely on some form of perceived naivete in his approach. This claimant is determined to maintain proceedings against the 1 st respondent and others, and seems to be willing to persist in those proceedings without providing clarity in relation to his complaints to the Tribunal and to the respondents.74. 1 will return to the consequence of this finding below.75. 1 move now to consider whether, under Rule 37(1 )(b), the claimant’s claims should be struck out on the basis that the manner in which he has conducted the proceedings is scandalous, vexatious or otherwise unreasonable.76. 1 have already noted that the claimant is an experienced party litigant who is resolute in his insistence upon his right to proceed in Tribunal against his employer. This is the 4th case he has brought before the Tribunal.[77]He has been given the opportunity in this case to provide clarification of his claims, and the questions which he was required to answer, presented by the respondent in line with the Tribunal’s Order, were clear and specific. His approach to answering the questions has been superficial and, in my judgment, distinctly dismissive of the importance of the exercise.[78]The claimant has failed, in most instances, to set out a claim which is comprehensible and clear, and has done so in the face of a significant opportunity granted to him by the Tribunal. He has repeatedly sought to apply one set of complaints to 5 different categories of protected characteristic, but has completely failed to identify the discrete basis for each such complaint being applied not only to disability but also to age, sex, religion and race. It is my conclusion that the claimant either does not understand the distinctions between these characteristics - and I am not inclined to believe that by this stage in his experience he could fail to have some understanding of those distinctions - or that he wilfully ignores the need to provide clear specification.[79]The reality is that it was necessary for the claimant to attend this Preliminary Hearing in order to advance his explanation as to why he has failed to comply with the Orders issued by the Tribunal, but for reasons which are entirely unclear, he chose not to attend. He did seek to have the Hearing postponed, but that application was refused for clear and sound reasons. He knew that he ought to attend at the Preliminary Hearing, and that if he did not, the Tribunal would be left in a position whereby it could dispose of his claim as it considered to be in the interests of justice.[80]The claimant did not attend this Hearing, and provided no explanation as to why he did not do so. He cannot rely upon ill health as a reason for not attending; he sought to have the Hearing postponed on that ground, but failed to provide the Tribunal with the necessary medical support. As a result, the Tribunal expected him to attend and made clear to him that he should. In failing to attend the Hearing, the claimant has treated the Tribunal and the respondent with disrespect. He has been able to attend a number of Hearings in the past, and indeed has been insistent that his appeal to the Employment Appeal Tribunal is a relevant matter to be taken into consideration when seeking postponement of this Hearing. He made no attempt to advise the Tribunal that he would not be in attendance once his application was refused. He simply ignored the Tribunal and the Hearing. 81 . It is also clear that the claimant has failed to comply properly or fully with the Tribunal’s Order for further and better particulars, and the manner in which he has done so has demonstrated a clear lack of respect for the Tribunal and a lack of any intention to engage properly with the process. He has provided a lengthy but superficial and unclear response, from which it is almost impossible to discern his case. 82.lt is understood, as I have indicated above, that the claimant is an unrepresented party, but his experience of previous Tribunal claims indicates that he has a degree of knowledge of the process. It would also be entirely unjust to ignore the respondents’ position in this matter, since the interests of justice require to be applied to both parties. This is particularly so when 2 of the 3 respondents are individuals rather than the claimant’s employing authority.[83]It is well understood that striking out a discrimination claim prior to any proof of evidence is an unusual and perhaps extreme step. However, this is a case in which the Tribunal has sought to assist the claimant by giving him time to identify the claims which he wishes to make, an opportunity which he has failed properly to take. In my judgment, it would be disingenuous for the claimant to complain that he lacks understanding or experience of the Tribunal process. It is also troubling that in failing to engage properly with the further particularisation of his claims, and in not attending at the Hearing designated to address the question of strike out, the claimant has acted as if he may deal with the Tribunal however he chooses. In these circumstances, it is difficult to see how a fair trial of the proceedings may take place. If he does not attend when the Tribunal requires him to attend, and he fails to demonstrate proper engagement with the Orders of the Tribunal, there is no basis upon which it can be said that the claimant will comply with further Orders or attend at any future Hearing.[84]In my judgment, the claimant’s conduct of these proceedings has been unreasonable and, further, vexatious, in the sense that it is clear that the claimant’s actions have led to considerable expense and inconvenience on the part of the respondents. I do not take account of the claimant’s previous proceedings against the respondents or any of them in addressing this particular point. The question is whether or not the manner in which he has conducted these proceedings, and no other, has been unreasonable and vexatious. The manner in which he has responded to the Orders, and his failure to attend this Hearing despite being instructed that he required to do so, demonstrates an attitude which is dismissive and disrespectful, and in my judgment it is abundantly clear that the claimant wishes to cause the respondents as much trouble as he can in this case, without defining properly the basis for his claim before the Tribunal.[85]Since his claims lack substance or any prospect of success, his persistence in presenting lengthy correspondence to the Tribunal and to the respondents demonstrates his willingness to put the respondents to as much inconvenience and expense as he can, in the pursuit of criticisms of them which, on the basis of what he has presented in this case, lacks any substance or basis. Does the Tribunal have jurisdiction to hear the following claim set out in the claimant’s ET1 claim form “Breaches of Rights to mutual dignity, respect, trust under Contract of Employment Legislation (ERA 1996)”, given the claimant’s employment continues and which it was recorded in Case Number 4101091/2022 the Tribunal did not have jurisdiction to hear? Does the Tribunal have jurisdiction to hear the following claim set out in the claimant’s ET1 Claim Form: “Modern Slavery: free and legally entitled to work in a safe place free from bullying, harassment, victimisation and from being forced into working at remotely or not various primary schools, nurseries infected with Covid-19 virus past and presently through threats made by senior EYOs Laura Maguire and Faye-Maria Shumba who stated were following on orders by Senior Education Officer Shona Murray and they said publicly ‘Donna is the boss’ she can do that, it is written in Contract of employment T&Cs” which it was recorded in Case Number 4101091/2022 the Tribunal did not have jurisdiction to hear? To the extent that the claimant’s claim noted at (2) above relates to him being asked to work at other nurseries, is this a repetition of the part of the claimant’s claim Case Number 4101091/2022 namely does the Tribunal have jurisdiction to hear it in this case 4103605/2022? Is the following claim set out in the claimant’s ET1 Claim Form already being pursued by him in Case Number 4101091/2022: “Unlawful deduction or reduction of monthly wages due to new sickness leave occurred into new financial year starting 1 st October 2021 and/or new sickness leave occurred at the previous End of year ended 31 st September for annual holidays and Sickness Absence Leave purposes at City of Edinburgh Council, following threatening letter from Payroll Manager”? If so, does the Tribunal have jurisdiction to hear it in this case (4103695/2022)? If the Tribunal does have Jurisdiction to hear the claimant’s unlawful deduction, does it have jurisdiction to hear it against the 2nd and 3rd respondents?[86]With regard to the claimant’s claims of breaches of trust and mutual respect and of modern slavery, the issue requires consideration of decisions made in a previous claim by the claimant, namely 4101091/2022. 87.2 significant documents were produced in relation to that case: firstly, a Note and Order following Preliminary Hearing dated 28 July 2022 (1 46ff); and secondly, a Judgment striking out that claim dated 6 February 2023 (156ff).[88]In the Note and Order, issued by Employment Judge d’lnvemo, it is noted as follows: “(Third) Records that the Tribunal lacks Jurisdiction, the claimant remaining in the employment of the respondent, to consider the claimant’s complaint of breach of contract which is set out in the following terms:- ‘Breaches of rights to mutual dignity, respect, trust and contract of employment, legislation CEL (ERA 1996).’ (Fourth) Records that the Tribunal lacks Jurisdiction to consider such claims as it may be intended are given notice of in the fourth paragraph of section 8.1 of the claimant’s initiating Application ET1 in the passage commencing ‘Modern slavery...’ and concluding ‘... it is written in Contract of Employment T and Cs. ’” 89.lt is plain that the claimant has sought to present the same complaints again, despite being aware that the Tribunal had already determined that there was no jurisdiction to hear such claims. There is no reason to depart from that decision of the Tribunal.[90]As a result, the Tribunal lacking jurisdiction to hear either claim, they must both be dismissed.[91]With regard to the unlawful deductions claim, this was also included within the previous claim 4101091/2022, which has now been judicially determined by Employment Judge Jones, in the Judgment striking out the claimant’s claims (1 56ff). There is no basis upon which the claimant can now revive this claim.[92]In any event, it is my judgment that such a claim would be incompetent insofar as directed against individuals, who would not be responsible for the payment of salary to the claimant as employers.[93]It is clear, therefore, that the Tribunal lacks jurisdiction to hear any of these claims, on the basis that they have already been determined and dismissed. Conclusion 94.lt is my judgment, in conclusion, that the claimant’s claims lack any reasonable prospect of success, that the claimant’s conduct of the proceedings has been unreasonable and vexatious, and that the claims identified above are outwith the Tribunal’s jurisdiction.
Conclusion
[95]In addition to the findings and observations made above, I conclude that the claimant’s attempt to revive claims which have already been determined by the Tribunal is also an act of vexatious conduct, deliberately attempting to cause further inconvenience and difficulty for the respondents, while knowing that those claims had already been dealt with by the Tribunal. This is at best disingenuous but at worst contemptuous of the T ribunal and of the respondents.[96]It is my conclusion that this is a case in which the claimant’s conduct of the proceedings justifies alone the strike out of his claims. He is quite clearly 15 determined to create as much difficulty for the respondents as he can, by repeatedly raising hopeless cases against them; his claims lack any reasonable prospect of success on the basis that he has utterly failed to focus and clarify their terms; and he has, by raising matters already dealt with and failing to attend this Preliminary Hearing, shown such defiance to and contempt for the order of the Tribunal that it is no longer, in my judgment, possible to have a fair trial of these proceedings.[97]It is therefore my judgment that the claimant’s claim should be struck out in their entirety under Rules 37(1 )(a) and (b).
Conclusion
[1]In this case, the Tribunal issued a Judgment which was sent to the parties on 10 May 2023, in which the claimant’s claim was struck out in full.[2]On 7 June 2023, the first respondent made an application under Rules 76 and 77 of the Employment Tribunals Rules of Procedure 2013 for expenses against the claimant.[3]The claimant has not responded to this application.[4]The Tribunal wrote to both parties to obtain their consent to deal with the matter on the basis of written submissions alone. The claimant, again, did not respond to this correspondence, but the respondent accepted that it would be appropriate to do so.[5]I set out below the terms of the application, and the submissions made by the respondent in support thereof; the relevant law; and the decision to which I have come, with reasons.[6]There has been no input from the claimant into these deliberations. It is not clear why the claimant has not responded to any correspondence but I have sought to take into account what his position has been understood to be in these proceedings. The Application and Submissions by Respondents[7]In this case, the application is made under Rule 76(1) of the Employment Tribunals Rules of Procedure 2013, which provides: “A Tribunal shall make a costs order..., and shall consider whether or to do so, where it considers that -(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success. . . ”[8]Ms Sutherland, the respondent’s solicitor, set out the grounds for the application by referring, firstly, to paragraphs 53 to 69 of the Judgment in which the claimant’s claims were detailed.[9]She maintained that each of the claimant’s claims had no reasonable prospect of success, and supported this submission by reference to paragraph 70 of the Judgment.[10]She moved on then to argue that a separate finding should be made under Rule 76(1 )(a), on the basis that the claimant acted vexatiously and/or unreasonably in bringing his claims. She said that the respondent incurred significant expense in preparing for and responding to the “hopeless claims”, and she cited the 2 case management Preliminary Hearings on 12 September and 14 December 2022, and the Open Preliminary Hearing on 26 April 2023, as well as the additional information provided by the claimant which the respondent had to consider and amend its response. 1 1 . It was unreasonable and vexatious to bring these claims which were lacking any reasonable prospect of success, she submitted, and while the claimant was unrepresented, he had raised 4 claims in total against the first respondent since May 2021, of which this is the fourth.[12]She stated that the first claim, no 4109715/2021, was struck out on the basis of want of jurisdiction by Judgment of 8 November 2021; the second claim, no 4112526/2021) was struck out in a Judgment dated 8 August 2022 on the basis that the claim had no reasonable prospect of success; and the third claim (4101091/2022) was similarly struck out for having no reasonable prospect of success by Judgment dated 6 February 2023.[13]Ms Sutherland then placed reliance upon the terms of the Judgment in this case, pointing to the findings and conclusions set out in paragraphs 76 to 96.[14]She then confirmed that the first respondent had incurred legal fees of £3,500 plus VAT in relation to the claim up to Judgment, and expected to incur further legal fees of £1,500 plus VAT in relation to the application for expenses.[15]On 21 July 2023, Ms Sutherland wrote to the Tribunal to provide supporting documentation in relation to the first respondent’s expenses application, together with submissions.[16]The Schedule of Expenses set out the figures which the first respondent seeks to recover, amounting to £3.971, and included copies of invoices in support of that Schedule.[17]The submissions presented expanded upon the application made and made reference to the Rules of Procedure and certain authorities. It is not considered necessary to lay out these submissions in any detail but they were taken into full account in reaching the decision below.[18]No response has been received by the claimant to the application nor to any of the subsequent correspondence either from the Tribunal or Ms Sutherland.
The Relevant Law
[19]In this case, the application is made under Rule 76(1) of the Employment Tribunals Rules of Procedure 2013, which provides: “A Tribunal shall make a costs order..., and shall consider whether or to do so, where it considers that - (c) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (d) any claim or response had no reasonable prospect of success...”[20]The Tribunal had reference to the case of Dyer v Secretary of State for Employment EAT 183/83, in which it was held that “unreasonable” had its ordinary meaning in English, and has not to be interpreted as if it meant something similar to “vexatious”.[21]Yerrakalva v Barnsley Metropolitan Borough Council and anor 2012 ICR 420, CA is a case in which the Court of Appeal held that costs should be limited to those which have been “reasonably and necessarily incurred”.[22]Rule 84 of the Employment Tribunals Rules of Procedure 2013 provides that the Tribunal may have regard to the paying party’s ability to pay when deciding whether or not to make an expenses order but is not obliged to do so.[23]The Employment Appeal Tribunal in Sumukan (UK) Ltd and anor v Raghavan EAT 0087/09 provided that when making an order for expenses, the Tribunal should set out(1) on what basis - and in accordance with what established principles - it is awarding any sum of expenses;(2) on what basis it arrives at the sum; and(3) why expenses are being awarded against the party in question. Discussion and Decision[24]In light of the applications made by the first respondent, it is necessary to address each application in order to determine whether or not expenses should be granted.[25]Firstly, I considered whether the claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of the proceedings.[26]In doing so, I place reliance upon the findings which I have already reached in the Judgment striking out the claimant’s claims.[27]In my view, I require to consider both whether the raising of the proceedings amounted to vexatious, abusive, disruptive or otherwise unreasonable behaviour, and also the conducting of the proceedings.[28]In raising the proceedings, I consider that the fact that the claimant has engaged in litigation on 3 separate occasions before he presented this claim to be of significance. Not only have those previous claims ended in strike out, either because they lacked any reasonable prospect of success or because they had already been determined by the Tribunal, but the claimant must also be well aware that the Tribunal has dealt with those claims, and has set down in unambiguous terms the reasons why his claims have previously failed. He has, undeterred, proceeded to raise this claim against the same first respondent, and in so doing, it is my judgment that he has acted quite unreasonably. In effect, he has chosen to ignore or dismiss the previous findings of the Tribunal.[29]Owing to the fact that he did not attend at the Preliminary Hearing which led to the strike out of this claim, it is not possible to understand why the claimant considered himself entitled to proceed in this way. It is plain that he is a determined and experienced litigant, but he appears to be quite unwilling to heed the authoritative findings of successive Employment Judges in his claims. 30. 1 am left with little doubt that he has acted unreasonably in raising these proceedings, and further, that he has acted vexatiously in so doing, in the sense that his actions have led the first respondent to incur yet further expense and inconvenience in having to respond to those allegations contained within this claim.[31]Turning then to the question of whether the claimant’s conduct of these proceedings has been vexatious, scandalous, abusive or otherwise unreasonable, I have already found, particularly at paragraph 84 of the Judgment, that “the claimant’s conduct of these proceedings has been unreasonable and, further, vexatious, in the sense that it is clear that the claimant’s actions have led to considerable expense and inconvenience on the part of the respondents. I do not take account of the claimant’s previous proceedings against the respondents or any of them in addressing this particular point. The question is whether or not the manner in which he has conducted these proceedings, and no other, has been unreasonable and vexatious. The manner in which he has responded to the Orders, and his failure to attend this Hearing despite being instructed that he required to do so, demonstrates an attitude which is dismissive and disrespectful, and in my judgment it is abundantly clear that the claimant wishes to cause the respondents as much trouble as he can in this case, without defining properly the basis for his claim before the Tribunal. ” 32. 1 adhere to those conclusions, which were reached after a lengthy analysis of the claimant’s actings in these proceedings. I do not consider it necessary to repeat the findings upon which these conclusions were reached. There is no doubt, in my view, that the claimant has been acting in a manner which is characterised by dismissive and disrespectful attitudes directed at both the first respondent and the Tribunal, particularly but not confined to his complete failure to respond to the Orders made by the Tribunal.[33]Again, it is important to take into account the claimant’s experience before the Tribunal, in having raised previous proceedings, and to note that the Order was set out in clear and unambiguous terms. I do not retreat from the conclusions previously set out about the claimant’s conduct, and as a result, it is my finding that the claimant has conducted these proceedings in a manner which is vexatious and unreasonable. 34. 1 turn then to the question of whether the application for expenses is justified on the ground that the claims had no reasonable prospect of success. Again, the Judgment set out my conclusions on this aspect of the case, primarily in paragraphs 70 to 73. In my judgment, the claimant’s claims, even after he had had the opportunity to clarify and specify them, were characterised by a lack of clarity, by a lack of reasonable prospect of success as pled, by significant weakness and poor pleading and a failure to focus and clarify their terms.[35]Largely due to the claimant’s failure to respond properly or indeed adequately to the Orders issued to him, the claimant’s claims lacked any reasonable prospect of success, in my judgment, which led to the conclusion that they should be struck out.[36]Finally, it is necessary, having reached these conclusions to determine whether any award of expenses should follow from them, and if so, what amount should be awarded.[37]The basis upon which an award of expenses should be made in this case is, in my judgment, clear. The claimant has acted vexatiously and unreasonably not only in raising the proceedings but also in the manner in which he has conducted them. He has failed, with disregard for the authority of the Tribunal, to answer the Orders presented to him; he has failed to attend at the Preliminary Hearing fixed to decide whether or not his claim should be struck out; and he has failed to take account the previous Judgments issued to him in similar circumstances by successive Employment Judges in the Edinburgh Tribunal.[38]That the claimant has repeatedly raised claims which have either been struck out as having no reasonable prospect of success or which have been struck out before on the basis that they have been previously determined makes it clear that he is not prepared to acknowledge the authority of the Tribunal. As I put it in the Judgment, the claimant seems to think he knows better than the Tribunal, and presses on regardless of clear intimations on a number of occasions that his claims cannot proceed.[39]In my judgment, while it is generally the exception that expenses awards are made against parties, and particularly unrepresented parties, in the Employment Tribunal, it is in the interests of justice to make an award against the claimant in this case as it is his actions which have led to the strike out of his claim, and to the unnecessary incurrence of expense on the part of the first respondent in requiring, once more, to take time and instruct solicitors to defend such claims on their behalf. The claimant should understand that he may not continue to raise hopeless proceedings, or act in a vexatious and unreasonable manner in the course of those proceedings, with impunity. An award of expenses against the claimant - and it is him against whom the award is properly made, since his actions are those which have led to this point - is an appropriate measure, to compensate the first respondent for the cost which is an inevitable consequence of his persistently unreasonable actions.[40]Accordingly, it is appropriate to consider what award to make against the claimant. While it is generally considered appropriate to take into account the claimant’s means to pay any award, it is not, as the first respondent has submitted, essential to do so. I would be quite prepared to do so, if any information were available to me about the claimant’s means. However, in , the absence of any response at all from him to this application or to the Tribunal’s requests for his participation in this aspect of the process, there is little information which has any bearing on my decision.[41]The only information which seems to me to be available and relevant is that the claimant remains in employment with the first respondent. It is not clear to me what precise status his employment has at this stage, and indeed whether or not he is currently in a period of nil pay due to an extended absence from work, but the reality is that he remains in employment with the first respondent and that that fact may be taken into account in determining what level of award to make.42. 1 am satisfied that the first respondent has incurred the expenses sought by them properly and that they have been accurately vouched and presented to the Tribunal.43. 1 have concluded, therefore, that a significant award should be made against the claimant not to penalise him but to compensate the first respondent for the consequences of unreasonable conduct in raising and conducting these proceedings.44. 1 see no reason to reduce the figure which has been sought by the first respondent, of £3,971, which appears to me to be proportionate and justifiable in all the circumstances of this case.[45]Accordingly, I have concluded that the first respondent’s application for expenses against the claimant in this case should be granted, and that the claimant should be ordered to pay to the first respondent the sum of £3,971 in respect of those expenses.
The Relevant Law
[1]In this case, the Tribunal issued a Judgment which was sent to the parties on 10 May 2023, in which the claimant’s claim was struck out in full.[2]On 7 June 2023, the first respondent made an application under Rules 76 and 77 of the Employment Tribunals Rules of Procedure 2013 for expenses against the claimant.[3]The Tribunal issued an expenses Judgment dated 28 July 2023, in which the claimant was found liable for the first respondent’s expenses in the sum of £3,971.[4]Following the issuing of that Judgment, no communication was received from the claimant, but Ms Sutherland, solicitor for the respondents, wrote to the Tribunal on 1 August 2023 to advise that the claimant’s employment with the first respondent ended on 27 April 2023, and that it may be appropriate to draw this to the Tribunal’s attention.[5]The reason for this intervention was that the basis upon which the Tribunal awarded the full sum sought by the first respondent in respect of expenses was the claimant’s continuing employment with the first respondent (paragraph 41). It was quite proper of Ms Sutherland to draw this to the Tribunal’s attention, and as a result, I have considered it appropriate to treat this as an application for reconsideration of the expenses Judgment.[6]Dealing simply with this matter, the Judgment may be varied or revoked if it is considered by the Tribunal to be in the interests of justice to do so.[7]In my judgment, the fact that the claimant is no longer in paid employment with the first respondent is a material fact, which changes the Tribunal’s understanding of his current employment position. He remains, according to Ms Sutherland, available on the first respondent’s list of supply workers who may be called upon from time to time, but is no longer in paid employment with them.[8]Given that the sum which was awarded was based upon an understanding of the claimant’s employment position which turns out to be inaccurate, it is entirely appropriate that the Tribunal reconsiders the conclusion reached on that basis.[9]Having reflected upon the matter, it is relevant not only to consider that the claimant is no longer employed by the first respondent, but also that he has not communicated at all with the Tribunal since the Judgment was issued and has not made available to the Tribunal any information as to his means to pay any award of expenses. 10.lt is my judgment, however, that since there is no evidence that the claimant is currently earning any salary, and since it is not known whether or not the claimant has in fact secured any further paid employment since his employment with the first respondent ended, it is in the interests of justice to reduce the amount awarded in relation to expenses against the claimant in this case. 1 1 . It is difficult to be precise as to the exact sum which should be awarded in this case. That the claimant should be required to pay a measure of the first respondent’s expenses has already been determined, and I see no reason to depart from the conclusions reached in the Judgment of 28 July 2023 in that regard. However, it is my conclusion that the sum which he should be required to pay should be reduced as a result of the greater uncertainty as to his employment and earning position at this stage.[12]In these circumstances, I have concluded that the claimant should be required to pay to the first respondent the sum of £750 by way of expenses, and that the expenses Judgment of 28 July 2023 should be varied accordingly.