Ms S V Brown v Standard Life Assets and Employee Services Ltd: 4103733/2023
JUDGMENT
[1]The respondent’s application to amend their response dated 31st December 2024 is granted in full. ETZ4(WR)[2]The claimant’s application to amend her claim dated 25th December 24 is allowed but only to the extent set out in paragraph 3 thereof namely that the issue of car allowance is included in the claimant’s claim. For the avoidance of doubt the application to amend so as to include a claim of unfair constructive dismissal and so as to extend the time period of her equal pay claim so as to include the time from March 2024 until 30th January 2025 is refused.[3]The claimant’s application for strike out dated 6th January 2025 is refused.[4]The claimant’s application for postponement of the Final Hearing made verbally at the Preliminary Hearing on 13th January, is refused. The case will proceed to the Final Hearing which is due to commence on 20th January 2025.REASONS
[1]In this case the claimant lodged a claim in which she alleged that her right to equal pay was infringed by the respondent. The claimant claimed that she had carried out like work to that of various named comparators. A Preliminary Hearing took place in November 2023 where a hearing was fixed to deal with the respondent’s initial contention that certain parts of the claim were time barred. However the respondents withdrew this contention on 16th November 2023 and the preliminary hearing was cancelled.. A further Preliminary Hearing took place in August 2023 at which Judge Sutherland made a number of Orders with a view to managing the case going forward. A Final Hearing was fixed to take place on 20th January. During the process the claimant had been represented by a firm of solicitors. However they withdrew from acting at the end of December 2024. Following this the claimant submitted an application to amend her claim dated 25th December 2024. The respondents also lodged an application to amend their response dated 31st December 2024. Both applications to amend were opposed. On 6th January the claimant submitted an application to have the response struck out. It was decided that an Open Preliminary Hearing take place on 13th January by CVP in order to deal with these outstanding applications. It would also deal with any case management issues arising in connection with the Hearing proposed to start on 20th January. On the day , I went through the various issues in turn and advised the parties of my decision orally. I briefly set out the decision in respect of each matter and the reasons below.(1) Claimant’s Application for Strike Out. The claimant’s application for strike out was made in writing on 6th January. The respondents responded to this and both parties supplemented these written submissions orally at the Hearing. In advance of the Hearing it had been identified that in order to deal with the claimant’s application it was clear that the Tribunal would have to consider the content of Without Prejudice communications between the parties and the claimant and respondent had set out their position in relation to this. Briefly it was the claimant’s position that settlement negotiations had taken place between the respondent’s representative and her own legal representative. A settlement figure appears to have been in contemplation. A difficulty arose in that the claimant wished the settlement payment to be made direct into her pension fund rather than paid direct to her. In her written and oral submissions she indicated that this was due to her personal circumstances in that she was moving to London and on her earnings she qualified for mid market housing assistance. If however these earnings were inflated by the settlement figure being included in earnings for PAYE purposes then she would no longer qualify. I should record that it was the respondent’s position that they had not known the reason why the claimant wanted the monies paid into her pension plan rather than direct to her until the claimant made her strike out application. It was their position they had not been advised of this by the claimant’s representative. In any event it was the claimant’s position that during the negotiations the respondent’s representative had told the claimant’s representative that it was simply not possible for the money to be paid direct into a pension plan as she wished. The claimant’s position was that this was simply untrue. She pointed out that the pension plan was in fact provided by the respondents themselves. It was her position that in the past similar payments had been paid direct into her pension and she lodged her pay slip which she indicated was proof of this. It was the claimant’s position that as a result of this deliberately incorrect information provided by the respondent her own representatives had stated that their strong advice was to accept the settlement offered although this would result in the payment being made direct to her bank account rather than being paid straight into her pension. The claimant’s representatives were funded by her Union and one of the pre conditions for such support was that the claimant followed the advice of the solicitors. The claimant felt unable to follow her solicitor’s advice and as a result has lost legal representation. It was the claimant’s position that (1) the Tribunal should be prepared to lift the veil which usually covers Without Prejudice communications on the basis that it amounted to unambiguous impropriety for the respondent to have stated that they were unable to pay the settlement sum direct into the claimant’s bank account when it was her position that this was simply wrong and(2) that the response should be struck off on the basis that the respondents had behaved unreasonably in these negotiations. The respondent’s representative opposed the application and referred to the case law on the subject. In their view it would only be possible to determine the issue as to whether or not there had been unambiguous impropriety in this case after hearing evidence. This would require parole evidence of the two solicitors who had been involved in the exchanges. They would also require evidence to be led from someone in the respondent’s Pensions Department as to the information he had provided to the respondent’s solicitors. With reference to the Motorola case it was quite clear that there could not be said to have been unambiguous impropriety in this case. In the view of the respondent there had been no misconduct whatsoever. The respondent’s representative simply passed on the information with which they had been provided. The respondent’s representative made the point that it would not be possible for the matter to be determined at this stage and that as a matter of practicality a Hearing would require to take place in order to decide whether the Without Prejudice information should be provided to the Tribunal and then a further Hearing in relation to strike out. On the matter of strike out it was not in any way clear why it was that, even if the claimant’s case was taken at its highest, strike out would be an appropriate remedy. There was absolutely nothing to suggest that it would not be possible to have a fair trial. The claimant’s position regarding this was that if it could be shown that the respondent’s representatives had been prepared to tell untruths during the negotiation phase then their evidence at the Hearing could not be trusted. It was the respondent’s position that these were completely different processes. They denied entirely that any impropriety had taken place but even if there had been then strike out was very clearly not a potential remedy here. I advised the parties at the time that I preferred the respondent’s argument. It appeared to me that it was not a case where an argument based on unambiguous impropriety was even stateable. If the Tribunal decided it was appropriate to remove the veil usually associated with Without Prejudice negotiations in this case then essentially the rule would become meaningless. All that would be required would be for a party to allege that the other party had not behaved appropriately in their negotiations and a Hearing would require to be held to ascertain whether Without Prejudice communication should be disclosed or not. Furthermore I agreed with the respondent’s position that even if the claimant’s case was taken at its highest and the Tribunal were to find after due factual investigation that the respondent’s representatives were incorrect in stating that they were not permitted to make payments straight into the claimant’s pension plan this was not something which would be likely to lead to strike out of the response. There was nothing to suggest that a fair trial would not be possible. In all the circumstances I decided that the claimant’s application for strike out should not proceed further. (2) The respondent’s application to amend dated 31st December 2024 The respondent’s representative essentially stated that this was a tidying up exercise. The parties had been in extensive communications during the period when the claimant was represented. It had always been anticipated that there would be a final tidying up of the pleadings on each side. During this period the respondents had discovered new information following their investigation of the claimant’s allegation. The claimant had also produced Further and Better Particulars of Claim which the respondents had accepted as such. In their view it was an entirely routine matter for the application to amend having been lodged when it was. They had in fact foreshadowed this in correspondence with the claimant’s representatives in November. There was one relatively new matter raised which related to the respondents indicating they would be relying on the particular skill set of one of the comparators. This was something they had only decided to include after they had seen that comparator’s CV. I agreed with them that in the overall scheme of things the claimant would have now had ample opportunity to consider the matter before the Hearing. The claimant’s position was that she had not anticipated that she would be representing herself at the Hearing and would have some difficulty in dealing with matters in the limited time available. It was her position that certain matters which she had asked her then representatives to raise had not been raised and she was unaware of some of the new matters in the response. I decided that in the circumstances there was nothing at all unusual in the respondent’s application to amend by effectively consolidating the pleadings at this stage. It was in line with the overriding objective for them to do this and would assist the Tribunal in dealing properly with the case. I could not see any particular prejudice to the claimant if the amendment were allowed. The matters she raised about finding herself without representation were separate. I had little doubt that if the claimant had still been represented by the same solicitors there would have been no objection to the application to amend. I therefore decided it should be permitted in full.(3) The Claimant’s Application to Amend dated 25th December The claimant had submitted a letter to the Tribunal dated 25th December and indicated that she sought to amend her claim. There were 3 paragraphs. In the first she indicated she was seeking to include a claim of constructive unfair dismissal. This was based on her position that she had given notice and would be leaving the respondent’s employment on 31st January 2025. Secondly she sought to extend the time period over which her equal pay claim fell to be considered to include the period from March 2024 until 31st January 2025. Thirdly she sought to have the issue of car allowance included. She indicated that during the course of the discovery process she and her representatives had had access to the job descriptions of the comparators which showed that certain of the comparators received a car allowance which she did not. The claimant pointed out during the course of her submission that it had been highlighted at the Hearing in August 2024 that the claimant may wish to extend the term to which her claim related. Both parties made full submissions. The respondent’s representative made the point that if either of the first 2 paragraphs were allowed then the respondent’s position would be that the Hearing could not take place on 20th January. Counsel and solicitors were booked. There were 7 witnesses who were booked, 3 of whom had to travel. On the other hand if the amendment was not allowed then the claimant would not suffer any real prejudice because she would be entitled to raise fresh claims by simply submitting a fresh ET1. Both claims would still be in time. The respondents objected to the third paragraph also on the basis that it would put them under pressure to investigate this matter in the few days available before the main Hearing starts. The claimant indicated in her submission that she would be intending to lodge a fresh ET1 to cover her constructive dismissal claim in the event that this was not dealt with by amendment. Having considered matters and in particular the balance of prejudice I decided that it would not be appropriate to grant the claimant’s application in respect of the first 2 paragraphs of her letter. With regard to the third paragraph which referred to car allowance it appeared to me that this was simply a matter of bringing the pleadings up to date to take account of the various disclosures which had taken place between the parties’ representatives in the lead up to the Hearing. Whilst it might have been better had the matter been raised earlier I considered that the respondent would still have ample time before the Hearing to investigate this relatively minor matter. I therefore decided that that part of the claimant’s application to amend should be allowed. Following my decision on the first three matters, the claimant indicated that she wished to apply for a postponement of the Hearing. She had not made the application earlier. She referred to the fact that she was now without legal representation. She said that it would take her time to go through all of the documents. I asked her what her intention would be if a postponement was granted. Would she be intending to continue to represent herself or would she be seeking new legal representation. She indicated that she had not yet made up her mind. The respondent’s representatives repeated their arguments to the effect that it would cause them considerable expense if the Hearing was put off and indeed considerable expense and inconvenience to the Tribunal. In all the circumstances I was required to address the matter in terms of the overriding objective but also specifically taking into account the terms of Rule 30A given that the application for postponement had been made less than 7 days before the date on which the Hearing began. I did not consider that there were exceptional circumstances in this case. I accepted the respondent’s argument that the claimant is clearly engaged with the issues and would appear to be perfectly capable of representing herself. The case deals with matters going back to 2017 and there is clearly a strong argument for dealing with the case promptly. Given the number of witnesses it is likely that if the case is postponed the postponement would require to be for a period of months until such time as the witnesses could be reassembled. The claimant indicated that documents had been added to the bundle fairly recently. However the respondent’s representative confirmed that these were in the main documents she had already seen or documents in relation to her grievance appeal which had become available late in the day. In all the circumstances I did not see that the claimant would suffer any great prejudice if the case were not postponed. On the other hand there would be considerable prejudice to the respondent and indeed to the Tribunal. This is an equal pay case and by its nature nature complex. The claimant appears to have a good grasp of the matter and in all the circumstances I consider that it would not be in line with the overriding objective to postpone the Hearing. The Hearing will accordingly proceed. General Case Management[2]The claimant indicated that she had intended to ask her representatives to ask the respondent if they could provide copies of the mid year and end year feedback documents in respect of each of her comparators and herself. Her aim in this was to show that even if there were differences in official job description then the comparators in fact carried out like work to herself. The respondent’s representative took brief instructions and indicated that there would be no difficulty in providing these documents on a voluntary basis prior to the Hearing.[3]Finally, the respondent’s representative referred to earlier correspondence with the claimant and her representatives which had been copied to the Tribunal in respect of the claimant’s claim of indirect discrimination. This claim had been added by amendment without objection by the respondent. However the current position was that the respondents simply did not understand the claim. In the circumstances I indicated that this was a matter which was better dealt with either by correspondence between the parties or alternatively on the first day of the Hearing. Outcome The case will proceed to Final Hearing which commences on 20th January. 4.