Mrs A Harrower and Mrs L McVicars v Saturn (Scotland) LLP and A Bourke: 4104095/2020 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104095/2020, 4104097/2020, 4107500/2020, 4107501/2020
Between
Mrs A Harrower and Mrs L McVicarsClaimantSaturn (Scotland) LLP and A BourkeRespondent
Before
Employment Judge A KempMs R Jiggens for claimantParalegal for claimantMr A Bourke for respondentHR Consultant for respondentDate 27 October 2021
JUDGMENT
[1]The Tribunal refuses the claimants’ application under Rule 39 for a deposit order in relation to the respondents’ application for strike out. E.T. Z4 (WR)[2]The Tribunal grants the claimants’ application for reconsideration of the decision on 8 December 2020 to reject the claims made in the applications numbers 4107500/2020 and 4107501/2020 against the third and fourth respondents named on the Claim Forms, and directs that the Claim Forms for said claims be served on the third and fourth respondents in accordance with Rule 15.[3]The Tribunal refuses the claimants’ application that the first and second respondents be “barred” from taking any further part in claims 4107500/2020 and 4107501/2020.
REASONS
[1]This was a Preliminary Hearing held to consider applications made by both parties, and for certain case management issues which are addressed by separate Note. The hearing was held remotely.[2]These cases have had a long and not happy history. They have experienced a number of delays for a variety of reasons. A large number of applications have been made by both parties. The correspondence in the cases has been very lengthy. There are two separate claims for each of two claimants, with the second claims in each case repeating much of the averment of fact in the first.[3]The original intention for this hearing, that had been conveyed to parties by email from the Tribunal, had been to commence to hear the applications made by the respondents, a reply from the claimant, the claimants’ applications, a reply from the respondent and then a discussion on case management, with 18 May 2021 available as a second day for the hearing if that was required.[4]On 4 May 2021 the respondents intimated a new application for a strike out under Rule 37 on the grounds of the alleged behaviour of the claimants’ representative. The claimants’ representative the following day intimated an application for a deposit order under Rule 39 in relation to that application on the ground that it had little reasonable prospect of success.[5]I sought initially to hear argument on that application for deposit on the basis that the application for strike out would not be heard until the Preliminary Hearing that had been fixed for 18 May 2021, in light of the limited period of notice given by the respondents. The second respondent, who appears for himself and also as representative of the first respondent, sought a break initially, then a second time. He then explained that he had been violently sick, and that he found the proceedings very stressful. I indicated that I intended to continue with the hearing. He left the hearing again, and after a period of waiting I considered it appropriate to proceed to hear from the claimants. Relatively shortly thereafter he returned to the hearing and participated, although he chose to turn off the camera. I intimated the points addressed to me by Ms Jiggens when he had not been present, and gave him an opportunity for submission about them, and then continued with the hearing. He then continued to participate for the remainder of it.[6]I was satisfied that it was in accordance with the overriding objective to proceed in that manner given the history of the cases to date, the assertion by the claimants’ representative that the two claimants each suffered from severe mental health difficulties including suicidal ideation and that they had been caused material stress by the delays experienced thus far. Deposit order (i) Submissions[7]In brief summary Ms Jiggens argued that there was little reasonable prospect of success in the claimants’ argument for a strike out on the basis of her conduct. She had been robust in acting for her clients, but not approaching anything that could properly be regarded as inappropriate. I directed her to the terms of Rule 39, quoted below. I was concerned that the wording of that Rule indicated that the argument referred to required to be in the claim or response, in this case the response which may be defined by reference to Rule 16, therefore relating to what was the response to the claims made, and not to a strike out application on the basis of alleged conduct falling within Rule 37. She was given time to find authority on the matter, and on resuming had not been able to find the same. She argued that the Rules permitted the order to be made, and why that was appropriate in the circumstances. She referred to the terms of Rule 29, and to the overriding objective particularly the interests of justice.[8]Mr Bourke referred to the comment I had made as to the matter of authority, and argued that he had evidence he would produce. He did not accept that there were little prospects of success. I gave him the opportunity to make submissions as to financial matters of both respondents, but he did not do so, stating that he had not asked the first respondent. (ii)
The law
[9]Rule 39 provides as follows: “39 Deposit orders 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 prospects 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…..”[10]The EAT has considered the issue of deposit orders in Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14, and Tree v South East Coastal Services Ambulance NHS Trust UKEAT/0043/17. In the latter case the EAT summarised the law as follows: “[19] This potential outcome led Simler J, in Hemdan v Ishmail [2017] ICR 486 EAT, to characterise a Deposit Order as being “rather like a sword of Damocles hanging over the paying party” (para 10). She then went on to observe that “Such orders have the potential to restrict rights of access to a fair trial” (para 16). See, to similar effect, Sharma v New College Nottingham UKEAT/0287/11 para 21, where The Honourable Mr Justice Wilkie referred to a Deposit Order being “potentially fatal” and thus comparable to a Strike-out Order. [20] Where there is, thus, a risk that the making of a Deposit Order will result in the striking out of a claim, I can see that similar considerations will arise in the ET's exercise of its judicial discretion as for the making of a Strike-out Order under r 37(1), specifically, as to whether such an Order should be made given the factual disputes arising on the claim. The particular risks that can arise in this regard have been the subject of considerable appellate guidance in respect of discrimination claims, albeit in strike-out cases but potentially of relevance in respect of Deposit Orders for the reasons I have already referenced; see the well-known injunctions against the making out of Strike-out Orders in discrimination cases, as laid down, for example, in Anyanwu v South Bank Students' Union [2001] IRLR 305 HL per Lord Steyn at para 24 and per Lord Hope at para 37. [21] In making these points, however, I bear in mind - as will an ET exercising its discretion in this regard - that the potential risk of a Deposit Order resulting in the summary disposal of a claim should be mitigated by the express requirement - see r 39(2) - that the ET shall “make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit”. An ET will, thus, need to show that it has taken into account the party's ability to pay and a Deposit Order should not be used as a backdoor means of striking out a claim, so as to prevent the party in question seeking justice at all; see Hemdan at para 11. [22] Although an ET will thus wish to proceed with caution before making a Deposit Order, it can be a legitimate course where it enables the ET to discourage the pursuit of claims identified as having little reasonable prospect of success at an early stage, thus avoiding unnecessary wasted time and resource on the part of the parties and, of course, by the ET itself. [23] Moreover, the broader scope for a Deposit Order - as compared to the striking out of a claim - gives the ET a wide discretion not restricted to considering purely legal questions: it is entitled to have regard to the likelihood of the party establishing the facts essential to their claim, not just the legal argument that would need to underpin it; see Wright at para 34.”[11]Rule 29 empowers the Tribunal to make general case management orders, and the particular powers set out thereafter do not restrict that general power.[12]Rules are subject to the overriding objective in Rule 2.[13]There is little authority on the matter of a deposit order. I have not found any authority to indicate that such an application may competently be made where the argument is over conduct of a representative entitling a strike out under Rule 37, rather than the merits of the claim or response to that claim itself. Ms Jiggens was given time to find authority as she requested, but had not found that by the time the hearing reconvened. The lack of authority does not prevent the order being made, but if the application is competent in circumstances such as the present that would be surprising[14]I have concluded that it is not competent to make the order sought. The term response is referred to in Rule 16, and it appears to me that the terms of Rule 39 are directed to the pleadings as to the claims made, or responses in the sense of defences to those claims. It is the prospects of success of those claims or defences that allows a deposit order to be made, in my judgment. That appears to me also to be more consistent with the quotation set out above, albeit that it does not directly address the present point.[15]In any event, whether or not to make a deposit order is a matter of discretion, and I do not consider it appropriate to do so in relation to a claim for strike out on grounds said to relate to alleged behaviour of a representative where the second respondent states that he has evidence and will tender that by 11 May 2021, being the subject of an order in a Note and Orders issued of even date.[16]That is not to say, for the avoidance of doubt, that the application has reasonable prospects of success. There is a two-stage test as explained in HM Prison Service v Dolby [2003] IRLR 694, and Hassan v Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit'. The test for strike out is accordingly a high one, and where the issue at the first stage is the alleged behaviour of a representative rather than a party more detailed considerations arise, as explored in Bennett v London Borough of Southwark 2002 IRLR 407.[17]The claimants invited the respondents to withdraw both this application and a separate argument in relation to the second respondent not being an agent for the purposes of section 110 of the Equality Act 2010. Mr Bourke did not wish to do so.[18]It has been arranged that the application be considered at a further remote Preliminary Hearing on 18 May 2021.[19]In the circumstances set out above however I have refused the application for a deposit order. Reconsideration[20]The application for reconsideration was made on the basis of the letter intimating the rejection of the claim as directed to the third and fourth respondents dated 8 December 2020. As a result the Claim Form had not been served on them. They are not at present therefore a party to the claims. It was only the latter two claims in which this issue arises directly, although there is an issue as to combining the claims addressed in the Note issued separately. (i) Submissions[21]The claimants argued that the decision to reject the claims had been wrong. The reason given for rejection was the lack of Early Conciliation Certificates for those respondents. The claimants sought reconsideration and the application has only been addressed now in light of the adjournment of earlier hearings seeking to do so. They argued that such certificates were not required for additional respondents under Regulation 3(1)(a) of the Employment Tribunal (Early Conciliation Exemption and Rules of Procedure) Regulations 2014. There were Certificates for the first and second respondents and that sufficed. Reference was made to Regulation 3(1)(b), and to Regulation 5(4). Separately they argued that EC Certificates had been obtained on 8 December 2020. No particular submission was made by the second respondent. The law[22]Reconsideration of rejection of a claim is provided for in Rule 13.[23]Provisions for early conciliation were made under section 18A of the Employment Tribunals Act 1996.[24]Regulation 3 to the 2014 Regulations referred to, made under that statutory provision, is in the following terms: “Exemptions from early conciliation(1) A person ('A') may institute relevant proceedings without complying with the requirement for early conciliation where— (a) another person ('B') has complied with that requirement in relation to the same dispute and A wishes to institute proceedings on the same claim form as B; (b) A institutes those relevant proceedings on the same claim form as proceedings which are not relevant proceedings; (c) A is able to show that the respondent has contacted ACAS in relation to a dispute, ACAS has not received information from A under section 18A(1) of the Employment Tribunals Act in relation to that dispute, and the proceedings on the claim form relate to that dispute; (d) the proceedings are proceedings under Part X of the Employment Rights Act 1996 and the application to institute those proceedings is accompanied by an application under section 128 of that Act or section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992; or (e) A is instituting proceedings against the Security Service, the Secret Intelligence Service or the Government Communications Headquarters.(2) Where A benefits from the exemption in paragraph (1)(a), the requirement for early conciliation shall be treated as complied with for the purposes of any provision extending the time limit for instituting relevant proceedings in relation to that matter.”[25]Where a claimant instituted Early Conciliation with one respondent, but after issuing proceedings against that respondent wished to add a second respondent, it is not a bar to the granting of that application that no conciliation was attempted with the second respondent Mist v Derby Community NHS Trust [2016] ICR 543.
Discussion
[26]The circumstances here are not identical with those in that authority of Mist, but may be analogous. There was one set of claim forms in the present claims in July 2020. The second set in December 2020 repeated much of the same allegations, but sought, inter alia, to add the third and fourth respondents. Having regard to that authority I considered that, subject to any argument that may be made, the third and fourth respondents were competently convened as respondents, and it was my judgment that it was appropriate to reconsider the rejection, and allow service of the Claim Forms.[27]For the avoidance of doubt nothing in allowing this reconsideration should be taken as preventing the third and fourth respondents from challenging the issues of jurisdiction on that or any other ground. If any arguments that the third and fourth respondents were not within the jurisdiction of the Tribunal are made, that can be addressed separately as and when so made by them.[28]I was initially not clear of the basis on which the claimants sought to convene the third and fourth respondents. They are members of the LLP which is the first respondent, and that fact alone is not sufficient to found a claim against them as individuals, but it was explained by the claimants’ representative that each had undertaken acts as an agent of the first respondent, on the claimant’s arguments, and under sections 109 and 110 that conferred liability on them as individuals.[29]Whilst that is not pled as clearly as it might be, I consider that there is sufficient to permit the reconsideration to be granted and I direct that the Claim Forms concerned be served on the parties named thereon as third and fourth respondents. “Barring”[30]The claimants applied to have the first and second respondents “barred”, being the term that was used in the application, from further participation in the claims lodged in December 2020. It is not clear which Rule is sought to be relied on for that application.[31]Those December 2020 Claims have also had not a simple history. After the decision on 8 December 2020 the Claims were served on the first and second respondents. The second respondent had initially written to the Tribunal and claimants’ representative seeking additional information but had not presented a Response Form within the original time to do so. The respondents were provided with a number of extensions of the time within which to provide a Response Form. Eventually the Response Forms were presented, although late, on 4 February 2021. The Response Forms were accepted on 5 February 2021, and sent to the claimants. There is no Rule providing for the barring of a respondent in such circumstances save for Rule 21 where no Response is submitted or allowed on extension, but there are provisions in Rule 20. I do not consider that that Rule applies, and in any event it is subject to the terms of Rule 21(3) such that the term “bar” does not correctly describe the provision. The Tribunal may permit some form of participation.[32]The Rules are also to be read subject to the overriding objective. A decision to allow the Response Form to be received, which was allowing the extension of time to do so, was made on 5 February 2021. It was not appealed. On the contrary, the claimants made a number of proposals on case management and other issues which were only consistent with the December 2020 claims being defended, such as the combination of those claims and arrangements for the Final Hearing.[33]In any event, the December 2020 claims repeat a great deal of the terms of the original two claims presented in July 2020, in respect of which Response Forms for the two respondents were timeously submitted. The 2020 claims do include some additional matters after termination of employment and additional respondents, but the claimants’ decision to repeat allegations in two sets of claim forms, and arguing that one set are defended and the other ought in effect not to be, provides an additional layer of complexity that militates very strongly against allowing the application, even if it were to be competent.[34]In all the circumstances it did not appear to me in accordance with the interests of justice under the overriding objective to grant the application made, and it is refused. Further applications[35]There are a number of matters that are related to the Judgment above which are addressed in the Note referred to, issued of even date. That includes certain further applications including for strike out by the respondents which may be addressed at a further Preliminary Hearing on 18 May 2021.
The law
[38]Unless orders(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.(3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.” 19. Wentworth-Wood v Maritime Transport Ltd UKEAT/0316/15 10 summarised the law in relation to such orders. Discussion 20. I did not make an immediate decision on the competing arguments as I wished to take time to reflect on them. Having done so I have concluded that there is a great deal in the submissions for the claimants, and I am 15 concerned at the breaches by the respondent, but that the circumstances are such, for the reasons that I shall come to, that it is not in accordance with the overriding objective to strike out the responses. 21. Firstly I consider that although the claimants were slightly late in sending the recast pleadings and Schedules of Loss that was an error, and that it 20 did not materially prejudice the respondent. They were sent to him shortly after 11am, and he saw them at 2.45pm on the day after compliance was due. 22. Secondly I do not accept the argument for the respondent that the recast pleadings are insufficient. Whilst they may not be perfect they provide I 25 consider at the least adequate notice of the claims made against him and the basis for that. They repeat, in my judgment, the essential parts of the claims made against him as earlier pled. Whilst the context for those claims has changed by the settlement against the other three respondents, the claims against him are to all intents and purposes the 30 same. When asked to point to any aspect that was not, the respondent was unable to do so. 23. Thirdly I did not consider that there had been any breach of the Order in relation to details of the settlement and that adequate information on that was provided in the Schedules of Loss. 24. Fourthly although the respondent raised the issue of competency of 5 proceeding against him alone following the settlement he was not able to make any further argument beyond that assertion, and for the reasons outlined in the Note dated 13 July 2021 it appears to me that it is not incompetent to do so. Whilst the respondent pointed out that he was not an employee of the former first respondent and argued that that 10 distinguished his case from those authorities I do not consider that as a matter of principal his role, as an agent giving advice, makes any difference. The issue is whether his acts in that role fall within section 110 of the Equality Act 2010 or not. 25. What did cause me greater concern was the position with regard to the 15 Bundle of Documents. The Orders made required the claimants to provide that by 13 July 2021. They did not do so, nor did they at that time apply to the Tribunal for a variation of that Order. The Bundle of Documents was not sent to the respondent until 9 August 2021, at a time when he was abroad. 20 26. The reasons for that were explained by Ms Jiggens for the claimants. Firstly it appeared to them that many important documents that fell within the terms of paragraph 9 of the Orders referred to above had not been produced by the respondent (who at that time represented both the first respondent, and acted for himself as the then second respondent). 25 Documents had been produced by the respondent on 8 June 2021 in a series of emails. Some were copies, without a complete record of timings or the email trail involved for example, as referenced above. They were concerned that many expected documents were not provided. 27. Their concern at the omission of documentation was entirely 30 understandable. It is very hard indeed to understand why the respondent would not produce documentation he had in his possession, such as notes of meetings he held or reports given to the employers instructing him, amongst many others. He said in argument that he had given all that he had, including such notes, but he was unable to say when he had done so precisely or where they could be found, and I consider that the claimants are very likely indeed to be correct in saying that he had not done so as they were so keen to see what those notes said. Ms Jiggens also said that she had looked through the respondent’s emails a number of times and not found what she had referred to as missing. It is also not a complete compliance with the order to copy and paste from emails, rather than provide a full copy for example, and that supports the view that not all 10 documents that fell within the order were provided. 28. Secondly, the respondent had not provided any other documents as being those he would found on in his defence to the claims made. All that he had produced were documents purportedly to answer the terms of paragraph 9 of the said Orders. They were not necessarily a comprehensive list of all 15 relevant documents to the position he took. It would be expected, normally, that the respondent would provide additional documentation in relation to the claims made, beyond those falling within the Orders at paragraph 9. That he did not do so is at best highly surprising, but generally supports the claimants’ position on outstanding documentation. 20 29. It was to a large extent understandable why the claimants would leave finalisation of the Bundle until after the respondent had addressed those two issues. He has not to date done so. It is also similarly to a large extent understandable that they did not do so in the period between 13 July and 19 July 2021 when the respondent went on holiday as he did not raise with 25 them the Bundle. I was also informed that he did not reply to emails from them in relation to the documentation they sought. It is also true that the respondent has challenged the claimants in the past for sending him emails when he was on holiday. 30. But the claimants did not write to the Tribunal in relation to this, and seek 30 a variation of the Order. The respondent was not on holiday on 13 July 2021 as he did not leave until 19 July 2021. His being on holiday is not therefore a reason for not providing any Bundle on that earlier date of 13 July 2021. 31. As matters stand therefore the claimants are in breach of the terms of that Order, although that breach was in the circumstances I have described, and was remedied on 9 August 2021. That is I consider a factor that I must weigh in the balance when seeking to address the applications before me. 5 Even although the respondent appears to me to be materially in breach himself in, from what I understand to be the position from the analysis above, not providing all documents falling within paragraph 9 (and at the very least he was not able to inform me of the detail of his alleged compliance with that order in the hearing), in the absence of any 10 application for a variation of the Order what I consider that the claimants ought to have done is to have prepared the Bundle that they did later prepare on 9 August 2021 but to have done so on 13 July 2021, provided that and explained that it was so provided subject to resolving the issues of the documentation they considered to be omitted from it as not yet 15 provided by the respondents (at that stage there were four respondents, although the orders in paragraph 9 were made against the first and second respondents only). That would have complied with the terms of the order. 32. Whilst the respondent referred to legal advice he said that he had received the detail of that was not provided, and the respondent appeared for 20 himself rather than through a solicitor. If the advice was as the respondent said it was, I consider that it was wrong. The respondent ought to have complied with the order as to a witness statement. If he had not had time to finalise it by referencing page numbers in what is a large bundle he could (and in my view should) have provided it in draft subject to that detail 25 being added later. The witness statement is his explanation of what happened in the processes involving the two claimants and his role in that either as the person undertaking actions or as someone giving advice to the employer. As an HR Consultant, someone representing parties before the Tribunal, he was, or at least should have been, aware of the 30 importance of preparing that witness statement. One would ordinarily expect work on it to have started as soon as the Orders to do so were made, at the latest. I am concerned that the respondent said that he has not even started that process, and his comments on how difficult he has found the Tribunal claims against him to be. He has been advised in earlier hearings to seek legal advice, and could have done so well before July 2021. 33. This all means that in my judgment both parties are in breach of orders, but the respondent has the primary share of the fault for the fact that 5 witness statements are not exchanged as had been ordered, and that the Bundle of Documents appears to be incomplete in that a number of material documents are not yet within it. I was informed by Ms Jiggens that all bar two of the documents had been provided by the respondent or earlier seen by him, such that although there were about 1,250 pages in 10 the Bundle they ought to have been familiar to him. She argued forcefully that the stage had been reached where the strike out of the respondent’s response was in accordance with the overriding objective. 34. I consider however that the claimants (or their representative) are not entirely without fault. For the reasons set out above the Bundle of 15 Documents even in a form considered to be incomplete ought to have been provided within the terms of the Order, or an application to vary that order made. Neither was done. Whilst the level of fault is low given the circumstances it is a factor that I require to weigh up in the exercise of my discretion. 20 35. The respondent has contributed substantially to the difficulties he has in providing a witness statement by the position outlined above in relation to the documentation in the Bundle. If he has any document falling within the terms of paragraph 9 of the said Orders he must provide them immediately to the claimants. The Order has been granted, and a failure to comply with 25 it may be treated as a serious issue. He will be able to see what is in that Bundle, and if he believes that he sent other documents to the claimants’ representative on or around 8 June 2021 that are not there he can refer to that in email correspondence to her as soon as he is able to. 36. It is nevertheless accurate to state that, when abroad, the respondent has 30 received a large Bundle of Documents in a short time-frame to prepare a witness statement, outside that provided for in the Orders, even if firstly he had seen earlier all but two of the documents in that Bundle and secondly that he was not acting at all prudently in not commencing drafting of that document well beforehand. He has sought legal advice but is doing so in Chicago, with a six hour time differential. He does not return to the UK until 23 August 2021. Conclusion 37. I considered without difficulty that it was not in accordance with the overriding objective to grant the respondent’s application for strike out. Whilst the claimants did not comply with the terms of the Orders as to the Bundle the reasons for doing so are as above, and largely are I consider 10 the fault of the respondent himself. The delay of a few hours at worst to comply with the 13 July 2021 orders was an error, and not one that caused material prejudice to the respondent. I do not consider that the other criticisms the respondent makes of the claimants’ compliance with orders is well founded. 38. I considered that it was not in accordance with the overriding objective to grant the claimants’ applications for strike out, although I did so with a substantial degree of hesitation given that the primary fault for the present position lies I have concluded with the respondent and the level of fault on the part of the claimants is low. The respondent was in breach of the order for the witness statement but I concluded that it was not proportionate to strike out his response given the claimants’ own breach of the order for the Bundle however understandable it was for them to do as they did given the circumstances. A strike out of the response is a draconian remedy, as set out in the case law referred to in the earlier Judgments. Where a claim 25 is defended unreasonably an award of expenses may be sought under Rules 70-74. That is a further factor I considered relevant. I do not say that an order for expenses if sought would be granted, but it is a matter that may arise after the Final Hearing is concluded. It is I consider still possible for a fair hearing of the claims to take place, despite the delays that have taken place, and that is a further (and important) factor to weigh in the balance.
Conclusion
[39]I concluded in all the circumstances that the appropriate course of action was not simply to refuse the strike out application made by the claimants, but to grant an unless order under Rule 38, as set out above. I considered that doing so was in accordance with the interests of justice given the 5 circumstances set out above and in particular what the respondent said about matters, his failure to even start drafting the witness statement, and what I consider is most likely to be outstanding documentation he has yet to produce.[40]I was not prepared to allow the respondent more than the time set out in 10 the Judgment in light of the arrangements made for the Final Hearing referred to in submission, in particular the fact that the claimants who have mental health issues will need time to give detailed instructions to their representative on the witness statement if produced, and then for the representative to prepare for cross examination of the respondent and 15 give notice of that.[41]The respondent will require to make arrangements to comply with the unless order if he wishes to maintain a defence to the merits of the claims made. He referred to other matters but he has not been giving this claim the attention that it requires, and any difficulty he has is of his own making. 20 He has approximately seven days from his return to the UK (and 12 days from the date of this Note) to do so, or in effect five working days from his return to the UK as 30 August 2021 is a Monday, and that is in keeping with his argument that he could have prepared a witness statement before going on holiday on 19 July 2021 had the Bundle been provided to him on 25 13 July 2021. It is necessary to balance his request for more time with the arguments for the claimants of prejudice to them by delay.[42]He may need to consider either seeking immediate legal advice to assist him in doing so, or make other arrangements for other pressures on his time if he considers that that may affect his ability to do so. If the unless order is not complied with within the terms set out the full terms of Rule 38 apply and his defence to the claims will be restricted to the issue of remedy, although the claimants still have an onus of proof and will require to discharge that if they are to succeed on the merits of those claims. That is all, I consider, in accordance with the overriding objective given the circumstances of the case as I have outlined above.[43]In coming to my decision on these matters I did not consider it material whether or not the respondent had insurance for the claims against him, 5 or whether or not he may have any claim against those advising him as Ms Jiggens argued for, both of which the parties referred to in submission. Even if the advice was wrong, that does not mean that it was negligent, and even if it was negligent the losses flowing from that are not simple to identify. I noted that the claimants have mental health issues which may 10 be exacerbated by delays, and that the respondent has referred to his having mental health difficulties. It appeared to me that the interests of justice included moving to the Final Hearing if the witness statement is provided as required by the unless order, and to do that with as little delay as was practicable. 15 44. Ms Jiggens in her email to the Tribunal on the morning of the hearing referred to practical difficulties caused by any late production of the witness statement. She sought the variation of the earlier orders by revoking the arrangements in respect of the respondent.[45]I considered that that was not in accordance with the overriding objective 20 and did not grant her application but I considered that further time should be made available to Ms Jiggens for preparation of questions for crossexamination given the circumstances. I have therefore varied the time for notice of questions to be sent to the respondent in light of that. The claimants will give their evidence first. If the unless order is complied with 25 the respondent will cross examine them, and the Tribunal may have its own questions. There may be re-examination. It is not envisaged that the evidence of the respondent will be heard until at the very earliest the second day of the Hearing, and he will therefore have at least a measure of notice of the questions before his evidence on the merits is heard. That lesser notice of questions than originally provided for is the result of his own fault in my judgment, and balances the circumstances of the claimants against his own. The date for his giving advance notice of questions is, for the avoidance of doubt, not affected by this Judgment.[46]The claimants also argued for a strike out on the basis of no reasonable prospects of success for the respondent given the absence of documentation as referred to above but prior notice of that had not been given, separately I did not consider that it followed from the absence of 5 documentation that the response had no reasonable prospects of success, and in any event I did not consider it to be in accordance with the interests of justice to grant that application. The claimants have the onus of proof in establishing their claims under the 2010 Act so far as laid against the respondent. The absence of documents does not of itself 10 necessarily do so.[47]The claimants in addition referred to seeking an order for production of the legal advice to the respondent on the basis that legal privilege had been waived. I was not satisfied from what was said either that it had been waived or that if it had that the waiver was as wide as permitted such an 15 order to be granted. In any event that application was made during the course of the hearing.[48]It appeared to me to be appropriate and in the interests of justice to allow the respondent to have time to consider that and take advice on that matter, including from those who gave him that advice. If therefore the 20 claimants do wish to pursue that matter they may make an application for an order, intimate that to the respondent, and if opposed a further hearing can be fixed to determine that.
Introduction
[1]This was a final hearing which took place remotely. This was not objected to by the parties. The form of remote hearing was video. A face-to-face hearing was not held because it was not practicable due to the Covid-19 pandemic and all issues could be determined in a remote hearing. E.T. Z4 (WR)[2]These claims have had a lengthy history, with each of the parties making various applications including for strike out of the claim or response. There are two sets of claims by each of the claimants, which have been ordered to be heard together.[3]The respondent was previously one of four respondents to the claims. He is now the only remaining respondent. The claims against the remaining respondents were dismissed, following withdrawal by the claimants, in August 2021.[4]The first set of claims were raised by the claimants, separately, on 27 July 2020. The first claimant directed her claim solely against her former employer, who is no longer a respondent in these proceedings. The second claimant directed her claim against her former employer and the current respondent. An early conciliation certificate, in the name of the second claimant and the current respondent, had been issued on 10 July 2020, with conciliation stated to have started and ended on that date. This was the only early conciliation certificate in the names of these parties.[5]The claimants raised a further claim, on the same claim form, on 26 November 2020, against all four respondents. This largely repeated the allegations made in the original claims, albeit extending the scope to cover the additional respondents and, in case of the second claimant, including some additional allegations which arose in the course of her continued employment with the respondent.[6]An early conciliation certificate, in the names of the first claimant and the current respondent, was issued on 11 December 2020, with conciliation stated to have started and ended on that date. This was the only early conciliation certificate in the names of these parties.[7]Issues in relation to jurisdiction/timebar were raised and reserved to be determined at the final hearing.[8]At a preliminary hearing before EJ Kemp on 7 May 2021, the hearing dates were set and various orders were made to ensure parties were able to proceed with the final hearing. The final hearing was to determine all issues, including remedy. It was agreed that witness statements would be used at the final hearing, which would be taken as read.[9]The respondent accepted, in correspondence to the Tribunal dated 8 June 2021, that the claimants were disabled persons for the purposes of section 6 of the Equality Act 2010 (EqA).[10]Three separate bundles were lodged in advance of the final hearing, addressing pleadings, evidence and remedy, and extending to 522, 491 and 54 pages respectively.[11]On 13 September 2021, the claimants applied to strike out the response. That application was considered as a preliminary matter on 11 & 12 October 2021. The response was struck out on 12 October 2021, for the reasons set out in the order and note dated and sent to the parties that day.[12]The final hearing accordingly proceeded as undefended. The claimants gave evidence themselves and did not call any witnesses. Evidence and submissions were heard on 13 October 2021. As ordered, the claimants’ evidence in chief was by reference to witness statements, which were taken as read.
Issues
[13]At the start of proceedings, the Tribunal sought clarification of the complaints being advanced. The claimants’ representative confirmed that the claimants were pursuing each of the claims set out in their combined ‘Grounds of Claim’, which was prepared, in accordance with an order of the Tribunal, following the dismissal of the claims against the other three respondents. The complaints advanced were those set out at pages 14-26 of that document. The issues for the Tribunal to determine were accordingly as follows: Discrimination Arising from Disability – s15 EqA 13.1. Did the respondent know, or could the respondent reasonably have been expected to know, that the claimants had disabilities? 13.2. Did the following thing(s) arise in consequence of the claimants’ disabilities? 13.2.1. Direct and blunt ‘unfiltered’ communication; 13.2.2. Need to manage stress by not working overtime or taking on extra-contractual duties; 13.2.3. Giving literal answers to questions without consideration for social or other contexts; and 13.2.4. Emotive communications with colleagues while under stress. 13.2.5. Complaints of 13 & 15 December and need for resolution to manage mental health symptoms; 13.2.6. Need to manage health by restricting work to the day shifts or minimising stressful or additional duties; 13.2.7. Need to remove colleagues from social media; 13.2.8. Emotive communication with colleagues while under stress; and 13.2.9. Sickness absence. 13.3. Did the respondent treat the claimants unfavourably as follows? 13.3.1. Advising/causing the employer to uphold a grievance against her for disability related conduct; 13.3.2. Advising/causing the employer to suspend her; 13.3.3. Drafting/advising/causing the employer to raise disciplinary charges against her; 13.3.4. Advising/causing the employer to dismiss her; and 13.3.5. Advising/causing the employer to reject her appeal against dismissal. 13.3.6. Advising/causing the employer to uphold a grievance against her for disability related conduct; 13.3.7. Advising/causing the employer to suspend her; and 13.3.8. Drafting/advising/causing the employer to raise disciplinary charges against her. 13.4. If so, was that unfavourable treatment due to something arising in consequence the claimants’ disabilities? 13.5. If so, was the treatment a proportionate means of achieving a legitimate aim? Reasonable Adjustments – s20 & 21 EqA 13.6. The provision, criteria or practices (PCPs) relied on by the claimants are: 13.6.1. The practice of approaching workplace disputes without adequate consideration of disability; 13.6.2. Undertaking/maintaining appointment as HR consultant with inadequate knowledge and/or experience of cognitive disabilities and/or relevant equality law; 13.6.3. Practice of holding disciplinary meetings in real time; 13.6.4. Practice of not seeking medical information on disabilities from employees’ attending medical professionals. 13.7. Did the respondent have such PCPs? 13.8. If so, did any such PCP put the claimants at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, as follows: 13.8.1. Increase in stress exacerbating pain and neurological symptoms; and 13.8.2. Negative perception of communication style by the respondent during disciplinary procedure that influenced decision against first claimant. 13.8.3. Exacerbation of anxiety and depression symptoms/ breakdown of usual coping mechanisms; 13.8.4. Loss of income due to extended sick leave; and 13.8.5. Ongoing stress and exacerbation of anxiety and depression symptoms/breakdown of usual coping mechanisms. 13.9. If so, did the respondent know or could he reasonably have been expected to know the claimants were likely to be placed at any such disadvantage? 13.10. If so, would the steps identified by the claimants have alleviated the identified disadvantage? 13.11. If so, would it have been reasonable for the respondent to have taken those steps at any relevant time and did he fail to do so? Harassment related to disability/sex – s26 EqA 13.12. Did the respondent engage in the following conduct? 13.12.1. Differential treatment of colleague’s grievance in stating that the perceptions of alleged victim are decisive for the colleague’s grievance but not for the first claimant’s complaints during the disciplinary process; and 13.12.2. Sharing the second claimant’s [email of] 15 December 2019 with the first claimant, which the first claimant had not seen before the respondent shared it during disciplinary process and disciplinary charge made and upheld that the first claimant had seen the second claimants’ grievance. 13.12.3. Sharing the second claimant’s email of 15 December 2019 with the first claimant and her companion at the disciplinary hearing, without the second claimant’s consent; 13.12.4. Accusing the second claimant of lying about the incident with the partner of the employer’s business; 13.12.5. Failing to adequately investigate the second claimant’s grievance; 13.12.6. Not permitting the second claimant to be accompanied at grievance hearing with the respondent; 13.12.7. Acting HR consultant who did not have adequate understanding of mental health disability and/or relevant equality law; 13.12.8. Differential treatment of colleague’s alleged grievance in stating that the perceptions of alleged victim are decisive for the colleague’s grievance but not for the second claimant’s complaints; 13.12.9. Failing to obtain a medical report from the second claimant’s own GP or specialist mental health practitioner; and 13.12.10. The respondent engaging in a course of conduct of email correspondence that was combative, repetitive and unsympathetic towards the second claimant’s mental health distress. 13.13. If so, was that conduct unwanted? 13.14. If so, did it relate to the protected characteristic of disability/sex? 13.15. If so, did the conduct have the purpose or (considering the claimants’ perception, the other circumstances of the case and whether it is reasonable for the conduct to have the effect) the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimants? Victimisation - s27 EqA 13.16. Did the claimants do a protected act? The claimants rely upon the following: 13.16.1. The second claimant’s complaints of 13 & 15 Dec 2019; 13.16.2. The respondent’s belief that the first claimant would/did support the second claimant’s complaints of breaches of the EqA; and 13.16.3. The respondent’s belief that the second claimant would make complaints of breaches of EqA. 13.17. Did the respondent subject the claimants to any detriments as follows? 13.17.1. Advising/causing the suspension, dismissal and/or failure to uphold the appeal against dismissal; 13.17.2. Advising/causing inconsistent treatment of the second claimant and a colleague’s complaints of bullying and harassment; 13.17.3. Failing to ensure the employer provided a fair and reasonable disciplinary process; 13.17.4. Failing to ensure the employer paid notice pay/summary dismissal 13.17.5. Failing to provide or advise any management support during the period of suspension; 13.17.6. Failing to provide/advise the employer to provide the first claimant with the opportunity to respond to complaints against her before upholding a colleague’s grievance; 13.17.7. Failing to comply with the first claimant’s subject access request of the employer and companies associated with the respondent. 13.17.8. Advising/causing the suspension and initiation/continuation of disciplinary proceedings; 13.17.9. Advising/causing inconsistent treatment of the second claimant and a colleague’s complaints of bullying and harassment; 13.17.10. Refusing the second claimant’s request to take and be paid for annual leave during her sickness absence; 13.17.11. Failing to seek medical reports from the second claimant’s GP/mental health nurse; 13.17.12. Failing to provide/advise the employer to provide the second claimant with the opportunity to respond to complaints against her before upholding a colleague’s grievance; 13.17.13. Concluding/advising the employer to conclude that a partner of the employer’s business had not physically assaulted the second claimant as alleged without giving the second claimant the opportunity to review or respond to that individual’s evidence; 13.17.14. Refusal/failure to advise the employer to make reasonable adjustment of concluding disciplinary procedure in writing; and 13.17.15. Failing to comply with the second claimant’s subject access request of the employer and companies associated with the respondent. 13.18. If so, was this because the claimants did a protected act and/or because the respondent believed the claimants had done, or might do, a protected act? Time Limits 13.19. Were all of the claimants’ complaints presented within the time limits set out in sections 123(1)(a) & (b) of the EqA? 13.20. If not should time be extended on a “just and equitable” basis? Findings in Fact[14]The Tribunal found the following facts, relevant to the issues to be determined, to be admitted or proven.[15]The claimants both worked at a private taxi firm, as control room operators. The first claimant’s employment commenced in March 2013 and the second claimant’s employment commenced in November 2002. They have been friends for a number of years, socialising outwith the workplace also.[16]The claimants did not get on well with the employer’s office manager. They raised a number of informal complaints about her conduct with their employer.[17]The claimants worked on a variety of shifts during their employment, including night shift. They would also cover other shifts, on an ad hoc basis, when required. The second claimant stopped working night shifts as a result of the behaviour of one of the partners of the business, who would often come into the office drunk during the night shift and behave badly.[18]By the end of 2019, both claimants were working day shifts, from 7am to 3pm. The first claimant worked Sunday to Tuesday, the second claimant worked Wednesday to Saturday. Around that time they both decided that they would not take on any additional shifts, other than covering shifts for each other. They informed their employer of this. They decided not to take on any additional shifts, beyond their allocated shifts, as they felt they were being taken for granted by their employer, were unhappy at the way they felt they were being treated by management and felt their concerns in relation to the office manager were not being taken seriously.[19]The office manager was moved to an accounts function in/around November 2019. The claimants felt however that she continued to act as if she was still the office manager.[20]The claimants and their colleagues (other than management) participated in a group chat via Facebook.[21]On 13 December 2019, the second claimant orally raised with her employer that she felt she had been assaulted by one of the partners of the employer’s business, when he grabbed her arm and then pushed her, as she was trying to leave the office. She also raised concerns in relation to the former office manager, who had asked her to assist with training a new member of staff. The second claimant felt this was inappropriate, given that the former office manager no longer had line management responsibility for her.[22]The second claimant expected a response to the concerns she raised the following day, but did not receive this. She discussed matters with the first claimant, who said she felt she was doing the right thing by complaining. Both claimants felt they had valid concerns, were not being appreciated by their employer and it was right to complain about that, at that time.[23]On 15 December 2019, the second claimant sent an email to her employer stating that she was expecting a response the previous day and she did not want to return to work unless something was done in relation to her concerns. She stated that she was sending the email as she was feeling very anxious about it all and making herself unwell as a result. She raised in her email the following concerns: 23.1. That a member of staff had made a comment ‘Oh I knew something was wrong with you this morning’, simply because she had chosen not to speak to them, which she felt was inappropriate; 23.2. That she had told her employer she would not be training anyone ‘as I have enough to deal with phones emails etc I do not get paid to train!’; 23.3. That a colleague had called her ‘ignorant’; 23.4. That the former office manager should not be commenting on anything she did or said; 23.5. That she and the first claimant were unhappy in their jobs and dread coming to work apart from at the weekend. She stated that they were the ‘two people who get left with everything and also have to deal with getting moaned at constantly’, that management ‘do not manage properly’ and ‘at no point should we be getting shouted or roared at!’ ‘We are both fed up reporting this to you and nothing being done about it’. She stated that the first claimant was happy for her name to be mentioned in the email. 23.6. That, on the previous Friday, as she was trying to leave one of the offices, one of the partners grabbed her arm twice. She stated that ‘I told him to get his hands off me! I then open the door and he shoved me saying GO THEN!’ She stated that she felt this should not happen in any workplace and she had considered calling the police, but had been persuaded that it was best to allow her employer to try to deal with things in the first instance. She went on to say ‘As you know I spent 13 years dealing with domestic abuse and to survive that and come out the other end and in 5 years worth of counselling and support to start to feel myself again only in the last few months I may add to now feel scared to come to work, I am totally disgusted by what happened you should not have that happen to you at work.’ 23.7. Her email concluded with a further, unrelated, concern.[24]The employer asked the respondent, an independent HR consultant, to investigate the concerns raised by the second claimant. While these were not expressed as a grievance, and the second claimant did not intend them to be addressed as such, the concerns raised were treated by the respondent as a grievance. The second claimant asked to withdraw the grievance, prior to the investigation commencing, but was informed by the respondent that that was not possible at that stage. The first claimant also encouraged the second claimant to pursue matters and not withdraw her complaint.[25]The respondent investigated the grievance by interviewing both claimants as well as four other individuals. The second claimant was informed by the respondent that she was not allowed to bring anyone with her to the grievance meeting she attended.[26]The respondent interviewed the first claimant on 13 January 2020. She raised with the respondent her concerns in relation to the former office manager and one of her colleagues, LM, who she thought was lazy. She stated that she, and the second claimant, were ‘sick fed up with how things are right now’. She also stated that the second claimant was ‘a walk over, she was going to drop the grievance, but I told her not to.’[27]Having investigated matters, the respondent concluded that there was no evidence to support the second claimant’s complaints. He informed the employer and the second claimant of this on 15 January 2020. The second claimant did not receive written confirmation of this. She did not appeal against the grievance outcome reached.[28]LM attended an investigation meeting with the respondent on 13 January 2020. She received an important text from her partner on her Fitbit during the course of the meeting, which she required to respond to. She asked if she could take a break, to go and get her phone to respond, which she did. The first claimant saw her doing so and then sent her a text at 4.36pm stating ‘Hi how did you get on with guy? Why did you need your phone what were you showing him?’. LM received this message while still in the meeting with the respondent and showed it to him, as she was concerned about the tone of the text.[29]Following the conclusion of the investigation meeting, LM responded to the first claimant explaining why she needed her phone. The first claimant responded ‘How did you know barry had sent a text u were in the office wi the guy, why would you come for ur phone and take it into the office when that man was asking about the company n staff’. LM again explained why she had needed her phone and stated ‘Why? What are you accusing me of exactly?’ The first claimant responded ‘What do you think im accusing you of? If you showed that man any texts, chat or anything at all relating to anything any of us has said in text or chat room in regard to this grievance I will be furious and I would like to think that would not be the case. And im quite sure you would think the same.’ LM took this as threatening and raised concerns about this with her employer, via the respondent. The respondent then conducted an investigation into this, as well as concerns raised by the former office manager in relation to the grievance which had been raised against her by the second claimant and her concerns that both claimants were refusing to carry out training for new staff.[30]On/around 10 February 2020, the second claimant stated in a text message to LM stating ‘That’s what’s wrong with that place everyone getting involved in everyone’s business I’ve took everyone off [Facebook] then no one can accuse me of anything best way’.[31]By letters dated 10 February 2020, as a result of the further investigation conducted by the respondent into concerns raised about the conduct of the claimants, both claimants were suspended on full pay and invited to a disciplinary hearing. The letters to the claimants were sent from the respondent, for and on behalf of the employer. The allegations detailed in the letters to the claimants were of: 31.1. Breach of confidence regarding the claimants sharing/discussing of the details of the second claimant’s grievance between themselves; 31.2. Bullying/harassment/verbal abuse towards LM, including the texts sent to her by the first claimant on 13 January 2020; and 31.3. Refusal to carry out management instructions in relation to training of new staff.[32]The letter to the second claimant also included an allegation that she had made false accusations about fellow employees in her grievance. The letter stated ‘If what you stated did not happen (and this has been reviewed) then what you said must not be true.’[33]Within the letters to the claimants the respondent stated ‘As a point it is never about what your intent was in the texts, merely that you sent them, and that the person who received them, took them as both bullying and threatening.’[34]The disciplinary hearings were scheduled to take place on 14 February[35]The first claimant ultimately attended the disciplinary hearing on 18 March 2020. A copy of the second claimant’s grievance was provided to her as part of that process. The allegations against her were upheld and she was summarily dismissed with effect from 6 April 2020.[36]The first claimant appealed against her dismissal and an appeal hearing took place on 29 April 2020. Her appeal was rejected on 26 May 2020.[37]The second claimant was certified as unfit to work by her GP from 11 February 2020 onwards. Prior to this, her last sickness absences had been in 2016, when she had had two periods of absence of around 8 weeks each, due to anxiety and depression.[38]The second claimant did not attend the disciplinary hearing scheduled for 14 February 2020. She was not invited to a further hearing, as she remained unfit to attend.[39]In mid-March 2020 respondent sought to refer the second claimant to an occupational health professional, but this did not take place due to the Covid-19 pandemic. While discussing arrangements for this assessment, the second claimant stated to the respondent that her doctor and mental health nurse were also willing to send a report. The respondent did not follow up on that.[40]During the second claimant’s sickness absence, she applied to her car finance company for a payment holiday because she was absent from work. The car finance company contacted the second claimant’s employer, who passed the correspondence on to the respondent to address. The respondent initially, and erroneously, thought the second claimant had applied for alternative employment with the car finance company. The second claimant explained however that this was not the case.[41]By September 2020, the second claimant had raised Employment Tribunal proceedings and instructed her representatives to correspond with her employer, on her behalf. All correspondence with her employer continued to take place via the respondent. On 3 September 2020, the respondent proposed that the second claimant attend a series of appointments with a mental health specialist, as an alternative to the occupational health referral which they had sought to arrange in March 2020. The second claimant’s representatives requested further details as to who those appointments would be with. That information was provided by the respondent and they requested that the second claimant provide her consent to attend the consultations. She did not provide this, so the consultations did not take place.[42]On 28 October 2020, the second claimant’s representatives wrote to the respondent by email proposing that the disciplinary process be concluded in writing as a reasonable adjustment, as she was not well enough to attend in person. The respondent replied later that day stating that there was no current invite to any hearing. Rather the process was halted given concerns regarding the second claimant’s mental health. The respondent stated however that he would discuss matters with the employer and revert. The Tribunal were not referred to any correspondence between the parties thereafter, whether related to this or any other matter.[43]The second claimant resigned from her employment in July 2021. At the time her employment terminated she had not attended a disciplinary hearing and had not been asked to attend any further hearing, other than that initially scheduled for 14 February 2020. Claimants’ submissions[44]The claimants’ representative gave an oral submission, which is summarised as follows: 44.1. The claims were timeously presented. The exemptions contained in the Employment Tribunals (Early Conciliation: Exemptions & Rules of Procedure) Regulations 2014 apply and it is just and equitable to extend time; 44.2. The respondent had knowledge of the claimants’ disabilities; 44.3. The respondent is personally liable under s109-112 EqA; 44.4. Each of the complaints made should be upheld; and 44.5. The sums stated on the schedules of loss should be awarded, with the awards for injury to feelings uplifted, to reflect the egregious manner in which the proceedings have been conducted. A further uplift of 25% should be applied as a result of the respondent’s failure to follow the Acas Code in the disciplinary process. Relevant Law Discrimination arising from disability
Relevant Law
[45]Section 15 EqA states: “(1) A person(a) (A) discriminates against a disabled person(b) (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[46]Guidance on how this section should be applied was given by the EAT in Pnaiser v NHS England [2016] IRLR 170, EAT, paragraph 31. In that case it was highlighted that ‘arising in consequence of’ could describe a range of causal links and there may be more than one link. It is a question of fact whether something can properly be said to arise in consequence of disability. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.[47]There is no need for the alleged discriminator to know that the ‘something’ that causes the treatment arises in consequence of disability. The requirement for knowledge is of the disability only (City of York Council v Grosset [2018] ICR 1492, CA).[48]The EAT held in Sheikholeslami v University of Edinburgh [2018] IRLR 1090 that: ‘the approach to s 15 Equality Act 2010 is now well established and not in dispute on this appeal. In short, this provision requires an investigation of two distinct causative issues:(i) did A treat B unfavourably because of an (identified) something? and(ii) did that something arise in consequence of B's disability? The first issue involves an examination of the putative discriminator's state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.’[49]The burden is on the respondent to prove objective justification. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so (Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601). Failure to make reasonable adjustments[50]Section 20 EqA states: “Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.”[51]The duty comprises three requirements (of which the first is relevant to this case). The first requirement is a “requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”[52]Section 21 EqA provides that a failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments and that A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[53]Further provisions in Schedule 8, Part 3, EqA provide that the duty is not triggered if the employer did not know, or could not reasonably be expected to know, that the claimant had a disability and that the provision, criteria or practice is likely to place the claimant at the identified substantial disadvantage.[54]The Court of Appeal in Ishola v Transport for London [2020] IRLR 368 considered the term ‘provision, criterion or practice’, noting that it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words 'act' or 'decision' in addition or instead. In context, all three words carried the connotation of a state of affairs indicating how similar cases were generally treated or how a similar case would be treated. 'Practice' connotes some form of continuum in the sense that it is the way in which things generally are or will be done. Harassment[55]Section 26(1) EqA states: ‘(1) A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’[56]Section 26(4) EqA provides that: ‘(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.’[57]There are accordingly 3 essential elements of harassment claim under section 26(1), namely(i) unwanted conduct,(ii) which relates to a relevant protected characteristic and(iii) that has the proscribed purpose or effect. Victimisation[58]Section 27 EqA states: ‘(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act- (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act’[59]In Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) (2003) UKHL, Lord Hope of Craighead provided guidance on the meaning of detriment at para 35, where he stated: ‘Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to ‘detriment’.’[60]The EHRC Code of Practice on Employment (2011) states, at paragraph 9.8, that: ‘‘Detriment’ in the context of victimisation is not defined by the Act and could take many forms. Generally, a detriment is anything which the individual concerned might reasonably consider changed their position for the worse or put them at a disadvantage....’ Paragraph 9.9 of the EHRC Code states: ‘A detriment might also include a threat made to the complainant which they take seriously and it is reasonable for them to take it seriously. There is no need to demonstrate physical or economic consequences. However, an unjustified sense of grievance alone would not be enough to establish detriment.’[61]In order to succeed in a claim of victimisation a claimant must show that he or she was subjected to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protected act. The essential question in determining the reason for the claimant’s treatment is: what, consciously or subconsciously motivated the employer to subject the claimant to the detriment?[62]However, the test is not precisely one of causation. The case of Chief Constable of West Yorkshire Police v Khan 2001 ICR 1065, HL involved the refusal of a reference to the police force to which Mr Khan had applied for a post in circumstances where Mr Khan had an outstanding Tribunal application against the appellants. The House of Lords overturned the Court of Appeal and found that the real reason for the refusal of a reference to the claimant was that the provision of the reference might compromise the Chief Constable’s handling of the Tribunal proceedings and that that was a legitimate reason. At paragraph 77 of his judgment Lord Stott gave helpful guidance on the issue of causation in cases of victimisation when he stated that: ‘The words ‘by reason that’ suggest, to my mind, that it is the real reason, the core reason, the causa causans, the motive, for the treatment complained of that must be identified.’ Burden of proof[63]Section 136 EqA provides: ‘If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.’[64]There is accordingly a two-stage process in applying the burden of proof provisions in discrimination cases, as explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish a first base or prima facie case of discrimination, harassment or victimisation by reference to the facts made out. If the claimant does so, the burden of proof shifts to the respondent at the second stage to prove that they did not commit those unlawful acts. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the complaint should be upheld. If the explanation is adequate, that conclusion is not reached.[65]In Madarassy, it was held that the burden of proof does not shift to the respondent simply by a claimant establishing that they have a protected characteristic and that there was a difference in treatment. Those facts only indicate the possibility of discrimination. They are not of themselves sufficient material on which the Tribunal “could conclude” that on a balance of probabilities, the respondent had committed an unlawful act of discrimination. The Tribunal has, at the first stage, no regard to evidence as to the respondent’s explanation for its conduct, but the Tribunal must have regard to all other evidence relevant to the question of whether the alleged unlawful act occurred, it being immaterial whether the evidence is adduced by the claimant or the respondent, or whether it supports or contradicts the claimant’s case (as explained in Laing v Manchester City Council [2006] IRLR 748, an EAT authority approved by the Court of Appeal in Madarassy). Observations/Matters Arising[66]The claimants’ evidence was very limited. Their witness statements were 9 and 10 pages respectively. Out of an ‘Evidence Bundle’ extending to 491 pages, only around 40 pages were referred to in evidence. The Tribunal were not referred to documents such as the first claimant’s dismissal letter, appeal or appeal outcome. None of the documents in the ‘Remedy Bundle’ were referred to.[67]During submissions, the claimants’ representative sought to rely on: 67.1. The terms of the respondent’s witness statement; and 67.2. Documents which were in the bundle but had not been introduced into evidence.[68]The Tribunal confirmed that: 68.1. As the response had been struck out (at the claimants’ request), no evidence was led by the respondent so it was not possible to refer to the respondent’s witness statement; and 68.2. It was not possible for the claimants to refer to documents in submissions which had not been introduced into evidence.[69]This was accepted by the claimants’ representative who requested, and was granted, additional time to reframe her submissions to remove these references. Discussion & Decision Discrimination Arising from Disability[70]In relation to the claims of discrimination arising from disability the Tribunal started by referring to section 15 EqA.[71]Section 15(2) states that section 15(1) will not apply if it the respondent shows that they did not know, and could not reasonably have been expected to know, the claimant had the disability. The respondent has not demonstrated this. The Tribunal accordingly proceeded on the basis that the provisions of 15(1) applied.[72]To shift the burden of proof to the respondent in relation claim under s15 EqA, a claimant requires to show: 72.1. That he or she has been subjected to unfavourable treatment; 72.2. A link between the disability and the ‘something’ that is said to be the ground for the unfavourable treatment; and 72.3. Some evidence from which it could be inferred that the ‘something’ was the reason for the treatment.[73]In relation to the first question, the Tribunal noted that no question of comparison arises. The EHRC Code indicates that unfavourable treatment is treated synonymously with disadvantage. It is something about which a reasonable person would complain. Taking this into account the Tribunal accepted that the claimants had established each asserted act of unfavourable treatment: a grievance was upheld against the claimants, they were suspended, disciplinary charges were raised against them and the first claimant was dismissed and her appeal rejected.[74]The Tribunal then considered the second question, addressing each ‘something’ asserted by the claimants to have arisen in consequence of their disabilities, to determine whether a link between the ‘something’ asserted and the disability, had been established in the evidence presented. The Tribunal reached the following conclusions in relation to these: 74.1. Direct and blunt ‘unfiltered’ communication. No evidence was led in relation to the first claimant having direct and blunt ‘unfiltered’ communication, whether due to disability or otherwise. This was not mentioned in the first claimant’s witness statement and the Tribunal were not referred to any documents suggesting this may be the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation 74.2. Need to manage stress by not working overtime or taking on extra-contractual duties While evidence was led in relation to the first claimant not wanting to take on extra shifts, the evidence led by the first claimant indicated that this was a conscious choice on her part, in protest to the employer not taking action in relation to the claimants’ complaints about the Office Manager and other feeling of dissatisfaction in relation to her employment. No evidence was led in relation to the first claimant being unable to work extra shifts as a result of a disability. Indeed, the first claimant indicated that she would and could work extra shifts, but at the end of 2019 she decided that, going forward, she would only do so to cover the second claimant’s shifts. No evidence was led in relation to the first claimant not taking on additional contractual duties, whether as a result of a disability or otherwise. This was not mentioned in the first claimant’s witness statement and the Tribunal were not referred to any documents suggesting this may be the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation to this does not 74.3. Giving literal answers to questions without consideration for social or other contexts. No evidence was led in relation to the first claimant giving literal answers to questions without consideration for social or other contexts, whether due to disability or otherwise. This was not mentioned in the first claimant’s witness statement and the Tribunal were not referred to any documents suggesting this may be the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation to this does not 74.4. Emotive communications with colleagues while under stress. No evidence was led in relation to the first claimant engaging in emotive communications with colleagues while under stress, whether due to disability or otherwise. This was not mentioned in the first claimant’s witness statement and the Tribunal were not referred to any documents suggesting this may be the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation to this does not succeed. 74.5. Complaints of 13 & 15 December and need for resolution to manage mental health symptoms. The second claimant’s complaints of 13 & 15 December 2021 did not arise in consequence of her disability. They were raised because she felt she had been assaulted and unfairly treated in the workplace. The evidence before the Tribunal was that the second claimant sought to withdraw her grievance before it was investigated and determined, but that request was refused. In light of that the Tribunal did not accept that the second claimant established that she required a resolution of her complaints to manage her mental health symptoms. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation to this does not succeed. 74.6. Need to manage health by restricting work to the day shifts or minimising stressful or additional duties. No evidence was led to suggest that the second claimant could not work night shift, or shifts other than day shift, due to her disability. Indeed, the second claimant’s evidence was that she had in fact previously worked night shifts. She stopped doing as a result of the actions of one of the partners of the employer business, not as a consequence of her disability. No evidence was led in relation to the second claimant being unable to work extra shifts as a result of a disability. Indeed, the evidence led was that the second claimant would and could work extra shifts, but at the end of 2019 she decided that, going forward, she would only do so to cover the first claimant’s shifts. In relation to additional duties, the second claimant stated in her grievance that she did not wish to take on training responsibilities as she did not have time to train staff and was not paid to do so. She did not state in her grievance that she was unable to do so as a result of her disability and no evidence was led to suggest that this was the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the complaint under s15 EqA in relation to this does not succeed. 74.7. Need to remove colleagues from social media. The evidence led was that the second claimant removed colleagues from Facebook only, not social media generally. In relation to the removal of colleagues from Facebook, this was so that ‘no one can accuse [her] of anything’. It did not arise in consequence of her disability, as is clear from the fact that she was able to participate in social media without the need to remove colleagues prior to that point. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation 74.8. Emotive communication with colleagues while under stress. No evidence was led in relation to the second claimant engaging in emotive communications with colleagues while under stress, whether due to disability or otherwise. This was not mentioned in the second claimant’s witness statement and the Tribunal were not referred to any documents suggesting this may be the case. Given that the asserted ‘something’ arising in consequence of disability was not established, the claim under s15 EqA in relation to this does not succeed. 74.9. Sickness absence. The first claimant did have periods of sickness absence as a result of her disability. The requisite link between the disability and the ‘something’ that is said to be the ground for the unfavourable treatment has accordingly be established.[75]The Tribunal then considered whether there some evidence from which it could be inferred that the ‘something’ established (sickness absence of the second claimant) was the reason for her treatment. No evidence whatsoever was presented from which it could be inferred that the second claimant’s sickness absence was the reason for a grievance against her being upheld, her suspension or the raising of disciplinary charges against her. The Tribunal noted that, prior to the incidents complained of, the second claimant was last absent from work on two occasions in 2016, for approximately 8 weeks on each occasion. No evidence was presented to suggest any link with those absences and the unfavourable treatment complained of. The Tribunal concluded therefore that the second claimant had not established a prima facie case that she was discriminated against because of something arising in consequence of her disability, namely absence.[76]For these reasons the Tribunal concluded that the claims of discrimination arising from disability do not succeed. Reasonable Adjustments[77]The Tribunal’s first step was to identify the relevant PCPs. The PCPs relied upon by the claimants were stated as follows: 77.1. The practice of approaching workplace disputes without adequate consideration of disability; 77.2. Undertaking/maintaining appointment as HR consultant with inadequate knowledge and/or experience of cognitive disabilities and/or relevant equality law; 77.3. The practice of holding disciplinary meetings in real time; and 77.4. The practice of not seeking medical information on disabilities from employees’ attending medical professionals.[78]The Tribunal considered each of the PCPs asserted to determine whether these had been established. The following conclusions were reached in relation to each: 78.1. The practice of approaching workplace disputes without adequate consideration of disability. No evidence was led by the claimants in relation to how other cases were dealt with, or would be dealt with, by the respondent. They simply asserted that this is how the respondent approached matters with them. Taking into account the guidance given by the Court of Appeal in Ishola v Transport for London, the Tribunal concluded that the claimants had not demonstrated the practice asserted. 78.2. Undertaking/maintaining appointment as HR consultant with inadequate knowledge and/or experience of cognitive disabilities and/or relevant equality law. No evidence was led whatsoever in relation to the knowledge or experience of the respondent. The PCP asserted by the claimants was accordingly not established. 78.3. The practice of holding disciplinary meetings in real time. No evidence was led by the claimants in relation to how other disciplinary meetings were conducted, or would be conducted, by the respondent. They simply asserted that this is how the respondent approached matters, or sought to approach matters, with them. Taking into account the guidance given by the Court of Appeal in Ishola v Transport for London, the Tribunal concluded that the second claimant had not demonstrated the practice asserted. 78.4. The practice of not seeking medical information on disabilities from employees’ attending medical professionals. No evidence was led by the claimants in relation to whether the respondent sought medical information on disabilities from attending medical professionals in the past or would do so in the future. The second claimant simply asserted that this is how the respondent approached matters with her. At best, the claimant demonstrated that this was a one-off act in the course of dealing with one individual. Taking into account the guidance given by the Court of Appeal in Ishola v Transport for London, the Tribunal concluded that the second claimant had not demonstrated the practice asserted.[79]Given that none of the PCPs relied upon were established, the claims of failure to make reasonable adjustments do not succeed. Harassment[80]The Tribunal considered each allegation of harassment, considering whether there was unwanted conduct, whether it related to disability/sex and, if so, whether the conduct had the proscribed purpose or effect. In relation to whether the conduct was related to disability/sex, the Tribunal was mindful of the need to analyse the words/conduct relied upon, together with the context, in order to establish whether there is any connection or association between the two. The Tribunal reached the following findings in relation to each alleged act of harassment. 80.1. Differential treatment of LM’s grievance in stating that the perceptions of alleged victim are decisive for LM’s grievance but not for the first claimant’s complaints during the disciplinary process. In her witness statement, the first claimant confirmed that she raised this issue with the respondent during her disciplinary hearing. The concerns were in relation to a difference in treatment between LM and the second claimant, rather than between herself and LM. The first claimant did not however address in her evidence to the Tribunal why she felt they were treated differently, or state that she asserted any basis for the difference in treatment to the respondent. She did not state in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The Tribunal concluded that, while this may have been unwanted conduct, it was not related to disability or was so related in any way. The claimants’ combined Grounds of Claim suggest that the conduct was related to a protected characteristic as LM’s grievance did not relate to sex or disability, but the second claimant’s did. The Tribunal found (as stated below) that no allegations of discrimination, harassment or victimsation were contained in the second claimant’s grievance. While the grievance mentioned the second claimant’s medical condition, and that she had experienced domestic abuse in the past, those were not the issues complained of. The issues complained of were an alleged assault and unfair treatment. The Tribunal accordingly did not accept that the second claimant’s grievance related to disability/sex. Given that unwanted conduct related to disability/sex has not been established, the complaint under s26 EqA in relation 80.2. Sharing the second claimant’s [email of] 15 December 2019 with the first claimant, which the first claimant had not seen before the respondent shared it during disciplinary process and disciplinary charge made and upheld that the first claimant had seen the second claimants’ grievance. The Tribunal accepted that this conduct occurred and it amounted to unwanted conduct. The first claimant did not however state or assert in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The Tribunal concluded that, while this may have been unwanted conduct, it was not related to disability or sex. There was no evidence before the Tribunal to suggest that it was so related in any way. Rather, it was provided in as relevant evidence in the course of disciplinary proceedings in circumstances where the respondent reasonably believed (given the statements of both claimants) that the first claimant had already seen the second claimant’s grievance. In any event no evidence was led in relation to the purpose of the email and the first claimant did not give any evidence at all in relation to the effect of the conduct on her. The Tribunal accordingly concluded that it did not have the proscribed effect. For these 80.3. Sharing the second claimant’s email of 15 December 2019 with the first claimant and her companion at the disciplinary hearing, without the second claimant’s consent. The Tribunal accepted that this conduct occurred and it amounted to unwanted conduct. The second claimant did not however state or assert in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The Tribunal concluded that, while this may have been unwanted conduct, it was not related to disability or sex. There was no evidence before the Tribunal to suggest that it was so related in any way. Rather, it was provided in as relevant evidence in the course of disciplinary proceedings in circumstances where the respondent reasonably believed (given the statements of both claimants) that the first claimant had already seen the second claimant’s grievance. In any event no evidence was led in relation to the purpose of the email and the second claimant did not give any evidence at all in relation to the effect of the conduct on her: in her witness statement the only mention of this is a sentence stating ‘[the respondent] shared the grievance with [the first claimant], not me.’ The Tribunal accordingly concluded that it did not have the proscribed effect. For these 80.4. Accusing the second claimant of lying about the incident with the partner of the employer’s business. The Tribunal accepted that disciplinary proceedings were raised against the second claimant which included an allegation that she had not told the truth when she alleged that she had been assaulted by a partner of the business. The Tribunal accepted that that this amounted to unwanted conduct. The second claimant did not however state or assert in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The claimants’ combined Grounds of Claim state that ‘accusing a woman with experience of domestic abuse of lying about a physical assault is inherently related to sex.’ The Tribunal did not accept this assertion given the context, namely an allegation of assault in the workplace, which was unrelated to sex, and which had been investigated and not upheld. The Tribunal concluded that, while this was clearly unwanted conduct, it was not related to disability or sex. There was no evidence before the Tribunal to suggest that it was so related in any way. For these reasons, the complaint under s26 EqA in relation to this does not succeed. 80.5. Failing to adequately investigate the second claimant’s grievance. The Tribunal were referred to very few documents in relation to the investigation process and outcome. The second claimant’s evidence was that she did not receive a copy of the notes of the grievance meeting, or a written outcome. On balance the Tribunal concluded that there were, at very least, procedural failings and this amounted to unwanted conduct. The second claimant did not however state or assert in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The claimants’ combined Grounds of Claim state that this conduct was related to a protected characteristic as a ‘Grievance relating to domestic abuse (sex) and disability is inherently related to sex and disability.’ The suggestion being that failure to investigate such a grievance would also be action related to sex/disability. The Tribunal did not accept this assertion. While the grievance mentioned the second claimant’s medical condition and that she had experienced domestic abuse in the past, those were not the issues complained of. The issues complained of were an alleged assault and unfair treatment. Tribunal did not accept that the grievance was ‘related to sex and disability’ or that failure to adequately investigate the second claimant’s grievance amounted to conduct related to sex or disability. There was no evidence before the Tribunal to suggest that it was so related in any way. For these 80.6. Not permitting the second claimant to be accompanied at grievance hearing with the respondent. The Tribunal accepted that this conduct occurred and it amounted to unwanted conduct. The second claimant did not however state or assert in her evidence that she felt that this conduct was related to disability, or why she believed that to be the case. The Tribunal concluded that, while this was unwanted conduct, it was not related to disability or was so related in any way. For these reasons, the complaint under s26 EqA in relation to this does not succeed. 80.7. Acting HR consultant who did not have adequate understanding of mental health disability and/or relevant equality law. No evidence was led whatsoever in relation to the knowledge or experience of the respondent. The Tribunal accordingly concluded that the conduct alleged was not established. 80.8. Differential treatment of LM’s alleged grievance in stating that the perceptions of alleged victim are decisive for LM’s grievance but not for the second claimant’s complaints. The Tribunal accepted that this conduct occurred and it amounted to unwanted conduct. The second claimant did not however address in her evidence to the Tribunal why she felt they were treated differently, or state that she asserted any basis for the difference in treatment to the respondent. She did not state in her evidence that she felt that this conduct was related to disability or sex, or why she believed that to be the case. The Tribunal concluded that, while this may have been unwanted conduct, it was not related to disability or was so related in any way. The claimants’ combined Grounds of Claim suggest that it was related to a protected characteristic, as LM’s grievance did not relate to sex or disability, but the second claimant’s did. The Tribunal found that, while the second claimant’s grievance mentioned the second claimant’s medical condition and that she had experienced domestic abuse in the past, those were not the issues complained of. The Tribunal did not accept that the grievance ‘related to sex and disability’. Given that unwanted conduct related to disability/sex has not been established, the complaint under s26 EqA in relation to this does not succeed. 80.9. Failing to obtain a medical report from the second claimant’s own GP or specialist mental health practitioner. This was stated, in the Grounds of Claim, to have occurred in the period 19 March to 3 September 2021. The second claimant did not mention in her witness statement any failure to obtain a medical report from the second claimant’s own GP or specialist mental health practitioner. The only mention of this in the evidence referred to was an email from the second claimant dated 12 March 2020, when the second claimant stated to the respondent that her doctor and mental health nurse were willing to send a report. The Tribunal accepted that it was unwanted conduct not to obtain a medical report from the claimant’s own GP or specialist mental health practitioner and that this was related to disability. No evidence was led however as to the purpose or effect of that treatment: it was not mentioned in the second claimant’s witness statement at all. The Tribunal accordingly concluded that it did not have the proscribed purpose or effect. For these reasons, the complaint under s26 EqA in relation to this does not succeed. 80.10. The respondent engaging in a course of conduct of email correspondence that was combative, repetitive and unsympathetic towards the second claimant’s mental health distress. This was stated, in the Grounds of Claim, to have occurred in the period from 6 March 2020 to 3 September 2020. In her witness statement the second claimant stated that the respondent ‘kept emailing [her] when she was off sick, each email had a load of questions and he didn’t seem to understand that [she] I was genuinely too unwell to be dealing with all of this.’ The Tribunal were not however referred to any emails of this nature, in that period. The only emails referred to between the second claimant and the respondent were dated 12-13 March 2020. The Tribunal did not accept these were combative, repetitive and unsympathetic towards the second claimant’s mental health. On the contrary, these were supportive and sympathetic. The only other emails in that period which the Tribunal were referred to were dated 3 September 2020. These however were between the respondent and the second claimant’s representative. This consisted of an email from the respondent to the second claimant’s representative which the Tribunal found to be entirely appropriate and not combative, repetitive and unsympathetic. The response from the second claimant’s representative and the subsequent response from the respondent (who was acting for himself and as representative for the other three respondents at that time) were both clearly sent with reference to the acrimonious litigation the parties were engaged in. While combative, it was an appropriate response to the combative email from the second claimant’s representative. It was not repetitive and unsympathetic. No evidence was led as to the purpose of the email from the respondent to the second claimant’s representative. The second claimant’s evidence as to the effect on her was expressed generally, by reference to ‘the whole situation’, rather than in relation to each particular complaint raised. In determining whether the correspondence from the respondent to the second claimant’s representative had the proscribed effect, the Tribunal considered the second claimant’s perception, the circumstances of the case and whether it was reasonable for the conduct to have that effect. The Tribunal concluded that it was not reasonable, in circumstances where parties are engaged in acrimonious litigation, for the second claimant to find this particular correspondence between representatives as having the proscribed effect. The Tribunal accordingly concluded that it did not have the proscribed purpose or effect. In her witness statement the second claimant also refers to what she stated were rude emails from the respondent in relation to emails from her car finance company. The Tribunal were not referred to these emails and it was not explained why the second claimant felt these were ‘rude’. The Tribunal accordingly concluded that the conduct complained of was not established. In any event, the second claimant’s position was that the respondent sent the emails he did because he thought the second claimant had applied for alternative employment. In light of this, the Tribunal found that they were not related to disability, but the respondent’s erroneous belief that the second claimant was applying for alternative employment. For these reasons, the complaint under s26 EqA in relation to this does not succeed.[81]The Tribunal accordingly concluded that the claims of harassment related to disability/sex do not succeed. Victimisation[82]The Tribunal firstly considered the protected acts relied upon. These were 82.1. The second claimant’s complaints of 13 & 15 December 2019; 82.2. The respondent’s belief that the first claimant would/did support the second claimant’s complaints of breaches of the EqA; and 82.3. The respondent’s belief that the second claimant would make complaints of breaches of the EqA.[83]The Tribunal considered the terms of the second claimant’s email of 15 December 2019, which set out in writing the complaint she had also made orally on 13 December 2019. The complaints set out in that email are of assault (a criminal offence) and unfair treatment. The email does not contain any allegation, whether express or not, that the employer or any other person contravened any provisions of the EqA. The Tribunal accordingly concluded that the complaints made on 13 & 15 December 2019 did not amount to protected acts for the purposes of s27(2) EqA.[84]The Tribunal also notes that, despite lodging claims with the Tribunal setting out numerous complaints of discrimination, harassment and victimisation, none of these complaints relate to the circumstances outlined in the email, supporting the Tribunal’s conclusion that the terms of the grievance did not contain any assertion of discrimination, harassment or victimisation. Any such assertion would have been included as a ground of complaint in the claim forms lodged.[85]No evidence was presented to the Tribunal to suggest that the respondent believed that the second claimant would make complaints of breaches of the EqA, which would be supported by the first claimant, or that he subjected the claimants to any detriment because of any such belief.[86]For these reasons the Tribunal concluded that the complaints of victimisation do not succeed. Time Limits[87]While the complaints have not been upheld, the Tribunal wish to record what their conclusions would have been, in relation to jurisdiction/time bar regarding the first claimant’s claims, had it required to determine this.[88]The Tribunal noted that the claimants raised their initial claims on separate claim forms. The claim raised by the first claimant on 27 July 2020 was not against the current respondent. The claim raised by the second claimant on 27 July 2020 included the current respondent as a respondent and she had engaged in early conciliation in relation to the current respondent on 10 July[89]In a single claim form, lodged with the Tribunal on 26 November 2020, both claimants raised further claims against a number of respondents, including the current respondent.[90]The second claimant then engaged in early conciliation in relation to the current respondent on 11 December 2020.[91]The second claimant relied on s3(1)(a) of the Employment Tribunals (Early Conciliation: Exemptions & Rules of Procedure) Regulations 2014 (the EC Regulations) to support her contention that she did not require to have engaged in early conciliation with the current respondent prior to raising her claim against him, as her claim was raised on the same claim form as the second claimant and the second claimant had an early conciliation certificate in relation to the respondent in respect of the same dispute. In addition, once an early conciliation certificate is obtained, there is no requirement to obtain a further certificate to raise claims in relation to matters which arise subsequently. The Tribunal noted that, for the exemption under s3(1)(a) of the Early Conciliation Regulations 2014 to apply, the claims would require to relate to the ‘same dispute’. The Tribunal noted that, whilst there was some crossover, claims raised by each of the claimants were not exactly the same.[92]Even if this were accepted however, the Tribunal noted that the first claimant did not raise any proceedings against the current respondent until the 26 November 2020. The last act she complained of was the rejection of her appeal on 26 May 2020. Her claim was accordingly, at best, three months out of time. It was submitted on behalf of the first claimant that it was just and equitable to extend time. Beyond that assertion however no detail was provided in submissions as to why it would be just and equitable to extend time in the particular circumstances of this case and no evidence whatsoever was led in relation to this, or the reasons why the first claimant did not raise a claim against the current respondent until 26 November[93]The Tribunal was mindful of the fact that what is just and equitable depends on all the circumstances, and the burden of proof is on a claimant to establish this (as explained by the Court of Appeal in Robertson v Bexley Community Centre [2003] IRLR 434). The Tribunal concluded that the first claimant had not established that it was just and equitable to extend time. No evidence was led in relation to this. Accordingly, had any of the particular complaints brought by the first claimant been established, the Tribunal would have determined that these were brought outside the requisite time limits and it was not just and equitable to extend those time limits. The complaints brought by the first claimant would accordingly have been dismissed on that basis.