Mr D Doyle and others v Lloyds Bank plc: 4104605/2024 and others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104605/2024, 4104236/2024, 4104237/2024
Between
Mr D Doyle and othersClaimantLloyds Bank plcRespondent
Before
Employment Judge R BradleyMs S Christie (instructed by Solicitor) for claimantMr L Cunningham (instructed by Solicitor) for respondentDate 3 September 2024
JUDGMENT
The Judgment of the Tribunal is that the claims of failure to comply with section 80G(1) of the Employment Rights Act 1996 (duties in relation to a statutory right to request contract variation) are struck out on the basis that they do not have reasonable prospects of success.
REASONS
[1]On 3 June 2024 at a case management preliminary hearing EJ Hoey fixed the date and purpose of this hearing. It was to determine the respondent’s strike out application (which failing a deposit order).[2]His Note (by agreement) combined the three claims and recorded that they should be determined together.[3]All three claimants remain employed by the respondent. The claims complain of failures relative to requests for flexible working under Part VIIIA (sections 80F to 80I) of the Employment Rights Act 1996.[4]EJ Hoey’s Note contained various orders which were made with the parties’ consent. In summary for this hearing he ordered virtual and hard copies of:a. A joint bundle to be sent to the tribunal no later than 7 days before the hearing, so by 23 Augustb. A statement of agreed facts to be sent to the tribunal no later than 7 days before the hearing, so by 23 August.[5]On 29 August the hard copy of the joint bundle was received at the tribunal. It included the statement. After the end of this hearing, Ms Christie kindly emailed to me the joint bundle.[6]It is regrettable that with such a short number of uncontroversial and agreed orders parties’ solicitors were not able to comply with them. The issues for this hearing[7]At paragraph 11 EJ Hoey’s Note sets out two issues for me:- 1. Should the claims be struck out because:a. The claims raise the same or substantially similar complaints to previous claims that the Employment Tribunal has already issued rule 52 Judgments in respect of; and/or arise out of or in connection with facts, matters and events that are settled by a COT3 agreement; and/or are an abuse of process and the principles of res judicata; and/orb. The claims do not demonstrate a cause of action in relation to the respondent’s agreement to reconsider the Claimants’ flexible working requests (as each claimant had already made a relevant request, and is limited to one per year); and/orc. The claims are for “failure to allow flexible working”, which is not a statutory claim that the Tribunal has jurisdiction to hear 2. In event the claims are not struck out, should the claimants be required to pay a deposit of up to £1,000 as a condition of continuing with the proceedings.
Evidence
[8]As per the June Note, no oral evidence was led. Findings in Fact[9]From the statement of agreed facts I made the following findings.[10]Mr Doyle commenced employment with the Respondent on 10 December 2001.[11]On 18 July 2023, he submitted a flexible working request.[12]On 25 July 2023, the Respondent confirmed to Mr Doyle that his flexible working request had been rejected.[13]The Respondent rejected the flexible working request for the following reason: Your circumstances/request does not meet the criteria for an homeworking contract.[14]On 2 August 2023, he appealed the outcome of his flexible working request.[15]On 29 August 2023, the Respondent informed him that his appeal against his flexible working request had not been upheld.[16]On 13 November 2023, Mr Doyle issued a claim against the Respondent in the Glasgow Employment Tribunal under case number 4106954/2023. This claim related to the Respondent’s decision not to grant his flexible working request.[17]On 18 December 2023, Mr Doyle’s claim was settled under a COT3 agreement. One term of the COT3 agreement was that the Respondent warranted to reconsider Mr Doyle’s flexible working request.[18]On 14 February 2024, the Respondent confirmed that Mr Doyle’s flexible working request had been reconsidered and had not been accepted.[19]The Respondent provided the following reasoning for not accepting Mr Doyle’s flexible working request: Detrimental impact on performance.[20]On 11 April 2024, Mr Doyle issued a new ET1 regarding the outcome and reconsideration of the flexible working request he made on 18 July 2023.[21]Mr Lawson commenced employment with the Respondent in 2014.[22]On 4 May 2023, he submitted a flexible working request.[23]On 6 June 2023, the Respondent confirmed to him that his flexible working request had been rejected.[24]The Respondent provided the following reason for rejecting Mr Lawson’s homeworking request: Any contractual changed to make a colleague a homeworker must be by absolute exception where there is a fundamental colleague adjustment needed. It doesn’t appear this situation is in line with precedence for change and therefore we wouldn’t be able to support this.[25]On 12 July 2023, Mr Lawson appealed the outcome of his flexible working request.[26]On 8 September 2023, the Respondent informed him that his appeal against his flexible working request had not been upheld.[27]On 11 December 2023, Mr Lawson issued a claim against the Respondent in the Glasgow Employment Tribunal under case number 4107278/2023. This claim related to the Respondent’s decision not to grant his flexible working request.[28]On 21 December 2023, Mr Lawson’s claim was settled under a COT3 agreement. One term of the COT3 agreement was that the Respondent warranted to reconsider Mr Lawson’s flexible working request.[29]On 15 February 2024, the Respondent confirmed that Mr Lawson’s flexible working request had not been upheld following a reconsideration.[30]The Respondent provided the following reason for not upholding Mr Lawson’s flexible working request: Detrimental impact on performance.[31]On 20 March 2024, he issued a new ET1 regarding the outcome and reconsideration of the flexible working request he made on 4 May.[32]Mr Booth commenced employment with the Respondent on 30 December 1998.[33]On 30 March 2023, he submitted a formal flexible working request.[34]On 31 March 2023, the Respondent confirmed to him that his flexible working request had been rejected.[35]The Respondent provided the following reasoning for rejecting his flexible working request: Colleagues benefit from coaching and collaboration in the office.[36]Mr Booth appealed the outcome of his flexible working request and, on 13 June 2023, he was informed that his appeal against his flexible working request had not been upheld.[37]On 22 August 2023, Mr Booth issued a claim against the Respondent in the Glasgow Employment Tribunal under case number 4104450/2023. This claim related to the Respondent’s decision not to grant his flexible working request.[38]On 14 December 2023, Mr Booth’s claim was settled under a COT3 agreement. Within that COT3 agreement, the Respondent warranted to reconsider Mr Booth’s flexible working request.[39]On 15 December 2023, Mr Booth’s claim under case number 4104450/2023 was formally dismissed.[40]On 26 February 2024, the Respondent confirmed that, Mr Booth’s flexible working request had not been upheld following a reconsideration.[41]The Respondent provided the following reasons as to why Mr Booth’s flexible working request was not accepted: Detrimental impact on performance and detrimental impact on quality.[42]On 20 March 2024, Mr Booth issued a new ET1 regarding the outcome and reconsideration of the flexible working request he made in March 2023. Submissions[43]Both parties lodged written submissions to which they spoke. I mean no disservice by neither repeating nor summarising them. To the extent necessary I refer to them below.[44]Mr Cunningham lodged a list of authorities with copies, albeit not all of the caselaw referred to in his written submission was listed and copied.
Law
[45]Rule 37(1) of the Employment Tribunal Rules of Procedure 2013 provides “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[46]Rule 39(1) and(2) of the 2013 Rules provide “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal 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.”[47]Rule 52 provides “Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless—(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or (b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.”[48]Section 80H(1)(a) and (b) of the 1996 Act provide “(1) An employee who makes an application under section 80F may present a complaint to an employment tribunal—(a) that his employer has failed in relation to the application to comply with section 80G(1) - (b) that a decision by his employer to reject the application was based on incorrect facts”.[49]Section 80I(1) and (4) of the Act provide: “(1) Where an employment tribunal finds a complaint under section 80H well-founded it shall make a declaration to that effect and may—(a) make an order for reconsideration of the application, and (b) make an award of compensation to be paid by the employer to the employee. (4) Where an employment tribunal makes an order under subsection (1)(a), section 80G shall apply as if the application had been made on the date of the order.” Section 80G sets out an employer’s duties in relation to a statutory flexible working request. Discussion and decision[50]All parties are agreed that the claimants presented their ET1s in the present claims about the outcome and reconsideration of their flexible working requests made variously in March, May and July 2023 (as per the findings at paragraphs 20, 31, and 42 above). I pause to emphasise that it is agreed that the respondent would reconsider (my emphasis) the original 2023 requests.[51]Ms Christie argues (paragraphs 6 to 8 of her written submission) that the reconsiderations which took place at the beginning of 2024 amount to fresh applications for each of the claimants. Under Section 80F(4) of the Act, at the time the applications were submitted, an employee could submit one request a year. However, she says, parties could, by agreement, permit an employee to submit a further request. Under the terms of each COT3, the respondent agreed to a reconsideration of each request. She argues that this amounts to the respondent agreeing to a fresh request for each claimant.[52]I do not agree with that analysis.[53]The respondent’s position is that the current claims raise the same or substantially the same complaint as did the 2023 claims. Mr Cunningham’s written submission summarised the position in relation to each claimant, but the thrust of his argument which spanned all three claims is that the five cumulative conditions necessary for the success of a plea of res judicata ((i) a prior decree of a competent court/tribunal; (ii) pronounced in contested proceedings; (iii) between the same parties; (iv) relative to the same subject matter; (v) on the same grounds) are met.[54]In my view the parties have, correctly, agreed that what took place at the time of the reconsiderations, was a reconsideration of their flexible working requests from 2023. It is difficult to see how that is not a reconsideration of the same subject matter between the same parties. It is therefore difficult to see how the substance of dispute in the present claims would not be on the same grounds and between the same parties. The litigation of those requests was disposed of by Rule 52 dismissals. Neither of the Rule 52 caveats ((a) or (b)) applied. That being so, Rule 52 expressly operates so as to prevent any of the claimants from commencing a further claim against the respondent raising the same, or substantially the same, complaint. The claims are res judicata.[55]Section 80I(1) make express provision for the remedy of a reconsideration by an employer if a complaint is well-founded. Subsection (4) provides that in such a case the employer must treat it as if it were a new or (to use Ms Christie’s word) a “fresh” request. But in these cases the COT3 forms did not require such a reconsideration. Had the claimants wanted a “Section 80I reconsideration” that could have been set out in the COT3 forms. But they did not.[56]In my view and as per the COT3 forms the respondent agreed to reconsider the 2023 requests. They have done so in implement of that agreement.[57]In these proceedings the claimants allege that “the Respondent failed to deal with the Claimant's request in a reasonable manner as required under Section 80G(1)(a) of the 1996 Act”. On my analysis the requirement to deal with the reconsideration requests conform to section 80G(1)(a) does not arise because the respondent did not agree to do so in that way. There can thus be no failure.[58]In her written submission Ms Christie says “These claims are in relation to the reconsiderations that took place at the beginning of this year only. These claims do not relate to the facts or matters applicable to the previous claims which were settled by way of COT3s. The Rule 52 judgements issued by the Employment Tribunal relate to the claimant’s previous claims only.” As per what I have said at paragraph 54, I do not agree with her submission. The facts and matters of both sets of claims are substantially the same.[59]On that basis, my view is that the claims have no reasonable prospect of success. My judgment therefore is to strike them out under Rule 37. To the extent that Issue 1a focusses on rule 52, the COT3 form and res judicata, I answer it “yes”. I do not accept that the claims are an abuse of process.[60]No deposit order is appropriate. On that question, however, Ms Christie’s position was the the claimants’ trade union would pay any deposit and was able to pay it, up to the sum sought by the respondent (up to £1000).[61]I note in passing that the claimants are now at liberty to make a further application for flexible working should they wish to do so.
Introduction
[1]On 4 September 2024 the parties were copied my judgment and reasons from an open preliminary hearing on 30 August. That judgment struck out the claims on the basis that they did not have reasonable prospects of success.[2]On 1 October the respondent’s solicitor made an application for a Costs Order. I say more about it below. On 15 October the claimants’ solicitor opposed the application and set out reasons for doing so.[3]Parties were agreed in that correspondence that it was in line with the overriding objective that the application be considered on the papers. I agree.[4]As an aside, I note that Rule 74 of the Employment Tribunal Rules of Procedure 2013 provides that in Scotland all references to “costs” should be read as references to expenses. I will refer to expenses from hereon.[5]The application attached a schedule which detailed(i) the time and cost of time spent by solicitors in preparing for the two preliminary hearings which have taken place, and in preparing the expenses application and(ii) outlays, being counsel’s fees for those hearings. The solicitors have confirmed that they “are true and accurate and do not exceed the costs which the Respondent is liable to pay in this matter.” The Issues arising from this application[6]The application is made pursuant to Rule 76(1)(a) and (b) of the Rules. I set it out at paragraph 10 below.[7]From the application and opposition the issues for me are:- 1. Did the claims have “no reasonable prospects of success”? 2. If so, from what point in time should the claimants and their representatives been aware of that position? 3. In bringing the claims or in continuing with them did the claimants act unreasonably? 4. If the answer to questions 1 and/or 3 is “yes”, is it appropriate to exercise discretion in favour of awarding expenses against the claimants? 5. If the answer to question 4 is “yes”, what award should be made? Submissions[8]The respondent’s application is made on two bases, albeit they are linked. First and relying on my earlier judgment and reasons, the claims “had no reasonable prospects of success” (Rule 76(1)(b)). The claimants ought reasonably to have known of that position. Reference was made to a number of dates in a timeline spanning the period from 19 April 2024 (when the first ET3 was lodged) to 9 August. On that latter date the claimants’ solicitor confirmed that they wished to proceed to the preliminary hearing on 30 August. The claimants do not take issue with the relevance of that timeline or what is said by the respondent in its submission about what occurred on its various dates. I note in passing that by letter dated 22 April (shortly after the lodging of one ET3) the tribunal ordered the fixing of a one hour case management preliminary hearing to discuss case management. That hearing took place on 3 June. It fixed the issues for the preliminary hearing on 30 August. Taking account of what is sought by way of expenses, the logic of the respondent’s argument is that by the time of its preparation for the case management preliminary hearing the claimants should have known that the claims had no reasonable prospects of success. It appears that a bundle for that hearing was received by the tribunal office on 31 May. On 9 May the respondent’s solicitor wrote (without prejudice save as to expenses) to the claimants’ solicitor inviting withdrawal and reserving “the right to refer the Tribunal to this letter and any related correspondence in support of” an application for expenses. It set out the respondent’s rationale as to why the claims had no reasonable prospects of success and asserted that in continuing to pursue them they were acting vexatiously and unreasonably. I summarise the claimants’ position thus; there was no direct authority regarding the issue in question in these cases; the case of Ajaz v Homerton University Hospital NHS Foundation Trust [2023] EAT 142 to which reference had been made in interparty correspondence was not applicable and was “clearly distinguishable”; the claimants required a tribunal determination on the preliminary issues in this case; and “as there was no direct authority regarding this issue, it could not be said from the outset that these claims could not succeed.”[9]Separately, the respondent says (Rule 76(1)(a)) that the claimants acted unreasonably “by continuing to advance their claims … without meaningfully engaging with the uncontroversial legal points that were put to them …”. The claimants refer to my decision that the continuance of the claims was not an abuse of process and reiterate their point that the respondent had not provided a relevant “in point” authority in support of its position. They also say “We act for a Trade Union - and a large number of claimants - with claims of a similar nature. Consequently, it was in the interests of justice for us to pursue these three claims and obtain a determination from the Employment Tribunal on this issue. By receiving this determination, we have clarity over the issue of whether a second reconsideration of an employee’s flexible working request amounts to a fresh request for an employee. This will, in turn, mean that we avoid bringing claims with the same set of facts in the future. This Judgement will be able to assist many members of the Trade Union that we act for.” And “Whilst these claims were struck out, the Judgement from these claims will assist us, and many claimants that we, and the Trade Union, represent in the future. It was therefore, as we have previously stated, in the interests of justice for us to pursue these claims and obtain clarity on an issue we are dealing with on an increasing basis.”
Law
[10]Rule 76(1) provides, “A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.”[11]“It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78.” Radia v Jefferies International [2020] IRLR 431 at paragraph 61.[12]“ … the remarks in earlier authorities, about the meaning of 'misconceived' in r 40(3) in the 2004 Rules of Procedure (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861, Sch 1), are equally applicable to this replacement threshold test in the 2013 Rules. See in particular Vaughan v London Borough of Lewisham UKEAT/0533/12/SM, [2013] IRLR 713 at paras 8 and 14(6). However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion.” (Radia at paragraph 64.)[13]“In considering whether the respondent should have known that a response had no reasonable prospects of success, a respondent is likely to be assessed more rigorously if legally represented: see for example Brooks V Nottingham University Hospitals NHS Trust UKEAT/0246/18/JOJ, at paragraph 3.” (cited at paragraph 26 in the judgment of His Honour Judge James Tayler in Opalkova v Acquire Care Ltd Case No: EA-2020-000345-RN (previously UKEAT/0056/21/RN)). Discussion and decision[14]I begin by focussing on the basis on which I concluded that the claims did not have reasonable prospects of success. I repeat what I said in paragraphs 54 and 55 of my reasons:-54. “In my view the parties have, correctly, agreed that what took place at the time of the reconsiderations, was a reconsideration of their flexible working requests from 2023. It is difficult to see how that is not a reconsidertion of the same subject matter between the same parties. It is therefore difficult to see how the substance of dispute in the present claims would not be on the same grounds and between the same parties. The litigation of those requests was disposed of by Rule 52 dismissals. Neither of the Rule 52 caveats ((a) or (b)) applied. That being so, Rule 52 expressly operates so as to prevent any of the claimants from commencing a further claim against the respondent raising the same, or substantially the same, complaint. The claims are res judicata.55. Section 80I(1) make express provision for the remedy of a reconsideration by an employer if a complaint is well-founded. Subsection (4) provides that in such a case the employer must treat it as if it were a new or (to use Ms Christie’s word) a “fresh” request. But in these cases the COT3 forms did not require such a reconsideration. Had the claimants wanted a “Section 80I reconsideration” that could have been set out in the COT3 forms. But they did not.”[15]In short, the claimants could have “reserved their rights” to bring these proceedings by(i) the use of a Rule 52 caveat or(ii) by wording the COT3 form to reflect section 80I(1) of the 1996 Act but did not. I answer the first issue “yes”.[16]Rule 76(1)(a) and (b) are (obviously) separate. Clearly there may be cases where it is “unreasonable conduct” to bring or continue with a case because it has no reasonable prospects of success. But given what was said by Ms Christie as to the wider implications of my original judgment and reasons, I am not persuaded that the claimants have acted unreasonably in bringing the proceedings or conducting their claims. I answer question 3 “no”.[17]I accept that the respondent did not adduce a relevant in point authority prior at any stage. But logically it is possible for a claim to have no reasonable prospects in circumstances where there is no such authority. This is such a case. In my view the claimants (and their solicitors) should have known that without the reservation of rights referred to above any future litigation involving a reconsideration of the original flexible working requests would be litigation of the same dispute between the same parties. In my view this should have been known before the ET1s in these cases were presented, which is the answer to question 2. The respondent has been put to a cost which was on my analysis unnecessary. I consider that an order for expenses should be made. I have taken into account what was said in Opalkova. I answer question 4 “yes”. Given the time from which the respondent seeks expenses it is enough for me to find that the claimants should have known the position before they prepared for the case management preliminary hearing. What expenses should be awarded?[18]In the discussions on 30 August on the question of a deposit order, there was no issue as to the ability to pay one had an order been made. Ms Christie has not reversed from that position now. In deciding the amount of the order (Rule 84) I proceed on the same basis.[19]I first note that the case management preliminary hearing (by CVP) was fixed for one hour. Ms Christie says it lasted 30 minutes. I am entitled to trust her professional integrity and believe her. Its purpose was case management. In my respectful opinion, the respondent’s solicitor could easily have represented at it. Mr Sargent was named as solicitor in all three ET3s. By 3 June he was (or should reasonably have been) familiar enough with the claims to conduct that hearing. An assumption of one hour of his time to prepare for it, and 30 minutes to conduct it brings out a cost of £265.50 + VAT. I will discount entirely counsel’s fee of £750 + VAT for that hearing and substitute the £265.50 + VAT instead.[20]I do not agree with the claimants’ submission that the respondent is not entitled to recover the cost of Scottish counsel for the open preliminary hearing. Their criticism is not as to the amount charged but about the instruction per se. In my view given the importance of the issues to all parties and the relevance of Scottish authorities which were cited particularly on a plea of res judicata, it was reasonable for a solicitor based in England (as Mr Sargent is) to instruct Scottish counsel for that hearing. I make no deduction from the cost for preparation and presentation at it.[21]The respondent seeks expenses relative to this application. There is no suggestion (from either side) that the respondent has sought to have expenses agreed (and paid) informally. But it is reasonable to assume given the claimants’ formal opposition that such an exercise would have been fruitless. That being so this application was necessary. In my view the respondent is entitled to recover its (reasonably incurred) expenses in making it. From the schedule it appears that partner time spent on it was 42 minutes, and that solicitor time was 6 hours. No information is provided as to what was done in that time other than to say “Preparing and advancing costs application.” It is surprising that over 6.5 hours or solicitor time was spent writing a 3 page letter + a schedule the information on which is no doubt computer-generated. In my view that amount of time is unreasonable. In my view the letter could reasonably have been prepared by a solicitor in 2 hours. I accept that some oversight by a partner is reasonable. The respondent therefore is entitled to expenses of £536.00 + VAT on this element of the schedule.[22]Using the same table/schedule, the expenses awarded are £4101.00 + VAT. I assume the rate is 20%. The total as shown including VAT is thus £4921.20 which is reflected in the judgment. That amount is specified as per Rule 78(1)(a) of the 2013 Rules. Partner Solicitor Total Counsel’s Total Total cost cost solicitors’ fee including cost VAT @ 20% CM PH £78 + £737 + £815 + 0 £815 + £978.00 VAT VAT VAT VAT OPH £156 + £1094 + £1250 + £1500 + £2750£3300.00 VAT VAT VAT VAT + VAT Expenses £182 + £354 + £536 + 0 £536 + £643.20 Application VAT VAT VAT VAT £4,101£4921.20 TOTAL + +VAT[23]Neither solicitor addressed the question of apportionment of an award of expenses among the three claimants. I note that the respondent has not (properly in my view) sought expenses against the claimants on a joint and several basis. I assume that with professional representation on both sides the respondent will be paid in full without further application to the tribunal. R Bradley