Case No 4105711/2016Venue AberdeenHearing 14 November 2018
Between
AClaimantBRespondent
Before
Employment Judge Mr J HendryMs.A.Stobbart (instructed by Counsel) for claimantDate 2 April 2019
JUDGMENT
The Tribunal having considered the respondents’ application to strike out the claims refuses same for the reasons given.
REASONS
[1]In December 2016 the claimant, A raised proceedings against her former employers, the respondents seeking a finding that she had been unfairly E.T. Z4 (WR) dismissed from her post as a Speciality Doctor in Elderly Rehabilitation and that she had also been the victim of sex and religious discrimination. The claimant had been dismissed from her position on the 17 August 2016. Initially the case did not proceed quickly as there were internal appeals to conclude.[2]The claims were opposed with the respondents arguing that the dismissal was fair and that no discrimination of any description had occurred. The respondents were represented by Mr Gunn, a solicitor, who, at the time of the claimant’s dismissal, was advising them in relation to the disciplinary action taken against her.[3]The claimant was initially represented by solicitors when the ET1 was lodged although she later dismissed them and, apart from a period where she had the assistance of a Paralegal, Ms Paige, has represented herself. Just prior to the hearing the claimant advised the Tribunal that she had instructed solicitors to act for her in these proceedings but they were unable at short notice to appear when the Tribunal refused a request for postponement. She subsequently indicated that she intended to continue to represent herself.[4]The claimant has argued that her original solicitors had failed to set down in her ET1 all the facts on which she relied. From the outset the respondents have sought clarification of various aspects of the claims. The management of the case has been made difficult as the claimant regards her former employers and their solicitor with suspicion and distrust. The claimant’s jaundiced view of the respondents has led to her making numerous allegations against the respondents’ staff and their solicitor in correspondence. The consequences of such an attitude has also been reflected in the unusually high number of requests made by the claimant for documents and other information from the respondents and her divergence from issues properly within the jurisdiction of the Tribunal. This does not in itself form part of the reasons advanced for Strike Out. It is the context in which the claimant’s prolific correspondence both with the respondents and the Tribunal has taken place.[5]The Strike Out Application hearing took place on the 14 November 2018. The respondents sought strike out of the claims on the basis that the claimant’s behaviour has been scandalous, vexatious and unreasonable.[6]The respondents helpfully lodged an Inventory of Documents containing copies of correspondence on which they relied. I also had regard to the Tribunal file and to the Witness Statement from ‘SS’ a potential witness. Following a discussion with parties it was agreed that Mr Gunn would give evidence about three matters. The first was the circumstances surrounding the taking of the Witness Statement by him, secondly his understanding of the witnesses’ attitude and reaction to giving evidence and finally the impact the terms of the claimant’s correspondence has had on him.[7]I have anonymised names. Issues[8]The principal issue for the Tribunal was whether the claims should be struck out in terms of Rule 37 given the claimant’s actings. Findings in Fact
Background
[9]The Claimant is Indian. She is a qualified Doctor who worked for the respondents for over eight years. She is a Hindu and takes her faith seriously. She asserts that she is required to act and behave modestly and that her relationship with her husband is sacrosanct and private.[10]The Claimant had a sexual relationship with a senior male colleague (Dr X). She states that she regarded him as a father figure. The relationship appears to have had abusive and controlling aspects. She regards herself as being married to him in the eyes of her religion and has stated repeatedly that she had to treat him ‘as a God’ and obey his every wishes. She has during these proceedings adopted his name. She came to suspect that he was having a relationship with another more junior colleague ‘SS’ although both denied this. Dr X initially denied that he had a relationship with the claimant. The claimant asserts that the respondents refused to believe she had such a relationship and referred her to a Psychiatrist in relation to a possible delusional relationship. The claimant at some point produced emails from Dr X to her which demonstrated that a relationship had existed. Dr X later admitted the relationship but denied one with SS.[11]The Claimant was dismissed purportedly for disciplinary reasons including an alleged assault on ‘SS’. Criminal proceedings were taken and the claimant found not guilty after trial. One of the background issues in the disciplinary process was that the claimant asserted that she should be regarded as the wife of Dr X through the practices of her religion. Conduct of Tribunal Proceedings[12]The first Preliminary hearing took place by telephone conference call on the 27 July 2017. The claimant was assisted by Ms Paige, a Paralegal, who was knowledgeable in employment law. The claimant had lodged a detailed Agenda document which indicated that she was making claims for Direct and Indirect Discrimination on the grounds of Religious Belief (including harassment) and Direct and Indirect Sex Discrimination (including harassment). The claimant made reference to calling thirteen witnesses. This figure has steadily escalated over the ensuing months.[13]A Note of the hearing was prepared and issued on the 31 July. It was recorded by the Tribunal that the background was sensitive and personal to the claimant and there was discussion about a Restricted Reporting Order being appropriate. No order was made at that stage. The claimant was asked to consider the List of Issues prepared by the respondents, disclosure of information was discussed and the claimant was given 21 days to produce Better and Further Particulars of her claim.[14]On 18 September 2017 the claimant emailed SS: “I am the legal representative investigating this case and the court will be investigating you in the court in Public. The following documents must be submitted by 9am on 19th September 2017 to my email address … 9. Where were you based since 2014. where is your office which had been given to you. 10. Did you continue to stay in my Dr X’s research office on the first floor in the Aberdeen Royal Infirmary where you have sex with him almost daily both in the office and…. ……….[15]Does the SENATOR team members know you had sex …. during all the …. meetings and in Aberdeen Royal Infirmary. ………. 31. STATEMENT From You Regarding your evidence on 3rd May 2017 in NHS Grampian process where you said I had a relationship with my man …. is DIRTY ILLICIT and you continued to scream and shout saying that my Dr S has nothing to do with me. WHAT DO YOU MEAN BY ILLICIT AND DIRTY describe in details of that what do you mean by that. YOU HAVE BULLIED, HARASSED, ABUSED, THREATENED,STALKED, ASSAULTED ME AND MADE DEFAMATORY REMARKS …...’’ 15. On the 25 September 2017 the claimant emailed SS, Dr X and others: ‘‘This is my REMINDER 364. I had written to you last year in September 2017 and you still did not send me any information and you continuing to have sex with my husband Dr X ……. in the offices of NHS Grampian and in various hotels around the world All that is the Public money, the money for your salary, stipend, hotel rooms, your food, your travel, your sleeping in various hotels with various men around UK and outside of UK, the millions of pounds spent on Criminal court. This is not your inherited family property, it is taxpayers money. Did you take permission from Taxpayers before you used them, you are looting Public money in the name of Research and misusing the funds. Do REPLY ASAP. Do you understand or not? Normally shameless people and a fraudster like you should keep their head down and mouth shut not shout and scream in Public, it will only cause harm to you as you will be exposing yourself in Public of all your crimes that you had committed since 2014. You are definitely not clever and you are totally dumb and lack insight”.[16]A second Preliminary Hearing took place before Judge Gall on 18 October 2018. The hearing was attended by the claimant and Mr Gunn. Ms Paige took part by telephone. Mr Gunn raised the issue of time bar. The disclosure of documents and witnesses were discussed. Mr Gunn raised the terms of the claimant’s email to SS. Following the hearing Judge Gall issued a Note. He recorded (at paragraph 14) that the pleadings were the ‘touchstone’ in assessing which witnesses were relevant. At paragraphs 21 and 22 he raised with the claimant her approach to the witness and the language she had used which he described as being ‘not appropriate’. He went on to explain the process of asking a witness to attend and obtaining an order if they would not do so voluntarily. He noted that the approach had been made by her in ‘‘very emotive language’’. In response to this matter being discussed at the hearing Ms Paige agreed to discuss any correspondence with the claimant before it was sent.[17]On the 1 November 2017 the claimant wrote to Judge Gall saying that she was disappointed that he had not had time to read the entire file and that this, she alleged, had put her at a disadvantage. She believed he had formed a view about some matters. She made reference to an audio recording and emails which she claimed would disclose: ‘‘the sexual and abusive nature and inappropriate language used against me by this student, Daniel Gunn and all the management in NHS Grampian who are listed on the witness list…’’[18]On the 1 November 2017 the claimant wrote to Mr Gunn asking him to confirm that he had read an email at the disciplinary appeal which contained explicit sexual content relating to her relationship with Dr X, which the claimant found distressing, and whether he had been instructed to do this.[19]On the 13 February 2018 (R p1,2) the claimant emailed Mr Gunn (copied to the Employment Tribunal): “The President Shona Simon did not react at all until now when I had been telling the court since more than a year about attempted manslaughter of the 44 patients, killing of patients by Dr C, Dr CB and JN, forgery and patient abuse by AM, abuse by this student SS towards me and this student having sex in the offices of Aberdeen Royal Infirmary but Shona Simon tried to cover up everything including covering up of Judge Gall…’ The claimant continued that the President failed to take any action and that it was ‘‘very clear that Daniel Gunn has a family member who is senior in the Legal profession and people are trying hard to cover up his crimes including sexual harassment. Is there no Code of Conduct in the employment law for the lawyers who are engaged in crimes and sexual harassment when the case is the court and do the Judges not have any responsibility to deal with such criminals and sexual harassers’’.[20]The claimant emailed Mr Gunn on the 11 September 2018 (R p8): “You all had repeatedly sexually harassed me, humiliated intimated Bullied threatened and forced me to tell you all the dates of loosing Virginity what does it mean to loose a sort of Virginity and what does it mean to be seen naked by my husband Dr X, forcing me to tell when I had sex with my husband and tell you all my bedroom details with my husband Dr X. This Sexual harassment and abuse was during the internal process in NHS Grampian which was authorised by Dr F You and all the management had said throughout that you all had followed Employment Laws and Policies in NHS Grampian which allowed you to sexually harass abuse and intimidate and threaten me. ….I want the reply this evening .I will make sure the Prime Minister and the Westminster Government conducts a formal investigation’’.[21]On the 25 September 2018 the claimant emailed SS (R p8-10): “This is REMINDER 364. I had written to you last year in September 2017. You still did not send the information and you are continuing to have sex with my husband …”. The email accused the witness of taking public money under false pretences and using public funds to book hotel rooms ‘for sexual pleasure’. She alleged that the witness was not entitled to her PhD and that she was ‘dangerous to society’. The claimant warned her that lying under oath was a crime punishable by imprisonment.[22]On the 27 September 2018 (Rp11-14) the claimant emailed the Employment Tribunal: “I am a victim of Sexual harassment, Sexual assault, Abuse, Bullying harassment, Stalking. Patients had been manslaughtered and covered up and I had raised concerns about those crimes for which I had been suspended and dismissed and made to undergo a false/fake case in the Criminal court which was made by Police and Fiscal and General Medical council. I am a victim of abuse and I refuse any further harassment by the Respondent and their Representative and I want Justice now. I want PH to be held in October 2018. I do not accept or agree for PH in November or December. I want this case started as soon as possible. It is 1215 (1215 days) now and Respondent and their Representative have failed to provide me with the Reasons for Suspension, minutes from the day of Suspension, failed to provide the documents and policies that had been referred to and requested and it is also not clear as to why they are asking for Restrictive reporting order saying that Dr X had sexually assaulted me and why Dr X was not investigated and why I was investigated if he had assaulted me. It is also not clear that if they want a restrictive reporting order for Dr X sexually assaulting me, they failed to reason it as to why Dr X was not suspended or investigated or reported to the police and was not dismissed by NHS Grampian. They also failed to say or reason as to why SS having sex in NHS Grampian office is not a Gross misconduct and how come if she had sex in NHS Grampian offices is classed a misconduct by me and you also failed to reason as to why SS is allowed to kill and murder the staff and patients and it will still not be classified as a crime. This is terrorism.”[23]The claimant emailed SS on the 27 September 2018 (Rp11-14): “This is REMINDER 405 to provide the requested information for the public inquiry against you for fraud and cheating and abusing and assaulting and threatening me and giving false witness statements since 2015 in the courts and in NHS Grampian”. The claimant went on to insist that SS had sexual relations with Dr X and continued to do so. She said she was calling for a public enquiry.[24]In an email of the 5 of October 2018 (Rp19-22) the claimant emailed the Tribunal: “By giving more time to the respondents only allowing them to commit more crimes, encouraging to justify terrorism and more threats and more harm to me and to the public which is not accepted under any circumstances … I am a Hindu and I am taught by my Hindu gods to raise voice against any injustice done by anyone in the world even if it was the ruler of a nation or the world whoever they are. Everyone is equal in the eyes of law and no-one is above the law and even the monarch is subject to law as per Magna Carta which is written in this country. I am only telling the truth”. By email of the 8th of October the claimant wrote to the Employment Tribunal “I have received an email from a staff member called Rebecca which was unhelpful and discriminatory towards me. I had received similar interaction ?? last week. I had met them for the first time last week in 2 years and both of them have been very biased and Discriminatory which they would not do to the other party Legal representative as the other party was given my details. Both these staff have behaved in a very Discriminatory manner and said they do not know for everything including if you were working a particular day. I phoned last week and they said they do not know and when I asked how come they do not know then they confirmed you were not on leave. They are not telling me even if you were at work or on leave. This is racial discrimination as the white legal representatives are given all the information from me and these 2 staff are not treating them the same as they are treating me. It is very strange that when a member of the public or anyone phones and tells them that they will phone again for an update they class it as a threat, and if that was the case then the criminal courts would be full all day with cases of threat not giving information when requested including if the judge is at work or on leave and answering one single phone call and classifying as a threat is in my view a threat towards me”.[25]On the 26 of October the claimant emailed the secretaries at NHS Grampian asking them to forward correspondence to a Dr B: “This case will also be against all the staff including yourself as I had informed you about the sexual harassment and sexual assault by my husband Dr X and had also informed you about that the PhD student SS had been having sex with my husband Dr X in his offices in Aberdeen Royal Infirmary in the Geriatric Department and also in the business educational meetings. You failed to inform the management of all these misconducts and criminal offences and instead you threatened me to stop contacting my own husband by interfering in my personal life with my husband including your racial discrimination towards me. You had contacted me only in professional capacity and failed to act on the misconducts and the criminal offences and instead caused me harm”.[26]On the 29 October the claimant emailed 3 medical secretaries asking then to pass correspondence to a Doctor who in turn she asked to pass the correspondence to her father another Doctor involved in the disciplinary process. The email once more rehearsed the allegation that Dr X was having sex with SS. The email stated: “I will make sure the whole world will know how dangerous you and human resources are including …”[27]On 2 November 2018 the claimant emailed Daniel Gunn (Rp36,37) addressing the email to the ‘SEXUAL HARASSER AND BULLY AND STALKER’. The email continued: “You are involved in sexually harassing me on multiple occasions both directly and indirectly including Bullying, harassment, Threatening (including in this email) Stalking Abuse treating Indians and Hindus as slaves and treating Indians in the degrading manner. You are involved in Torture and the violent behaviour towards me including Breach and assault of my human rights. You have encouraged and supported and said all these crimes where more than 80 members involved is legal and lawful. STOP WRITING RUBBISH TO ME YOU SEXUAL ABUSER, STOP WRITING DISGUSTING EMAILS TO ME YOU ABUSE AND SEXUAL HARASSER. You DISGUSTING PERSON STOP WRITING APPALLING AND DISGUSTING INFORMATION TO ME. DO YOU UNDERSTAND OR DO YOU WANT ME TO START THE MARCHING AND PROTESTS IMMEDIATELY IN PUBLIC IN FRONT OF YOUR HOUSE, YOU SEXUAL HARASSER AND BULLY AND SHAMELESS MAN”.[28]The email continued: “I am writing to you as the legal representative in the case against you in the Tribunal. I understand that you are not the legal representative of NHS Grampian and they have a Counsel who will represent them. You must not contact me under no circumstances for that reason as you are not the representative. I must receive a letter from your Counsel informing me (who is representing NHS Grampian) as to why you are writing to me if she is NHS Grampian’s legal representative. If you are working as an assistant and working in the background behind the scenes and not represented legally then I must receive a formal letter from your legal representative (Counsel) to myself as to why you are writing to me and what is your role. You are involved in the biggest Fraud and Cheating in the history of NHS in this country …”[29]On the 2 November 2018 (R39,40) the claimant emailed three NHS staff copying the email to others: “I had listed you all as my witnesses in the case against NHS Grampian. This is because you all had abused and harmed me in all possible ways and means and also because you have told SS to continue to have sex with my husband Dr X in his office and Wilson’s room opposite his office and accompany him on study leave to the Educational Conference of British Geriatric Society and Senator Education Meetings in this country and in various countries around the world and you are all involved in Fraud and cheating by using millions of pounds of taxpayers money to make a fake since 2015 and also misusing and looting research money …”[30]On 2 November the claimant emailed Mr Gunn once more referring to him as a sexual harasser, bully and stalker. This email was in response to an email from Mr Gunn on the 1 November asking her not to contact employees in NHS Grampian. The email had stated: “My clients inform me you are sending emails to their employees looking to obtain the availability of numerous employees and former employees of NHS Grampian. I understand that, in addition to emailing some individuals directly, you are also sending emails to Medical Secretaries and asking to forward the emails on. In addition, rather than just asking the witnesses to provide their availability you are including scandalous allegations against them in your emails. I have seen for example an email you sent to Dr X in which you accuse her amongst other things of having sex with Dr X at ARI “every single day””. The email asked the claimant to desist sending emails immediately and if she wanted a witness who was an employee of NHS Grampian to contact the HR Department.[31]On 5 November the claimant wrote to Mr Gunn asking for no further contact with him describing him as a sexual harasser.[32]On the 5 November 2018 the claimant wrote to the Tribunal: “Could you please pass these emails to Judge Hendry. I had sent this email to a man called Daniel Gunn who had sexually harassed and abused me both directly and indirectly since 2015.”[33]The Tribunal responded by email dated 6 November: ‘‘Employment Judge Hendry has asked me to write to respond to your email dated 5 November. He is very concerned at its terms. There is no indication that in the file that Mr Gunn’s firm has ceased to act for the Health Board and accordingly he is entitled to write to you about the case. There appears to be nothing in the correspondence to justify the terms of your response. Solicitors acting for clients are not able to fully defend themselves from such allegations as they have to bear in mind the best interests of their clients. They are entitled to go about their professional duties without being abused in correspondence. The Judge is conscious that you are conducting this case yourself and has asked me to strongly suggest that it might be in your best interests to consider taking legal advice on your position or to consult a senior professional colleague, friend or family member particularly about the terms in which you write your correspondence.’’ The email reminded the claimant about the terms of Rule 37(1)(b). Submissions[34]The respondent’s Counsel moved for strike out of the claim. She asked the Tribunal to consider the whole circumstances and to conclude that the claimant’s actions had been scandalous, vexatious and unreasonable. Her position was that it was no longer possible to have a fair trial given her conduct. She accepted that strike out was a ‘draconian’ measure and one seldom granted but that the circumstances here warranted such an action. For completeness she also indicated that the claimant’s proposed amendment was opposed. Ms Stobbart took the Tribunal through the relevant background as she saw it starting with the comments made by Judge Gall at the second Preliminary Hearing about the tone of the correspondence. She referred to the many bizarre allegations made by the claimant in correspondence including of terrorism, manslaughter and sexual abuse. She directed the Tribunal’s attention to the email correspondence quoting passages from that correspondence. There were two main targets namely Mr Gunn and the witness SS. The correspondence was ‘peppered’ with serious and unfounded allegations including complaints against Judge Gall and Judge Hosie. Because of the serious nature of the allegations the respondents had to be in correspondence with the Scottish Government to allay concerns.[35]The claimant had written in explicit terms not just to potential witnesses but to Medical Secretaries seeking email addresses. This was designed to cause upset and be intimidating in her submission. The claimant could approach either the respondent, their solicitor or indeed the Tribunal for such information. The way in which the claimant communicated caused upset and distress particularly to SS who was now very reluctant to give evidence. The claimant’s behaviour was designed to cause the maximum distress and embarrassment. Counsel referred to the Witness Statement of SS which had been lodged. That witness has suffered anxiety and depression. The claimant is an intelligent and resourceful person and these actions were not innocent or mistakenly insensitive but it could be inferred that they were deliberate and done with disregard of the consequences.[36]Counsel addressed the Tribunal in relation to the applicable current law and referred to the recent case of Basa v Buckingham County Council 2012 EWCA Civ 1910. This was an appeal from the Employment Appeal Tribunal by Mr Basa which in turn related to the dismissal of an appeal from the Employment Tribunal decision to strike out the claimant’s case. The background was that the claimant had brought a claim for detriment arising from a public interest disclosure, discrimination on the grounds of her race and disability. These claims were struck out. The basis for the striking out of the claims was a series of emails which the claimant wrote to Miss Blake her Manager and Dismissing Officer in which she referred to her as “a liar” and making various allegations, comments and veiled threats. The police took action in this case and the claimant was prosecuted successfully. There were in Ms Stobbart’s view clear parallels to the present case.[37]Counsel continued that in the original Judgment the Employment Tribunal Judge described the email correspondence as a “hate campaign” and she concluded that a fair trial was not possible as it would not be possible to focus on what the issues in the claimant’s case was if she could not get past her dislike of the Disciplining Officer. She concluded it was unreasonable behaviour within the meaning of the then Employment Tribunal Procedure Regulations. At appeal the case turned more on the process used by the Employment Appeal Tribunal which heard evidence. Reference was made to the case of Force One Utilities Ltd v Hatfield 2009 IRLR 45 and Bolch v Chipman 2004 IRLR page 140. The issues in this case was that Miss Blake would have been an important witness in any hearing. The nub of the Judgment was she submitted summarised at paragraph 14 where Lord Justice Pill writes: “In my judgment, there was nothing perverse about the decision of the employment tribunal. Letters to a potentially vital witness of this kind are unacceptable and inevitably lead to a sense of intimidation, which may affect the entire conduct of the proceedings. I agree with the conclusions of the Employment Tribunal, of the Employment Appeal Tribunal, and Elias LJ, all of whom have carefully considered the circumstances in this case. I am content to approach the matter on the basis of whether a fair trial is possible. I would leave open for further consideration, if the point should arise, whether strike out is justified as an affront to the court and to the administration of justice, upon conduct such as that which the applicant practised namely seriously intimidating letters to a potentially important witness. The decision was under the CPR, where somewhat different considerations may apply, but it is acknowledged for example in Asiansky Television Plc and anor v Bayer-Rosin (2001) EWCA Civ 1792 that there may be cases where flagrant abuse by a party may itself justify a court striking out. I leave open the question whether such an argument could be raised under the Employment Regulations which govern these proceedings. Having made that reservation I take it no further but decide the application on the basis of the test stated by Burton J in the case of Bolch.’’[38]In response to a question posed by me Counsel accepted that SS could not be said to be an essential witness although the respondents had intended calling her, if she agreed, to speak to the continuing conduct of the claimant which would impact on remedy.[39]The claimant responded by taking the Tribunal to the background of her claim and the detail of who did what and when. She had been traumatised by the whole matter and had to discuss intimate sexual matters in the disciplinary to prove that she had a relationship with Dr X. He had initially denied that relationship until emails were produced. The respondents had failed to understand her religion or put any weight on the fact that she regarded herself as married to him in the eyes of her faith. She denied harassing SS or causing her any distress and questioned where the evidence was for such suggestions. She explained the circumstances around the alleged assault and the subsequent trial. She repeatedly queried the probity of SS’s actions. The claimant was asked to focus on the issues currently before the Tribunal and the legal test for strike out. She explained that she had been upset and frustrated when writing them. She was not a lawyer. She had been referred to a Psychiatrist by the respondents who thought that her relationship with Dr X was a fantasy. She could produce the Report. She doubted that SS was telling the truth in her Statement and she had obtained funding under false pretences. She had been referred by the respondents to the GMC in November and had to deal with that matter over the past few months and this had been stressful. She had suffered from anxiety and had written things when she was ‘upset’. She believes that the disciplinary panel had been laughing at her. SS and the respondents had, she said, destroyed her reputation and her career and she would not stop until she saw justice done. Discussion and Decision
The Law
[40]The Tribunal has the power to strike out claims. This is contained in Rule 37(1)(b) and (d) of the Employment Tribunals (Rules of Procedure) 2013 which provides as follows: “Striking out 37.(1) 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) ….(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) ….. (d)…… (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).”[41]The power of strike out can be exercised at any stage of the proceedings. It is power that should be used carefully and sparingly as it’s effect is to deprive a litigant of their entitlement to pursue their statutory employment rights. The respondents argue that two sections of the Rule are engaged namely 37(1)b and 37(1)e. They accept that the test for strike out is nevertheless the same for both namely that a fair trial is no longer possible.[42]I considered the authorities that had been referred to. In the case of Blockbuster Entertainment Limited v James 2006 IRLR 630 CA the Court of Appeal found that for a Tribunal to strike out a claim based on unreasonable conduct (Rule 37(1) b), it has to be satisfied that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; in either case striking out must be a proportionate response. At paragraph 21 Lord Justice Sedley giving the leading Judgment records: “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact – if it is a fact – that the Tribunal is ready to try claims; or – as the case may be – there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist’’.[43]The issue of proportionality was considered by Sedley LJ in the case of Bennett v Southwark LBC 2002 ICR 881 when he wrote: “But proportionality must be borne carefully in mind in deciding these applications, for it is not evidence of misuse of the judicial process, albeit properly falls within the descriptions scandalous, frivolous or vexatious which will be sufficient to justify the premature termination of a claim or the defence to it. Here, as elsewhere, firm case management may well afford a better solution”.[44]I also had regard to the case of Bennett v Southwark London Borough Council 2002 ICR 881, CA in which the actions of a claimant’s lay representative were examined which I believe has some application here particularly the comments of Lord Justice Sedley at paragraphs 33 and 34 in relation to the proportionality of using strike out: ‘‘ 33.There is a further hurdle to be surmounted in any strike-out application, as both counsel before us agree. It is that if the conduct of a party's case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it. This seems to me, as it seemed to counsel, to be a commonsense axiom requiring no resort to the article 6 of the European Convention on Human Rights. But – evidently because it was not argued – this requirement was not addressed at all by either the Warren tribunal or the EAT. In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry's conduct of the proceedings because for other reasons the decision to strike out cannot stand. But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it. Here, as elsewhere, firm case management may well afford a better solution…’’[45]It must be said that the lay representatives action in that case took place at a hearing before the Tribunal causing it to recuse itself or in Scottish terms decline jurisdiction. The claimant’s behaviour here is not directed against the Tribunal but against her former employers and their chosen representative. We have not yet reached the stage of a final hearing. I would note that the various comments made by the lay representative in the Bennett case (scandalous though they were held to be alleging bias by the Tribunal) pale somewhat when contrasted against the comments made by the claimant here.[46]In the present case I consider that it has been clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the part of the claimant. The content of her communications, containing personal slurs, threats and intemperate language is ample evidence of this. The issues that remain are whether a fair trial is possible and whether strike out in the whole circumstances is a justified and proportionate response to her behaviour.[47]This is an unusual case and there are a number of factors that should properly be borne in mind. In considering these I do not condone the way in which the claimant has conducted herself or the allegations that she has made but they are in a sense mitigatory. The claimant was clearly very upset at the events surrounding her dismissal and the way in which the investigation developed. She was apparently put on Sick Leave and the respondents suggested that her relationship was a delusion. She was apparently questioned about intimate details of that relationship. The failure of Dr X (to whom she regarded herself as married) to acknowledge their sexual relationship or to continue it was devastating to her. She clearly perceives that there has been a number of injustices perpetrated against her by the respondents, a failure by them to recognise this background, acknowledge her religious views and their impact on the relationship and by ultimately dismissing her. It seems that for some time her protestations that there was a relationship were disbelieved until she provided email evidence for it.[48]The claimant is a party litigant and although an intelligent person has become frustrated at the slow pace of the proceedings. This has caused her to react badly both towards the respondents and their solicitor who she blames (wrongly as it happens to be) for delays. She is also a Hindu and Indian by upbringing. On a number of occasions, she has said that as part of her culture and religion she has to act modestly and keep intimate details of her relationship with her husband private and having to expose and prove the relationship was humiliating to her as indeed it might be to anyone without these additional sensitivities. In summary, I accept that against this background she will have found the disclosure of her relationship and associated sexual conduct deeply distressing, embarrassing and humiliating.[49]Tribunals require to take great care when considering strike out applications especially in cases involving allegations of discrimination. I also bore in mind the comments made by Lord Hope in Anyanwu and Ano v South Bank Student’s Union and Ano 2001 ICR HL: ‘‘I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence’’. That does not mean that such claims can never be struck out and that parties advancing such claims can act as they choose relying on this principle.[50]Counsel for the respondents quite properly drew my attention to the fact that when the claimant was responding to the witness statement lodged by SS her response was to wholly discount the possibility that SS had been affected by these events. She wanted evidence of her panic attacks, and had no insight into the likely effect of her actions on SS who she seemed to blame for the breakdown in the relationship she had with Dr X. I posed the question to the claimant at the end of the proceedings whether or not in hindsight she would write in the same terms again and it was only at that point did she indicate that she had been upset, frustrated by the delays and distressed when framing the emails and other correspondence. Despite her comments I have considerable doubts as to whether the claimant has, or wants to have, any insight into the possible effects of her actions on others. She is very bound up in the rights and wrongs of the events surrounding her dismissal.[51]I heard evidence from Mr Gunn about the way in which the statement from SS was obtained and his first-hand impression was of her reluctance to either give a statement or be further involved in these proceedings. I have no doubt Mr Gunn truthfully relayed these impressions and that SS has been deeply affected by these events and the claimant’s behaviour. I also fully accept that Mr Gunn despite, having as he put it, a thick skin has found the way in which he has been regularly described by the claimant in correspondence as very wearisome and upsetting and that he had genuine concerns that she might act on her threat to protest outside his house. A concern that I have is that solicitors in his position are in a particularly difficult position when defending themselves against such allegations given that their overriding duty is to their client’s interests.[52]Counsel asked me look at the whole situation when considering whether a fair trial is possible. I agree that this must be the approach. I have no doubt that the behaviour of the claimant has left the witness SS upset and traumatised and deeply reluctant to be involved in the Tribunal process. She did, however, with some persuasion provide a Witness Statement. The difficulty I have is that she is clearly not an essential witness, as Counsel properly conceded. No evidence was led that other potential witnesses have been affected or influenced by the claimant’s bizarre behaviour although the fact that so many intemperate emails have been sent to so many people might allow, in different circumstances, such an inference to be drawn except that these don’t appear to have been sent to the decision makers in the disciplinary process apart from the indirect approach made to Dr R who dealt with the appeal (Rp34-35).[53]I also considered the effect of this behaviour on Mr Gunn who stoically continues as agent despite the invective directed against him. There is no suggestion that he will not continue to represent the respondents. There was no indication that he might be a witness to fact himself despite his close involvement with the process. Looking at all the facts before me and focusing on whether a fair trial is possible I am not quite convinced that it is not but I agree that it may be in considerable jeopardy if the claimant’s behaviour continues.[54]The answer if there is one I believe lies in more robust case management. It must be clear to the claimant that no further behaviour of this sort will be tolerated. At an earlier stage it perhaps should have been made clear to the claimant that her approach was completely wrong and that the Tribunal expects parties to act with courtesy, not to use inflammatory language and to confine themselves to the issues a Tribunal has the power to deal with namely unfair dismissal and discrimination and not wild allegations of medical negligence and terrorism. This could have been buttressed by formal orders made either at the Tribunal’s initiative or at the behest of the respondents. If there had then been serious lapses in required standards then the Tribunal could be asked to strike out the proceedings and the claimant would have had ample warning. I therefore, with some misgivings, refuse the strike out request.[55]Accordingly, I will make the following orders: 1. The claimant shall immediately desist from repeating the allegations previously made by her in email correspondence against SS, Dr X and Mr Gunn, whether in future correspondence or otherwise, except where it is necessary and relevant to advance the issues in her claims for unfair dismissal and discrimination and she had beforehand obtained the express permission of the Tribunal to do so. 2. The claimant shall correspond professionally and politely with Mr Gunn or any other representative of the respondents. 3. The claimant shall not except with the sanction of the Tribunal contact or attempt to contact any witnesses until a Witness List is agreed.[56]I would record that the claimant’s behaviour in this case has been quite extraordinary and I have experienced nothing like this in my lengthy experience as an Employment Judge. If I had the power to strike out the proceedings on the basis that the claimant’s behaviour was an affront to justice then I would have seriously considered that this would have been the sort of unusual case where such a power might be properly exercised. I do not and am bound by the Rules I have discussed and I must act accordingly.
Introduction
[57]I was requested by the respondent’s Counsel to strike-out the claim in terms of Rules 37 (1) (b) and (e), as EJ Hendry had been at the previous Preliminary Hearing. His Judgment, the Reasons for it and the Orders, were pivotal in my decision. As he recorded, the test for strike out is the same for both subsections (b) and (e), namely that a fair trial is no longer possible.[58]I also associate myself with EJ Hendry’s observations on the relevant case law to which he referred. He said this in the Reasons for his Judgment (“the Reasons”):- “42. In the case of Blockbuster Entertainment Ltd v. James [2006] IRLR 630 CA the Court of Appeal found that for a Tribunal to strike out a claim based on unreasonable conduct (Rule 37(1)(b)) it has to be satisfied that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; in either case striking out must be a proportionate response. At paragraph 21 Lord Justice Sedley giving the leading Judgment records: “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact – if it is a fact – that the Tribunal is ready to try claims; or – as the case may be – there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exists.” ……………………………………………………………………………….44. I also had regard to the case of Bennett v. Southwark London Borough Council [2002] ICR 881 CA in which the actions of a claimant’s lay representative were examined which I believe has some application here particularly the comments of Lord Justice Sedley at paragraphs 33 and 34 in relation to the proportionality of using strike-out. “33. There is a further hurdle to be surmounted in any strike-out application, as both Counsel before us agree. It is that if the conduct of a party’s case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it. This seems to me, as it seemed to Counsel, to be a commonsense axiom requiring no resort to Article 6 of the European Convention on Human Rights. But – evidently because it was not argued – this requirement was not addressed at all by either the Warren Tribunal or the EAT. In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry’s conduct of the proceedings because for other reasons the decision to strike out cannot stand. But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defense to it. Here as elsewhere, firm case management may well afford a better solution…….”45. It must be said that the lay representative’s action in that case took place at a Hearing before the Tribunal causing it to recuse itself or in the Scottish terms decline jurisdiction. The claimant’s behaviour here is not directed against the Tribunal but against her former employers and her chosen representatives. We have not yet reached the stage of a final hearing. I would note that the various comments made by the lay representative in the Bennett case (scandalous though they were held to be alleging bias by the Tribunal) pales somewhat when contrasted against the comments made by the claimant here.46. In the present case I consider it has being clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the part of the claimant. The content of her communications, containing personal slurs, threats and intemperate language is ample evidence of this. The issues that remain are whether a fair trial is possible and whether strike out in the whole circumstances is a justified and proportionate response to her behaviour.”[59]I was also mindful of the following passage in the Reasons: - “49. Tribunals require to take great care when considering strike out applications especially in cases involving allegations of discrimination. I also bore in mind the comments made by Lord Hope in Anyanwu Ano v. Southbank Students Union & Ano [2001] ICR HL: “I would have been reluctant to strike out these claims, on the view that discrimination issues of a kind which have been raised in this case should as a general rule be decided only after hearing the evidence.”[60]Although EJ Hendry decided not to strike out the claim, it is clear that he only did so with considerable hesitation, as he said this in the Reasons:- “54. The answer if there is one I believe lies in more robust case management. It must be clear to the claimant that no further behaviour of this sort will be tolerated. At an earlier stage it perhaps should have been made clear to the claimant that her approach was completely wrong and the Tribunal expects parties to act with courtesy, not to use inflammatory language and confine themselves to the issues a Tribunal has the power to deal with namely unfair dismissal and discrimination and not wild allegations of medical negligence and terrorism. This could have been buttressed by formal orders made either at the Tribunal’s initiative or at the behest of the respondents. If there had been serious lapses in required standards then the Tribunal could be asked to strike out the proceedings and the claimant would have had ample warning. I therefore, with some misgivings, refuse the strike out request.”[61]He then went on to make the Orders, which I have detailed above, and finally he said this:- “56. I would record that the claimant’s behaviour in this case has been quite extraordinary and I have experienced nothing like this in my lengthy experience as an Employment Judge. If I had the power to strike out the proceedings on the basis that the claimant’s behaviour was an affront to justice then I would have seriously considered that this would have been the sort of unusual case where such a power might be properly exercised. I do not and I am bound by the Rules I have discussed and I must act accordingly.”[62]It was in light of these observations, therefore, that I considered carefully, the claimant’s conduct since the previous Preliminary Hearing which EJ Hendry conducted on 14 November 2018. In doing so, I had regard to the submissions which I heard from the respondent’s Counsel and from the claimant herself and also the extensive correspondence, mostly in the form of e-mails and mostly initiated by the claimant, in the Tribunal file. EJ Hendry’s Judgment[63]It was, of course, the claimant’s position that she did not receive a copy of the Judgment until 23 January 2019, when the Tribunal sent her a copy by post.[64]The Tribunal had sent a copy of the Judgment on 10 December 2018 to the claimant’s previous solicitors in London. This was a mistake, as the solicitors had advised the Tribunal on 22 November that they were no longer acting on behalf of the claimant. When the matter came to light, the Tribunal assumed, wrongly it would appear, that the solicitors would have sent a copy to the claimant.[65]A copy was sent to the claimant by the Tribunal on 21 January by first class post. The claimant called at the Tribunal Office later that day when she was advised that a copy had been sent to her and an apology was given for the Tribunal’s error. However, the claimant did not appear to accept that there had been a genuine error and further lengthy correspondence ensued about the matter.[66]The respondent’s solicitor, Mr Gunn, was also surprised that the claimant’s former solicitors had not sent her a copy of the Judgment and suggested that the claimant ask them to confirm that they had received a copy and they had not forwarded it to her. She was not prepared to do so. She took issue with the suggestion which she alleged was further evidence of “bullying and harassment” by Mr Gunn.[67]On 6 February 2019 at 14:18, the Tribunal sent the following e-mail to the claimant:- “Employment Judge Hendry has asked me to respond to your e-mail dated 2 February 2019. He notes your position appears to be that you only received the Judgment late when it was sent to you by the ET staff. You need to be candid about the matter and there is no reference by you as to whether your solicitors alerted you to the existence of the Judgment or sent you a copy of it. You should clarify this as soon as possible and it would be prudent to seek confirmation from them about what action, if any, they took on receipt of the Judgment. The Judge notes that you want to have the Judgment reconsidered particularly in relation to the naming of C. That matter may have to be dealt with separately as Judge Hendry may not be available for the Hearing. In any event there will be an application for anonymisation of the papers which impacts on this matter. The Judge observes that you are perfectly correct that the amendment lodged by you in August 2018 has not been allowed. You may during the Hearing make reference to that document but if a claim is not in the original ET1 then any additional claims made require amendment and this can be opposed by the respondent. The Judge suggests that it may be easier to look at the ET1 and ask what changes you want to make to it (not by way of detail) but by way of additional claims to focus on what the subject matter of any amendment could be. The amendment cannot be allowed in its present state. He observes that you had been told that many of the claims in the document are outwith the jurisdiction of the Tribunal to deal with. For example items vi (invasion of personal life) to x (encouraging and supporting misconduct) xii (psychological torture) to xviii (perversion of justice). You need to think about what incidents amounted to harassment, or victimisation or whatever having regard to the appropriate statutory test. The Judge expects that the first matter that is likely to be discussed will be C’s representative’s application, although the order in which matters are addressed will ultimately be a matter for whoever deals with the Hearing. The next issue will probably be the application for strike out if it is still live and then we can turn to the pleadings and finally to the witnesses and other matters.”[68]The claimant responded that day by e-mail at 16:17, with a number of attachments. She alleged that the suggestion by the respondent’s solicitor that she seek confirmation from her former solicitors was, “repeated bullying and harassment forcing the claimant to take his (her solicitor’s) instructions….”.[69]She sent further e-mails to the Tribunal later that day at 23:17 and 23:24 continuing to complain about the copy Judgment being sent to her former solicitors and reiterating that C, “is involved in sexual harassment and sexual assault towards me and the management and Mr Daniel Gunn (the respondent’s solicitor) who are involved in Sexual harassment towards me……”.[70]This issue of when the claimant received a copy of the Judgment was further complicated by the terms of the e-mail which the claimant sent to C on 12 January 2019 at 23:35, which was referred to by the respondent’s Counsel in her submission. In that e-mail she states that the application for strike-out, “had been unsuccessful and the case is going ahead”, which suggested that she was aware of EJ Hendry’s Judgment before 23 January, when she claimed she received a copy for the first time.[71]In any event, for the purpose of the issues with which I was concerned at the Preliminary Hearing, I accepted that the claimant had not received a copy of EJ Hendry’s Judgment until 23 January 2019. She was not aware of his Orders, therefore, when she sent the e-mail on 12 January at 23:35 to C in the following terms:- “How are you. I just wanted to let you know that the Preliminary hearing against NHS Grampian is scheduled for 12 February 2019 at 10am in the Employment Tribunal, Aberdeen. The Judge had advised that the witnesses could attend the hearing. The final trial dates which were set earlier will not be the same as before as there had been some delay due to the delaying tactics by NHS Grampian management. On 14 November 2018 there was a Preliminary hearing to set the dates for final trial but the Counsel representing NHS Grampian made an application to struck off (sic) my case from the court and made arguments that my case must be struck off from the court. NHS Grampian’s Counsel had been Unsuccessful and the case is going ahead. Not only that the Judge had decided that the Preliminary hearing must be held in Public against NHS Grampian’s request for private hearings. I will write to you as soon as I want documents from you. The Judge had advised me that all the documents that I wish to produce in the form of disclosure documents must be made in few copies and submit (sic) to the Tribunal on the day of the Preliminary hearing. I will write to you the list of all the documents/e-mails which I would need from you for the Preliminary hearing to allow a fair legal trial. Good night C Kind Regards A.”[72]Nor was she aware of the Orders when she sent an e-mail to C on 13 January 2019 at 16:29 with the subject matter C’s wife “as a witness”. The e-mail was in the following terms:- “How are you. I’ve added Kathy (C’s wife) as a witness in this case. Please let her know. I request to please not to write on her behalf and would appreciate if she writes to me directly as this is a Legal trial. I will let you know if I will add your sister and your mother as well as you had referred all of them throughout the process NHS Grampian. Kind Regards, A.”[73]Although the claimant was unaware of the Orders when she sent these emails, she was aware that the respondent’s Counsel had expressed concern about her communicating with the respondent’s witnesses at the previous Preliminary Hearing and alleged that, “this was designed to cause upset and intimidate”; and she was aware that C is an essential witness for the respondent in this case. His wife is not a witness and cannot give relevant evidence. Despite the letter being couched, on the face of it in polite terms, I accepted the submission by the respondent’s Counsel that the letter was designed to be intimidatory. In her submissions, the claimant referred me to the e-mail of 16 January 2019 from the claimant’s solicitor in which he applied for strike out. She pointed out that he had described her e-mails of 12 and 13 January to C as “polite”, conveniently ignoring the fact that he had actually described them as “superficially polite” and had gone on to allege that they were, “a thinly veiled threat at intimidation and a further example of the Claimant continuing to harass him”.[74]The claimant had written to an essential witness direct, knowing that the respondent had legal representation and advised him that she intended involving his wife and other members of the family at any Hearing as witnesses and requested that his wife deal with her direct.[75]C had previously written to the Tribunal by e-mail on 18 December 2018 to express his concerns that he was “easily identifiable” in EJ Hendry’s Judgment which by then was a public document, and to request that the claimant desist from referring to herself as his wife having made it clear previously that, “she is not my wife and should not be using my name”. He then went on in his e-mail to say this: “The complainant has made repeated attempts to harass and intimidate me and I regard her mendacious adoption of my name to be further evidence of her harassment of me. Thank you in advance for considering this, especially in light of the Judge’s comments about the behaviour of the complainant towards witnesses.”[76]The claimant continued to use C’s surname and claim that she was his wife, despite C being married, and to correspond in the same unreasonable and intemperate manner, making very serious allegations indeed, as she had always done, despite EJ Hendry’s warnings. As I recorded above, I was advised by the respondent’s Counsel that, as a direct consequence of this continuing “intimidation”, demonstrated by the e-mail which the claimant sent to C on 13 January, that C had now instructed his own solicitor, was refusing to engage with the respondent’s solicitor, as an essential witness would be required to do, and was not prepared to provide details of dates when he would be available to give evidence at any Final Hearing.[77]In my view, the correspondence clearly demonstrates that the claimant has intimidated C, an essential witness for the respondent, and significantly there is no indication whatsoever that she has taken heed of EJ Hendry’s warnings and that she will desist or moderate her conduct in any way.[78]I also had sight of the written statement from SS dated 12 November 2017. While, unlike C, she is not an essential witness, I was advised that she is a potential witness for the respondent in respect of at least the issue of remedy. SS states that she also does not want to appear at any future Hearing as a witness due to “harassment and intimidation” by the claimant and a fear that it “will continue as long as I am involved in the process”.[79]In the Reasons at Para 46, EJ Hendry said this: - “I consider that it has been clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the part of the claimant. The content of her communications, containing personal slurs, threats and intemperate language is ample evidence of this”.[80]That type of conduct has continued after the previous Preliminary Hearing. Nor did the claimant need to be aware of the Orders to know that she had to desist. EJ Hendry said this at Para 54 in the Reasons: - “ It must be clear to the claimant that no further behaviour of this sort will be tolerated”.[81]The “scandalous, vexatious and unreasonable conduct” has continued unabated since the previous Preliminary Hearing and witnesses have been “intimidated and harassed”. This renders a fair trial impossible. I have decided, therefore, to strike-out the claim, in terms of sub-sections 37 (1) (b) and (e). In arriving at this decision, I was mindful that the claimant was unrepresented and had no experience of Employment Tribunal proceedings; and that the power to strike-out must be exercised, as EJ Hendry put it, “carefully and sparingly as its effect is to deprive a litigant of their entitlement to pursue their statutory employment rights”. Nevertheless, I was satisfied that such a course of action fell within the strike-out Rules, that it was in accordance with the “overriding objective” in the Rules; and that it was a justified and proportionate response, in all the circumstances, to her conduct.[82]It is also relevant, in my view, albeit to a lesser extent, that the claimant continues to level the very serious allegation of bullying and sexual harassment against the respondent’s solicitor and berate him ad nauseam. This allegation, I understand, relates primarily to the manner of his crossexamination of the claimant during the disciplinary proceedings. The claimant produced the transcript of the Appeal Hearing, having written across the front page, “Sexual harassment by NHSG staff and Mr Daniel Gunn….Document is evidence of Bullying, harassment, Sexual harassment, Racial Discrimination, Religious Discrimination, victimisation, Defamation, Character Assassination”. She referred me to pages 65-84. Having read the entire transcript, I am of the view that this allegation is wholly unfounded. Mr Gunn was simply “doing his job” and testing the claimant’s evidence as he was entitled to do. In any event, the claimant was represented at the Hearing and there was a panel of four. No one took issue with Mr Gunn’s line or manner of questioning and yet the claimant continues with her allegations. When I referred her to her e-mail of 8 February 2019 at 11:22 at the Preliminary Hearing and in particular the second paragraph where she alleged that, “Mr Gunn himself and the management are involved in sexual harassment”, she maintained that this was different from an allegation that he was guilty of sexual harassment. In my view, there is no distinction.[83]In her email of 8 February at 11:22, the claimant also accused the Tribunal staff of bias and discrimination. On my instructions, the Tribunal responded by e-mail the same day at 14:37 to advise that the allegation was unfounded and was denied, “in the strongest possible terms” and to warn the claimant, once again about her conduct: “ The implications of this continuing course of conduct, will require to be considered by the Tribunal. Meantime, EJ Hosie directs you to desist from making such unfounded allegations. You also complain of delay, but in very large part that is due to the volume of your correspondence, its often accusatory and confrontational nature and the multitude of complaints you have levelled, which in EJ Hosie’s experience is unprecedented. As previously advised, you should reflect carefully on the manner in which you are conducting this case”.[84]Such allegations must be distressing to the Tribunal staff who naturally would be intimidated by such allegations. They must now be wary when engaging with the claimant as their duties require. The staff are an essential part of the Tribunal process.[85]The respondent’s solicitor also has an essential part to play in the Tribunal process, representing his client’s interests. These are additional factors which make a fair trial impossible.[86]For all these reasons, therefore, I arrived at the view that the submissions by the respondent’s Counsel were well-founded. I confirm, therefore, that the claim is struck out in terms of Rules 37(1)(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; and 37(1)(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).” Application for strike out: Rule 37 (1) (c) Failure to comply with Orders of the Tribunal[87]Counsel also submitted that the claim should be struck out on the ground that the claimant had failed to comply with an Order of the Tribunal under Rule 37(1)(c):- “37 Striking Out (1) At any stage of the proceedings, either on its own initiative or in the application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds – ………………………………………………………………………………….. (c) for non-compliance where any of these Rules or with an order of the Tribunal.”[88]As I recorded above, in the Reasons EJ Hendry made the following Orders at Para 55:- “1. The claimant shall immediately desist from repeating the allegations previously made by her in e-mail correspondence against SS, C and Mr Gunn, whether in future correspondence or otherwise, except where it is necessary and relevant to advance the issue in her claims for unfair dismissal and discrimination and she had beforehand obtained the express permission of the Tribunal to do so. 2. The claimant shall correspond professionally and politely with Mr Gunn or any other representative of the respondents. 3. The claimant shall not except with the sanction of the Tribunal[89]I accepted, of course, that the claimant did not receive the Judgment until 23 January 2019. She could not have been aware of these Orders, therefore, until that date. I only considered, therefore, whether there had been noncompliance after that date.[90]Despite the clear terms of these Orders and EJ Hendry’s observations on the claimant’s conduct and the warnings he gave about her future conduct, the claimant continued to conduct herself in the same intemperate, confrontational and challenging manner. She continued to repeat the allegations against C, SS and the respondent’s solicitor, Mr Gunn; she appeared unwilling to accept that the Tribunal had made a genuine mistake when sending a copy of the Judgment to her former solicitors; she complained about this repeatedly, despite EJ Hendry advising her should she wish to apply for a reconsideration of the Judgment or appeal, account would be taken of the late receipt of the Judgment by her and reassuring her that she would not be prejudiced by an admitted mistake by the Tribunal; she accused the tribunal staff of bias and discrimination.[91]As Counsel drew to my attention, in response to a suggestion by the respondent’s solicitor, Mr Gunn, that she could contact her former solicitors to clarify what actions they took on receipt of the copy Judgment she responded to the Tribunal, copied to the respondent’s solicitor, by e-mail on 28 January 2019 at 09:52 as follows:- “This is Bullying, harassment, Intimidation and coercive behaviour by Mr Daniel Gunn, Counsel Stobart and Respondents. The Respondent’s legal representatives had been writing repeated correspondence to me for no reason and had been forcing me to take their orders and instructions and are forcing me to follow their orders for to do their work which Mr Gunn and counsel and the Respondent think are correct. This had happened in twice (sic) on Friday 25 January 2019. This is an unwanted behavior of Mr Gunn, Counsel Stobart and the Respondent which amounts to Bullying, harassment, Intimidation and Coercive behaviour, this is belittling me. Last Friday Mr Gunn wrote an e-mail to the Tribunal administrative staff and was instructing me through them to do his work and take instructions from him and from the Respondent and do their work and follow their instructions. He did the same again in the evening of Friday despite writing a response. This bullying, belittling, humiliation, intimidation, coercive behaviour had been going on since 2 weeks. Please see their e-mails where they are making fun of me and belittling and humiliating me. I already wrote a formal response to the Judge in response to the request. I do not wish to receive any unwanted e-mails from Mr Gunn, Counsel and Respondent in relation to matters which are not my business.”[92]In my view, the request by Mr Gunn was a perfectly reasonable one. Her response was unwarranted. It was a complete overreaction. Despite the Orders, it was “impolite” and “unprofessional”. It was in the same vein, using the same sort of intemperate language and making wild accusations, as she had done before the previous Preliminary Hearing.[93]In response to the application by C’s solicitor for anonymity and to be heard first at the Preliminary Hearing, to save expense, once again a perfectly reasonable request, the claimant submitted a 9-page letter of objection which she attached to her e-mail of 29 January at 15:12. In her letter she repeated her allegations of, “sexual harassment and sexual assault by C”; made allegations that the respondent had been guilty of “manslaughter” and “encouraged and supported the sexual misconducts of C and his student SS”; and alleged that the respondent and C’s solicitor were colluding and that the application by C’s solicitor was, “a delaying tactic by the respondent to avoid first hand witness statement and first hand information from C and had been set up to jeopardise this case.”[94]On 30 January at 12:00, the claimant sent an e-mail to the Tribunal, copied to the respondent’s solicitor. The subject of the e-mail was: “Application seeking damages for Defamation, Application to request Court Orders to Mr Daniel Gunn not to contact me unnecessarily for matters which are not my business at all”.[95]The first paragraph of her e-mail was in the following terms:- “This is a formal complaint against Counsel Alice Stobart and Mr Daniel Gunn for Bullying, harassment, Intimidation, Coercive behaviour and giving me instructions to do their work, writing unwanted e-mails without no reason to me instead of writing to the appropriate staff, making false accusations against me regarding the Judgment document and when the complete fault is of the Tribunal staff and repeatedly harassing me to do things and their jobs and forcing me to take their instructions and do their jobs. This is an application against the Respondent seeking damages for Defamation.”[96]She then went on in her e-mail to raise yet again the matter of her receiving a copy of the Judgment late and requested a “formal statement” from the Tribunal member of staff “who has allegedly sent the Judgment document to (her solicitor) and not to me…..”. There is a copy of a letter dated 10 December 2018 on file sending a copy of the Judgment to the claimant’s former solicitors in London and a copy letter in identical terms, on the same date, to the respondent’s solicitor.[97]The Tribunal responded by e-mail on 1 February at 15:29. The following is an excerpt:- “Judge (Hendry) has seen your e-mail dated 30 January 2019 to Mr Gunn. The Employment Tribunal does not deal with defamation and cannot prevent Mr Gunn writing to you as a solicitor acting for the respondent and there is nothing in any of the correspondence that is untoward or improper that the Judge has seen. If something has escaped the Judge’s attention please highlight it to him and he will look at it carefully. The Judge notes the application made by the respondent for production of any correspondence from your former solicitors about the Judgment. You may be aware that correspondence between a client’s solicitor is generally privileged. That is it cannot usually be referred to or its production required. However, they are your former solicitors and it seems appropriate for you to disclose when they wrote to you about the Judgment and if they included a copy as it bears on your state of knowledge of its terms. Are you prepared to disclose this voluntarily to Mr Gunn?”[98]The claimant responded by e-mail on 2 February, but her position remained unclear and that was why on 6 February the Tribunal sent a further e-mail to the claimant at 14:18. The following is an excerpt:- “Employment Judge Hendry has asked me to respond to your e-mail dated 2 February 2019. He notes that your position appears to be that you only received the Judgment late when it was sent to you by the ET staff. You need to be candid about the matter and there is no reference by you as to whether your solicitors alerted you to the existence of the Judgment or sent you a copy of it. You should clarify this as soon as possible and it would be prudent to seek confirmation from them about what action, if any, they took on receipt of the Judgment…..”[99]The claimant responded by e-mail on 6 February at 16:17. She referred to the e-mail of 3 February in which she narrated the circumstances once again but failed to state categorically whether she had received a copy of the Judgment from her solicitors.[100]As I recorded above, on 8 February at 11:22, some weeks after she had received a copy of the Judgment and was aware of the Orders therefore, the claimant sent an e-mail to the Tribunal, copied to C’s solicitor and the respondent’s solicitor and also “Ashok Puligari”, who I understand is one of the claimant’s relatives.[101]In that-mail she made the following allegations:- “My husband C is involved in committing Sexual offences towards me which B and their legal representatives who conducted the process had repeatedly said both in writing and in the audio recordings that it is not B’s business. Mr Gunn had said to the Tribunal that the audio recording evidence had been destroyed. Mr Gunn himself and the management are involved in Sexual harassment.”[102]The e-mail was meant to be a response to the application by C’s solicitor for anonymisation and to be heard first at the Preliminary Hearing.[103]As I recorded above, she attached to her e-mail a letter dated 28 February in which she alleged that B was guilty of “fraud and cheating” and of “attempted manslaughter”. She also alleged again that B had, “used C as a scapegoat and made him complain against me despite knowing that he had sexually harassed and sexually assaulted me and that he was having sex with his student SS in his office and in SENATOR business meetings.” She also alleged collusion on the part of the respondent’s solicitor and C’s solicitor and that they were using, “delaying tactics”.[104]The terms of the Orders issued by EJ Hendry are in clear, unambiguous terms. Not only that, the Reasons could not have been clearer in warning the claimant that her behaviour was wholly unacceptable and, “that no further behaviour of this sort will be tolerated.” Despite this, the claimant has not desisted or even moderated her conduct as she was ordered to do. Significantly, there is no indication whatsoever that she would do so in the future should I allow the claim to proceed. In my view, what EJ Hendry said in the Reasons and the Orders were an attempt at, “robust case management” but, regrettably it had no effect.[105]The claimant could not have been left in any doubt about what she was being ordered to do, and that she was being warned to moderate her future conduct. She chose to ignore these warnings. She did not, “desist from repeating the allegations previously made by her in e-mail correspondence”. She repeated the allegations against C, Mr Gunn and SS and also made further allegations of discrimination against the Tribunal staff.[106]She also failed to “correspond professionally and politely with Mr Gunn”.[107]I had no difficulty arriving at the view, therefore, that she had failed to comply with Orders 1 and 2.[108]Accordingly, the claim is also struck out in terms of Rule 37(1)(e) for noncompliance with Orders of the Tribunal. Application to amend[109]As the claim has been struck out, it is not necessary for me to determine this issue. Suffice to say, that in general terms, I was satisfied that the submissions by the respondent’s Counsel were well-founded. The 88-page amendment includes many complaints which had not been advanced to date despite the fact that the claim form was prepared and submitted by a solicitor instructed by the claimant at the time (who the claimant blames) and there are also a number of “complaints” not within the Tribunal’s jurisdiction. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s)or omissions(s) in the Judgment sent to the parties on 7 March 2019:
Introduction
[1]At paragraph 5 of the Reasons 3 lines from the top of page 3, delete: “21” and substitute therefor: “22”.[2]On page 29 of the Reasons in the first line of paragraph 78 delete: “2017” and substitute therefore: “2018”. An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you.