Miss L Stevenson v The Scottish Police Authority: 4106994/2019 and others

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106994/2019, 4114955/2019

Venue Glasgow

Hearing 2 March 2020

Between

Miss Z StevensonClaimant

The Scottish Police AuthorityRespondent

Before

Employment Judge F Eccles

Mr J Meechan (instructed by Solicitor) for claimant

Dr A Gibson (instructed by Solicitor) for respondent

Date 9 October 2023

JUDGMENT

The Judgment of the Employment Tribunal is(i) to refuse the application for strike out of the claims under Section 47B of the Employment Rights Act 1996 in terms of Rule 37 1(e) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013;

(ii) to refuse the application for strike out of the claims under of Section 47B of Employment Rights Act 1996 on the grounds that it is res judicata &

(iii) to refuse the application for strike out of the claim under Section 27 of the Equality Act 2010 in terms of rule 37(1)(e) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.

REASONS

[1]Case number 4106994/2019 (“the first claim”) was presented on 17 May 2019. Case number 4114955/2019 (“the second claim”) was presented on 24 December 2019. The claims contain a number of different complaints under the Employment Rights Act 1996 (“ERA) and the Equality Act 2010 (“EA”). For the purposes of this hearing, the claimant complains of detrimental treatment for making a protected disclosure under section 47B of ERA and of victimisation in terms of Section 27 of EA. All claims are resisted.

[2]The first claim was listed to consider the following preliminary issues:(i) Whether the claim in terms of Section 47B of ERA should be struck out in terms of rule 37 1(e) of the Rules of Procedure 2013 because it is no longer possible to have a fair hearing in respect of that part of the claim;

(ii) Whether the claim in terms of Section 47B of ERA should be struck out on the grounds that it is res judicata; &

(iii) Whether the claim in terms of Section 27 of EA should be struck out in terms of rule 37(1)(e) of the Rules of Procedure 2013 because it is no longer possible to have a fair hearing in respect of that part of the claim.

[3]The claims were combined in terms of an Order dated 31 January 2020. It was agreed that the Tribunal should consider the above preliminary issues in relation to both claims.

[4]At today’s preliminary hearing, the claimant was represented by Mr J Meechan, Solicitor. The respondent was represented by Dr A Gibson, Solicitor. The Tribunal was provided with a bundle of productions.

FACTUAL BACKGROUND

[5]On 2 October 2009 the claimant presented Case number 120166/2009 against her former employer and the respondent’s predecessor, Strathclyde Joint Police Board (“the original claim”) (P11). She claimed constructive dismissal, detrimental treatment for making a protected disclosure and disability discrimination. The claimant claimed to have made a protected disclosure on 13 June 2008 to Lee Wilson, Area Commander of Strathclyde Police (“the protected disclosure”). The claim was resisted. The respondent did not accept that the claimant had made a protected disclosure. In the event that the claimant had made a protected disclosure, which was denied, the respondent submitted that the claim was time barred. The original claim was withdrawn by the claimant. It was withdrawn before a final hearing had taken place. Having been withdrawn, the original claim was dismissed under Rule 52 of the Rules of Procedure 2013 on 13 November 2013 (P15).

[6]It is the claimant’s position in the first claim that she made five applications for employment with the respondent on various dates between 5 November 2018 and 1 March 2019. It is the claimant’s position that she was not invited to interview for two of the applications because she made the protected disclosure. The claimant attached a letter to her applications for employment with the respondent (P16) in which she refers to previous employment with Strathclyde Police and that she expressed ‘concerns to my superiors and, as a consequence of this, I encountered resistance to my attempts to make changes to the way in which productions were being processed and stored’.

[7]It is the claimant’s position in the first claim that, in the absence of any clear evidence to the contrary, it should be inferred that the reason for not being invited to interview for two job applications was because she made the protected disclosure.

[8]In the first claim, the claimant relies on the original claim as a protected act (“the protected act”) to show that she was victimised by the respondent by not inviting her to interview for two job applications. It is the claimant’s position in the first claim that, in the absence of any clear evidence to the contrary, it should be inferred that the reason for not being invited to interview for two job applications is the protected act.

[9]It is the claimant’s position in the second claim that she made a job application to the respondent on 13 July 2019 for which she did not receive an offer of employment. As in the first claim, it is the claimant’s position that it should be inferred that she did not receive an offer of employment because she made the protected disclosure. Similarly, it is the claimant’s position in the second claim that the reason she did not receive an offer of employment from the respondent is the protected act.

[10]The claimant has provided the respondent with papers said to date from 2008 and 2009 (P5 to P10) which include e mails from the claimant to Chief Inspector Lee Wilson (P5). Chief Inspector Lee Wilson retired from the respondent’s employment a number of years ago. The claimant has provided a copy of the ET1 for the original claim (P11) and a paper apart from the response (P12). STRIKE OUT UNDER RULE 37(1)(e) OF THE RULES OF PROCEDURE 2013 SUBMISSIONS RESPONDENT’S SUBMISSIONS

[11]The respondent provided the Tribunal with written submissions. What follows is a summary of the above. Dr Gibson submitted that the length of time between the alleged protected disclosure and the alleged detrimental acts is such that it is no longer possible to have a fair hearing in respect of the claims under Section 47B of ERA. Dr Gibson referred the Tribunal to the cases of Peixoto v British Telecommunications plc EAT 0222/07 and Riley v Crown Prosecution Service

2013 IRLR 966

, CA. Both cases are concerned with how an unknown delay stretching into the future might prejudice the possibility of having a fair trial. Dr Gibson submitted that some of the principles articulated in the above cases are applicable to a case in which the possibility of having a fair trial is prejudiced by delay stretching back in time. The finding in Peixoto, submitted Dr Gibson, that it was no longer possible to have a fair hearing was firmly rooted in

Article 6 of the ECHR

which lays down the right to have fair trail , including the right to a trial within a reasonable time. Dr Gibson submitted that, as in Peixoto, the current case is ‘truly extraordinary” as the respondent is expected to challenge a position which is now 12 years old. In the case of Riley, submitted Dr Gibson, the court held that if a party’s doctor cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out the claim has to be an option available to the Tribunal.

[12]When assessing the balance of prejudice, submitted Dr Gibson, the claimant does not get to the question of whether she suffered a detriment until she overcomes the hurdle of showing that she made a protected disclosure. The prejudice caused to the respondent of having to challenge what the claimant says was a protected disclosure in June 2008 is so overwhelming, submitted Dr Gibson, that the claim should be struck out on the balance of prejudice.

[13]The respondent, submitted Dr Gibson, would have to challenge the claimant’s position that she could have a reasonable belief that her disclosure of information involved her acting in the public interest and tended to show one or more of the relevant failures in terms of Section 43B (1) (a) to (c) of ERA. There are numerous complex issues contained in that legal test, submitted Dr Gibson and it would be extremely difficult for the respondent to lead evidence to discredit the claimant’s position that she made a protected disclosure.

[14]Dr Gibson referred to the papers provided by the claimant. He questioned the extent to which they relate to the purported protected disclosure, the passage of time since they were produced and that only two of the six people named in the correspondence are still employed by the respondent. Papers produced by the claimant, submitted Dr Gibson, are the only available documents, any other potentially relevant papers having been destroyed by the respondent some time ago.

[15]The respondent’s witnesses, submitted Dr Gibson, will be unfairly hampered in providing evidence as to what they made of the claimant’s case at the time and whether they believed at the time that she was a whistle-blower or not. DI Wilson is no longer a serving police officer. His memory will have faded not only because of the passage of time but also from being removed from the day to day practices of his role as a police officer. Dr Gibson expressed concern that the claimant may be in a position to exploit the fading memory of the respondent’s witnesses as regards the actual situation when the protected disclosure is said to have been made. The passage of time will also impede the recollection of the respondent’s witnesses as regards the proper practices and procedures in place in 2008, submitted Dr Gibson and will impact on the respondent’s ability to challenge whether the claimant could have had a reasonable belief that her disclosure of information involved her acting in the public interest and tended to show one or more of the relevant failures in terms of Section 43B (1) (a) to (c) of ERA. It would be extremely difficult, submitted Dr Gibson, for the respondent’s witnesses to recall the context in which the concerns were raised and to refute allegations made by the claimant. The claimant’s genuine motive for raising matters will also be lost in the mists of time submitted Dr Gibson. It is fundamentally unfair to the respondent, submitted Dr Gibson, to be facing the allegation now.

[16]Regarding the claim of victimisation, submitted Dr Gibson, the respondent will also be seriously prejudiced by the length of time period between the protected act and the alleged acts said to have caused detriment to the claimant. The respondent, submitted Dr Gibson, is expected to defend an accusation that persons within its HR department subjected the claimant to detriments in the period from January to March 2019 because she presented a tribunal claim in October 2009. The respondent, submitted Dr Gibson, will have to lead evidence to discredit an argument of victimisation by seeking to trace back some ten years or so to show why such an accusation is ludicrous. It will be virtually impossible to do so credibly and reliable and therefore the opportunity for the claimant to unfairly cast doubt on the respondent’s evidence is significant, submitted Dr Gibson. The challenge to fairness by the respondent, submitted Dr Gibson, is that they are being put in the position of having to challenge an accusation that a decision to not offer the claimant an interview taken in January to March 2019 was done because a tribunal claim alleging disability discrimination was presented in October 2009. The matter was ‘done and dusted’ submitted Dr Gibson in 2013. The respondent has undergone a huge operational change since then with changes to staff, systems of work, policies and procedures, submitted Dr Gibson. It will be virtually impossible, submitted Dr Gibson, for the respondent’s witnesses to be in a position to confirm or deny that they had any knowledge of the claimant’s tribunal claim against the respondent’s predecessor. Due to the passage of time there is the significant risk, submitted Dr Gibson, of the Tribunal making adverse findings of credibility and reliability against the respondent’s witnesses in relation to their genuine denial of having had any involvement in or knowledge of the original claim. CLAIMANT’S SUBMISSIONS

[17]The claimant provided the Tribunal with written submissions. What follows is a summary of the above. As regards whether the claimant made a protected disclosure, Mr Meechan submitted that the evidence of the claimant is far more relevant and material than that of the respondent’s witnesses. It is only the respondent who truly knows why the claimant has not been offered employment, submitted Mr Meechan, and the claimant should be given the opportunity to hear an explanation from their witnesses. The material question is why the respondent has treated the claimant the way it has now, submitted Mr Meechan, not some years ago. This evidence will not, submitted Mr Meechan, be affected by the passage of time.

[18]This claim, submitted Mr Meechan, is not “truly extraordinary” as in Peixoto where the claimant was not physically able to give oral evidence and the case could not be decided on the documents alone. Mr Meechan referred to the observation in Peixoto that strike out a claim on the grounds that it is no longer possible to have a fair hearing is a ”draconic measure to be used sparingly” in particular in relation to claims of discrimination. Mr Meechan submitted that the passage of time in this case is not such that the case cannot be tried.

[19]Mr Meechan referred the Tribunal to the available documentary evidence from the time of the purported protected disclosure. He submitted that the respondent should have retained paperwork pertaining to the original claim. Whether, and to what extent, the protected disclosure influenced or caused the more recent detriments is evidence which should not be affected by the passage of time submitted Mr Meechan; the witnesses should know why they did not offer the claimant a role in relation to each application. Evidence that the witnesses cannot remember whether they were involved in the original claim must surely only strengthen the respondent’s position that it did not influence their decision making in 2019, submitted Mr Meechan.

[20]Mr Meechan referred the Tribunal to the case of Hassan v Tesco Stores Limited

UKEAT/0098/16

and the two-stage approach to be taken by the Tribunal when deciding whether to strike out a claim under Rule 37 of the Rules of Procedure 2013 . In this case, submitted Mr Meechan, should the Tribunal conclude that the grounds under Rule 37(1)(e) of the Rules of Procedure 2013 have been established, it should not go on to exercise its discretion to strike out the claim. In addition, submitted Mr Meechan, the application should be refused as it is not in accordance with the overriding objective. DISCUSSION & DELIBERATIONS

[21]Rule 37 1(e) of the Rules of Procedure 2013 provides that 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 the ground 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).

[22]The right to a fair trial under

Article 6 of the ECHR

includes the right to be heard within a reasonable time. Dealing with a case fairly and justly in terms of the overriding objective of the Rules of Procedure 2013 includes, so far as practicable, avoiding delay. It is recognised that the passage of time can adversely affect the quality of evidence. In the cases of Peixoto and Riley the Tribunal was entitled to strike out the claims on the ground that the lack of certainty as to when, if ever, the claimant might be able to give evidence made it no longer possible to have a fair hearing.

[23]In the present case the claimant seeks to rely on a protected disclosure that she claims to have made in 2008. It is not in dispute that this is a considerable time ago. The protected disclosure is said to have been made when the claimant was employed by the respondent’s predecessor and to a person who is no longer employed by the respondent. The onus to prove that there was a protected disclosure however rests with the claimant. When the protected disclosure was said to have been made, a “qualifying disclosure” meant any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the relevant failures identified in Section 43B (1). It will be for the claimant to satisfy the Tribunal that the disclosure in question was a “qualifying“ disclosure. She intends to give evidence in this respect. She has produced documents that are said to date from the time of the disclosure. The respondent will be allowed the opportunity to challenge the claimant’s evidence. While the adverse effect of the passage of time on a person’s ability to recall events is recognised, there is no suggestion that the person to whom the protected disclosure is said to have been made will be unable to give evidence.

[24]It is not in dispute that the alleged detrimental treatment about which the claimant complains occurred within the recent past. There is no suggestion that the claims under Section 47B of ERA are time barred. An essential element of a claim under Section 47B of ERA is that of causation. The Tribunal must be satisfied that the claimant was subjected to detrimental treatment on the ground that she made a protected disclosure. It is not being suggested that the respondent’s witnesses will be unable to recall why they did not invite the claimant to interview in November 2018 or offer her employment in July 2019. There is no suggestion that relevant paperwork is no longer available. While it will be for the respondent in terms of Section 48(2) of ERA to show the ground on which the alleged detrimental act was done, the onus remains with the claimant to show that there was a protected disclosure and that she was subjected to a detriment. The decisions not to invite the claimant to interview or offer her employment were made relatively recently and the prejudice to those involved by the passage of time in relation to that decision-making process will be limited and in particular whether any alleged whistle blowing by the claimant was a factor.

[25]As regards the claim of victimisation, there is also no suggestion that those who made the decision not to appoint the claimant are unable to give evidence about their decision-making process. There is no suggestion that the relevant paperwork is no longer available. It is not in dispute that the claimant presented the original claim. In terms of Section 27 of EA, it will be for the claimant to show that she was subjected to a detriment because she brought the original claim or to establish findings from which the Tribunal can infer such treatment. The decisions not to invite the claimant to interview or offer her employment were made relatively recently and the prejudice to those involved by the passage of time in relation to that decision-making process is limited and in particular whether the protected act of presenting a claim was a factor. The prejudice to the claimant of striking out the claims outweighs any prejudice caused to the respondent by the passage of time since the protected disclosure is said to have been made.

[26]In all the circumstances the Tribunal is not persuaded that it is no longer possible to have fair hearing in respect of the claims under Section 47B of ERA. The application for strike out the claims under Rule 37(1)(e) of the Rules of Procedure 2013 is therefore refused. STRIKE OUT ON GROUNDS OF RES JUDICATA SUBMISSIONS RESPONDENT’S SUBMISSIONS

[27]Dr Gibson submitted that following the case of British Airways plc v Boyce 2001 SC 510, it is clear that the principle of res judicata applies to proceedings before the Tribunal. Subject to particular exceptions, submitted Dr Gibson, res judicata applies to all points upon which the Tribunal has formed an opinion and pronounced a judgment and every point which the parties, exercising reasonable diligence might have brought forward at the time. Dr Gibson submitted that in this case, res judicata applies because the Tribunal has pronounced a judgment dismissing a claim of detriment based on the same protected disclosures which the claimant now seeks to rely on, again claiming detriment. It does not matter, submitted Dr Gibson, that the alleged detriment is different.

[28]The respondent, submitted Dr Gibson, are entitled to rely on the principle of res judicata to argue that the question of whether the claimant made a protected disclosure in terms of Section 43B of ERA has already been the subject of judicial determination by the withdrawal judgment. The claimant, submitted Dr Gibson, is not entitled to a second bite of the cherry by seeking to show that she made a protected disclosure in June 2008. When withdrawing her claim, the claimant did not seek to reserve the right to bring a further claim against the respondent raising the same or substantially the same complaint submitted Dr Gibson. The claimant was not in effect, submitted Dr Gibson, reserving her right to state for a second time that she was a whistle-blower. The withdrawal judgment, submitted Dr Gibson, is effectively a judicial determination that the claimant was not a whistle blower in 2008. There is therefore, submitted Dr Gibson, an absolute bar to the resurrection of the withdrawal claim in the Tribunal.

[29]Dr Gibson referred the Tribunal to the English doctrine of estoppel, equivalent to personal bar in Scotland, and the case of Arnold v National Westminster Bank plc 1991 AC 93. In Arnold, the court held that issue estoppel may arise when a particular issue “forming a necessary ingredient in a cause of action” has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action of which the same issue is relevant, one of the parties seeks to reopen that issue. Cause of action estoppel applies where a cause of action in a second action is identical to a cause of action in the first, the latter being between the same parties and having involved the same subject matter. In such a case there is an absolute bar on in relation to all points decided in the first cause of action. In the present case, where there has been a withdrawal judgment, it is possible to argue that both forms of estoppel apply, submitted Dr Gibson.

[30]Dr Gibson submitted that as a claim under Section 47B ERA does not get off the ground without a finding that the claimant made a protected disclosure in terms of Section 43B ERA it must follow that by relying upon exactly the same purported protected disclosures the claimant is advancing an identical cause of action. Without a finding that she made a protected disclosure, no cause of action arises, submitted Dr Gibson. By withdrawing the original claim, submitted Dr Gibson, the claimant abandoned her right to re-argue that she made a protected disclosure in June 2008. The claimant is unable to rely on a finding in the original claim that she made a protected disclosure. Her claim was withdrawn without any caveat that she reserved the right to re-litigate the point. It was clearly the claimant’s intention, submitted Dr Gibson, to abandon her claim in its entirety which included a judicial determination to dismiss a claim that she was a whistle-blower in 2008. The claimant, submitted Dr Gibson, cannot now seek to re-argue that point. CLAIMANT’S SUBMISSIONS

[31]Mr Meechan submitted that the claim under Section 47B ERA is not the same matter on the same grounds as raised in the original claim. Mr Meechan submitted that a subsequent claim is not precluded on the grounds of res judicata if the second action is based on a different matter and/or on different grounds. In the present case, submitted Mr Meechan, the detriment is more recent and subsequent to the original claim and is not precluded by the principle of res judicata.

[32]In the case of Boyce, submitted Mr Meechan, the Court of Session described a second claims of race discrimination as being “in terms identical to those of the earlier application with the single exception that emphasis is now placed on the “national origins” aspect of the definition rather than “ethnic origins”.” The present case, submitted Mr Meechan, is an entirely new claim involving a detriment that did not from part of the original claim in 2009. In Boyce, submitted Mr Meechan, there had been lengthy litigation including evidence and appeals. The original claim, submitted Mr Meechan, was withdrawn before any hearing of evidence, legal argument or submissions. It is the claimant’s position, submitted Mr Meechan, that she withdrew her claim because of funding concerns and the threat of expenses.

[33]The principle of res judicata does not apply in the present case, submitted Mr Meechan. There was no settlement and no legal argument in the original claim. The current case is concerned with a detriment which occurred recently within the relevant time limits, submitted Mr Meechan, and the claim should be heard by the Tribunal. DISCUSSION & DELIBERATIONS

[34]The policy behind the doctrine of res judicata is a concern for finality in litigation between the same parties, the need to avoid a multiplicity of identical proceedings and a desire to prevent abuse of the legal process which guarantees access to justice. Parties are entitled to finality in litigation. They are entitled to proceed on the basis that once determined the same matter will not be re-litigated. The doctrine of res judicata restricts parties from litigating claims which have already been determined or should have been brought in earlier proceedings.

[35]The respondent seeks strike out of the claims under Section 47B of ERA on the grounds that they are res judicata. The right which the claimant seeks to enforce under Section 47B of ERA is not to be subjected to any detriment by any act, or deliberate failure to act, by her employer done on the ground that she made a protected disclosure.

[36]It is not in dispute that the original claim was dismissed following withdrawal by the claimant. There was no determination following a hearing on the merits of the original claim. Significantly, there was no determination of whether the claimant had made a protected disclosure. The claims are not concerned with the same alleged detriments. There is a significant lack of similarity between the original claim and the current claims. The alleged detriment complained of in the present claims is said to have occurred at a time significantly after the date of the original claim and to have involved different individuals. The present claims are concerned with alleged detrimental treatment on the basis of the respondent being the claimant’s former employer. The cause of action is different. The purported protected disclosure and/or protected act in all three claims may be the same but the alleged detriments are entirely different.

[37]In all the circumstances, the Tribunal was not persuaded that the claims should be stuck out as res judicata. The application for strike out the claims is therefore refused.

Conclusion

[1]This was a continued hearing conducted by way of written submissions to consider the respondents application for strike out of the claimants claims. The claimant has presented 10 claims against the Scottish Police Authority in the period from 17 May 2019 to 3 August 2022.

[2]The respondent’s submission was that the claims should be struck on the following grounds:a. All the claims should be struck out in terms of Rule 37 (1) (e) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules) on the grounds that it is no longer possible to have a fair hearing in respect of them;

b. All claims should be struck out in terms of Rule 37(1) (d) on the grounds that that they are not being actively pursued;

c. All claims should be struck out under Rule 37(1) (b) on the grounds that the manner in which they have been pursued is vexatious; and

d. Claims 4102006/2022 and 4104363/2022 to be struck out on the grounds that the Employment Tribunal only have jurisdiction to hear claims brought under part 5 of the Equality Act 2010 and these claims are not brought under part 5 of the Equality Act 2010.

[3]The respondent’s application for strike out and opposition thereto was set down for considered by the Tribunal at hearing on 10 July 2023 conducted by way of written submission.

[4]The Tribunal continued consideration of the applications for strike out of all of the claims on grounds of Rule 37 (1) (e), (b) and (d) until 27 September 2027. It did so as it considered that the respondents’ submissions were underpinned by what they categorised as the claimant’s continued refusal or inability to progress these claims. The Tribunal considered it to be to be of significance to it consideration of the applications at (a) to (c) above that the position with regard to the claimant’s fitness to attend a substantive hearing (either in person or remotely) at which the merits of the claims can be determined, was made clear. The Tribunal considered that it was it was consistent with the overriding objective in the Rules that and that the claimant was given the opportunity to specify clearly what her position is with regard to her medical fitness to attend a final hearing, supported by relevant medical evidence from her GP, or Hospital Consultant if appropriate, before the strike out application on those grounds was determined.

[5]To that end the Tribunal made an Order in the following terms:a. the claimant should confirm to the Tribunal by 24 August 2023 whether she is fit to attend a final hearing; in the event she is not currently medically fit to attend such a hearing, the claimant should produce medical evidence explaining the reason why she is currently not fit to attend; if the claimant is not currently medically fit to attend a final hearing, she should provide confirmation of when she is expected to be fit to attend a final hearing accompanied by medical evidence explaining why it is expected that she will be fit to attend at that time;

b. the respondents have until 7 September 2023 to provide any further written submissions if they consider it necessary in light of the information provided by the claimant; and

c. the claimant has until 21 September 2023 to provide any response to these submissions if she considers it necessary. The claimant’s response to the order

[6]The claimant responded to that order in an email dated 24 July 2023 in which she advised among other things that her life was being profoundly affected by what she considered to be the theft of electronic equipment and by Police Scotland and the COPFS. That without this equipment and without this data being returned to her she did not believe she could prepare for, or present at a tribunal hearing as she required these things to be able to do so. The claimant sought an order from the tribunal for the return this equipment, and the data. This application was declined on the basis that the Tribunal could not require the Police Scotland or the COPFS to return equipment or data in the circumstances described by the claimant.

[7]That the claimant wrote twice to the tribunal on 23 August 2023. In one email the claimant advised that her father would be writing to the tribunal on her behalf prior to 24 August 2023. The claimant also made reference to a chronology of events showing human rights breaches, fraud, criminal neglect, and submitted that she was being abused defrauded and discriminated against by the local health board and that deceit on the part of health professionals had reached a criminal stage. The claimant also questioned the legality of the Morton Fraser, solicitors for the respondent, and submitted that she believed they were being used as a tool to further a criminal agenda. In a second email she made similar types of allegations against her local health and social care partnership.

[8]A letter was received from the claimant’s father on 24 August 2023. The letter stated that he had been asked to write on her behalf. The letter stated that the claimant decided that she would attended the final hearing on the basis that he would attend with her. The letter stated that the claimant was unable to prepare for the final hearing because of her inability to access critical data as a result of the confiscation of electronic equipment by Police Scotland in September 2022 and a sist of the proceedings was sought until such times as this electronic equipment was returned to the claimant, and she had appropriate time to prepare for the hearing. The Claimant continues to represent herself but by an email of 4 October confirmed to the Tribunal that what her father stated in the letter of 24 August was an accurate reflection of her position on these matters.

[9]The claimant submitted further emails to the tribunal on 27 September 2023. One set of emails appeared to be correspondence relating to proceedings in Dunbarton Sheriff Court brought by her against her MSP. The second email related to judicial and criminal complaints which the claimant sought to bring against a sheriff at Dunbarton Sheriff court who had found against her. The claims Case number 4106994/2019

The claims

[10]This claim was presented on 17 May 2019. The claims are of disability discrimination (sections 13,15,19 and 21 of the Equality Act 2010 (the EQA); victimisation (section 27 of the EQA); and having been subjected to a detriment on the grounds that the claimant made a protected disclosure (section 47B of the Employment Rights Act 1998 (the ERA). The alleged detrimental /discriminatory treatment complained arises from 5 unsuccessful job applications the claimant made on 5 November 2018; 17 November 2018; 2 posts on 3 February 2019; and 1 March 2019. Case number 4114955/2019

[11]This claim was presented on 24 December 2019. The claims are of disability discrimination (Sections 13,15,19 and 21 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[12]The alleged detrimental /discriminatory treatment complained arises from one unsuccessful job application the claimant made on 13 July 2019. Case number 4103297/2020

[13]This claim was presented on 10 June 2020. The claims are of disability discrimination (Sections 13,15,19 and 21 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[14]The alleged detrimental /discriminatory treatment complained arises from one unsuccessful job application made by the claimant on 28 May 2019. Case number 4104161/2020

[15]This claim was presented on 3 August 2020. The claims are of disability discrimination (Sections 13, and 15, of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[16]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 5 December 2019. Case number 4107775/2020

[17]This claim was presented on 8 December 2020. The claims are of disability discrimination (sections 15 and 21 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[18]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 22 July 2020. Case number 4107963/2020

[19]This claim was presented on 21/12/20. The claims are of disability discrimination (Sections 15 and 21 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[20]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 11 August 2020. Case number 4100283/2021

[21]This claim was presented on 21 December 2020. The claims are of disability discrimination (sections 15 and 21 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[22]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 11 August 2020 (Administrative Assistant) Case number 4100283/2021

[23]This claim was presented on 18 January 2021. The claims are of disability discrimination (sections 13 and 15 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[24]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 11 August 2020 (Public Enquiry and Support Assistant). Case number 4109317/2021

[25]This claim was presented on 29 April 2021. The claims are of disability discrimination (sections 15 of the EQA); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[26]The alleged detrimental /discriminatory treatment complained arises from 1 unsuccessful job application made by the claimant on 25 October 2020. Case number 4102006/2022

[27]This claim was presented on 9 April 2022. The claims are of disability discrimination (sections 26, 21, and 15); victimisation; and having been subjected to a detriment on the grounds that the claimant made a protected disclosure.

[28]The detrimental/discriminatory treatment complained arises from alleged detriments in relation to the respondents alleged continuing failure to extend the claimant rights under the Victims of Crime Code; ignoring the claimant’s 17 crime reports; committing human rights breaches against her and threatening her with arrest; Case number 4104363/2022

[29]This claim was presented on 3 August 2022. The claims are of disability discrimination (sections 26, 21,15); victimisation; having been subjected to a detriment on the grounds that the claimant made a protected disclosure; and breach of Section 6, article 3 and Article 14 of the Human Rights Act.

[30]The alleged detrimental /discriminatory treatment complained arises from alleged detriments in relation to the respondents alleged continuing failure to extend the claimant rights under the Victims of Crime Code; ignoring the claimant’s 17 crime reports; committing human rights breaches against her and threatening her with arrest. Strike out applications

[31]These claims have a long procedural history, which it is unnecessary to set out in extensive detail.

[32]The respondents have sought to have the claims struck out on more than one occasion. Their first application for strike out application was dealt with by EJ Eccles in March 2020. That application was in part that the claim under Rule 47 the Employment Rights Act 1996 (the ERA) should be struck out under Rule 37 (1) (e) because it was no longer possible to have a fair trial. The claimant was legally represented at the strike out hearing. That application was refused by EJ Eccles.

[33]The claimant’s solicitors withdrew from acting for her on 7 July 2021.

[34]The respondents made a further application for strike out of all the claims on multiple grounds under Rule 37 (1) of the Rules on 22 September 2022. There was also an application for claims 4102006/2022 and 4104363/2022 to be struck out as the Employment Tribunal only have jurisdiction to hear claims brought under part 5 of the Equality Act 2010 and these claims are not brought under part 5 of the Equality Act 2010.

[35]The claimant was asked to confirm by 25 October 2023 if she could attend a hearing (remote or in person) to deal with the respondents strike out application.

[36]The claimant advised on 18 October 2022 that she was unable to deal with the case in any way at present due to her ill health.

[37]All of the claims were sisted for a period of 8 weeks until 29 December 2022.

[38]On 28 and 30 December 2022, the claimant wrote to the tribunal with documents which she stated showed how she had been treated by the EHRC and that state corruption, fraud, a conspiracy to pervert the course of justice, discrimination and other elements had prevented her and continued to prevent her from obtaining representation. She stated that it would not be fair or just for the tribunal to proceed with her cases in these circumstances. She stated that she was not in a position to prepare for any cases against the respondent for several months. The claimant requested that the claims were sisted pending a review by the European Court of Human Rights or the United Nations.

[39]On 5 January 2023, EJ Hoey directed that that it appeared that the claimant was able to produce cogent written arguments. On that basis he suggested that it may be in the interests of the overriding objective in the Tribunal Rules to deal with the respondents strike out application on paper.

[40]On 5 January 2023, the respondents confirmed their agreement to this course. On the same date the claimant sought a sist pending review of her case by the UN.

[41]On 5 January 2023, the claimant also advised the Tribunal that there was insufficient time for her to respond to the application for strike out. She advised she intended to present a new clam and that it was not in the interests of justice to determine any claims until this had been lodged. She continued to seek a sist to allow a UN review and also sought an extension of 6 weeks to respond to the respondent’s application.

[42]On 24 January 2023, EJ Hoey refused the application for a sist pending review by the UN. He directed that as it appeared the claimant was able to engage with issues given her ability to set out complex issues, that it was in the interests of justice to progress matters expeditiously and avoid delay.

[43]The claimant was asked to confirm if she had any further submissions in respect of the respondent’s application for strike out and was given until 17 February 2023 to make them. The respondents were given until 24 February 2023 to make further submissions should they wish to do so. The parties were advised that an EJ would then consider the respondents application for strike out in the papers in Chambers on the basis that the claimant had not requested a hearing and had been given the opportunity to provide full written submissions. The claimant was advised that if she felt able to and wishes to attend a hearing, she should advise the Tribunal within three weeks.

[44]On 20 February 2023, the claimant wrote to the Tribunal indicating that she did believe she had enough time to respond to the Strike Out application, and that she was unable to provide a response ‘just now’. She emailed again on 1 March 2023 asking for an extension of time to 3 April 2023 to respond.

[45]An extension of time to respond was granted until 3 April 2023.

[46]On 3 April 2023, the claimant emailed the Tribunal advising she was as ‘not capable’ of providing a response. She also indicated in a separate email of the same date that she had tried to lodge a new claim against the respondents but due to an error in the Tribunal website had been unable to do so. In a further email of the same date, she advised that the police were withholding some of her IT equipment, making it impossible for her to move forward with her case against the respondents.

[47]On 27 April 2023, Employment Judge Hoey directed that a one day in Chambers strike out hearing on the grounds that the claims were not actively being pursued and whether a fair hearing remains possible should be fixed. The parties were advised that the hearing would be conducted in Chambers as the claimant was unable to attend but has provided written submissions. No date was assigned for the hearing at that point.

[48]On 30 April 2023, the claimant emailed the Tribunal acknowledging that the Tribunal would make a decision on the respondents strike out application and notify her of the date when this would take pace. She enclosed correspondence in which she alleged corruption on the part of the government and the police which she indicated she considered relevant to her position.

[49]On 5 June 2023, EJ Hoey directed that the claimant was to refrain from copying the Tribunal into multiple emails addressed to third parties. The parties were given 7 days to provide final submissions relative to the respondent’s representatives application for strike out of the claims. The respondents were given 14 days thereafter to submit a bundle incorporating each submissions and associated papers.

[50]On 6 June 2023, EJ Hoey directed that In Chambers Case Management Hearing take place on 10 July 2023 at which the Tribunal would consider the respondents strike out application.

[51]The claimant emailed the Tribunal on the 6 ,9, 11, and 12 June 2023 with a number of documents alleging fraud, breaches of human rights, criminal activity on the part of a number of third parties.

[52]On 12 June 2023, the respondents lodged a revised strike out application. The application was made on the same grounds as that lodged in September 2022.

[53]Between 22 and 29 June 2023, the claimant sent 12 emails to the Tribunal and the respondents attaching extensive documentation addressed to third parties concerning various grievances on a number of a matters including an alleged failure to provide legal assistance on the part of the EHRC; and alleged failures on the part of her MSP and Sheriff Court proceedings she has pursued against him.

[54]Up until the date of the in Chambers Hearing on 10 July 2023, the claimant continued to send numerous emails and attachments to the Tribunal with similar content. Those included allegations, among other things, that it was an indisputable fact that the respondents were conducting themselves in a criminal way towards the claimant, and that Morton Fraser were not only aiding and abetting criminality within the legal expenses sector but were conspiring to pervert the course of justice. Doctors Reports/Fit Notes

[55]The Tribunal has received two doctor’s reports and one fit Note in the course of dealing with the procedural matters arising from the claims.

[56]On 20 January 2021, the claimant’s then solicitor requested a sist of the proceedings for a period of 8 weeks on the basis that the claimant was not fit to attend a hearing or give instruction. A Soul and Conscience certificate from the claimant’s GP was produced in support of the application, which was granted.

[57]On 8 June 2021, the claimant’s solicitor requested a discharge of a PH which had been fixed for 29 April 2021 and sist of all the claims for a period of 10 weeks. A Soul and Conscience letter from the claimant’s GP dated 7 June 2021 was provided stating that the claimant continued to be unfit to undertake any activity in connection with the Tribunal proceedings and that the GP could not predict when she would be medically fit to participate. The application was granted and the claims were sisted until September 2021.

[58]On 12 September 2022, a fit note from the claimant’s GP was forwarded to the Tribunal by her father which stated that she was not fit for work for a period of three months from 8 September 2022, a request was made for the claims to be sisted for an indefinite period of time. Submissions

[59]The Tribunal had the parties written submissions from the hearing on 10 July 2023. In the interests of brevity these are not set out here in detail but are dealt with below where relevant.

[60]The Tribunal also had the claimant’s response to the Order issued in July as set out above.

[61]The respondent continued to urge the Tribunal to strike the claims out on the basis of the submissions already made. Mr Gibson submitted that the matter of whether the claimant can prepare for a full hearing due to not having a computer equipment as part of a criminal investigation was ancillary issue. He submitted however that simply strengthen the respondent’s argument that given the long delay in the proceedings it was no longer possible to have a fair trial. He submitted that the issues around the computer equipment should not delay consideration of the respondent strikeout application, and if the application was unsuccessful then consideration of a request for a sist on the basis of the computer equipment issue should be given consideration at that stage.

Consideration

[62]Rule 37 of the Rules provides: 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) 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). Application under Rule 37 (1) (e)

[63]The Tribunal began by considering the respondent’s application under Rule 37(1) (e). That is strike out on the grounds that it is no longer possible to have a fair hearing in respect of the claims.

[64]It considered Mr Gibson’s submissions to the effect that the extensive period between the alleged protected disclosure and the alleged acts which are said to have been detrimental was such that it is no longer possible to have a fair hearing in respect of those parts of the claim. Further and in the alternative, the extensive time period between the alleged acts said to have been detrimental and discriminatory, and an unknown date in the future when these claims may come before a tribunal is such that it is no longer possible to have a fair hearing.

[65]Mr Gibson referred to the cases of Peixto v British Telecommunications Plc EAT 0222/07 and Riley v Crown Prosecution Service

2013 IRLR 966

CA, which it was submitted deal with the impact of an unknown delay stretching into the future on a fair trial. It was submitted that some of the principles articulated in these cases could be applied to the impact on a fair trial of a matter stretching into the distant past. In Peixto, it was held that the right to a fair trial impossible was firmly rooted in the requirement under the European Convention Human Rights 1950, Article 6, that the trial had to take place within a reasonable time.

[66]Mr Gibson acknowledged that the draconian measure of strike should be used sparingly, however he submitted that this was an extraordinary case. The respondents were being put to challenge a position which is now 15 years old, and he could not fathom how that could be done. Further, he submitted that 4 years have elapsed from the first claim was lodged, and that claim been followed by a series of very similar claims being lodged each time the claimant was unsuccessful in a job application.

[67]In Riley, Mr Gibson submitted that the EAT commented that if a doctor could not give any realistic prognosis of sufficient improvement within a reasonable time and the case itself dealt with matters which were already in the distant past, strike out had to be an option available to a tribunal. He submitted that in this case there was a significant lack of medical evidence as to why the claimant was apparently unable to bring these cases before a tribunal. She had been able to instruct a solicitor, produce written pleadings once her solicitor withdrew, and write lengthy letters to the Tribunal. He submitted there was no medical evidence to support and explain why the claimant could engage in this activity but actually progressing these claims before a tribunal was something she could not do.

[68]Mr Gibson submitted that the respondents did not deny the claimant was clearly experiencing significant mental health problems, and he submitted that it appeared from the content of her communications to the respondent and the Tribunal, that her health was not improving, and it did not appear that it would do so within a reasonable time. Mr Gibson’s position was that whilst the claimant could clearly compose very long letters of complaints it did not appear that she was well enough to actually progress these claims to a conclusion.

[69]Mr Gibson submitted that the crucial question in looking at the strike out a claim is assessing the balance of prejudice. He submitted that the claimant would no doubt argue that her case did not arise until the alleged detriments and discrimination occurred. He accepted that this was correct, but submitted however that the claimant did not get to the question of detriment in connection with the protected disclosure claim until she got over the hurdle of Section 43B of the Employment Rights Act 1996 (the ERA). The prejudice caused to the respondents of having to now challenge that the claimant made a protected disclosure in June 2008 is so overwhelming that the claim must be struck out and assessing the balance of prejudice. He submitted that at the present there was not the slightest prospect of even discussing fixing a hearing to determine the question of detrimental treatment, and therefore the complaints did not occur within the recent past.

[70]Mr Gibson is correct to acknowledge that strike out on this ground is a draconian measure, albeit it can be used in extraordinary cases and that the balance of prejudice is the crucial question which the Tribunal has to address.

[71]Whilst some of the claims are of more recent origin, the oldest case before the Tribunal was presented in May 2019 and is therefore by now over 4 years old, which is considerable. Mr Gibson submitted that witness recollection will be affected by the passage of time. He submitted that the respondent’s witnesses will be hampered in providing evidence as to why they did not invite the claimant to interview, and the existence of some documentation does not cure that prejudice, as the claimant will be in a position to exploit the fading memory respondent’s witnesses given the passage of time, by suggesting to them that they must have discriminated against her on the basis of the documents, rather than recalling the facts and circumstances pertaining at the time.

[72]The Tribunal takes into consideration that whilst some of the claims are of more recent origin, the oldest case before the Tribunal was presented in May 2019 and is therefore by now over 4 years old, which is considerable. The passage of time, which is not insignificant, on witness recollection is a consideration to which this Tribunal attaches considerable weight in assessing the question of relative prejudice. It is not however suggested that the witnesses’ recollection will be so affected that they will have no recollection of events or be unable to give evidence. Furthermore, the claimant’s response to the Order following the hearing on 10 July 2023, confirms that she will attend a hearing and therefore the Tribunal is not looking at an indefinite sist. The question of a sist to enable the claimant to obtain computer equipment held by the Police remains outstanding, but consideration of that application will include all relevant factors including the effect of further delay to the proceedings. While events which occurred four years ago could not be categorised as the recent past, it is not the case that there is no prospect of a hearing being fixed on the grounds of the claimant’s ill health.

[73]That being the case, the circumstances of this case are different to those in Peixto and in Reilly where there was no prospect of a hearing being fixed on the basis that the claimant was unfit to attend a hearing. Should it be the case that notwithstanding her position that she will attend a final hearing, it transpires the claimant is medically unfit to attend a final hearing and continues for all intents and purposes indefinitely to be so, or that for some other reason it transpires that she feels unable and continues for all intents and purpose indefinitely to feel unable to attend a final hearing, then it is likely that the Tribunal will have to revisit the question of whether a fair trial remains possible. However, given the claimant’s position that she will attend a final hearing, matters are not at that stage.

[74]With regard to the Sect Employment Judge ion 47B claim, the respondent’s arguments for strike out were dealt with by EJ Eccles in March 2020. Mr Gibson referred to the decision of the Employment Judge Eccles, issued in March 2020 in which she refused the respondent’s application for strike out. He referred to paragraph 23 of that decision in which EJ Eccles held; ‘While the adverse effect of a passage of time on a person’s ability to recall events is recognised, there is no suggestion the person to whom the protected disclosure is said to have been made will be unable to give evidence.’

[75]Mr Gibson submitted that since that date the respondent has sent correspondence to Lee Wilson, the witness in question, asking him to act as a witness, which has been returned as marked no longer at this address. The respondents did not have any further contact details, and therefore the position has altered since EJ Eccles’s decision was made. Further, EJ Eccles made her decision in March 2020, but the tribunal is now looking at matters in 2023 and is looking at an indefinite sist.

[76]There have been two changes of circumstance since that application was dealt with and refused. The first is the passage of time since the application was refused and the effect that may have on witness recollection. That is a matter which is dealt with above. The second it the circumstances pertaining to the witness Mr Wilson as described in Mr Gibson’s submission. The Tribunal again attaches considerable weight to this factor, however at this stage it is not indicated if any further enquiry is possible or has been undertaken to ascertain the whereabouts of Mr Wilson; such steps may be capable of securing his attendance at the hearing and remove the disadvantage highlighted. The factors which EJ Eccles took into account in her decision, reflecting to the burden of proof, the fact that the detriments alleged are of more recent origin than the disclosure relied upon and the claims are brought in time, and respondents the ability to cross examine the claimant, remain unchanged.

[77]The Tribunal considered the balance of prejudice to the parties in granting or refusing the application on the basis that a fair trial no longer remains possible. While it is a finely balanced exercise, in the circumstances where the claimant has indicated that she will attend a final hearing, and therefore the Tribunal is not looking at an indefinite sist of the proceedings on the grounds that she is medically unfit to attend a hearing and pursue her claims, and it does not appear that all avenues of enquiry as to the whereabouts of the witness have been exhausted, it was not persuaded at this stage that the prejudice to the respondents occasioned by the passage of time was greater than that to the claimant in striking out her claims of detriment and discrimination.

[78]The application for strike out on this ground is therefore refused at this stage. Application under Rule 37 (1) (b)

[79]The Tribunal then considered the application under Rule 37 (1) (b). Mr Gibson in his written submissions outlined the history of the multiple claims raised against the respondents. He submitted that despite raising a tenth claim making the same allegations against the respondent as she did against the Scottish Police Authority, the claimant has failed to withdraw it. He submitted that it was vexatious to argue two different respondents acted in the same way and on the facts of this case that was impossible to argue logically. None of the claims have been progressed, and the claimant is engaged in a course of vexatious litigation. The respondent is being harassed and put to disproportionate expense in the defence of these claims.

[80]Mr Gibson submitted that the vexatious nature of the claimant’s pursuit of these claims is not limited to the ten claims, and that she is now engaging in a course of conduct of bombarding the respondent representative and some employees with irrelevant correspondence making extreme accusations of a breach of her human rights. He submitted that alternatively this amounted to unreasonable conduct.

[81]In considering the application on these grounds the Tribunal reminded itself that a ‘vexatious’ claim has been described as one that is not pursued with the expectation of success. The hallmark of vexatious proceedings is that they have little or no basis, or no discernible basis in law, and that whatever the intention, the effect of the proceedings is to subject the defendant to inconvenience and expense out of all proportion to the likely gain to the claimant, and that it involves an abuse of process of the court, the use of the court process for the purpose or in a way which significantly different from the ordinary and proper use of process.

[82]The Tribunal was not in a position to reach a conclusion that the claimant raised the proceedings with no expectation of success. The claimant has presented a number of detailed claims of discrimination which give rise to factual disputes. The tribunal considered that issues with the 9 and 10 claims were potentially resolved by case management in which the claimant is required to clarify against whom the claim is properly presented and the basis on that.

[83]The tribunal did however conclude that the claimants conduct of the proceedings was unreasonable in that in the course of conducting these proceeding the claimant has copied the respondents into extensive correspondence about third parties are not directly relevant to the proceedings and she has made unsubstantial and prejudice statements about the respondents and their solicitors, stating among other things that they are involved in criminal activity.

[84]Before striking out a claim on the grounds that the conduct of the proceedings had been unreasonable the Tribunal has to be satisfied that a fair trial is no longer possible. For the reasons which are dealt with above, the Tribunal could not conclude that a fair trial was not possible at this stage.

[85]The claimant should now ensure that in the conduct of these proceedings she does not make unsubstantiated and prejudicial statements about the respondents or their solicitors or any third party in correspondence or documents which she produces for the purposes of conducting these proceedings. If she continues to do so it will be open to the respondents to renew their application for strike out under Rule 37(1)(b). A continuation of such conduct on the part of the claimant in light of the tribunal’s direction is likely to be capable of founding an application on the grounds of conduct which is scandalous. Application under Rule 37(1) (d)

[86]The Tribunal then considered the application that claims should be struck out in terms of Rule 37(1) (d) on the grounds that that they are not being active pursued.

[87]Mr Gibson submitted that there is a difference between the claimant wanting to pursue a claim and actively pursuing claims. In the event the claimant is not able to pursue claims, she should acknowledge this. Her lodging claims in the knowledge that she is not actually fit pursue them to a hearing does not amount to actively pursuing the claims. Mr Gibson submitted that between 25 May 2023 and 12 June 2020, the respondent’s representative received 25 different emails. These highlight the claimant is engaging in substantive correspondence and litigation with other parties, some of which are connected to this claim, and some indirectly connected to these claims. This vast amount of correspondence cannot be taken as a proxy for active actively pursuing the actual claims. The Tribunal should not be dissuaded from striking out the claims on the grounds that they are not actively pursued purely because the claimant makes and emotional and overwrought claims of unfair treatment against the respondents. Obsessive letter writing is not an active pursuit of claims.

[88]In considering this application the Tribunal notes that it is not suggested that the delay has been intentional or disrespectful to the Tribunal.

[89]The Tribunal understands however that it is suggested that the delay is inordinate and that there is no intention or ability on the part of the claimant to pursue these claims to a final hearing, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the respondents.

[90]While there has been significant delay occasioned by the claimant’s ill health or other factors which have prevented her progressing to a hearing, she indicates that she will attend a hearing. Mr Gibson submitted that whether the claimant can prepare for tribunal hearing due to the seizing of computer equipment as part of a criminal investigation is an ancillary consideration but did strengthen the respondent’s argument that given the ongoing delay in these proceedings it is no longer possible to have a fair hearing. He submitted that the issue at the computer equipment should not delay consideration of the respondent’s application for strike out of the claims, and if the application is refused, then consideration of a request for a sist on the basis of the computer equipment issue could be considered at that stage. The Tribunal agree that this is the correct approach to the application to sist. Any ongoing delay occasioned by the claimant’s application for a sist of the proceedings would be relevant factor which would be taken into account by the Tribunal in its consideration of that application.

[91]The fact that the claimant indicates that she will attend a hearing is inconsistent with the suggestion that the claims are not being actively pursued. For the reasons given above the Tribunal did not conclude at this stage that a fair trial was not possible. Taking these factors into account the Tribunal was not satisfied that it was consistent with the overriding objective in the Tribunal rules to strike the claims out on the basis that they are not being actively pursued. In the event however it transpires the claimant for whatever reason finds herself unable to attend a final hearing to pursue these claims then given the delay in the proceedings to date, it will be likely that the Tribunal will have to revisit the question of whether the claims are being actively pursued and whether a fair trial remains possible.

[92]To enable the Tribunal to consider further procedure, the respondents should confirm within 7 days if there is any objection to the claimant’s application to sist the proceedings.