Case No 4109518/2018Venue GlasgowHearing 8 April 2019 (Reconsideration Hearing in chambers)
Between
Mr Brian GourlayClaimantGMBRespondent
Before
Employment Judge Ian McPhersonDate 29 April 2019
JUDGMENT
The Judgment of the Employment Tribunal is that: -(1) Having considered parties’ respective written representations, on the claimant’s opposed application for reconsideration of the Strike Out Judgment dated 20 December 2018, and entered in the register and claim against the respondents, the Tribunal, in terms of Rules 70 to 72 of the Employment Tribunals Rules of Procedure 2013, having reconsidered that Judgment, in light of the claimant’s application dated 3 January 2019, and the respondents’ objections dated 21 January 2019, confirms the Judgment, without variation, and accordingly refuses the claimant’s application for reconsideration.(2) Having done so, and having further considered the respondents’ application dated 14 January 2019 for an Expenses Order against the E.T. Z4 (WR) claimant, in terms of Rule 75(2) of the Employment Tribunals Rules of Procedure 2013, following upon the Strike Out Judgment, and their breakdown of costs incurred in the sum of £5,837.93, as intimated on 8 February 2019, together with the claimant’s objections dated 11 and 20 February 2019, and the respondents’ reply of 26 February 2019, the Tribunal proposes, in light of the claimant’s request for an oral Hearing, to list the case for an in person Expenses Hearing, estimated duration 3 hours, on a date to be hereinafter fixed by the Tribunal, unless the claimant, within no more than 14 days of issue of this Judgment, informs the Tribunal, and the respondents’ solicitor, that he now agrees to the opposed application being considered by Employment Judge Ian McPherson, in chambers, on the basis of the written representations already on file, and thus without the need for personal attendance, thus avoiding delay, and saving expense, as per the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly.
REASONS
Introduction
[1]This case called again before me on the morning of Monday, 8 April 2019, for a Reconsideration Hearing, previously intimated to both parties by the Tribunal by Notice of Reconsideration Hearing dated 13 February 2019, stating that I had decided that the claimant’s application for reconsideration of my Strike Out Judgment issued on 21 December 2018 would take place at a Hearing, without the requirement for parties to attend, and so the Notice of Hearing was issued for their information only.[2]One day was allocated for this Reconsideration Hearing before me, as an Employment Judge sitting alone, in chambers. As per the Notice of Hearing, parties were advised that, at this Reconsideration Hearing, the Judgment might be confirmed, varied or revoked.[3]The claimant made application, on 3 January 2019, for reconsideration of that Strike Out Judgment. He did so by email to the Glasgow Tribunal office, enclosing a covering letter, and 5 attached appendices, running to 13 pages in total, comprising appendix(1) an apology for his use of the word “shafted” in earlier submissions to the Tribunal;(2) an application for extension of time for making the reconsideration application (if required);(3) a narrative setting out why, in his opinion, it would be in the interests of justice to reconsider the Judgment;(4) submitting that something has happened since the Strike Out Hearing, why evidence was not available, and what evidence he wants to introduce ; and(5) email correspondence between the claimant and the Scottish Public Pensions Agency on 2 January 2019.[4]The claimant sent a copy of his correspondence for the Tribunal to Mr Paul Deans, solicitor at Thompsons, Glasgow, as the respondents’ representative, as per Rule 92. Following that intimation to Mr Deans, he emailed the Tribunal that same day, 3 January 2019, to note that the Judgment had been issued, given the claimant’s reconsideration application, but advising that the respondents’ copy posted to his office had not been received, and requesting a copy be sent to him directly by email. A copy Judgment was sent to him by a clerk to the Tribunal. Initial Consideration of Reconsideration Application[5]On 8 January 2019, the claimant’s reconsideration application of 3 January 2019 was referred to me for initial consideration. It had been submitted in time, within 14 days of the date that the Judgment was sent to parties on 21 December 2018, and the application set out why reconsideration is necessary. Further, the application had been copied to the respondents’ solicitor. As such, it was not appropriate to reject the application, as it complied with Rule 71, and I did not need to consider extending time, under Rule 5, as it had not been submitted out of time.[6]I did not refuse the application at Initial Consideration, under Rule 72, but I gave the respondents 10 days to respond to the application, and for both parties to express their views on whether the application could be considered without a Hearing. I expressed no provisional view on the application, and my instructions were translated into a letter from the Tribunal, sent to both parties, dated 9 January 2019, seeking a reply by 21 January 2019.[7]By email to the Tribunal, and copied to Mr Deans for the respondents, on 16 January 2019, the claimant stated that he was of the view that his application for reconsideration could be determined without a Hearing. Further, by email, sent on 21 January 2019, copied to the claimant, Mr Deans advised the Tribunal that the respondents opposed the claimant’s application for reconsideration, made comments on and responded to the claimant’s application, and Mr Deans submitted it is not in the interests of justice to grant the reconsideration.[8]Within that response, on 21 January 2019, Mr Deans further stated that there was no need for a Hearing, submitting that it is the respondents’ position that given that both parties have set out their positions comprehensively in writing to the Tribunal, and bearing in mind both parties are content for this matter to be dealt with, without a Hearing, that it would be in accordance with the overriding objective for this matter to be dealt with by way of written submissions. Matter not considered at this Reconsideration Hearing: Expenses Application against the Claimant[9]At this Reconsideration Hearing, I have not considered the respondents’ application dated 14 January 2019 for an Expenses Order against the claimant, in terms of Rule 75(2) of the Employment Tribunals Rules of Procedure 2013, following upon the Strike Out Judgment, and the claimant’s objections to that application.[10]When that expenses application was referred to me, on 16 January 2019, I directed that both parties be asked for their comments on further procedure with regards to both the claimant’s application for reconsideration, and the respondents’ application for expenses, and whether this case (claim No.2) should be combined with the claimant’s new claim No.3 under case number 4122886/2018.[11]My instructions were translated into an email from the Tribunal, sent to both parties on 24 January 2019, seeking a reply by 31 January 2019. On that same date, 2 January 2019, both parties were sent a letter by the Tribunal, regarding the expenses application, and inviting the claimant to give reasons, by 7 February 2019, why the requested Expenses Order should not be made, or whether he wished to state such reasons at a Hearing.[12]On 31 January 2019, Mr Deans advised the Tribunal, with copy sent to the claimant, that since claim No2 had been struck out, there is no claim which can be combined with claim No3, but should the reconsideration application revive the claim No2, he would welcome the opportunity to comment further at that point. His reply also stated that the respondents’ position is that the Tribunal can deal with the application for reconsideration without recourse to a Hearing, and both parties had submitted their position in writing and both had indicated that that matter does not require a Hearing, but can be dealt with on the basis of written submissions.[13]Further, Mr Deans’ response submitted that, similarly, it is the respondents’ position that their application for expenses can be dealt with without the requirement for a further Hearing, and “given that this is a relatively straightforward application for expenses arising out of a very clear Judgment of the Tribunal”, it would be in accordance with the overriding objective for the Tribunal to make this determination without the need for a Hearing.[14]By email of 31 January 2019, copied to the Tribunal, and Mr Deans, the claimant advised that the application for reconsideration could be determined without a Hearing, but he requested a Hearing to state his reasons why the respondents’ application for expenses should not be granted but, prior to any such Expenses Hearing, he sought disclosure of pertinent information and documents from the respondents.[15]Following that correspondence from both parties on 31 January 2019 being referred to, and produced at a private Case Management Preliminary Hearing held before me on the morning of 1 February 2019, in claim No.3, being case no.4122886/2018, which was linked with, but not combined with, this No.2 casefile, I had a clerk to the Tribunal email both parties, in this case, on my instructions, as follows: “(1) Parties’ correspondence is noted and placed on casefile. (2) In light of considering further procedure, the Judge has directed that the two files are not combined, but remain linked, for administrative purposes, given the Judge is the allocated Judge in both cases. (3) Given both parties are content that the claimant’s reconsideration application should proceed, on the papers, and without the need for a Hearing, the Judge has instructed that this case be listed for a one-day Reconsideration Hearing before him, in chambers, parties not required to attend, as soon as possible, the Judge’s diary and the Tribunal’s other listings permitting. (4) When a date for that Reconsideration Hearing is assigned, parties will be notified, for information only. (5) It may be, given the exigencies of the daily cause list, that postponement / cancellation of other business diarised for the Judge, might mean it could be dealt with at an earlier date than indicated, but no guarantee can be given. (6) As the claimant has not responded to Mr Deans’ email of 21 January 2019, at 11:11, intimating the respondents’ grounds of objection to the reconsideration application of 3 January 2019, the Judge has ordered that the claimant may provide any further written representations, in reply to Mr Deans’ email, within the next 10 days, i.e. by no later than 4.00pm on Monday, 11 February 2019. (7) A copy of his reply to the Tribunal should be sent at the same time to Mr Deans, by email, as per Rule 92. (8) At the Reconsideration Hearing, the Judge will take account of parties’ written submissions to that date on the reconsideration application. (9) As regards the respondents’ application of 14 January 2019 for an award of expenses against the claimant, further procedure in that opposed application will be determined after the Reconsideration Judgment is issued. (10) Meantime, having considered the claimant’s request for disclosure by the respondents, at item 4 ( c)(i) in his email of 31 January 2019, the Judge orders that, within the next 7 days, i.e. by no later than 4.00pm on Friday, 8 February 2019, the respondents’ solicitor shall send to the claimant, by email, with copy to the Tribunal, a breakdown of the costs incurred of £5,955, with any relevant supporting vouchers, together with an explanation of the calculation of expenses sought from the claimant. (11) The claimant’s request for further disclosure by the respondents, at item 4 (c)(ii) in his email of 31 January 2019 is refused as being unnecessary, at least at this stage.”[16]Thereafter, on 8 February 2019, Mr Deans emailed the Tribunal, with copy to the claimant, with the respondents’ breakdown of costs, with supporting vouchers, incurred in the sum of £5,837.93, being the sum sought from the claimant by way of the respondents’ expenses.[17]Further, on 11 February 2019, the claimant emailed the Tribunal, with copy to Mr Deans, enclosing his response to the respondents’ response of 21 January 2019, regarding the reconsideration application, and under reference to 18 attached appendices, extending to some 56 pages in total, and he further submitted that the respondents had “knowingly provided false and misleading information to ET”.[18]Both parties’ correspondence of 8 and 11 February 2019 was acknowledged by the Tribunal, on 13 February 20129, and any written comments on the content of the other party’s correspondence was requested by 20 February 2019.[19]Thereafter, on 20 February 2019, the claimant emailed the Tribunal, with copy to Mr Deans, enclosing his comments on Mr Deans’ email of 8 February 2019, and in a document extending to 21 typewritten pages, including 5 appendices, he detailed his comments on Mr Deans’ correspondence of 8 February 2019, including that he did not recollect getting any Costs Waring letter from the respondents.[20]Further, the claimant challenged the costs sought at £5837.93, on the basis that he was being asked to shoulder the financial burden of the respondents having chosen to instruct Mr Crammond, counsel from the English Bar, rather than a solicitor from Thompsons.[21]Further, at paragraph 38 of his comments, on page 12, the claimant specifically stated that: “If the reconsideration application is unsuccessful 38. In the event that the reconsideration application is unsuccessful and the Tribunal moves to considering whether the expenses application should be granted in the terms sought, the claimant would respectfully ask that a hearing be granted in order that he may advance to the Tribunal the reasons why he believes the sum sought is excessive, having regard to the facts of the matter and his means.”[22]On 26 February 2019, a clerk to the Tribunal wrote to both parties, on my instructions, acknowledging the claimant’s correspondence of 20 February 2019, and advising that the respondents’ opposed application for expenses would be determined by me after the Reconsideration Hearing in chambers on 8 April 2019, and if the respondents’ representative had any comments to make on the claimant’s email of 20 February 2019, those comments should be sent to the Tribunal, with copy to the claimant at the same time, within the following 7 days.[23]Thereafter, by email on 26 February 2019, from an Elaine Goodwin at Thompsons, copied to the claimant and Mr Deans, at the same time as being sent to the Tribunal, the respondents made comments on the claimant’s email of 20 February 2019. All of that correspondence is on the casefile, and awaits my judicial determination at a later date.[24]In light of my decision to refuse the claimant’s reconsideration application, and further to the claimant’s request for an oral Hearing, I have directed that the respondents’ opposed expenses application shall be listed for an in person Expenses Hearing, estimated duration 3 hours, on a date to be hereinafter fixed by the Tribunal, unless the claimant, within no more than 14 days of issue of this Judgment, informs the Tribunal, and the respondents’ solicitor, that he now agrees to the opposed application being considered by me, in chambers, on the basis of the written representations already on file, and thus without the need for personal attendance, thus avoiding delay, and saving expense, as per the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly.[25]If the claimant still seeks an Oral Hearing, I shall, in due course, have the clerk to the Tribunal issue date listing stencils to convene such an Expenses Hearing before me in July, August or September 2019. If not, I will seek to have the Expenses Hearing conducted, in chambers, before me at the earliest available date in the Listing diary, when I am not otherwise allocated to be sitting in any other case. Claimant’s Application for Reconsideration[26]The claimant’s reconsideration application was made on 3 January 2019. Rather than try and sub-edit his work, and provide my own executive summary, it is appropriate, at this stage, to note the full terms of his submission which, so far as material for the purposes of this reconsideration application before the Tribunal, being his appendices 3 and 4, verbatim, reads as follows: Appendix 03: … set out why it would be in the interests of justice for the original decision to be reconsidered.14. The claimant respectfully submits to Employment Judge McPherson that it would be in the interests of justice for the original decision to be reconsidered.15. The claimant refers to, among other things, paragraph 109 109: Further, at paragraph 25, the claimant advises that he has submitted a "new claim". This follows upon his paragraph 10, referring to obtaining a fresh ACAS EC certificate on 13 November 2018. If and when the claimant raises a fresh claim against these respondents, then that new claim will go through the standard process of acceptance, notice of claim, ET3 response, and then Initial Consideration, and any further procedure that might be appropriate. That new claim is not a matter for me in this Judgment, although, for reasons of judicial continuity, it is likely to be allocated to me by the Tribunal administration for case management.16. The claimant respectfully proposes the notion that it would be in the interests of justice for the original decision to be reconsidered as having claims struck out, as has occurred on 2 occasions, restricts a claimant from e.g. raising a victimisation claim.17. The claimant does respectfully consider the matter of being unable to refer to previous matters whilst having been judicially dealt with, is not it is respectfully proposed, in the interests of justice.18. In regard the above ‘new claim’ referred to in Judgment at paragraph 109 a claim has been submitted at 14/11/18 with ET1 submitted to ET Glasgow at Wed 14/11/2018 13:18. This ET1 has been assigned reference 4122886/2018.19. 4122886/2018 does rely on, for purposes of e.g. victimisation, acts passed i.e. on matters already litigated on.20. In essence the claimant’s complaints against GMB are in regard not only what the respondent has done but importantly what the respondent GMB has NOT done i.e. inactions / omissions.21. This can be demonstrated in that the claimant, at 04 March 2014 19:19, did provide Mr Douglas Japp, Head of Employment law at Digby Brown, Mr Hemsi Solicitor at Digby Brown, Billy McEwan GMB Convenor at WDC and GMB’s Heather Agnew, among other things, a PDF titled, To Whom it may Concern.22. Digby Brown then proceeded to dispute the claimant’s medical illness of Multiple Sclerosis in papers to ET Glasgow.23. After providing that same document To Whom it may Concern to Mr David Martyn, Head of Employment law at Thompsons and various GMB Officers the claimant’s medical illness of Multiple Sclerosis was again disputed in papers to ET Glasgow. That is: it is respectfully proposed that false and misleading information has been demonstrably provided by GMB’s legal representative to ET Glasgow.24. Subsequently Thompsons have since accepted, the already provided to the respondents, To Whom it may Concern correspondence as supporting evidence of Multiple Sclerosis.25. Furthermore – having struck out the claimant’s claim without recourse to other options as detailed in case law, within the Judgment, the claimant respectfully proposes the notion that he has been disadvantaged e.g. the ‘cease & desist letter’ signed by Mr David Martyn of Thompsons does contain factual inaccuracies. 26. With his claim having being struck out the claimant has been denied the opportunity to prove to Employment Judge McPherson that the content of the cease & desist letter contains factual inaccuracies.[27]In this regard the claimant respectfully proposes that it is in the interests of justice for the original decision to be reconsidered please. Appendix 04: … something has happened … evidence was not available … the evidence which you want to introduce.[28]Excerpt from The Judgment: ‘something has happened since the hearing which makes the judgment or decision unjust. If you apply for a reconsideration based on new evidence you must explain why the evidence was not available before and include a full statement of the evidence which you want to introduce.’[29]Whilst the clamant does, respectfully, disagree with the Judgment the claimant does recognise that does not mean a judgment or decision will be reconsidered just because the claimant disagrees with it[30]The claimant respectfully proposes that something has happened since the hearing which makes the judgment or decision unjust.[31]The claimant advises that ‘something has happened’. This includes the submission of new claim Case Number 4122886/2018 with PHA due soon and PH scheduled 1 FEBRUARY 2019 AT 10:00 AM.[32]Furthermore, ‘something that has happened’ is that SPPA and the claimant have communicated. The claimant proposes the notion that his trade union GMB should have meaningfully dealt with the claimant’s concerns in regard pension entitlements. Reference is made to Appendix 05. why the evidence was not available before[33]The claimant respectfully advises Employment Judge McPherson that the evidence was not available ‘before’ due to, among other things, timeline of events and Judicial process overlap.34. 4122886/2018 submitted at Wednesday 14/11/2018 13:18 with ET1 paper apart sent to ET Glasgow at 14/11/2018 13:18.35. ‘Ochieng’ submission made at Wed 14/11/2018 15:00 in Word document Gourlay v GMB 4109518-2018 - EJ McPherson 07 November 2018 order re comments - submitted Wednesday 14 November 2018. a full statement of the evidence which you want to introduce.[36]The claimant respectfully advises Employment Judge McPherson that he would refer to, as evidence to introduce, the 4122886/2018 ET1 paper apart and e.g. Appendix 05 herein whereby the claimant’s pension issues have been ongoing.[37]That is: a GMB member with Multiple Sclerosis has been contacting his trade union GMB for support in a pension issue – all the while the chair of the LGPS Strathclyde Pension Fund being a GMB member.[38]Noting that pension arrangements are for Brian Gourlay i.e. a GMB member / ex WDC employee suffering Multiple Sclerosis whereby WDC did NOT advise the claimant of his LGPS entitlement in regard, among other things, provision of advice on how to appeal; whom to appeal to; timescales in which to submit an appeal etc. In essence: GMB have left a member suffering, among other things, Multiple Sclerosis to get on with matters himself. And, all the while, GMB have stepped back from the matter and allowed, by their inactions / omissions, the state of affairs to persist.[39]Further: all the while the cease & desist letter did impose conditions on the claimant, with Multiple Sclerosis, whereby the claimant was, in essence, denied his membership entitlements under GMB Rules and threatened with e.g. Police if he continued to contact GMB.[40]The claimant respectfully submits this paper as an application for permission to amend the 4122886/2018 ET1 paper apart. This is with a view to anticipating that GMB shall submit res judicata and go for strike-out once again.[41]Thus, at Thursday, 03 January 2019 the claimant pre-empts that GMB action and requests permission to make application to amend ET1 in 4122886/2018. If permitted the claimant shall amend 4122886/2018 and remove all other aspects but, the claimant believes, that may make the 4122886/2018 victimisation aspects difficult to prove.[42]Judgment at paragraph 164 states, among other things, “the terms of that letter from Thompsons explain why they have taken that action on behalf of their clients at the GMB.”[43]The claimant respectfully advises Employment Judge McPherson that the cease & desist letter does contain ‘factual inaccuracies.[44]By striking out the claim the claimant has been denied the opportunity to test the content of the ‘cease & desist’ letter.[45]At 15 January 2016 Gary Smith GMB Scotland Secretary advised the claimant, among other things, at page 1 paragraph 2, -[46]In relation to your complaint about the advice that Digby Brown gave GMB Scotland about the prospects your case had of succeeding and whether you should have been offered legal assistance to pursue a claim in the Employment Tribunal Thompsons solicitors have reviewed this advice. They agree with Digby Brown’s assessment of your potential claims, i.e. that they didn’t have reasonable prospects of success which we deem to be more than 50% chance of success. They deem the advice Digby Brown gave GMB about your case, including the advice communicated to you by letter dated 05 March 2014 [from Mr Hemsi 08/03/14 at 14.30 (by post)], to be competent advice. To be clear this covers the advice that GMB received about your potential claims up to March 2015. This doesn’t prevent a further assessment being made about any potential claims you may have that have arisen since then, for example if your appeal against your dismissal is not successful. ‘up to March 2015’ states Gary Smith[47]It is respectfully proposed that the 15 January 2016 Gary Smith GMB Scotland Secretary letter to the claimant provides demonstrable evidence that the 01/02/18 cease & desist letter contains false and misleading information.[48]Gary Smith at 15 January 2016 states, among other things, “To be clear this covers the advice that GMB received about your potential claims up to March 2015”.[49]The claimant proposes the notion that GMB have NOT professionally assessed e.g. at 15 January 2016 the 12 April 2015 claim 4106122/2015. That is: 4106122 HAS NOT BEEN assessed by a competent employment lawyer and/or someone competent in EqA Act.[50]That is, contrary to the Gary Smith 15 January 2016 letter to the claimant and the associated application to amend 122 titled, ‘Gourlay v WDC 4106122-2015 - 'application to amend ET1' - submitted Monday, 21 December 2015’ the 01/02/18 – the cease & desist letter is wholly factually inaccurate.[51]Cease & desist at paragraph 2, “Your requests for legal assistance were considered in line with the GMB's usual process; these requests were declined because the GMB were advised that your claims had no reasonable prospect of succeeding.[52]Furthermore: the claimant proposes the notion to Employment Judge McPherson that GMB have NOT professionally assessed i.e. by a competent employment lawyer and/or someone competent in EqA Act, what became the claimant’s 137 claim, submitted 20 January 2016, in regard dismissal.[53]Examples of e.g. factual inaccuracies and embellishments in the cease & desist letter are numerous.[54]By striking out the claim the claimant respectfully proposes he has been denied testing these matters at a full hearing. The claimant has been denied providing further and better particularisation.[55]At Thu 05/11/2015 at 12:52 the claimant sent a text to Mick Conroy GMB FTO - Mick, I have been given a letter from ET today for which I need to know what's happening re Appeal and whether GMB are providing legal support or not regard my dismissal. Excerpt: the tribunal has asked "whether to bring an entirely new claim before the Tribunal, after EC notification to Acas, or to seek leave to amend this existing claim". I must have legal advice before responding to EJ McPherson. Can you or someone at GMB please contact me? Thanks. Brian.[56]Despite numerous phone calls and emails days and weeks passed.[57]At Thu 19/11/2015 at 08:04 the claimant sent a text to Mick Conroy GMB FTO - Previously sent 05 November 2015: --- Mick, I have been given a letter from ET today for which I need to know what's happening re Appeal and whether GMB are providing legal support or not regard my dismissal. Excerpt: the tribunal has asked "whether to bring an entirely new claim before the Tribunal, after EC notification to Acas, or to seek leave to amend this existing claim". I must have legal advice before responding to EJ McPherson. Can you or someone at GMB please contact me? Thanks. Brian.[58]At Thu 19/11/2015 at 09:53 Mick Conroy text the claimant with - Hi will phone you in the afternoon in a meeting just now and let you know what to do sorry for not getting back to you Mick[59]Suffice it to note the claimant heard nothing further. There was no phone call from Mick Conroy or anyone else at GMB.[60]At Mon 21/12/2015 23:37 the claimant submitted, to ET Glasgow fao Employment Judge McPherson Word document titled, ‘Gourlay v WDC 4106122-2015 - 'application to amend ET1' - submitted Monday, 21 December 2015 a.’[61]That is: GMB without advising the claimant of their intentions either to provide advice or otherwise left the claimant in a state of anxiety and trepidation etc i.e. to get on with things himself.[62]Suffice it to note the claimant having heard nothing further the claimant submitted Gourlay v WDC 4100137/2016 at 20 January 2016.[63]That is: contrary to the 01/02/2018 cease & desist letter This doesn’t prevent a further assessment being made about any potential claims you may have that have arisen since then, for example if your appeal against your dismissal is not successful.[64]In essence: the claimant was NOT engaged with in regard ‘potential claims’ that subsequently had arisen with appeal against dismissal being not successful. And GMB despite requests did not obtain the minutes for the claimant from his 6 days at Appeal against dismissal without notice i.e. not until Mr Ettles provided those minutes to Ms Dalziel at 26 October 2018 12:54. That is: over 2 years later the claimant did receive minutes consisting of circa 125 pages – but not from GMB. makes the judgment or decision unjust[65]The claimant respectfully proposes that striking out a claim for victimisation which does have to rely on previous matters i.e. to prove victimisation makes a judgment or decision unjust. Less is more[66]The claimant respectfully advises that he had purposively endeavoured to adhere to the ‘less is more’ concept in his original ET1 paper apart for 4109518/2018. The claimant did believe that aspects for ‘six honest serving men’ had been fulfilled in regard the 01/02/2018 cease & desist letter in 4109518/2018 ET1 paper apart.[67]The claimant’s concerns with GMB have been in regard their acts and omissions.[68]The claimant would have expected to have been required to provide demonstrable evidence to prove acts and omissions (inactions) of GMB. 27. I have not reproduced all of his written submissions because(a) the full copy is held on the casefile, and I have read it, and I had access to it when preparing this Judgment and Reasons, and(b) it is disproportionate to do so regarding items, at appendices 1, 2 and 5, which are not material for my judicial determination of his application for reconsideration of my earlier Strike Out Judgment issued on 21 December 2018. Respondents’ Objections 28. The respondents’ objections to the claimant’s application were intimated by Mr Deans, on 21 January 2019. Again, rather than try and sub-edit his work, and provide my own executive summary, it is appropriate, at this stage, to note the full terms of his submission which, verbatim, reads as follows: “We write in relation to the above noted case and in response to the Tribunals’ correspondence dated 9 January 2019, to provide the Respondent’s response to the Claimant’s application for reconsideration of the judgment dated 21 December 2018. Response to application to reconsider The Tribunal will be aware that it will only reconsider a judgment where it is necessary in the interests of justice to do so. In the present case, the Claimant has not given grounds upon which the Tribunal can reasonably conclude that something has gone wrong at or in connection with the hearing, nor that something relevant and significant has occurred since the hearing which makes the judgment unjust. Consequently, it is not in the interests of justice to reconsider the judgment. Although the Respondent is of the view that much of what the Claimant has set out in his application for reconsideration does not support his application for reconsideration and/or is not relevant to the present matter, to assist the Tribunal in its deliberations, the Respondent has sought to comment on and respond to the Claimant’s averments in detail. For the reasons set out below, it is not in the interests of justice to grant the reconsideration: Appendix 1 & 2 The Respondent does not propose to comment on paragraphs 1 – 15 of the Claimant’s application for reconsideration which concerns itself with an apology and an application for extension of time. Appendix 3 At paragraph 16 - 19, the Claimant suggests that the original decision should be reconsidered since having claims struck out restricts him from raising a victimisation claim. Strike out of this claim does not prevent such a claim being raised. This is demonstrated by the fact that the Claimant already has a claim for victimisation lodged against the Respondent (4122886/2018). At paragraph 20, the Claimant refers to alleged acts/omissions by the Respondent. These have been litigated on two occasions, 414108638/2015 and 4109518. It is res judicata and or an abuse of process to seek to re-litigate these matters. In any event, the Claimant does not set out what the alleged acts or omissions were, nor why these are relevant or should be considered in his present application. At paragraph 21-22, the Claimant refers to the acts of law firm Digby Brown. It is submitted that their acts or omissions, which appeared to occur in 2014, have no relevance or bearing on the present matter. Neither is Digby Brown the Respondent or an agent for the Respondent. At paragraphs 23-27, the Claimant refers to a cease and desist letter he received from Thompsons solicitors. Firstly, the Respondent does not accept that there were factual inaccuracies in that letter, and secondly, in any event, the reasons for sending the letter were clearly set out in the letter. In the present judgment, the Tribunal made a very clear finding that the Claimant had no reasonable prospect of convincing a Tribunal that the issue of that letter was an act of discrimination by the Respondent. Consequently, the Claimant has given no basis on which the Tribunal’s conclusion on this matter should be revisited, nor why it is relevant to the present application for reconsideration. Appendix 4 At paragraphs 28-31 the claimant submits that “something has happened” since the hearing which makes the judgment or decision unjust, and that this “something” is his lodging of a further claim against the Respondent. The fact that the Claimant has chosen to instigate further litigation against the Respondent does not in any way impact on the correctness of the Judgment in the present matter. At paragraph 32 he states that he has communicated with the Scottish Public Pensions Agency and at paragraph 36 he refers to recent (January 2019) communications with SSPA. The fact that the Claimant has recently communicated with his pension provider (who is not the Respondent), has no relevance to, or impact on the present judgment. Neither does the Claimant explain why he believes this to be pertinent to his application for reconsideration. At paragraph 38-39, the Claimant refers to inactions of his previous employer (WDC) and alleged inactions of the Respondent. For the avoidance of doubt, it is denied that any action or inaction of the Respondent was in any way because of or connected to the Claimant’s disability. In any event, none of this is relevant to the determination of the present judgment. Neither does the Claimant explain why he believes this to be pertinent to his application for reconsideration. At paragraph 40, the Claimant makes an application to amend his claim 4122886/2018. The Respondent will address this application as part of its Agenda in the 4122886/2018 case, as directed by the Tribunal. With regard paragraphs 42-44, 47 in relation to the cease and desist letter, the Respondent reiterates its position as set out above. With regard paragraph 45-46 and 48-52, the Claimant appears to complain about legal advice dating back to 2016. It is submitted that any claim arising from such advice is significantly time barred, and that any acts or omissions by the Respondent were in no way because of or connected to the Claimant’s disability. None of this is relevant to the determination of the present judgment and the Claimant has failed to explain why he believes this to be pertinent to his application for reconsideration. At paragraph 55-59, the Claimant appears to complain about the acts or omissions of GMB during late 2015. Any claim arising from such act or omissions is significantly time barred, and any acts or omissions of the Respondent are in no way because of or connected to the Claimant’s disability. In so far as the Claimant seeks to re-litigate matters already litigated, this is res judicata and / or an abuse of process. Moreover, none of this is relevant to the determination of the present judgment and the Claimant has failed to explain why he believes this to be pertinent to his application for reconsideration. At paragraph 60 - 62, the Claimant refers to case 4106122/2015 and 4100137/2016 which appears to have been lodged against his former employer, WDC. It is denied that the Respondent is liable for any act or omission of WDC. In so far as any act or omission alleged against the Respondent, the Respondent denies that these were in any way because of or connected to the Claimant’s disability. Any claim arising from the alleged act/omission is time barred and it is not relevant and has no bearing on the present matter. At paragraph 64 the Claimant alleges that the Respondent failed to obtain minutes from an appeal against dismissal meeting. For the avoidance of doubt, any alleged act or omission of the Respondent (if it did occur), was in no way because of or connected to the Claimant’s disability. Any claim arising from the alleged act/omission is time barred and it is not relevant to and has no bearing on the matters to be considered by the Tribunal with regard the application for reconsideration. Neither has the Claimant explained why he believes this to be pertinent to his application for reconsideration With regard paragraphs 66-68, the Respondent believes that its position has been made clear and does not propose to comment further on this.” Issue for determination by the Tribunal 29. The only live issue for determination at this in chambers Reconsideration Hearing was the claimant’s application for reconsideration of my Strike Out Judgment issued on 21 December 2018, and the respondents’ objections to that application. Relevant Law: Reconsideration 30. Neither the claimant, nor Mr Deans, addressed me on the relevant law on reconsideration in their respective written submissions. For the claimant, as an unrepresented party litigant, other than his reference to the guidance in “The Judgment” booklet, that was perhaps not to be expected, albeit in many other Hearings before me over the last few years, he has provided case law authorities, and written submissions addressing relevant statutory provisions too. 31. What was more surprising is that Mr Deans’ submissions for the respondents did not address the relevant law, other than, in the most superficial terms, referring to a reconsideration needing to be in the interests of justice, and so I have had to give myself a self-direction in that regard. 32. The reconsideration application requires to be dealt with as per Rules 70 to 73 of the Employment Tribunals Rules of Procedure 2013. As this was an application by the claimant, Rule 73, relating to reconsiderations by the Tribunal on its own initiative, does not fall to be considered further. Further, as always, there is the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly. 33. The previous Employment Tribunal Rules 2004 provided a number of grounds on which a judgment could be reviewed (now called a reconsideration). The only ground in the current 2013 Rules is that the judgment can be reconsidered where it is necessary “in the interests of justice” to do so. That means justice to both sides. 34. However, it was confirmed by HHJ Eady QC in Outasight VB Limited v Brown [2014] UKEAT/0253/14/LA, now reported at [2015] ICR D11, that the guidance given by the Employment Appeal Tribunal in respect the previous Rules is still relevant guidance in respect of the 2013 Rules and, therefore, I have considered the case law arising out of the 2004 Rules. 35. The approach to be taken to applications for reconsideration was also set out more recently in the case of Liddington v 2Gether NHS Foundation Trust [2016] UKEAT/0002/16/DA in the judgment of Mrs Justice Simler, then President of the EAT. The Employment Tribunal is required to: “1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 3. give reasons for concluding that there is nothing in the grounds advanced by the (applicant) that could lead him to vary or revoke his decision. “ 36. In paragraph 34 and 35 of the Judgment, the learned EAT President, Mrs Justice Simler, stated as follows: 34. In his Reconsideration Judgment the Judge identified the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage. In this case, the Judge addressed each ground in turn. He considered whether was anything in each of the particular grounds relied on that might lead him to vary or revoke his decision. For the reasons he gave, he concluded that there was nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision, and accordingly he refused the application at the preliminary stage. As he made clear, a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. 35. Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly. 37. There is a public policy principle that there must be finality in litigation and reviews or reconsiderations are a limited exception to that principle. In the case of Stephenson v Golden Wonder Limited [1977] IRLR 474 it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord Macdonald, the Scottish EAT Judge, said that the review provisions were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence produced which was available before”. 38. The Employment Appeal Tribunal went on to say in the case of Fforde v Black EAT68/80 that this ground does not mean “that in every case where a litigant is unsuccessful is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.” 39. “In the interests of justice” means the interests of justice to both sides. The Employment Appeal Tribunal provided further guidance in Reading v EMI Leisure Limited EAT262/81 where it was stated “when you boil down what it said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.” 40. The 2013 Rules came into force on 29 July 2013 and introduced the new concept of reconsideration of judgments rather than a review of judgments as it was entitled under the previous 2004 Rules of Procedure. In the 2004 Rules there were five grounds on which a review could be sought and the last of the five was the single ground that now exists for a reconsideration under the 2013 Rules namely that the interest of justice render it necessary to reconsider. 41. I consider that any guidance on the meaning of “the interests of justice” issued under the 2004 Rules (and the earlier Rules) is still relevant to reconsiderations under the 2013 Rules. I also remind myself that the phrase “in the interests of justice” means the interests of justice to both sides. 42. Further, I have also reminded myself of the guidance to Tribunals in Newcastle upon Tyne City Council – v- Marsden [2010] ICR 743 and in particular the words of Mr Justice Underhill when commenting on the introduction of the overriding objective (now found in Rule 2 of the 2013 Rules) and the necessity to review previous decisions and on the subject of a review: “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd. [2008] ICR 841, at para. 19 of his judgment (p. 849), it is “basic” “… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal”). 43. Further, I have considered the further guidance on the 2013 Rules from HH Judge Eady QC in her judgment in Outasight VB Limited –v- Brown [2014] UKEAT/0253/14. I have considered that guidance and in particular have noted what is said about the grounds for a reconsideration under the 2013 Rules: “In my judgment, the 2013 Rules removed the unnecessary (arguably redundant) specific grounds that had been expressly listed in the earlier Rules. Any consideration of an application under one of the specified grounds would have taken the interests of justice into account. The specified grounds can be seen as having provided examples of circumstances in which the interests of justice might allow a review. The previous listing of such examples in the old Rules - and their absence from new - does not provide any reason for treating the application in this case differently simply because it fell to be considered under the “interests of justice” provision of the 2013 Rules. Even if it did not meet the requirements laid down in Rule 34(3)(d) of the 2004 Rules, the ET could have considered whether it should be allowed as in the interests of justice under Rule 34(3)(e). There is no reason why it should then have adopted a more restrictive approach than it was bound to apply under the 2013 Rules”. 44. In considering this reconsideration application, I have taken into account the helpful judicial guidance provided by Her Honour Judge Eady QC, EAT Judge, in her judgment delivered on 19 February 2018, in Scranage v Rochdale Metropolitan Borough Council [2018] UKEAT/0032/17, at paragraph 22, when considering the relevant legal principles, where she stated as follows (underlining is my emphasis): - “The test for reconsideration under the ET Rules is thus straightforwardly whether such reconsideration is in the interests of justice (see Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported). The "interests of justice" allow for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” 45. Outasight VB Ltd v Brown is, of course, an earlier EAT authority [2014] UKEAT/0253/14, now reported at [2015] ICR D11, also by HHJ Eady QC, where at paragraphs 27 to 38, the learned EAT Judge reviewed the legal principles. The EAT President, then Mr Justice Langstaff, in Dundee City Council v Malcolm [2016] UKEATS/0019-21/15, at paragraph 20, states that the current Rules effected no change of substance to the previous Rules, and that they do not permit a claimant to have a second bite of the cherry, and the broader interests of justice, in particular an interest in the finality of litigation, remained just as important after the change as it had been before. 46. Further, I have also taken into account the Court of Appeal’s judgment, in Ministry of Justice v Burton & Another [2016] EWCA Civ.714, also reported at [2016] ICR 1128, where Lord Justice Elias, at paragraph 25, refers, without demur, to the principles “recently affirmed by HH Judge Eady in the EAT in Outasight VB Ltd v Brown UKEAT/0253/14.” 47. Further, at paragraph 21 in Burton, Lord Justice Elias had stated that: “An employment tribunal has a power to review a decision "where it is necessary in the interests of justice": see Rule 70 of the Tribunal Rules. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Newcastle on Tyne City Council v Marsden [2010] ICR 743, para. 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily…” Discussion and Deliberation: Reconsideration 48. I have now carefully considered both parties’ written submissions, and also my own obligations under Rule 2 of the Employment Tribunal Rules of Procedure 2013, being the Tribunal’s overriding objective to deal with the case fairly and justly. 49. I consider that both parties have been given a reasonable opportunity, in advance of this Reconsideration Hearing in chambers, to make their own written representations seeking, and opposing, as the case may be, the claimant’s application for reconsideration of my earlier Strike Out Judgment issued on 21 December 2018. 50. There is no dispute that my earlier Strike Out Judgment issued on 21 December 2018 is a Judgment as defined in Rule 1(3) (b) of the Employment Tribunals Rules of Procedure 2013. It finally disposed of the claimant’s claim against the respondents, by striking out the whole claim. 51. On the test of “in the interests of justice”, under Rule 70, which is what gives this Tribunal jurisdiction in this matter, there is now only one ground for “reconsideration”, being that reconsideration “is necessary in the interests of justice.” That phrase is not defined in the Employment Tribunals Rules of Procedure 2013, but it is generally accepted that it encompasses the five separate grounds upon which a Tribunal could “review” a Judgment under the former 2004 Rules. 52. While there are many similarities between the former and current Rules, there are some differences between the current Rules 70 to 73 and the former Rules 33 to 36. Reconsideration of a Judgment is one of the two possible ways that a party can challenge an Employment Tribunal’s Judgment. The other way, of course, is by appeal to the Employment Appeal Tribunal. 53. Rule 70 confers a general power on the Employment Tribunal, and it stands in contrast to the appellate jurisdiction of the Employment Appeal Tribunal (“EAT”). In most cases, a reconsideration will deal with matters more quickly and at less expense than an appeal to the EAT. 54. After most careful consideration of the competing arguments, taking into account the relevant law, as ascertained in the legal authorities referred to above, in my self-direction, I am satisfied that this is one of those cases where, on reconsideration, it is appropriate to confirm my earlier decision to Strike Out the whole of the claim without the case proceeding to be determined on its merits at a Final Hearing. 55. I do so because despite the claimant’s renewed submissions that I should not have granted that Strike Out, but allowed the case to go forward to a Final Hearing, I am satisfied that the legal arguments submitted by Mr Deans, solicitor for the respondents, are well-founded, and must prevail over the claimant’s contrary submissions to me. 56. In his submissions for the respondents, Mr Deans succinctly stated that: “In the present case, the Claimant has not given grounds upon which the Tribunal can reasonably conclude that something has gone wrong at or in connection with the hearing, nor that something relevant and significant has occurred since the hearing which makes the judgment unjust. Consequently, it is not in the interests of justice to reconsider the judgment.” 57. I agree with Mr Deans’ submission. There is nothing in the claimant’s submissions to me that establishes that something has gone wrong at or in connection with the original Strike Out Preliminary Hearing, nor that something has happened since the Strike Out Hearing in this case which makes my Strike Out Judgment unjust. 58. Further, it seems to me to be in the interests of justice, and consistent with Tribunal’s overriding objective, that this case, struck out by my previous Judgment, should remain struck out, and that is why I have decided to refuse the claimant’s application and confirm my previous decision to strike out the whole claim, without variation. 59. Strike Out of claim No.2 does not prevent the claimant from raising a victimisation claim against the respondents, as indeed he has done in claim No.3, case no. 4122886/2018, lodged on 14 November 2018, where the respondents’ opposed application to Strike Out that new claim, which failing a Deposit Order, is the subject of an in chambers Preliminary Hearing scheduled for 9 April 2019. Further Procedure 60. Given my decision to confirm strike out the whole of this claim, there is no further procedure to be determined by the Tribunal, other than the matter of the respondents’ opposed application for expenses against the claimant. I have dealt with that earlier in these Reasons, and in paragraph (2) of my Judgment above, so I need say nothing further here.[1]This skeleton argument is prepared on behalf of the Respondent for the purpose of the Preliminary Hearing listed on 7 November 2018.[2]Annexed hereto, as Ordered by the Employment Tribunal, is a list of authorities. Where it appears no or no reliable web address or link to a case is available, a copy of the judgment has been provided to assist the Claimant.[3]The Claimant has made an application to amend his claim and an application to strike out the Respondent’s response. Those issues are not part of the remit of the presently listed PH. Accordingly, this skeleton argument shall deal only with those matters which are the subject of the PH: namely, the application for strike out of the Claimant’s claim; alternatively, that a deposit order is made against the Claimant.[4]Further oral submissions are reserved for the hearing, as necessary. Issues for the PH[5]The issues for determination at the PH are those identified within correspondence from the Employment Tribunal dated 18 September 2018 and the PH Note of EJ McPherson following a preliminary hearing held on 5 September 2018.[6]In short, the issues for determination are:a. The Respondent’s application to strike out the Claimant’s claim under rule 37 of the Employment Tribunal Rules of Procedure (“the 2013 Rules”) on the basis that: i. There is no prima facie case, on the basis of the claim as pled, of discrimination made out and the claim has no reasonable prospects of success; ii. It is scandalous and vexatious; iii. Res judicata; and/or iv. The claim is time barred.b. Alternatively, the Respondent’s application for a deposit order against the Claimant pursuant to rule 39 of the 2013 Rules on the basis that the claim has little reasonable prospects of success.
Background
[7]The following is a short summary of the background to this matter. It is not intended to rehearse the entire background to the matter.[8]The claim presently before the Employment Tribunal (case number 4109518/2018) was presented by the Claimant to the Employment Tribunal on 24 June 2018.[9]ACAS Early Conciliation was commenced on 26 April 2018 and ended on 26 May 2018.[10]The present claim is made pursuant to sections 15, 26 and 27 of the Equality Act 2010 (“the 2010 Act”) and sections 57 and 109 of the 2010 Act. The Claimant presented a Paper Apart to the claim spanning 5 pages, to which the Tribunal is referred.[11]In short, the Claimant refers to claims he made against his previous employer, West Dunbartonshire Council, and the Claimant references historic allegations that the Respondent, as his Union, failed to provide him support and assistance. The Claimant also refers to involvement he had with Thompsons Solicitors and Mr David Martyn of the same, including a “cease and desist” letter (dated 1 February 2018) that was sent to the Claimant.[12]At paragraph 29 of the Paper Apart, under the heading “This Claim,” the Claimant asserts that: “Among other things, of which there is demonstrable evidence, of GMB not engaging with the claimant, of misleading the claimant, of providing false and misleading information to and about the claimant to others, of not permitting the claimant access to competent legal advice e.g. when matters of a Costs Warning letter was issue and then the Costs Application was made etc an issue that on 1 February 2018 Mr David Martyn Thompsons Solicitors sent Brian Gourlay a cease and desist letter i.e. sent on behalf of GMB.”[13]The Respondent hereby refers to the terms of the cease and desist letter dated 1 February 2018 in full for its content.[14]At paragraph 30 of the Paper Apart, the Claimant purports to outline claims pursuant to section 15, 26 and 27 of the 2010 Act. Further submissions shall be made as to the same below.[15]The claim is defended by the Respondent. An ET3 Response was duly presented by the Respondent. The Tribunal is referred to the same in full for its content.[16]Thereafter, the claim has been case managed, including by way of a preliminary hearing (where Orders setting down the present hearing were made) on 5 September 2018.[17]As the Tribunal is aware, this is not the first claim which the Claimant has brought against the Respondent. The Claimant previously brought a claim with case number S/4108638/2015 against the Respondent. This previous claim was presented to the Tribunal on 25 June 2015. The basis of the claim was that the Claimant considered that he had been discriminated against contrary to section 15 of 2010 Act and pursuant to section 57 of the 2010 Act.[18]In relation to the previous claim, a hearing took place on 26 February 2016 to consider an application for strike out, alternatively, a deposit order.[19]By Order of EJ McPherson, the previous claim was struck out on the basis that the claim had no reasonable prospects of success. Alternatively, albeit the Tribunal did not consider it necessary to make a deposit order, the Tribunal found that it would have done so and in the sum of £1,000.[20]The Tribunal is referred to the Judgment of the Tribunal in full for this previous claim.[21]It is also of note, as is apparent from the Claimant’s own pleadings, that the Claimant has brought claims against his previous employer. Submissions
Summary
[22]As above, the Respondent asserts that the claim ought to be struck out (pursuant to Rule 37 of the 2013 Rules) on one more of the following bases: i. There is no prima facie case, on the basis of the claim as pled, of discrimination made out and the claim has no reasonable prospects of success; ii. It is scandalous and vexatious; iii. Res judicata; and/or iv. The claim is time barred.[23]Alternatively, the Claimant ought to be required to pay a deposit order in the sum of £1,000 (pursuant to rule 39 of the 2013 Rules) as a condition of his being able to pursue the claim on the basis that the claim has little reasonable prospects of success.[24]The Respondent invites the Tribunal to strike out the claim (alternatively, a deposit order is made against the Claimant) on one or more of the below-mentioned bases, whether taken individually or cumulatively. Relevant law: strike out, deposit orders and 2010 Act The 2013 Rules[25]Rule 37 of the 2013 Rules states that: “At any stage of proceedings, either on its own initiative of 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 prospects of success…”[26]The term “no reasonable prospects of success” imposes a lower standard than the previously used terms under previous rules of “frivolous.” So, a claim which is frivolous will have no reasonable prospects of success, but a claim which has no reasonable prospects of success may not be frivolous.[27]The Tribunal ought to exercise its power to strike out on this ground in rare circumstances (see Tayside Public Transport Co td (t/a Travel Dundee) v Reilly [2012] IRLR 755). Moreover, cases ought not, as a general principle, be struck out on this ground when the central facts are in dispute (see North Glamorgan NHS Trust v Ezsias [2007] IRLR 603; and the Tayside case (ibid) and further considerations apply in discrimination claims, but the same can be struck out in the very clearest of circumstances (see Anyanwu v South Bank Students’ Union [2001] IRLR 305).[28]In Chandhok v Tirkey [2015] IRLR 195, Langstaff J indicated that strike out of discrimination claims would be rare, but may occur, for example, where there is a time bar to jurisdiction, where there is no more than merely an assertion of a difference of treatment and a difference of a protected characteristic, or where claims have been brought so repetitively concerning the same essential circumstances that the same would be an abuse.[29]However, Tribunals ought not to be deterred from striking out claims on the basis of no reasonable prospects of success, even where a dispute of fact is involved: “…if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in the discrimination context” (see Ahir v British Airways plc [2017] EWCA Civ 1392 at paragraph 16, per Underhill J).[30]Further, at paragraph 24, his Lordship continued: “…[I]n a case of this kind, where there is on the face of it a straightforward and well documented explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.”[31]In deciding whether the Claimant’s claim has a reasonable prospect of success, the Tribunal ought to take the Claimant’s case at its highest as set out in the claim form, unless contradicted by plainly inconsistent documents (see Uzegheson v London Borough of Haringey UKEAT/0312/14 at paragraph 21, per Langstaff J).[32]Rule 39 of the 2013 Rules states that: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospects of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. …”[33]When a Tribunal is considering a deposit order, it is not restricted to a consideration of the legal issues. The Tribunal is entitled to have regard to the likelihood of the party being able to establish the facts essential to the case and to reach a provisional view about the credibility of the assertions being put forward (see Van Rensburg v Royal Borough of Kingston upon Thames UKEAT/0095/07).[34]Rule 2 of the 2013 Rules sets out the overriding objective. The 2010 Act[35]Section 15 of the 2010 Act sets out the definition of discrimination arising in consequence of disability. The section requires that the Claimant has been treated unfavourably, because of something arising in consequence of disability and the Respondent cannot show that the treatment of the Claimant is a proportionate means of achieving a legitimate aim.[36]Basildon and Thurrock NHS Foundation Trust v Weerasingh UKEAT/0397/14 (19 May 2015, unreported) confirms that causation in a section 15 of the 2010 Act claim is a two stage test: identify the something and that the something arises in consequence of the Claimant’s disability.[37]Further, the Respondent refers to Kelso v Department for Work and Pensions UKEATS/0009/15/SM in which Judge Stacey QC stated that: “In my opinion the case pled by the claimant under s 15 , which includes the admission made at the hearing, has no reasonable prospects of success. I agree with the EJ that the disability which the claimant claims to suffer is part of the background of the case. It is not on these pleadings possible to construe the unfavourable act of dismissal as “treatment [which] is because of something arising in consequence of the disabled person’s disability. It is necessary to construe the section by considering the words used in it. Thus there must be treatment, in this case dismissal; then there must be something arising from disability, in this case the claim for benefits. Final and vitally the treatment must be “because” of the “something.” The claimant has agreed in her pleadings that she was dismissed because her employer thought she had been dishonest. That dishonesty us not something arising from disability.”[38]Further, in Pnaiser v NHS England [2016] IRLR 170, the EAT provided guidance on the application of section 15 of the 2010 Act. The EAT confirmed that the “something” that causes the unfavourable treatment must have at least a significant (or more than trivial) influence on the unfavourable treatment and so amount to an effective reason for or cause of it. The Tribunal must determine whether the reason / cause is “something arising in consequence of B’s disability.”[39]Section 26 of the 2010 Act sets out the definition of harassment. In order for any such claim to succeed, there requires to be unwanted conduct, which is related to the protected characteristics (in this case, disability) and which has the necessary purpose or effect as described and on the basis as set out within section 26 of the 2010 Act.[40]Section 27 of the 2010 Act sets out the definition of victimisation. In order for any such claim to succeed, there requires to be a detriment suffered, which was because of a protected act or the Respondent’s belief that the claimant had done or may do a protected act.[41]Section 57 of the 2010 Act sets out the basis upon which trade organisations can be liable under the 2010 Act. No prima facie case[42]The Tribunal ought to consider the claim on the basis of the Claimant as presently pleaded.[43]The Claimant has made an application to amend dated 12 September 2018. The Respondent objects to the amendment application and has set out its objections within its email to the Tribunal dated 18 September 2018.[44]Within the same email, the Respondent outlines its assertion that the strike out and deposit applications ought to be dealt with before any application to amend is determined by Tribunal. The Tribunal is hereby referred to those objections in full and reiterates that the strike out and deposit order application ought to be determined first as, among other reasons set out therein, if there is no claim in existence, there is nothing to amend.[45]Moreover, this approach would be in-keeping with the approach adopted by the Tribunal on the previous case against the Respondent where a similar matter arose and the application to strike out and for deposit order were considered prior to any application to amend.[46]Any and all further submissions on the issue of the Claimant’s application to amend are reserved in full.[47]Accordingly, the Tribunal must consider the strike out and deposit order application on the basis of the claim as pled, which consists of the ET1 and Paper Apart.[48]The Respondent asserts that, on any interpretation, the claim does not disclose a prima facie case of discrimination against the Respondent and has no reasonable prospects of success. The same ought to be struck out as a result.[49]The Respondent avers the following in support:a. The ET1 and Paper Apart are difficult to decipher and it is difficult to discern from them exactly what the acts or omissions of discrimination complained of are. Without such clarity, no reasonable Tribunal could conclude discrimination;b. Even taking the Claimant’s ET1 and Paper Apart at their highest, there is nothing with either the ET1 or the Paper Apart which could be said to support any of the bases for discrimination pleaded by the Claimant. There is no or no reasonable attempt by the Claimant to explain the link between his disability and the alleged acts or omissions complained of and/or that the Claimant was put to any disadvantage contrary to the 2010 Act. Put simply, the Claimant does not state or allege with any or any proper particularity the necessary causal links required for any of his discrimination claims;c. There are no facts pleaded which could in any way reasonably support a connection or link between any of the acts or omissions referred to and his disability. Put another way, the Claimant has pleaded no basis for a finding that any of the acts or omissions complained of were because of something arising in consequence of disability (section 15 of the 2010 Act), related to disability (section 26 of the 2010 Act) and/or because of a protected act or that the Respondent believed the Claimant had done or may do a protected act (section 27 of the 2010 Act). Accordingly, in the absence of such pleaded facts, no reasonable Tribunal could conclude that there were facts from which discrimination could be proven (section 136 of the 2010 Act). Without such facts, there is simply no basis for the claim in discrimination, whichever the legal basis pursued, to have reasonable prospects of success;d. The Respondent sets out facts within the Response, including at paragraphs 26 – 33 of the Response, explaining the basis and lead up to the Respondent instructing Thompsons Solicitors to send a cease and desist letter. The Claimant either does not, nor can he reasonably, challenge those assertions;e. Where there are no facts upon which the Claimant can rely (having not pleaded the same), the policy issues around striking out discrimination claims does not exist – there can be no dispute of fact requiring resolution at trial where there are no facts pleaded to support the claims in the first place. Moreover, this application can and should succeed without an extensive study of the documents or as to the credibility of witnesses;f. There is far from an obvious or plain connection between the alleged acts or omissions complained of and the Claimant’s disability and/or the alleged protected acts, whether temporally, factually or otherwise. The absence of any or any proper and reasonable connection being pleaded by the Claimant is revealing and fatal to the Claimant’s claims;g. The above state of the pleadings of the Claimant must also be seen in context. The Claimant is not a litigant in person without knowledge of how Employment Tribunal procedure works. The Claimant is an individual who has brought various Employment Tribunal claims, including against this Respondent. Moreover, importantly, the Claimant has already had his previous claim against the Respondent struck out on, among other bases, the basis that: “…the claimant fails to connect what he describes as a lack of support from the respondent with his disability or any thing connected to it” (see paragraph 131 of the Tribunal’s judgment striking out the previous claim). The Claimant is therefore well aware of the importance of a properly pleaded case and yet has failed again to connect what he describes as acts or omissions of discrimination with his disability or anything connected to it (or even the asserted protected acts);h. On the facts of this case, on any scenario or interpretation, there is no conceivable link at all which can or could be made between the Claimant’s disability and/or pleaded protected acts;i. Any action which was or was not taken by his previous employer – and in relation to which the Claimant alleges the Respondent ought to have provided him with assistance – are actions taken by his previous employer, not the Respondent. The decisions made by the Respondent are decisions made by a separate organisation to that of the Claimant’s previous employer. It is inconceivable that any actions of the previous employer (especially insofar as the same were the subject of an unsuccessful employment tribunal claim by the Claimant) can be used to create a causal connection between the Claimant’s disability and the acts or omissions now complained of against the Respondent;j. At its height, the Claimant makes mere assertions without any factual or other basis to support the same. The cease and desist letter properly and adequately explains the reasons for the cease and desist letter being provided – including the repeated complaints and correspondence by the Claimant to the Respondent (including turning up unannounced at the Respondent’s premises), over a substantial period of time and well after his employment with the Council came to an end. It is inconceivable that any Tribunal would consider that the same, on any basis, amounted to an act of discrimination or victimisation and/or the Claimant has and pleads no facts which could counter the legitimate and lawful reasons provided the Respondent for the provision of the cease and desist letter to the Claimant.[50]In the circumstances, the threshold for strike out is well surpassed. Applying the above-mentioned law, this is a case which the Tribunal can and should strike out at this stage of proceedings. Insofar as strike out of claims only occurs in an exceptional case, this is an exceptional case in which strike out is plainly a course open to the Tribunal and one which the Tribunal should take.[51]Moreover, it is within the overriding objective, dealing with cases justly and proportionately (including as to expenses and Tribunal time), that the claim is struck out at this stage and that the discretion to strike out the claim ought to be exercised. Time bar 28/51A As above, the important dates for time bar purposes are understood to be follows:a. ACAS Early Conciliation was commenced on 26 April 2018 (Day A);b. ACAS Early Conciliation ended on 26 May 2018 (Day B); andc. Claim presented by the Claimant to the Employment Tribunal on 24 June 2018.[52]The limitation period for bringing claims of discrimination pursuant to the 2010 Act is 3 months (see section 123 of the 2010 Act).[53]Providing the most favourable interpretation to the Claimant of the extension of time provisions, any and all acts pre-dating 27 January 2018 are out of time.[54]There can be no reasonable prospects of the Claimant proving that there is conduct extending over a period of time and/or a continuing discriminatory state of affairs.[55]The Claimant fails to explain why it would be just and equitable for him to receive an extension of time in relation to any such other acts. For the avoidance of doubt, the Respondent avers that it is not just and equitable to extend time.[56]Accordingly, any and all acts or omissions taking place prior to 27 January 2018 are out of time and the Tribunal has no jurisdiction to hear them. Res judicata / abuse of process[57]As above, the Claimant has previously brought a claim before the employment tribunal. The Claimant is seeking to relitigate the same.[58]The Claimant ought to be prevented from being able to continue with his claim on the basis that the Tribunal does not have jurisdiction to hear the claim, it amounts to an abuse of process, the Claimant is estopped from doing so and/or the principles of res judicata applies.[59]With respect to res judicata / estoppel, the Tribunal is referred to the EAT decision in Holmes v Greater Glasgow Health Board (UKEATS/0045/11/BI), which summarises the principles with respect to res judicata and the relevant legal principles. The present claim is based upon the same or materially similar facts, which formed the basis of the previously concluded and struck out claim against the Respondent. The claim is against the same Respondent by the same Claimant and was determined by the previous Tribunal of competent authority. The subject matter of the two claims is plainly the same in substantial and material respects and the Claimant is effectively seeking to re-litigate the same issue / one which could and should have reasonably been dealt with had it been considered a live issue by the Claimant.[60]Accordingly, the present claim is an abuse of process, is prevented by the principle of res judicata and is one which has no reasonable prospects of success and/or is vexatious and scandalous.[61]Further or alternatively, the Claimant ought to have brought any and all claims for failure to provide assistance and support at the same time (see Henderson v Henderson (1843) 3 Hare 100).[62]In all of the circumstances, there is no good reason for the claim not to be struck out and it is within the overriding for the claim to be struck out. Scandalous and vexatious[63]The Respondent repeats all of the above in support.[64]The Respondent asserts that the claim is one which is scandalous and/or vexatious in all of the circumstances.[65]Accordingly, the claim ought to be struck out on this basis. Deposit order[66]In the alternative to strike out, and in the event that the Tribunal does not strike out the claims, the Respondent asserts that the Claimant’s claims have little reasonable prospects of success. The Respondent repeats the above in support.[68]Moreover, the Respondent asserts that requiring the Claimant to pay a deposit order, where there are little reasonable prospects of success, is in accordance with the overriding objective. The Claimant ought to be required – before putting the Respondent and the Tribunal to the time and expense of defending this claim – to pay a deposit as a condition of pursuing his claim. Requiring the Claimant to pay a deposit would require the Claimant to show a degree of conviction the allegations he is pursuing.[69]Having seen the statement of means provided by the Claimant, the Respondent seeks the full deposit order of £1,000. It is submitted that this is both affordable and a reasonable sum to set by means of a deposit being required to be paid by the Claimant as a condition of being permitted to pursue his claim. In any event, the Respondent reserves further submissions on the Claimant’s ability to pay a deposit.
Conclusion
[70]The Tribunal is invited to strike out the Claimant’s claims.[71]Alternatively, the Tribunal is invited to make a deposit order against the Claimant.[72]Further oral submissions are reserved for the hearing. 48. I have reproduced counsel’s skeleton in full as it was drafted. In the course of the Preliminary Hearing, it was agreed that his reference, in paragraph 37, to “Judge Stacey QC”, who gave the EAT’s judgment in Kelso, should have stated “Lady Stacey”, the Court of Session judge, rather than HHJ Mary Stacey QC, and that the first paragraph, under “Time bar”, numbered “28”, should be renumbered as “51A”. 49. Mr Crammond spoke to the terms of his written skeleton between around 10.20am, and 11.20am, when his oral submissions concluded, subject to his right to reply to the claimant’s submissions, and any further submissions to be made in development of his skeleton on scandalous and vexatious proceedings, after he and the claimant had had the opportunity to consider the further case law authorities which I had identified, under reference to the IDS Handbook, as detailed above earlier in these Reasons. I allowed an adjournment for that purpose, so that, as per Rule 2, parties were on an equal footing to address me on these additional authorities which I had cited. 50. Contrary to the claimant’s assertions that the respondents had acted vexatiously, or unreasonably, towards the claimant, Mr Crammond also stated that his clients disputed that assertion, and in all the circumstances, he stated the present claim is “ripe for Strike Out.” He described the Strike Out threshold as “well surpassed”, and that this case is an “exceptional case”, where Strike Out is in accordance with the Tribunal’s overriding objective. 51. While he referred me to Henderson v Henderson, Mr Crammond recognised that that is an English authority, and so not binding upon me, but he nonetheless commended it to me as persuasive, and good guidance on what constitutes an “abuse of process”, and he further stated that it is “right and just, appropriate and proportionate”, for me to Strike Out the present claim on the basis of res judicata. Reply by the Claimant 52. Following an adjournment from around 11.30am, to allow the clerk to copy, and distribute the copied extracts from the IDS Handbook, and time for both parties to consider matters, it then being around 12.20pm, and Mr Crammond having concluded is oral submissions, before the adjournment, I invited the claimant to reply. 53. He did so, referring to his own written submissions, as emailed to the Tribunal that morning, at 05:22am, enclosing a 29-page typewritten document, and stating that, having had an opportunity during the adjournment to read the IDS extracts, he was ready to address the Tribunal in opposition to Mr Crammond’s submissions seeking Strike Out, which failing Deposit Order. 54. As recorded earlier in these Reasons, the claimant opened by confirming his statement of means and assets, and counsel for the respondents confirmed that he was happy that document was taken as read, and no oral evidence was required from the claimant. The claimant further confirmed that there had been no material change in his circumstances since that statement of means had been intimated to the Tribunal, and copied to the respondents’ solicitor, on 29 October 2018. 55. When it came to speaking to his written submissions, where the claimant told me that he would have written more, if he had had more time, I clarified to the claimant that he did not need to read it verbatim, but it would suffice for him to highlight the main points of his objections, and refer me to case law, where appropriate. I re-assured him, and Mr Crammond, that I would read both parties’ written submissions most carefully when writing up this Judgment and coming to my decision. 56. A copy of the claimant’s written submission is held on casefile, so I do not reproduce it here verbatim, but I note and record that I have taken all that he has written, and all that he has said in oral submissions, into account in coming to this my judicial determination of this opposed application. 57. That said, meantime, it will suffice to reproduce here the full terms of his Executive Summary, complete with footnotes, at pages 3 to 6 of his written submissions, but subject to a redaction that I have made, under Rule 50, at his paragraph 3a below, as follows: - EXECUTIVE SUMMARY 1. The parties are made up, in this instance, ofa. claimant Brian Gourlay a member of GMB trade union i. contrary to respondent’s skeleton at 49(g) which states “… The Claimant .. not a litigant in person without knowledge of how Employment Tribunal procedure works. … individual .. brought various ET claims, … “…fails to connect what he describes as a lack of support from the respondent with his disability or anything connected to it” (see para 131 of Tribunal’s judgment striking out the previous claim). The Claimant is therefore well aware of the importance of a properly pleaded case … has failed again to connect what he describes as acts or omissions of discrimination with his disability or anything connected to it (or even the asserted protected acts) ;” ii. the truth is the clamant is a party litigant whom has had to struggle continually to ingather information, to get to the truth, and whom has HAD TO LEARN of, among other things whilst disabled, ET proceedings i.e. whilst having to pay significantly for advice and assistance which he has been entitled to BUT denied. iii. The claimant is, in essence, a tired, weary and disabled party litigant whom has received no assistance of measurable value but rather has been side-lined, deceived, lied to and ‘sent to Coventry’ by his trade union. Why?b. All the while respondent GMB is a campaigning trade union focused on protecting GMB members in their workplaces … GMB has almost 639,000 members … 1 i. respondent’s legal representatives are Thompsons Personal Injury & Accident Solicitors Scotland - always act for the underdog - the accident victim or worker. 2 1 GMB, available at http://www.gmb.org.uk/about/about-gmb - is a campaigning trade union focused on protecting GMB members in their workplaces …• GMB has almost 639,000 members …• Every day of the year GMB offers protection at work and solves problems for GMB members. GMB provide back up, representation and advice on every issue related to members life at work. Backing up the reps are full time GMB Organisers. GMB employ a team of experts on a range of issues including legal specialists, health and safety experts, pension specialists, human resource management staff and experts on terms and conditions. In fact, if you need advice and support about anything to do with work GMB can help you. GMB's fundamental approach is that together we can achieve more than we can do on our own. 2 Thompsons Solicitors and Solicitor Advocates available at https://www.thompsons-scotland.co.uk/accident-lawyers accessed Tuesday, 06 November 2018 - is an award-winning firm of solicitors and accident lawyers with a passion for justice. 2. At all material times the claimant has been a fully paid up GMB member. 3. At all material times the claimant has suffered from Multiple Sclerosis (diagnosed at Glasgow’s Southern General Hospital September 1996). a. The claimant does take various medications to assist manage MS and other illnesses. Medications include: [Redacted by the Judge, in terms of Rule 50 of the Employment Tribunals Rules of Procedure 2013, on the grounds of privacy, as this Judgment will be published online.] 4. The claimant was, at all material times, a GMB trade union representative. a. GMB FTO Tony Dowling did state to the claimant the claimant was not a GMB representative. Why? Because the claimant did not undertake a GMB course. b. However, the claimant did advise Mr Dowling that GMB had been notified in writing that he (the claimant) was absent with Multiple Sclerosis at time of training. Note: the training was on conducting risk assessment. What caused Mr Dowling to make that statement is not yet known. 5. The claimant having submitted his ET1 on limited knowledge of facts the respondents then laid their foundation stone with an ET3 of deception and untruths. 6. To date: GMB have knowingly caused false and misleading information to be presented to Employment Judge McPherson.• Offices in Glasgow, Edinburgh, Peebles and Galashiels and, through our sister company, branches throughout England and Wales.• We never represent insurers or big business: we always act for the underdog – the accident victim or worker. Nor do we limit ourselves to dealing with the law as it is - we actively campaign to make the law better, seeking reforms that will help workers, accident victims and their families. a. Respondents then representative, Ms Hayley Johnson, presented an ET3 and PHA which disputed the claimant’s disability status of medical condition Multiple Sclerosis. 7. As procedure progressed the ET3 and PHA has disputed the claimant’s disability status. Conversely, at 14 January 2016 09:14 from the respondents (GMB FTO Ude Adigwe) to Nuala Quinn-Ross, administration assistant at West Dunbartonshire Council an email stated, “Please find attached fit notes from Mr Gourlay that we may refer to in his case. i. “You are fully aware of Mr Gourlay’s medical condition, which is compounded by the stress that your disciplinary process has put him under. You are legally required to make adjustments to ensure Mr Gourlay is not disadvantaged in this process as a result of his medical condition. Please note we therefore expect his Appeal to be recorded, we deem this to be a reasonable adjustment. We have serious concerns that you have failed to make reasonable adjustments to properly support Mr Gourlay in the past. As a result, we are reminding you of your legal obligations under the equality legislation. Please ensure full compliance with them.” b. Please find attached fit notes from Mr Gourlay. The claimant has requested to be provided these ‘attached fit notes from Mr Deans at Fri 07/09/2018 12:20, “Would you please oblige me and have someone forward me the 20 pages referred to in the PDF titled, ‘12 - 20160120 - NQR to Ude - legally required to make adjustments to ensure Mr Gourlay is not disadvantaged’. Thanks.”c. The claimant received no acknowledgment or response.d. In essence: the knowledge/information re MS i.e. that the claimant had been instructed to provide to the respondent’s representative, by Employment Judge McPherson at PH on 05 September 2018, was already in the possession of GMB. 8. The ET3 and PHA disputed the claimant’s disability status. Conversely, in written submission 25 August 2016 i.e. at day 6 (of 6) at Appeal against dismissal without notice, process initiation commencing 08 October 2015 and concluding on 25 August 2016, Mr Ude Adigwe did state in writing and spoke to that document that, among other things, a. “He also explained that, as a sufferer of Multiple Sclerosis, he would require certain adjustments to the new working environment to alleviate the impact of the move on his condition. These adjustments included minor changes to his seating area, a display screen equipment assessment as his condition affects his eyesight, and for his work documents, a storage area that didn't require him to squat down.” b. “Unfortunately, Mr Gourlay's managers failed to give due weight to his professional opinion; they failed to act upon his legitimate and well-founded concerns in regard of his Multiple Sclerosis; and they abjectly and routinely failed to act in accordance with West Dunbartonshire Council policies and procedures.” c. “He is 53 years old, he suffers from Multiple Sclerosis, a lifelong, potentially (sic) degenerative condition, and he has been dismissed on a charge of gross misconduct. He is virtually unemployable whilst those that ignored his pleadings, failed to follow procedure and obstructed due process are free to carry on as before.” 9. The claimant did previously provide written evidence of Multiple Sclerosis to the head of employment law at Thompsons Mr David Martyn before submission of Gourlay -v- GMB case 4109518/2018. 10. The claimant respectfully states that he is up against legal representatives Thompsons whom advise on their website, among other things, “We never represent insurers or big business: we always act for the underdog – the accident victim or worker. Nor do we limit ourselves to dealing with the law as it is - we actively campaign to make the law better, seeking reforms that will help workers, accident victims and their families.” a. The claimant respectfully proposes that Thompsons very evidently do not always act for the underdog but conversely represent demonstrable liars. b. On that respectfully stated FACT the claimant propose that he is the underdog. 11. The respondent has made application to strikeout the claimant ET1 failing that deposit order for £1,000 and at paragraph 69 state, “the Respondent reserves further submissions on the Claimant’s ability to pay a deposit”. 12. The claimant does object to strikeout and failing that to pay any deposit. 13. The claimant respectfully proposes the respondent arguments are flawed, are factually inaccurate and are in themselves vexatious. Further, the content of the skeleton contains aspects that demonstrate a persistent state of discriminatory affairs have pervaded from GMB, to David Martyn’s authorised and clearly pled claim re the “cease & desist” letter to the skeleton at 49(j), including turning up unannounced at the Respondent’s premises. 14. The claimant respectfully proposes what kind of operation are GMB Scotland running when a disabled member whom has not been receiving meaningful responses, if at all, and is desperately seeking assistance – and states so, does when attending GMB Offices have that then described as ‘turning up unannounced at the Respondent’s premises’. a. Exactly where in GMB Rule book or on any sign or instruction are GMB members not permitted to attend GMB offices? b. Aka harassment i.e. the creation of an intimidating atmosphere and environment for the claimant. 15. The claimant states that he has not been scandalous and/or vexatious. 58. As is the claimant’s writing style, as can be seen from the above, his narrative was set forth across his Executive Summary, and 5 separate appendices, each with its own comments, footnotes, and quotations, sometimes with colour highlighting points of explanation, or emphasis, marked up by the claimant. While I have no doubt that the claimant has spent considerable time and effort in producing such submissions, their format does not assist easyreading. 59. He repeatedly emphasised his view that the respondents’ ET3 was “deception and untruths”, and that the GMB had “knowingly caused false and misleading information” to be presented to the Tribunal, and that their arguments are “flawed, are factually inaccurate and are in themselves vexatious” 60. I had to remind him, on more than one occasion, that we were not dealing, at this Preliminary Hearing with his application for Strike Out of the respondents’ ET3 response, but their application for Strike Out of his claim, and he should address me on his grounds of opposition to that application by them against him. 61. The claimant stated that he believed his claim had prospects, that he was neither scandalous or vexatious, and that he objected to paying any Deposit Order, and given his means, he further submitted that £1,000 was a significant amount in the overall scheme of things. 62. He accepted that he had turned up at the GMB offices, in January 2018, but he denied that it had been unannounced, and he complained to me that the GMB had given what had happened an “implied connotation”, leading to issue of the “cease and desist” letter from Thompsons on 1 February 2018. 63. Further, the claimant started that he did not understand the respondents’ skeleton argument about time-bar, and “days A and B”, at paragraph 51A of Mr Crammond’s submissions, because, as far as the claimant was concerned, he had submitted his ET1 claim form in time, and he added that he did not agree with the respondents’ skeleton, at paragraph 54, about a continuing act, and he wished to refer to Hendricks. 64. The claimant then stated that there was a “continuing discriminatory state of affairs”, where the GMB were creating an intimidating atmosphere for him by not engaging with him. He described the respondents’ defences as “a sham”, and I had, again, to remind him to focus on what was relevant and necessary for this Preliminary Hearing. 65. He accepted, as a matter of admission, that he had received the “cease and desist” letter, and that his complaint about that letter had been accepted by me, as “clearly pled”, at the Case Management Preliminary Hearing, and that there had been a “common theme” by the respondents to provide misleading information to the Tribunal. 66. The claimant described his ET1 as “true and accurate”, and he said reading it was “fine”, although, commenting on Mr Crammond’s difficulty in deciphering it, the claimant did accept that maybe, it was his writing style, but he did not know. 67. Further, the claimant stated that his ET1, being true and accurate, stood in contrast to the ET3 response. He submitted that the respondents are “lying”, and that “perjury in action” would be the result if the case is not struck out, and it goes to a full Hearing, as, on the evidence produced by the GMB, he stated there was a “high likelihood of GMB witnesses perjuring themselves, and telling untruths, or they would have to, in essence, dob others in.” 68. When the claimant then referred to “demonstrable lies” by the respondents, I had to remind him, yet again, that this Preliminary Hearing was not a hearing into his application for Strike Out of the ET3, but to address the respondents’ application for Strike Out of his claim, and he should focus his oral submissions to me on that matter. 69. In reply, the claimant stated that he did not understand the respondents’ argument that res judicata applies, and that he was “pleading a case based on 1st February 2018”, i.e. the date of the “cease and desist” letter. 70. He described that as “an entirely new element” of his case, and that what is in his ET1 is “background information”, but “the essence of my claim is the “cease and desist” letter”, and, as he had said at the Case Management Preliminary Hearing before me, that was “the catalyst” for this present claim against the respondents. 71. Next, the claimant disputed that his claim is scandalous or vexatious, either in bringing it, or in conducting the case, and he added that, to that allegation by the respondents, there was “an all-embracing denial” by him. He submitted that the Strike Out should be refused, and, if refused, he sought to have the Tribunal deal with his proposed amendment, opposed by the respondents, and his application for Strike Out of the ET3, also opposed by the respondents. 72. Until that time, the claimant stated that further procedure to list this case for any substantive Hearing on its merits was not appropriate, as given his Rule 6 complaint to the GMB under their rule-book, he wanted to expand upon that at paragraph 24 of his ET1 claim form. Rather than a “red or yellow card”, for Strike Out, which failing Deposit Order, the claimant stated that he sought a “green light” to proceed with his claim.[73]Proceedings adjourned for lunch break between just after 1.05pm, and just after 2.00pm. On resuming his oral submissions, the claimant stated that, with reference to the authorities listed in his Appendix 3, at paragraph 65, he had now ruled out relying on Haque, but he continued to rely on his cited passages from Hendricks, Bennett, Balls and Wright, and he asserted that there was a continuing discriminatory state of affairs, he disputed that he had been scandalous or misused the legal process to vilify others or anyone, and he emphasised that it was important that I, as the Judge, take account of the “whole picture.”[74]The claimant further stated that, in the cited passage from Romanowska, at paragraph 21, I should substitute “GMB” for “employer”, that I should look at the whole of paragraph 30 in Tayside v Reilly, and, as regards paragraph 20, in Chandhok v Tirkey, all 3 cases having been cited by the respondents, he submitted that his claim is not an abuse, and he objected to that description being used by counsel for the respondents.[75]Thereafter, the claimant added that “my claim is 1st February”, and he stated it was “not repetitive, but unique in its own context”. When I asked him to clarify what he meant by that comment, the claimant then stated that “the only act I’m relying on is the 1st February 2018 letter and using Hendricks to allow supporting background.”[76]Further, the claimant then clarified what was his highlighting, and commentary, in paragraph 76 of his written submission, about the Ahir judgment, cited by the respondents, and that his green highlighted commentary was on the respondents’ ET3 response.[77]Likewise, at his paragraph 77, commenting on the Uzegheson judgment, cited by the respondents, the claimant stated that his green commentary was not for this Preliminary Hearing, as he recognised now that this was not a hearing into his Strike Out application against the respondents’ ET3.[78]Next, the claimant invited me to disregard that part of his text, at his paragraph 80, about the Kelso judgment, cited by the respondents, stating that the passage reading “a.”… to ensure your former employer…GMB Regional Secretary” was duplicated there, it having appeared originally at his paragraph 79c.[79]Turning them to his footnote (1) on page 3 of his written submission, part of paragraph 1 of his Executive Summary, the claimant advised me that “it is too early for the burden of proof to even be contemplated”, as referred to in the respondents’ skeleton argument at paragraph 49c referring to Section 136 of the Equality Act 2010.[80]The claimant added that he did not accept counsel’s submission, at paragraph 49c, he disputed it, and if his claim is not struck out, then he will seek an amendment, and reversal of the burden of proof, and Strike Out of the ET3 response.[81]Turning to his Appendices 4 and 5, the claimant explained that they are a copy and paste from Harvey, and he referred me to his yellow highlighted passages, before turning his attention to the IDS Handbook excerpted pages cited by me.[82]The claimant, commenting on Marler, and Barker, stated that he is pursuing this case ”with the expectation of success”, and he denied that it is vexatious, explaining that that is his view, “more so, as more information comes to light” from the respondents’ replies to his Subject Access requests, and minutes of his West Dunbartonshire Council (“WDC”) appeal against dismissal, heard between 18 February and 25 August 2016.[83]Specifically, the claimant advised me that his solicitor in his other ongoing Tribunal litigation against West Dunbartonshire Council , Ms Dalziel, had only received these minutes last Friday from Mr Ettles, the Council’s solicitor. He was critical that the GMB were meant to obtain these minutes on his behalf, but had not done so.[84]As it was not clear to me what minutes the claimant was alluding to, I enquired of the claimant, whether these were the usual, local authority, anodyne minutes, in very brief format, or some transcript of proceedings at his internal appeal before WDC. The claimant advised that these minutes were not anodyne, but more substantial, but the GMB had not got those minutes for him.[85]Referring then to the Barker judgment, the claimant stated that his case does not mirror the image set by Lord Bingham, and that he was simply seeking assistance from the GMB as his trade union, as he was trying to process his ill health retiral and pension from the Council, through GMB, as denied him by WDC, but he insisted that the GMB had failed to act on his behalf by making representations for him.[86]The claimant then referred me to page 1054 of the IDS Handbook, at paragraph [20.53] about “Litigants in person.” The way the Tribunal clerk had copied the excerpts, as 2 pages per one A4 sheet, the next page, page 1055, included the paragraph [20.55] that I had referenced as it discusses Marler and Barker.[87]Instead, the claimant referred me to the narrative about to AQ Ltd v Holden [2012] IRLR 648, holding that a Tribunal cannot, and should not, judge a litigant in person by the same standards as a professional representative, and that a claimant simply being “misguided” is not sufficient to establish vexatious conduct. He further stated that he had been continually endeavouring to get the GMB to provide him with advice and support.[88]Further, the clamant explained to me, a pension and ill-health retirement are employment law matters that the GMB had failed to address, and he stated further that he has “demonstrable evidence” that the HR Manager at WDC stopped his ill-health retiral, and the GMB had done nothing with that knowledge.[89]While Mr Crammond, counsel for the respondents, had referred to “mere assertions” by the claimant, the claimant stated that the “cease and desist” letter was clearly pled, it is not an assertion, but it is an agreed fact that there was that letter from Thompsons on behalf of the GMB, and that is “clearly pled” is shown at paragraph 41 of my PH Note, at page 117 of the respondents’ Bundle.[90]He stated that he had read that paragraph 41 as me making a finding that the “cease and desist” letter was clearly pled. I pause here to note and record that while the claimant sees that as a finding, I do not – at the Case Management PH, I made no findings in fact, I merely recorded parties’ submissions, as no evidence was led, and made case management orders about future procedure in this case. Reply for the Respondents[91]The claimant’s oral submissions having concluded, at around 2.50pm, I then invited Mr Crammond, counsel for the respondents, to advise whether or not he wished to say anything further by way of a response. In reply, he stated that he had already addressed matters in his earlier submissions, which he adopted, and he acknowledged the excerpts from the IDS Handbook helpfully provided by the Tribunal.[92]Further, in developing his written submission about scandalous and vexatious conduct, Mr Crammond stated that that can be argued in respect of both the bringing and conduct of a claim, and referring to the IDS Handbook, at page 591, paragraph [11.118], he referred to the commentary there about Bennett, Marler and Barker, and submitted that the Barker case was the situation here, where the claimant had brought a case against the GMB with “no discernible basis.”[93]Under reference to page 1055, at paragraph [20.55], counsel added that the Court of Appeal judgment, in Scott v Russell [2013] EWCA Civ. 1432, approved Lord Bingham’s definition of “vexatious” in Barker and the claimant’s bringing and conduct of this claim falls within those definitions of vexatious conduct.[94]Further, added Mr Crammond, the claimant’s submissions at this Preliminary Hearing might be described as “intemperate at best”, against the respondents, and their representatives, and the claimant at this Hearing says his ET1 is “all about the “cease and desist” letter “, when any reasonable person, reading his ET1, would be forgiven for thinking it was only about that matter, as the ET1 “spins out well beyond the “cease and desist” letter.” All of this is “inconvenient to the respondents” submitted Mr Crammond.[95]Counsel for the respondents then added that the claimant had had the Case Management PH, and this point about the “cease and desist” letter being all the case was about was not clarified then, and now, there was further procedure , including a Schedule of Loss from the claimant, which seeks to recover legal expenses and costs incurred, but counsel submitted the claimant cannot have a realistic expectation that his complaint about the “cease and desist” letter could assist him in recovering over £60,000 plus injury to feelings from the GMB.[96]Further, added Mr Crammond, he did not see how the claimant’s Schedule of Loss in this case assisted the claimant in pursuing ill-health retirement, and / or a pension, through the GMB, and he added that “that much must be obvious to any person, let alone this claimant who has experience of litigating in the Employment Tribunal.” Further Submissions requested by the Tribunal[97]It then being just before 3.00pm, and Mr Crammond’s reply having concluded, I raised a further matter with both parties.[98]On the matter of res judicata, raised by the respondents, I stated that I was aware, from previous judicial experience in another case several years ago, of a judgment from the UK Supreme Court, which I identified as Virgin Atlantic Airways v Zodiac Seats UK Ltd [2014] 1 AC 160, which had been cited more recently in an unreported EAT Judgment by His Honour Judge Hand QC in Mrs. C Ochieng v Stantonbury Campus [2016] UKEAT/0304/15/ RN.[99]Further, on the matter of dealing with party litigants, as referred to by the claimant in citing from AQ Ltd v Holden, I stated that I was aware of a more recent Supreme Court judgment on that matter, from Lord Sumption, in Barton v Wright Hassall LLP [2018] UKSC 12.[100]I allowed both parties to submit written representation, within 7 days, with any additional written submissions either party wished to make to comment on the Ochieng EAT Judgment, and the cases referred to therein, and the clerk’s letter to both parties, sent later that afternoon, advised them that I would thereafter consider their further written submissions, and take them into account in my private deliberations, when writing up this Judgment. Reserved Judgment[101]This Preliminary Hearing concluded at 3.05pm, when I reserved Judgment, to follow, in writing, with Reasons, in due course.[102]After the close of this Preliminary Hearing, on the late afternoon of 7 November 2018, the claimant wrote to the Tribunal office commenting that , “while pragmatically outwith ET Glasgow control”, excessive noise from an adjacent building site did present “a somewhat unfavourable environment”, but while “very distracting” and “notably inconvenient at times”, he was not complaining that the noise had been of any detriment to him, “just an unhelpful and unavoidable issue outwith control of Glasgow ET”, and no response was expected from the Tribunal.[103]Nonetheless, on instructions from me, the Tribunal clerk wrote to the claimant, with copy to Mr Deans for the respondents, stating that the claimant’s comments had been noted, and that I was satisfied that, by appropriate pause, and clarification, during the Preliminary Hearing, I had noted both parties’ oral submissions Parties’ Further Written Representations[104]Thereafter, on 14 November 2018, both parties duly submitted their further written representations. The Tribunal acknowledged receipt of them, on 16 November 2018, and advised both parties that I would consider them when writing up this Judgment, which I hoped to have completed within around the next 4 weeks.[105]A copy of both parties’ further written representations is held on casefile, so I do not reproduce them here verbatim, but I note and record that I have taken them both into account in coming to this my final decision. Claimant’s Further Written Representations[106]That said, meantime, it will suffice to note that the claimant provided his additional written submissions and comment on the EAT judgment cited by me, being Ochieng v Stantonbury Campus ( at his pages 2 to 4) ; Johnson v Gore Wood ( page 5); Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (pages 6 to 8); Attorney General v Barker (pages 9 and 10) ; and Matuszowicz v Kingston Upon Hull City Council (page 11). His covering letter to the Tribunal was accompanied by a typewritten, 10 page set of his substantive comments on the cited case law authorities[107]As with his principal written submissions, and as is the claimant’s writing style, his comments on each of the cited cases came with their own footnotes, and quotations, sometimes with colour highlighting points of explanation, or emphasis, marked up by the claimant. Of particular note, and so I feel it appropriate to quote here verbatim, are the terms of his paragraphs 20 to 24 of his comments on Ochieng, as follows:- “20. The claimant respectfully states he does not believe he has repeated factual narrative repeated in the earlier claim 638. Some factual input is relevant, it is respectfully proposed, to the victimisation claim i.e. that relates to the previous claim and in regard discrimination over time. The, to the claimant, evident overlap between estoppel and relying on a previous claim and quoting that same claim is where the claimant appreciates he is getting out his depth. Especially e.g. when lies are knowingly told in evidence or in ET3 etc. 21. If the claimant’s claim is struck out in full or in part he believes he shall be able to perhaps proceed with any relevant materials. The claimant accepts that GMB have put a lot of work into their strikeout application. The claimant respectfully proposes that having read the Barker case that Barker and Gourlay are poles apart i.e. opposite ends of the ‘spectrum’ and that the claimant was not and is not vexatious. That nothing of his cease and desist claim had been pled previously. The claimant was not repeating allegation i.e. cease and desist was new. The cease and desist was not out of time. The claimant had no prior knowledge of the cease and desist letter whereby he could have raised that matter in claim 638. The claim had not been withdrawn. The claimant alleges collusion has occurred and that should be taken into account in regard estoppel. 22. With reference to Ochieng i.e. referring to Virgin the claimant does respectfully state he has not been abusive and has not made duplicate claims unless referral to establish an ongoing act. 23.(v) what has been known as issue estoppel prevents “the raising in subsequent proceedings of points which(i) were not raised in the earlier proceedings or(ii) were raised unsuccessfully” but with an exception of “special circumstances where this would cause injustice”; but where the point “was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised” (see paragraph 22). 24. The claimant respectfully proposes his case meets the criteria for “special circumstances” especially when collusion is alleged and demonstrable lies have been told in ET3. The claimant accepts that Employment Judge McPherson has directed to focus on the response to the strikeout but as collusion is alleged the claimant respectfully proposes that the, ‘knowingly providing false and misleading information to an Employment Judge’ is sufficiently serious that, respectfully, it does merit that cognisance be taken of events.”[108]The claimant relies upon “special circumstances” as he alleges that there has been “collusion as alleged and demonstrable lies have been said in ET3”. These are serious allegations to make against the respondents, and their professional legal advisers, and I note that the claimant repeats that allegation at paragraph 32 of his comments on Virgin Atlantic : “The claimant comments and proposes/alleges that collusion has taken place in Gourlay - v- GMB e.g. Ms Johnson did factually identify that GMB have, in essence, lied.”[109]Further, at paragraph 25, the claimant advises that he has submitted a “new claim”. This follows upon his paragraph 10, referring to obtaining a fresh ACAS EC certificate on 13 November 2018. If and when the claimant raises a fresh claim against these respondents, then that new claim will go through the standard process of acceptance, notice of claim, ET3 response, and then Initial Consideration, and any further procedure that might be appropriate. That new claim is not a matter for me in this Judgment, although, for reasons of judicial continuity, it is likely to be allocated to me by the Tribunal administration for case management.[110]Next, I refer to the claimant’s narrative, at his paragraphs 40 and 41 where he comments about Attorney General v Barker. Again, given the terms of his comments, I consider it appropriate to quote here verbatim, as follows:- “40. ‘Without any reasonable ground’: the claimant respectfully proposes he has had reasonable grounds to complain about the actions and inactions etc of both WDC and GMB i.e. as demonstrated by the inactions of GMB to, respectfully proposed, correct a wrong. 41. The claimant has been, in essence, using terminology of then then GMB FTO Mick Conroy that the claimant has been shafted by WDC. The claimant does at Wednesday, 14 November 2018 respectfully propose that GMB have shafted the claimant too.”[111]I pause here to note and record that the claimant’s repeated use of the word “shafted” is full of emotion, and while such inflammatory and vulgar language may be common in informal speech, its use in a formal response to this Tribunal and his reply to legal arguments is inappropriate.[112]It does no credit to the claimant, who otherwise has generally shown himself to be an articulate and well-educated person in drafting his written submissions for the Tribunal.[113]What is clear is that, despite the passage of time, the claimant remains seriously aggrieved at the acts and omissions, as he sees them, of both WDC as his former employer, and GMB as his trade union.[114]I regard his use of the word “shafted” to be both unfortunate and misguided, and perhaps used in the heat of the moment if used once, but its repetition suggests to me a deliberate use of that word, which can be considered as evidencing malice and ill-will on his part towards both the GMB, and WDC. Respondents’ Supplementary Skeleton Argument[115]The respondents’ written submissions, with supplementary skeleton argument, were also intimated on 14 November 2018. As per paragraph 3 of Mr Crammond’s supplementary skeleton, the contents of this skeleton argument are to be read in conjunction with the previously provided written and oral submissions made on behalf of the respondents for the purposes of and at the Preliminary Hearing held on 7 November 2018.[116]For present purposes, I refer to, and reproduce here, verbatim, the terms of his paragraphs 5 to 12, as follows:- “5. Firstly, the above-mentioned cases are primarily relevant to the issues arising in relation to the arguments as to res judicata (including the Henderson v Henderson argument) and abuse of process. 6. Secondly, by way of general proposition, the abovementioned authorities support and bolster the assertions already made on behalf of the Respondent insofar as they pertain to the issues of res judicata and abuse of process. Indeed, the authorities (including of the Supreme Court in Virgin Atlantic) most certainly bolster the Henderson v Henderson argument pursued by the Respondent. 7. The Tribunal will have regard to the entirety of both the EAT and Supreme Court decision. Within those authorities there is also useful reference to other authorities, such as Johnson v Gore Wood [2000] UKHL 65, to which the Tribunal will have regard. 8. As to the Ochieng authority, the Tribunal is referred, in particular to:a. paragraph 10: this is a good summary of the principles, and with reference to the abovementioned authorities, in relation res judicata (and abuse of process, including the Henderson v Henderson principles, albeit, as recognised at the hearing, they arise in the context of English case law, but remain ether binding and/or, at the very least, persuasive to the Tribunal. Within the judgment, in summary, it is stated that the following principles emerge: i. the argument that Henderson v Henderson is not about res judicata estoppel at all but about abuse of process, to which different considerations apply, is misconceived; ii. res judicata and abuse of process are “juridically very different” because the former is a matter of substantive law and the latter is a matter of procedure but “they share the common underlying purpose of limiting abusive and duplicative litigation;” iii. the bar to re-litigation or further litigation will be absolute when an attempt is made to raise points in subsequent proceedings “which had to be and were decided [in the earlier proceedings] in order to establish the existence or non existence of a cause of action;” iv. re-litigation or further litigation will also be barred when an attempt is made to raise points in subsequent proceedings which are “essential to the existence or non existence of a cause of action” even where those points were not decided in the earlier proceedings based on the same cause of action because they had not been raised then “if they could with reasonable diligence and should in all the circumstances have been raised;” v. what has been known as issue estoppel prevents “the raising in subsequent proceedings of points which(i) were not raised in the earlier proceedings or(ii) were raised unsuccessfully” but with an exception of “special circumstances where this would cause injustice;” but where the point “was not raised, the bar will usually be absolute if it could with reasonable diligence and should in the all the circumstances have been raised.”b. paragraph 13: which is a reminder of the terms of rule 37 of the 2013 Rules, which includes reference to rule 37(1)(a) and rule 37(1)(b), the latter being the ground of strike out where the manner in which proceedings have been conducted has been scandalous, unreasonable or vexatious. Both limbs of the rule 37 of the 2013 Rules test have relevance and application in the present application and, it is submitted, that a claim which is found to be an abuse of process and/or barred by reason of res judicata can also lead to it being struck out as being a claim which has no reasonable prospects of success as well as it being scandalous and/or vexatious. 9. As to the Virgin Atlantic authority, the Tribunal is referred to paragraphs 17 – 26 in particular for the Supreme Court’s summary of the law of res judicata and the legal principles applicable. The principles are well summarised by the EAT in the above case. However, the Tribunal is referred to the same in full in the Supreme Court judgment. 10 Accordingly, the Respondent asserts that the above authorities support (and indeed strengthen) its position on its application to strike out the Claimant’s claim. 11. Where and insofar as the Claimant’s ET1 and Paper Apart seek to make claims regarding issues which have already been the subject of the previous strike out decision and/or are matters which could with reasonable diligence have been brought as part of the previous claim (and there is simply no good reason any such claim which could have been brought at the time of the earlier claim was not so brought) which the Claimant made against the Respondent, the same amount to an abuse of process and/or ought to be prevented from proceeding as a result of the res judicata principles. 12. The underlying policy issues which are enunciated within these decisions are apparent in the present case, especially where the recent claim is brought some years after the previous claim and it having been struck out by the Employment Tribunal. The Respondent is entitled to finality of litigation in relation to such matters and there is no good reason to suggest otherwise. Where such matters were or could have been brought in the previous claim, and insofar as they are even pursued by the Claimant as claims in the present action (noting that the Claimant appears to now accept at the hearing on 7 November 2018 that the only act of discrimination relied upon is the sending of the cease and desist letter dated 1 February 2018), such claims ought be struck out as a result of the above.” Issue for determination by the Tribunal[117]Despite the claimant’s attempts, in submissions, to run arguments about why the respondents’ ET3 response should be struck out by the Tribunal, the only live issue for determination at this Preliminary Hearing was the preliminary issue of the respondents’ application for Strike Out of the claim, failing which a Deposit Order.
Relevant Law
[118]Mr Crammond’s written skeleton argument, as reproduced above at paragraph 37 of these Reasons, includes reference to the relevant statutory provisions to be found in the Equality Act 2010, specifically Sections 15, 26, 27, 57, 109 and 136, and the Employment Tribunals Rules of Procedure 2013, in particular, so far as material for present purposes, Rule 37 (Striking Out) and Rule 39 (Deposit Orders), and the other Rule that is relevant is Rule 2, the Tribunal’s “overriding objective”, to deal with the case fairly and justly.[119]Rule 37 entitles an Employment Tribunal to strike out a claim in certain defined circumstances. Even if the Tribunal so determines, it retains a discretion not to strike out the claim. As the Court of Session held, in Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, the power to strike out should only be exercised in rare circumstances.[120]A Tribunal can exercise its power to strike out a claim (or part of a claim) ‘at any stage of the proceedings' - Rule 37(1). However, the power must be exercised in accordance with “reason, relevance, principle and justice”: Williams v Real Care Agency Ltd [2012] UKEATS/0051/11 (13 March 2012), [2012] ICR D27, per Mr Justice Langstaff at paragraph 18.[121]In Abertawe Bro Morgannwg University Health Board v Ferguson UKEAT/0044/13, 24 April 2013, [2014] I.R.L.R. 14, the learned EAT President, Mr Justice Langstaff, at paragraph 33 of the judgment, remarked in the course of giving judgment that, in suitable cases, applications for strikeout may save time, expense and anxiety.[122]However, in cases that are likely to be heavily fact-sensitive, such as those involving discrimination or public interest disclosures, the circumstances in which a claim will be struck out are likely to be rare. In general it is better to proceed to determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not.[123]Special considerations arise if a Tribunal is asked to strike out a claim of discrimination on the ground that it has no reasonable prospect of success. In Anyanwu and anor v South Bank Students' Union and anor 2001 ICR 391, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive and require full examination to make a proper determination.[124]In Ezsias v North Glamorgan NHS Trust 2007 ICR 1126, the Court of Appeal held that the same or a similar approach should generally inform whistleblowing cases, which have much in common with discrimination cases, in that they involve an investigation into why an employer took a particular step. It stressed that it will only be in an exceptional case that an application will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documentation.[125]Lady Smith in the Employment Appeal Tribunal expanded on the guidance given in Ezsias in Balls v Downham Market High School and College [2011] IRLR 217, stating that where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success.[126]The test is not whether the claim is likely to fail; nor is it a matter of asking whether it is possible that the claim will fail. It is not a test that can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is a high test.[127]In Balls, at paragraph 4, Lady Smith emphasised the need for caution in exercising the power, as follows: "to state the obvious, if a Claimant's claim is struck out, that is an end of it. He cannot take it any further forward. From an employee Claimant's perspective, his employer 'won' without there ever having been a hearing on the merits of his claim. The chances of him being left with a distinct feeling of dissatisfaction must be high. If his claim had proceeded to a hearing on the merits, it might have been shown to be well founded and he may feel, whatever the circumstances, that he has been deprived of a fair chance to achieve that. It is for such reasons that 'strike-out' is often referred to as a draconian power. It is. There are of course, cases where fairness as between parties and the proper regulation of access to Employment Tribunals justify the use of this important weapon in an Employment Judge's available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached."[128]Although not cited to me by either party at this Preliminary Hearing, although I did refer to it in my 2016 Judgment striking out the claimant’s 2015 claim against the GMB, I am aware that in a now reported EAT judgment by Mrs. Justice Simler DBE, the President of the Employment Appeal Tribunal, in Morgan v Royal Mencap Society [2016] IRLR 428, she helpfully analyses the principles laid down in the case law, and their application, at paragraphs 13 and 14 of her judgment, where, at paragraph 14, she states that the power to strike out a case can properly be exercised without hearing evidence.[129]Again, while not cited to me, by either party, although I also referred to it in my 2016 Judgment, I am aware that in Lambrou v Cyprus Airways Ltd [2005] UKEAT/0417/05, an unreported Judgment on 8 November 2005 from His Honour Judge Richardson, the learned EAT Judge stated, at paragraph 28 of his judgment, as follows: “Even if a threshold ground for striking out the proceedings is made out, it does not necessarily follow that an order to strike out should be made. There are other remedies. In this case the other remedies may include the ordering of specific Particulars and, if appropriate when Particulars are ordered, further provision for a report which, in furtherance of the overriding objective, will usually be by a single expert jointly instructed. A Tribunal should always consider alternatives to striking out: see HM Prison Service v Dolby [2003] IRLR 694.”[130]So too have I considered Dolby, as I did in my 2016 Judgment, where, at paragraphs 14 and 15 of the judgment, Mr Recorder Bowers QC, reviewed the options for the Employment Tribunal, as follows: “14. We thus think that the position is that the Employment Tribunal has a range of options after the Rule amendments made in 2001 where a case is regarded as one which has no reasonable prospect of success. Essentially there are four. The first and most draconian is to strike the application out under Rule 15 (described by Mr Swift as "the red card"); but Tribunals need to be convinced that that is the proper remedy in the particular case. Secondly, the Tribunal may order an amendment to be made to the pleadings under Rule 15. Thirdly, they may order a deposit to be made under Rule 7 (as Mr Swift put it, "the yellow card"). Fourthly, they may decide at the end of the case that the application was misconceived, and that the Applicant should pay costs. 15. Clearly the approach to be taken in a particular case depends on the stage at which the matter is raised and the proper material to take into account. We think that the Tribunal must adopt a two- stage approach; firstly, to decide whether the application is misconceived and, secondly, if the answer to that question is yes, to decide whether as a matter of discretion to order the application be struck out, amended or, if there is an application for one, that a pre-hearing deposit be given. The Tribunal must give reasons for the decision in each case, although of course they only need go as far as to say why one side won and one side lost on this point.”[131]I recognise, of course, that the second stage exercise of discretion under Rule 37(1) is important, as commented upon by the then EAT Judge, Lady Wise, in Hasan v Tesco Stores Ltd [2016] UKEAT/0098/16, an unreported Judgment of 22 June 2016, which I again referred to it in my 2016 Judgment, where at paragraph 19, the learned EAT Judge refers to “a fundamental cross-check to avoid the bringing to an end of a claim that may yet have merit.”[132]Under Rule 39(1), at a Preliminary Hearing, if an Employment Judge considers that any specific allegation or argument in a claim or response has “little reasonable prospect of success”, the Judge can make an order requiring the party to pay a deposit to the Tribunal, as a condition of being permitted to continue to advance that allegation or argument.[133]In H M Prison Service v Dolby [2003] IRLR 694 , at paragraph 14 of Mr. Recorder Bower’ QC’s judgment on 31 January 2003, a Deposit Order is the “yellow card” option, with Strike Out being described by counsel as the “red card.”[134]The test for a Deposit Order is not as rigorous as the "no reasonable prospect of success" test under Rule 37(1) (a), under which the Tribunal can strike out a party's case.[135]This was confirmed by the then President of the Employment Appeal Tribunal, Mr. Justice Elias, in Van Rensburg v Royal Borough of Kingston upon Thames [2007] UKEAT/0096/07, who concluded it followed that "a Tribunal has a greater leeway when considering whether or not to order a deposit" than when deciding whether or not to strike out.[136]Where a Tribunal considers that a specific allegation or argument has little reasonable prospect of success, it may order a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.[137]Rule 39(1) allows a Tribunal to use a Deposit Order as a less draconian alternative to Strike Out where a claim (or part) is perceived to be weak but could not necessarily be described by a Tribunal as having no reasonable prospect of success.[138]In fact, it is fairly commonplace before the Tribunal for a party making an application for Strike Out on the basis that the other party's case has “no reasonable prospect of success” to make an application for a Deposit Order to be made in the alternative if the ‘little reasonable prospect' test is satisfied.[139]The test of ‘little prospect of success' is plainly not as rigorous as the test of ‘no reasonable prospect'. It follows that a Tribunal accordingly has a greater leeway when considering whether or not to order a deposit. But it must still have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim – Van Rensburg cited above.[140]Prior to making any decision relating to the Deposit Order, the Tribunal must, under Rule 39(2), make reasonable enquiries into the paying party's ability to pay the deposit, and it must take this into account in fixing the level of the deposit.[141]As stated by Lady Smith, in the unreported EAT judgment of 10 January 2012, given by her in Simpson v Strathclyde Police & another [2012] UKEATS/0030/11, at paragraph 40, there are no statutory rules requiring an Employment Judge to calculate a Deposit Order in any particular way; the only requirement is that the figure be a reasonable one.[142]Further, at paragraph 42 of her judgment in Simpson, Lady Smith also stated that: “It is to be assumed that claimants will not readily part with money that they are likely to lose – particularly where it may pave the way to adding to that loss a liability for expenses or a preparation time order (see rule 47(1)). Both of those risks are spelt out to a claimant in the order itself (see rule 20(2)). The issuing of a deposit order should, accordingly, make a claimant stop and think carefully before proceeding with an evidently weak case and only do so if, notwithstanding the Employment Tribunal’s assessment of its prospects, there is good reason to believe that the case may, nonetheless succeed. It is not an unreasonable requirement to impose given a claimant’s responsibility to assist the tribunal to further the overriding objective which includes dealing with cases so as to save expense and ensure expeditious disposal (rule 3(1)(2) and (4).”[143]Lady Smith’s judgment was referring to the then 2004 Rules. Further, at paragraph 49, she also stated that: “it is not enough for a claimant to show that it will be difficult to pay a deposit order; it is not, in general, expected that it will be easy for claimants to do so.”[144]Further, I wish to note and record that in the EAT’s judgment in Wright v Nipponkoa Insurance (Europe) Ltd [2014] UKEAT/0113/14, dealing with the quantum of Deposit Orders, it was held that separate Deposit Orders can be made in respect of individual arguments or allegations, and that if making a Deposit Order, a Tribunal should have regard to the question of proportionality in terms of the total award made.[145]HHJ Eady QC discusses the relevant legislation and legal principles, at paragraphs 29 to 31, and in particular I would refer here to the summary of HHJ Eady QC’s judgment at paragraph 3, on the quantum of Deposit Orders, stating that the Tribunal Rules 2013 permit the making of separate Deposit Orders in respect of individual arguments or allegations, and that if making a number of Deposit Orders, an Employment Judge should have regard to the question of proportionality in terms of the total award made. Paragraphs 77 to 79 of the Wright judgment refer.[146]In the present case, the claimants’ complaints in the ET1 claim form are registered by the Tribunal under only one administrative jurisdictional code, for disability discrimination, being “DDA”, so this is not a case where I need to concern myself with any other, and separate, head of complaint, in the event of a Deposit Order being granted by the Tribunal, to require a deposit of up to £1,000 per allegation or argument.[147]Finally, although I was not referred to it by either party, I am aware that there is also the more recent guidance from Her Honour Judge Eady QC, in Tree v South East Coastal Ambulance Service NHS Foundation Trust [2017] UKEAT/0043/17, referring to Mrs Justice Simler, President of the EAT, in Hemdan v Ishmail & Another [2017] ICR 486 ; [2017] IRLR 228, and Judge Eady QC holding that when making a Deposit Order, an Employment Tribunal needs to have a proper basis for doubting the likelihood of a claimant being able to establish the facts essential to make good their claim.[148]Hemdan is also of interest because the learned EAT President, at paragraph 10, characterised a Deposit Order as being “rather like a sword of Damocles hanging over the paying party”, and she then observed, at paragraph 16, that: “Such orders have the potential to restrict rights of access to a fair trial.”[149]Mrs Justice Simler’s judgment from the EAT in Hemdan, at paragraphs 10 to 17, addresses the relevant legal principles about Deposit Orders, and I gratefully adopt it as a helpful and informative summary of the relevant law, as follows: - “10. A deposit order has two consequences. First, a sum of money must be paid by the paying party as a condition of pursuing or defending a claim. Secondly, if the money is paid and the claim pursued, it operates as a warning, rather like a sword of Damocles hanging over the paying party, that costs might be ordered against that paying party (with a presumption in particular circumstances that costs will be ordered) where the allegation is pursued and the party loses. There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment, is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource, and unnecessary anxiety. They also occupy the limited time and resource of courts and tribunals that would otherwise be available to other litigants and do so for limited purpose or benefit.11. The purpose is emphatically not, in our view, and as both parties agree, to make it difficult to access justice or to effect a strike out through the back door. The requirement to consider a party’s means in determining the amount of a deposit order is inconsistent with that being the purpose, as Mr Milsom submitted. Likewise, the cap of £1,000 is also inconsistent with any view that the object of a deposit order is to make it difficult for a party to pursue a claim to a Full Hearing and thereby access justice. There are many litigants, albeit not the majority, who are unlikely to find it difficult to raise £1,000 by way of a deposit order in our collective experience.12. The approach to making a deposit order is also not in dispute on this appeal save in some small respects. The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence. The fact that a tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis.13. The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise. Where, for example as in this case, the Preliminary Hearing to consider whether deposit orders should be made was listed for three days, we question how consistent that is with the overriding objective. If there is a core factual conflict it should properly be resolved at a Full Merits Hearing where evidence is heard and tested.14. We also consider that in evaluating the prospects of a particular allegation, tribunals should be alive to the possibility of communication difficulties that might affect or compromise understanding of the allegation or claim. For example where, as here, a party communicates through an interpreter, there may be misunderstandings based on badly expressed or translated expressions. We say that having regard in particular to the fact that in this case the wording of the three allegations in the claim form, drafted by the Claimant acting in person, was scrutinised by reference to extracts from the several thousand pages of transcript of the earlier criminal trials to which we have referred, where the Claimant was giving evidence through an interpreter. Whilst on a literal reading of the three allegations there were inconsistencies between those allegations and the evidence she gave, minor amendments to the wording of the allegations may well have addressed the inconsistencies without significantly altering their substance. In those circumstances, we would have expected some leeway to have been afforded, and unless there was good reason not to do so, the allegation in slightly amended form should have been considered when assessing the prospects of success.15. Once a tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case. That means that regard should be had for example, to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved, and the case is likely to be allocated a fair share of limited tribunal resources, are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest.16. If a tribunal decides that a deposit order should be made in exercise of the discretion pursuant to Rule 39, sub-paragraph (2) requires tribunals to make reasonable enquiries into the paying party’s ability to pay any deposit ordered and further requires tribunals to have regard to that information when deciding the amount of the deposit order. Those, accordingly, are mandatory relevant considerations. The fact they are mandatory considerations makes the exercise different to that carried out when deciding whether or not to consider means and ability to pay at the stage of making a cost order. The difference is significant and explained, in our view, by timing. Deposit orders are necessarily made before the claim has been considered on its merits and in most cases at a relatively early stage in proceedings. Such orders have the potential to restrict rights of access to a fair trial. Although a case is assessed as having little prospects of success, it may nevertheless succeed at trial, and the mere fact that a deposit order is considered appropriate or justified does not necessarily or inevitably mean that the party will fail at trial. Accordingly, it is essential that when such an order is deemed appropriate it does not operate to restrict disproportionately the fair trial rights of the paying party or to impair access to justice. That means that a deposit order must both pursue a legitimate aim and demonstrate a reasonable degree of proportionality between the means used and the aim pursued (see, for example, the cases to which we were referred in writing by Mr Milsom, namely Aït-Mouhoub v France [2000] 30 EHRR 382 at paragraph 52 and Weissman and Ors v Romania 63945/2000 (ECtHR)). In the latter case the Court said the following: - “36. Notwithstanding the margin of appreciation enjoyed by the State in this area, the Court emphasises that a restriction on access to a court is only compatible with Article 6(1) if it pursues a legitimate aim and if there is a reasonable degree of proportionality between the means used and the aim pursued. 37. In particular, bearing in mind the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, the Court reiterates that the amount of the fees, assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them and the phase of the proceedings at which that restriction has been imposed, are factors which are material in determining whether or not a person enjoyed his or her right of access to a court or whether, on account of the amount of fees payable, the very essence of the right of access to a court has been impaired … 42. Having regard to the circumstances of the case, and particularly to the fact that this restriction was imposed at an initial stage of the proceedings, the Court considers that it was disproportionate and thus impaired the very essence of the right of access to a court …” 17. An order to pay a deposit must accordingly be one that is capable of being complied with. A party without the means or ability to pay should not therefore be ordered to pay a sum he or she is unlikely to be able to raise. The proportionality exercise must be carried out in relation to a single deposit order or, where such is imposed, a series of deposit orders. If a deposit order is set at a level at which the paying party cannot afford to pay it, the order will operate to impair access to justice. The position, accordingly, is very different to the position that applies where a case has been heard and determined on its merits or struck out because it has no reasonable prospects of success, when the parties have had access to a fair trial and the tribunal is engaged in determining whether costs should be ordered.”[150]For the purposes of this Judgment, I do not need to address the differing approaches identified by Lady Smith in Simpson, and Mrs Justice Simler in Hemdan. I suspect, however, that it will only be a matter of time before another Employment Judge somewhere else, in another case, will have to wrestle with the competing views of these two learned EAT Judges, and decide what is the correct approach under the current 2013 Rules.[151]It is not necessary for me to do so in the present case. For any future case, however, I note from the ICR law report, and the list of cases cited in argument before Mrs Justice Simler in Hemdan, as listed at [2017] ICR 487 C/F, that Lady Smith’s unreported judgment in Simpson was not cited, although various other unreported EAT judgments were cited in argument before her, and Simpson is not referred to in the EAT’s reported Judgment in Hemdan. Discussion and Disposal[152]Having now carefully considered parties` submissions, written and oral, along with their further written representations, and also my own obligations under Rule 2 of the Employment Tribunals Rules of Procedure 2013, being the Tribunal’s overriding objective to deal with the case fairly and justly, I consider that, in terms of Rule 37(2), the claimant has been given a reasonable opportunity at this Preliminary Hearing to make his own representations opposing the respondent’s written application for Strike Out, which failing Deposit Order.[153]Rule 37 entitles an Employment Tribunal to strike out a claim in certain defined circumstances, (a) to (e). Here, the respondents’ submissions focus their application for Strike Out of the claim under Rule 37(1) (a) on the basis that the claim has no reasonable prospect of success, or it is scandalous or vexatious, the latter being also a separate head under Rule 37(1)(b) along with unreasonable conduct.[154]After most careful consideration of the competing arguments, taking into account the relevant law, as ascertained in the legal authorities referred to above, I am satisfied that this is one of those cases where it is appropriate to Strike Out the whole of the claim without the case proceeding to be determined on its merits at a Final Hearing.[155]I do so because despite the claimant’s submission that I should not Strike Out but allow the case to go forward to a Final Hearing, I am satisfied that the legal arguments submitted by Mr Crammond, counsel for the respondents, are well-founded.[156]As Mr Crammond stated, at paragraph 22 of his skeleton argument for the respondents, the claim ought to be struck out on one or more of the four separate bases he set forth, whether taken individually, or cumulatively. I accept that argument, and the legal arguments he sets forth in his written submissions, as leading to Strike Out of the entire claim under Rule 37.[157]Further, I regard as well-founded his arguments that, on any interpretation, the claim as pled in the ET1 does not disclose a prima facie case of discrimination against the respondents, and the various factors relied upon by him, at his paragraph 49(a) to (j), explain why that is so, and why the claim ought to be struck out by this Tribunal.[158]Put simply, the claimant fails to connect what he describes as the alleged acts and omissions of the GMB complained of with his disability or anything connected to it. There are no facts pleaded which could, in any way, reasonably support a causal connection or link between any of the acts or omissions referred to and the claimant’s disability.[159]Further, it seems to me to be in the interests of justice, and consistent with Tribunal’s overriding objective, that this case is brought to an end, and brought to an end now, and that is why I have decided to grant the respondents’ application and strike out the whole claim.[160]I consider that there is significant merit in Mr Crammond’s paragraph 49(g), where he says the claimant’s pleadings need to be seen in context, and that this claimant is not a litigant in person without knowledge of how Employment Tribunal procedure works.[161]From his past experience, in several cases over the last 4 years, he perhaps better than most, unrepresented, party litigants, ought to know the importance of a properly pleaded case, giving fair notice, and adequate specification of his case, and about the essentials of his case being in the ET1, per Chandhok v Tirkey.[162]Further, and again a point well made by Mr Crammond, at his paragraph 49(i), any action which was not taken by WDC, as his former employer, and in relation to which the claimant alleges the GMB ought to have provided him with assistance, are not actions or omissions of these respondents, for WDC is an entirely separate body from the respondents.[163]Also, while in the course of this Preliminary Hearing the claimant’s case appeared to narrow to the “cease and desist letter”, notwithstanding his position was confused, he did not indicate any intention to withdraw his amendment application.[164]While it is a matter of fact that the “cease and desist” letter, issued on 1 February 2018, is an act complained of timeously, and so not time-barred, the terms of that letter from Thompsons explain why they have taken that action on behalf of their clients at the GMB. There is no reasonable prospect of the claimant convincing a Tribunal that the issue of that letter was an act of discrimination by the respondents.[165]I reject as wholly fanciful the claimant’s arguments that there has been a course of conduct by the GMB extending over a period of time, and / or a continuing discriminatory state of affairs. That is, in my view, a disingenuous attempt by the claimant to try and avoid the respondents’ arguments about res judicata, and abuse of process, given my 2016 Judgment striking out his previous claim against the GMB.[166]In my reserved consideration of this case, in private deliberation, I have also given myself a self-direction on the Scottish law regarding res judicata. In particular, I have considered the helpful summary provided in the judgment of the Inner House of the Court of Session (Extra Division) in Durkin v HSBC Bank plc [2016] CSIH 93, where the Opinion of the Court, delivered by Lord Malcom, at paragraphs [9] to [11], considered the law as to res judicata, described it as well-settled and summarised it as follows: “The Law as to Res Judicata [9] The main question for decision is whether the sheriff and the sheriff principal were correct to uphold the bank’s plea of res judicata. The applicable law is well settled, and can be summarised as follows. The plea, which is found in most developed legal systems, is rooted in the public policy against repeated litigation between the same parties “on substantially the same basis” – Lord President Cooper in Grahame v Secretary of State for Scotland 1951 SC 368 at 387. In the same passage it is stressed that the court should not concentrate on the specific terms of the conclusions or the pleas in law, but look to “the essence and reality of the matter” and simply inquire – “What was litigated and what was decided?”. The court is not concerned with whether the first decision was right or wrong. In Grahame the plea failed because the two actions dealt with “essentially separate and distinct subjects of assessment” – Lord Russell at 392. Phosphate Sewage Co v Molleson (1879) 6 R (HL) 113 makes it clear that simply putting forward new facts to support a claim for relief previously refused will not overcome the plea – Lord Hatherley at 119. [10] In Short's Trustee v Chung 1999 SC 471 the first action was one of reduction of two dispositions brought by a trustee in sequestration based on gratuitous alienations under section 34(4) of the Bankruptcy (Scotland) Act 1985. Given the meaning of certain provisions in the Land Registration (Scotland) Act 1979, it was discovered that the grant of the reductions had not altered the title to the lands, so in a second action restoration of the properties to the previously infeft proprietor was sought. A plea of res judicata failed. The court asked “the fundamental question”, namely, are there common features which lead to the conclusion that the second action would entail “unacceptable repetition of litigation?” The court rejected the submission that the same issue was being litigated. It derived little assistance from concepts such as a comparison of the medium concludendi of each action, but preferred the “more useful” test adumbrated in Grahame – see at 477H. The “nature of the (second) action” was different from the first. A “new matter” was being litigated. [11] In Primary Health Care Centres (Broadford) Ltd v Ravangave 2009 SLT 673 Lord Hodge observed that a plea of res judicata depends upon a prior determination by a court of competent jurisdiction pronounced in foro contentioso; that the subject matter and media concludendi are the same; and that (other than in respect of decrees in rem) the parties are the same, or representative of the same parties, or with the same interest. The modern tendency is to focus on the essence of the matter rather than technical form. At paragraph 32 his Lordship noted the clear authority that, since there is only one cause of action, all grounds of pleading that a single act amounts to a delict (or breach of contract) must be raised in the same action. Thus, for example, one cannot seek damages for personal injury at common law, and then, if that is unsuccessful, bring an action based upon breach of statutory duty. It will not avail a pursuer to raise a new action pleading different facts in support of what is, in essence, the same issue; which in both of the actions at the instance of Primary Health Care Centres was – are the defenders liable in terms of the lease? This was said in the context of the pursuers having been prevented from advancing an alternative basis for the claim in the first action, a justification also put forward in the present case by Mr Durkin. Absent res noviter ad notitiam, a different factual basis will not stop a plea of res judicata if the legal claim has not changed. In both actions the same legal claim was being litigated, therefore Lord Hodge upheld the plea of res judicata.”[167]I accept, as well-founded, Mr Crammond’s supplementary skeleton argument, of 14 November 2018, at paragraphs 6 to 10 in particular, that the Supreme Court’s judgment in Virgin Atlantic, and the EAT judgment in Ochieng, bolster the respondents’ arguments in relation to res judicata, and abuse of process, and support, and indeed strengthen, the respondent’s application to Strike Out
the claim.
[168]It is contrary to the legal principle of finality of litigation to allow him now, some 2 years later, to seek to run a new claim based on many matters that were the subject of his struck out 2015 claim. That is particularly so, in my view, when he did not seek to apply for a reconsideration of that Judgment, nor to appeal it on a point of law to the EAT.[169]It is in these circumstances, allied to his conduct of this Preliminary Hearing, that I am also satisfied that it is appropriate to uphold the respondents’ further argument that this claim should also be struck out as scandalous or vexatious.[170]In these circumstances, I do not, strictly speaking, need to go on and consider Mr Crammond’s alternative argument seeking a Deposit Order against the claimant. However, having heard from both parties fully on that opposed application by the respondents, I consider it only right and proper that I make some further comments.[171]Rule 39(1) allows a Tribunal to use a Deposit Order as a less draconian alternative to Strike Out where a claim (or part) is perceived to be weak but could not necessarily be described by a Tribunal as having no reasonable prospect of success.[172]In fact, it is fairly commonplace before the Tribunal for a party making an application for Strike Out on the basis that the other party's case has “no reasonable prospect of success” to make an application for a Deposit Order to be made in the alternative if the ‘little reasonable prospect' test is satisfied.[173]The test of ‘little prospect of success' is plainly not as rigorous as the test of ‘no reasonable prospect'. It follows that a Tribunal accordingly has a greater leeway when considering whether or not to order a deposit. But it must still have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim – Van Rensburg cited above.[174]Prior to making any decision relating to the Deposit Order, the Tribunal must, under Rule 39(2), make reasonable enquiries into the potential paying party's ability to pay the deposit, and it must take this into account in fixing the level of the deposit.[175]At this Preliminary Hearing, I did not make specific enquiries of the claimant, as regards his ability to pay, if I decided to order him to do so, because he had complied with the case management order that I made on 5 September 2018, and he had, on 29 October 2018, provided a statement of means and assets, with vouching documents, and nothing further was requested by the respondents’ representative, nor required by me as the presiding Employment Judge.[176]Having struck out the entire claim, I have found it unnecessary to make a Deposit Order, in terms of Rule 39 of the Employment Tribunals Rules of Procedure 2013, which I would have made had I not struck out the whole of the claim.[177]In that event, of course, I would have required to further consider the appropriate amount for a Deposit Order, having regard to the claimant’s whole means, and taking his ability to pay into account, I would have required to decide what specific amount that I could be satisfied that he could afford to pay in that regard.[178]Had I required to do so, I note and record here that, having regard to the claimant’s statement of his whole means, I would have decided that a sum of £1,000, as sought by Mr Crammond, on behalf of the respondents, would have been an appropriate amount to set as a condition of the claimant being permitted to take part in these Tribunal proceedings relating to the specific allegations set forth in his ET1 claim form.[179]In his statement of means, dated 29 October 2018, together with vouching documents, none of which was challenged by Mr Crammond, the claimant provided a detailed account of his income and expenditure, and also his capital assets and savings.[180]As this Judgment will be published online, and so as to keep the claimant’s, and his wife’s , financial affairs strictly confidential, and not be publicly available I have not recorded the detail here, but, without disclosing the actual sums involved, which have in any event been disclosed to the Tribunal, and copied to Mr Dean as solicitor for the respondent, it is I think sufficient to record here that the claimant, no longer in employment of West Dunbartonshire Council, is no longer in receipt of a salary, but he is in receipt of State benefits from the DWP, and also a pension from the Local Government Pension Scheme.[181]According to his statement of means, the joint expenditure of the household, comprising himself and his wife, exceeds his income. On the matter of capital assets, however, the claimant is not, by comparison to many a claimant who appears before the Tribunal, a man of limited means, who is unemployed, on State benefits, following termination of employment, and with little, if any, by way of capital assets.[182]Whilst his available cash is modest, the claimant appears to be a man of some significant capital means, and with capital assets, including 3 properties, jointly owned with his wife and / or sister, with vehicles, and electronics, electrical & mechanical equipment, I consider that a sum of £1,000, against the value of his whole means and assets, as declared to the Tribunal, is a fair and reasonable sum which, if he wished to continue with his claim, had I not struck it out, would not impose a significant financial barrier preventing him from continuing with this claim, if he still chose to do so, when the amount of deposit involved is modest when compared to his whole means and assets. Further Procedure[183]Given my decision to strike out the whole of this claim, there is no further procedure to be determined by the Tribunal.[184]In particular, the claimant’s proposed application to amend the ET1 claim form, as intimated by him on 12 September 2018, is no longer an issue for the Tribunal. As the claim has now been struck out, it is not possible to amend a claim that has been struck out.[185]Further, and because of this decision, no further action will be taken on the claimant’s application of 11 October 2018 to Strike Out the respondents’ ET3 response. Closing Remarks[186]It is clear that the claimant feels strongly about this case and, as like many other unrepresented, party litigants, he may well have persuaded himself of the justice of his cause, and he may indeed sincerely believe in his cause.[187]However, I have had to assess his claim before this Tribunal against these respondents, the GMB, based on my independent and objective judicial scrutiny of his ET1 claim form, taking what he says there, at its highest.[188]In coming to my decision on this opposed application, I have taken into account that the claimant is, in these proceedings, an unrepresented, party litigant. In A Q Ltd v Holden [2012] IRLR 648, EAT, His Honour Judge Richardson, the EAT Judge, held, particularly at paragraphs 32 and 33, that that justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life, and that lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser.[189]Further, I consider it appropriate, in relation to the claimant’s reference to himself as an unrepresented, party litigant, to refer to the recent Supreme Court judgment in Barton v Wright Hassall LLP [2018] UKSC 12, particularly Lord Sumption, at paragraph 18, where he stated that: “18. Turning to the reasons for Mr Barton’s failure to serve in accordance with the rules, I start with Mr Barton’s status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid [2015] 2 P & CR 3, [2014] EWCA Civ 1652. At best, it may affect the issue “at the margin”, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, which is less significant in the case of applications to validate defective service of a claim form. There are, however, good reasons for applying the same policy to applications under CPR rule 6.15(2) simply as a matter of basic fairness. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”[190]More recently, Lord Carloway, the Lord President of the Court of Session, in giving the Opinion of the Court, in Khaliq v Gutowski [2018] CSIH 66, having quoted from Lord Sumption in Barton, referred, at paragraph 36 of his judgment to a recent judgment by Lady Paton , following Barton, stating that: “... the fair balance achieved by the rules of court will inevitably be disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent”.[191]In the present case, I have taken into account that the claimant is representing himself, but that factor does not in any way allow him any special indulgences where the Tribunal decides, as I have done, that it is appropriate to grant the respondents’ application for Strike Out.[192]As I am satisfied that this claim has no reasonable prospects of success against the GMB, I have struck it out in its entirety, for the various reasons detailed above.