Miss S Bailey v Aviva Employment Services Ltd: 6000010/2022

EMPLOYMENT TRIBUNALS

Case No 6000010/2022

Between

Miss S BaileyClaimant

Aviva Employment Services LtdRespondent

Before

Employment Judge Brain

Members

Ms R Hodgkinson

Mr D Fields

In person for claimant

Mr T Benjamin (instructed by Counsel) for respondent

Date 12 July 2024

JUDGMENT

[1]The claimant’s conduct before the Tribunal on 16, 18 and 19 January 2024 was scandalous and unreasonable.

[2]A fair trial of the action is no longer possible.

[3]It is not proportionate to strike out the claim.

[4]Accordingly, the respondent’s application for an order pursuant to Rule 37(1)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 that the claimant’s claim be struck out is refused.

[5]The claimant’s application dated 20 February 2024 that the

REASONS

[1]On 18 January 2024, the respondent made an application for the claimant’s claim to be struck out. After hearing submissions on the application on 18 and 19 January 2024, the Tribunal reserved judgment at around 15:10 on the latter date. 10.5 Reserved judgment with reasons – rule 61 1 March 2017 We deliberated in chambers for the rest of the afternoon, and on 11 March 2024. We now give reasons for the judgment that we have reached. This is a ruling that was not taken lightly and was reached only after anxious and careful consideration. Further, on 20 February 2024 the claimant applied for the Employment Judge’s recusal from the cease. This application was also considered on 11 March 2024. The relevant law upon the strike out application

[2]It is, we think, helpful to set out the relevant legal principles with which we are concerned at the outset. The Tribunal’s strike out power is to be found in Rule 37 of the 2013 Regulations. By Rule 37(1): “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds.”

[3]Five grounds are then set out. The relevant one in this case is that at Rule 37(1)(b). This provides that a claim may be struck out on the ground: “That the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious.”

[4]By Rule 37(2), “A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”

[5]In exercising its powers under the 2013 Regulations, the Tribunal is bound to have regard to the overriding objective. This is set out in Rule 2 of Schedule 1.

[6]There is no dispute that striking out a claim or a response is a draconian measure which should not be undertaken lightly. This is even more the case where a matter has occupied as much Tribunal time as has this one.

[7]In Bolch v Chipman

[2004] IRLR 140

the Employment Appeal Tribunal (Burton P presiding) held that where the Employment Tribunal is considering the possibility of striking out a claim or response then four matters need to be addressed. The Bolch criteria were summarised by HHJ Eady in Chidzoy v British Broadcasting Corporation UK

EAT/0097/17

. At paragraph 23 of Chidzoy, HHJ Eady went through the four matters to be addressed as follows:(1) There must first be a conclusion by the Employment Tribunal not simply that a party has behaved unreasonably but the proceedings have been conducted unreasonably by her or on her behalf. (We interpose to say that in Chidzoy, the issue was one of unreasonable conduct. As we shall see, in this case, the issue is one of scandalous as well as unreasonable conduct).

(2) Assuming there is such a finding, in ordinary circumstances the Employment Tribunal will still need to go on to consider whether a fair trial is still possible, albeit there can be circumstances in which a finding of unreasonable conduct can lead to a debarring order (see De Keyser Limited v Wilson

[2001] IRLR 324

EAT (Lindsay P presiding). That might be, for example, where there has been “wilful, deliberate or contumelious disobedience” of an Employment Tribunal Order, otherwise it might be where the conduct in issue is so serious that it would be an affront to the Tribunal to permit the party in question to continue to prosecute their case (see Arrow Nominees Inc v Blackledge

[2000] EWCA Civ 200

). 10.5 Reserved judgment with reasons – rule 61 2 March 2017

(3) Even if a fair trial is not considered possible, the Employment Tribunal must still consider what remedies are appropriate and whether a lesser remedy might be more proportionate.

(4) And even if it determines that a debarring order is the appropriate response, the [Employment Tribunal] should consider the consequences of that Order (allowing that, for example, where a response has been struck out at the liability stage, it might still be appropriate to allow the respondent to participate in any remedy hearing).”

[8]Arrow Nominees is not an employment case. It arises out of the presentation of a petition for relief under section 459 of the Companies Act 1985. An application was made by the defendant to strike out the petition upon the basis that Arrow Nominees (through its controlling shareholder) had sought to pervert the course of justice by the production, during standard discovery, of documents which they knew to be forged and therefore a fair trial of the petition was impossible. The Court of Appeal (Chadwick LJ) held that the trial judge was wrong to allow the petition to proceed once he had reached a conclusion that there was a substantial risk that the allegations at issue were incapable of a fair trial.

[9]Chadwick LJ said (in a passage which is familiar to the claimant (as we observe at paragraph 50 below): (54) … I adopt, as a general principle, the observations of Millett J in Logicrose Limited v Southend United Football Club Limited (The Times) 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process at the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the court – if that object is ultimately secured, by (for example), the late production of a document which has been withheld. But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke. “(55) … Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on 10.5 Reserved judgment with reasons – rule 61 3 March 2017 the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was “hijacked” by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts(1) that the petitioners had sought to rely on documents which Nigel Tobias [the controlling shareholder of Arrow Nominees] had forged with the object of frustrating a fair trial and

(2) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioner’s case occupied far more of the court’s time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court. (56) .. In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents - and in the interests of the administration of justice generally – to allow the trial to continue. If he had considered that question then – as it seems to me – he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court’s function to conduct, but to have a trial with the fairness of which he has attempted (and continues to attempt) to compromise.”

[10]In summary, therefore, if dishonesty or wrongdoing makes a fair trial impossible, the court has a duty to stop the proceedings to protect the innocent party from an injustice. However, if some wrongdoing in the proceedings is found out but a fair trial remains possible, then the court ought not to stop the proceedings as to do so would simply be judicial retaliation for the affront to the court.

[11]This principle is not confined to fraud. The essential question is whether the action compromises the integrity of the court’s procedures. A court which allows its process to be abused will lose public confidence.

[12]In Arrow Nominees at [67], Ward LJ cited the salient passage from the Southend United case where Millett J said: “In my view, a litigant is not to be deprived of his right to a proper trial as a penalty for his contempt or defiance of the court, but only if his conduct has amounted to an abuse of the process of the court which would render any further proceedings unsatisfactory or prevent the court from doing justice. Before the court takes that serious step it needs to be satisfied that there is a real risk of this happening [ie the risk that it is impossible to conduct a fair trial]. …The deliberate and successful suppression of a material document is a serious abuse of the process of the court and may well merit the exclusion of the offender from all other participation in the trial. The reason is that it makes the fair trial of the action impossible to achieve and any judgment in favour of the offender unsafe. But if the threat of such exclusion produces the missing document, then the object of Order 24 rule 16 [the court rules relevant at the time] is achieved. In my judgment an action ought to be dismissed or the defence struck out (as the case may be) only in the most exceptional circumstances once the missing document has been 10.5 Reserved judgment with reasons – rule 61 4 March 2017 produced and then only if despite its production there remains a real risk that justice cannot be done.”

[13]In summary, therefore, Ward LJ (as it seems to the Tribunal) was advocating the proposition that where the existence of documentation is concealed, and there is a suppression of evidence, then the person responsible may forfeit their right to the adjudication of the court. Otherwise, there is a risk of injustice.

[14]The next authority of relevance to this case is Bennett v Southwark London Borough Council

[2002] ICR 881

. After a 10 days’ hearing of a race discrimination case, the Employment Tribunal proceedings in this matter were adjourned part-heard, to resume on 27 January 1997 with an allocation of eight more working days. On 27 January 1997 the claimant was absent. Her representative applied for an adjournment. This was refused by the Tribunal. Over the luncheon adjournment, the representative spoke to the claimant. He took her instructions to re-apply for an adjournment.

[15]His instructions as relayed to the Tribunal om 28 January 1997 remained to apply for the adjournment, and he therefore renewed the application. It should be said that Mrs Bennett’s representative was a lay representative (and, relevantly) is black. When he renewed the application on the morning of 28 January 1997, he made two remarks in particular in reference to the refusal of the application the previous day: “if I were a white barrister I would not be treated in this way” and “if I were an Oxford-educated white barrister with a plummy voice I would not be put in this position.”

[16]The Tribunal retired to consider matters and concluded that they could not continue to hear a case of race discrimination in which they had now been accused of racism. The Tribunal therefore recused themselves and put the matter over to a fresh Tribunal.

[17]The Employment Appeal Tribunal held that it had been wrong for the Employment Tribunal hearing the case in January 1997 to have recused themselves in the circumstances. This decision was upheld by the Court of Appeal.

[18]The first judgment in the Court of Appeal was given by Sedley LJ. In paragraph 13, he observed that, “…Fearlessness, which is rightly regarded as a virtue in professional advocates, can occasionally extend to standing up to courts in difficult confrontations. The advocate will not always be right, but so long as he or she remains civil, submissions which are not only strong but unpalatable may be made if the advocate’s duty or judgement requires it. A submission that a tribunal should recuse itself…may come into this class… What is unacceptable is making such submissions gratuitously or deviously – for example in order to secure an adjournment which cannot otherwise be got. So is making a submission, especially one of this kind, in an offensive manner. Our system of justice depends far more than is often realised (at least by people who have not seen some other countries’ systems in operation) on a level of courtesy and formality which ensure that hard things can be said without giving insult or offence. I see no reason in this respect to expect a lesser standard of unqualified representatives than is expected of professional lawyers.”

[19]In paragraph 17 Sedley LJ went on to say that “…where the reason [for recusal] is an advocate’s aberrant and offensive behaviour, as it was here, there are numerous reasons not to abort the hearing until a serious endeavour has been made to diffuse the situation, and more than one way to do so.” He went on to 10.5 Reserved judgment with reasons – rule 61 5 March 2017 say in paragraph 18 that, “One way (and perhaps the best way in the case of a single outburst) is to ignore it. Another, if having retired the Tribunal feel as this Tribunal did, is to point out to the advocate the potential consequences of his behaviour and invite him, if he cannot justify his remark, to withdraw them. If he withdraws them, there is no reason in the ordinary way why the case cannot go on”. Then at paragraph 19 this was said, “Even if he does not withdraw, and assuming of course that no proper justification is offered, the Tribunal may still need to consider whether, given the potential injustice to the other side and the public expense which recusing itself will bring, it cannot, perhaps after a break, continue the hearing with an unclouded mind. Courts and Tribunals do need to have broad backs …”

[20]The Tribunal notes that Mrs Bennett’s representative’s actions were endorsed by her. She accused both the first Tribunal and the Tribunal which then heard the case following the first Tribunal’s remission of the matter of bullying behaviour towards her representative and being “being very polite to the white respondent counsel …”. She accused both of the chairmen (as employment judges were then known) of being biased and acting improperly. In short, Mrs Bennett endorsed and ratified her representative’s remarks which caused the first Tribunal’s recusal.

[21]Sedley LJ observed in paragraph 21 that the representative’s explanation of his conduct left a great deal to be desired and “Mrs Bennett’s expressed attitude to it makes the worst that could be made of the situation he created”. However, the representative’s explanation suggested that if he had been confronted with the consequences of his intemperate outburst “he would, not too graciously perhaps, have climbed down.” He endorsed the Employment Appeal Tribunal’s approach that before discontinuing the proceedings the first Tribunal “ought to have required [the representative] to affirm or withdraw his accusations. It is possible of course that he would have refused to do either thing – but there was only one way to find out. In other words, a point had not been reached, and was not necessarily going to be reached, at which the entire lengthy hearing had to be aborted.” Sedley LJ opined that the first Tribunal “retreated prematurely from the field.”

[22]Sedley LJ then went on to consider whether Mrs Bennett’s case was conducted in a scandalous manner. At paragraph 27 he said, “In its colloquial sense [the word ‘scandalous’] signifies something that shocks the speaker. … I am confident that the relevant meaning is not the colloquial one. Without seeking to be prescriptive, the word ‘scandalous’ in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process”. Longmore LJ agreed with Sedley LJ’s Judgment.

[23]Ward LJ then delivered his judgment. He too refused the appeal against the Employment Appeal Tribunal’s decision.

[24]In paragraph 42 he said, “Judicial duty is to be performed both without fear as well as without favour. The Tribunal did not act fearlessly when it capitulated to the inexcusable petulance and insolence displayed by [Mrs Bennett’s representative]. It was wrong not to listen to [his] diatribe with phlegmatic fortitude, retiring, if necessary, to compose itself and to cool the advocate’s ardour, and then calmly continuing. Instead they allowed invective to infect them with prejudice. In getting on their high horse they fell off the judgment seat. I do 10.5 Reserved judgment with reasons – rule 61 6 March 2017 not deny that it is thoroughly unpleasant and uncomfortable to be accused of bias. It is, sadly, not an uncommon charge…Judges, member of Tribunals …all have to rise above such a challenge because all must be confident in their ability to judge impartially.”

[25]Ward LJ agreed with the Employment Appeal Tribunal’s recommendation of the approach that ought to have been taken. This is set out at [43]: “In the present case we [that being the Employment Appeal Tribunal] have no doubt that the proper course was for the Tribunal to return from its deliberations and inform the parties of its collective view of [the] remarks. Before discontinuing the proceedings it ought to have required [the representative] to affirm or withdraw his accusations. If he continued to press his claim of racial bias it would then be for the Tribunal, either of its own motion or, more likely, on the basis of an application which was in fact made by the respondent … to consider using its powers to order a strike out under Rule 13(2)(e) [of the Tribunal Rules then in force] … and to give appropriate directions for that purpose. Alternatively, if he withdrew his remarks, then it would have been open to the Tribunal to continue the hearing, with or without an adjournment occasioned by the absence of [Mrs Bennett]”.

[26]Ward LJ took the view that the Tribunal could not properly have continued to hear the case even in the event of a withdrawal of the remarks by the representative. This was, as he said in paragraph 44 upon the basis that the Tribunal “was honest enough to admit that it had lost its impartiality. From that moment onwards it was infected with actual bias. To have continued would have been to deny justice being done.”

[27]The second Tribunal struck out the claim on the basis that the conduct of the proceedings on behalf of Mrs Bennett had been scandalous. In paragraph 55 of his Judgment, Ward LJ said that regard had to be had of the way the proceedings of being conducted overall as well as what effect any isolated conduct might have on the future conduct of the proceedings. Nothing untoward had occurred in the previous 11 days of the hearing. He said that “the tainting effect of this isolated incident could, and should with tact, have been dissolved so that it would not have coloured the proceedings as a whole. For my part I cannot conclude that the proceedings have been conducted in a scandalous manner. He went on to say in paragraph 56 that, “I agree with Sedley LJ’s view that the striking out of the proceedings had to be a proportionate response. Striking out was disproportionate to the necessary metaphorical shrugging of the shoulders and getting on with it in order not to jeopardise the applicant’s claim and ten days of the hearing.”

[28]The next case which the Tribunal considers is Edmondson v BMI Healthcare and another [2002] UK EAT 0654. As with Bennett, the genus of this matter is about an unqualified representative’s behaviour. Following several acts of misconduct (which it is not necessary to set out here) and a warning that his behaviour amounted to contempt of court, the respondent made an application that the claimant’s originating application be struck out pursuant to Rule 13(2)(e) of the Employment Tribunal Rules of Procedure which were in force at the time. The application was made during the claimant’s evidence. She was released from her oath to enable her to discuss the matter with her representative and whether she wished him to continue to represent her. When the matter was reconvened, she said that she did wish for him to continue but that he would undertake not to interfere with or interrupt again while she was giving her 10.5 Reserved judgment with reasons – rule 61 7 March 2017 evidence. The Tribunal was not reassured and ordered that her claim be struck out. The Tribunal was not satisfied that the representative would abide by his assertion that the conduct would not be repeated. The earlier final warning had not worked. The Tribunal held that the representative’s conduct had made a fair hearing impossible.

[29]In Sud v The Mayor and Burgesses of the London Borough of Hounslow [UK EAT PA-0156-14] the claimant made a last-minute adjournment application on medical grounds. It subsequently transpired that she had lied about her medical condition and falsified a document in support of her application. The Employment Tribunal struck out her claim upon the grounds that it had lost all trust in her veracity and that a fair trial was therefore no longer possible. The Employment Tribunal observed that the substantive matters in dispute in the case would ultimately depend very heavily on the claimant’s own evidence. The consequences of her showing herself willing to tamper with evidence and mislead the Tribunal as to the existence of evidence were therefore very serious. They cast serious doubt on the question of whether there could be a fair trial of the issues in the case. HHJ Laing concluded that the Employment Judge’s conclusion was one open to her and on the facts was the right decision. This was upon the basis that faith in the credibility of the claimant had been lost.

[30]We now turn to Chidzoy v British Broadcasting Corporation [UK

EAT/0097/17

]. We have mentioned this case already. The claimant had disregarded the Employment Judge’s warning not to discuss her evidence with others whilst she was under oath. The Employment Tribunal concluded that it had irretrievably lost trust in the claimant and could no longer fairly hear her case. It considered whether there were any alternatives of striking out the claim but concluded that there were none. The claim was therefore struck out.

[31]HH Judge Eady held that the Employment Tribunal was entitled to conclude that it could no longer conduct a fair trial of the claimant’s case as the loss of trust was irreparable. She also concluded that the Tribunal had been right to rule that it was a proportionate response to strike out the claimant’s claim. This was because there was no means of retrieving the situation. A new Employment Tribunal would be aware of the reason why the hearing had been aborted and there was nothing that could be done to avoid the question raised regarding the claimant’s credit continuing to be an issue in the proceedings.

[32]We next turn to the case of Smith v Tesco Stores Limited [2023] EAT11. In this case, it was held by HH J Tayler that the Employment Tribunal was entitled to reach the view that the claimant had acted in a manner that was scandalous, unreasonable, or vexatious, to conclude that a fair trial was no longer possible and that it was proportionate to strike out the entire claim. A fair trial was not possible because the claimant refused to co-operate with the respondent and the Employment Tribunal.

[33]Matters had culminated in what was a fifth preliminary hearing which was held on 17 March 2021. Mr Smith chose to conduct the preliminary hearing by ignoring the Employment Judge, talking over her, and seeking to co-opt the hearing clerk into acting as his representative. He ignored a request from the clerk to stop addressing him and to speak to the Employment Judge. The Employment Judge concluded that the unreasonable conduct of Mr Smith was discourteous to the Tribunal and placed the clerk in an unfair and invidious position. She concluded that the claimant had given gratuitous insult to the Tribunal. Having concluded 10.5 Reserved judgment with reasons – rule 61 8 March 2017 that Mr Smith’s conduct was scandalous, unreasonable, or vexatious she found that a fair trial was no longer possible because his behaviour was likely to be repeated. She was unable to identify a lesser sanction to ensure compliance and therefore struck out the claim.

[34]HHJ Tayler took the opportunity to remind Tribunal users that they are not merely requested to assist the Employment Tribunal in furthering the overriding objective but are required to do so. This reminder was issued at paragraph 34 of his judgment.

[35]HHJ Tayler then reviewed the relevant authorities. He referred to the test in Bolch (at paragraph 7 above) and cited from paragraph 55 of Arrow Nominees (which we quoted at paragraph 9 above).

[36]HHJ Tayler reminded himself of what was said by Sedley LJ in Blockbuster Entertainment Limited v James

[2006] EWCA Civ 684

. At paragraph 18 of Blockbuster, Sedley LJ said in that case that “The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous, and uncooperative in many respects. Some of this may be attributable to the heavy artillery that has been deployed against him, though I hope that for the future he will be able to show the moderation and respect for others which he displayed in his oral submissions to this court. But the Courts and Tribunals of this country are open to the difficult as well as the compliant, so long as they do not conduct their case unreasonably.”

[37]HHJ Taylor also referred in Tesco Stores Limited to Emuemukoro v Croma Vigilant (Scotland) Limited

[2022] ICR 327

. In this case, the Employment Tribunal held that the respondent’s conduct had rendered a fair trial during the listed trial window impossible. Choudhury P upheld the Tribunal’s decision to strike out the response. He upheld the Tribunal’s ruling that a fair trial within the trial window was not possible. The fact that it would have been possible for there to be a fair trial, were the case adjourned and relisted, is irrelevant. Choudhury P held (at paragraph 19 of Croma Vigilant) that: “It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally and the overriding objective, if the fairness question had to be considered without regard to such matters.” He disagreed with Cromer Vigilant’s counsel that other considerations should be “subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues.” In summary, a lack of forensic prejudice if the matter were to be relisted is not a trump card but is one factor to be considered amongst others.

[38]Having reviewed the authorities, HHJ Tayler proceed to uphold the Employment Tribunal’s ruling in Tesco Stores Limited. At paragraph 47 he said that “This judgment should not be seen as a green light for routinely striking out cases that are difficult to manage. It is nothing of the sort. We must remember that the “Tribunals of this country are open to the difficult”. Strike out is a last resort, not a shortcut. For a stage to be reached at which it can properly be said that it is no longer possible to achieve a fair hearing, the effort that will have to be taken by the Tribunal in seeking to bring the matter to trial is likely to have been as much 10.5 Reserved judgment with reasons – rule 61 9 March 2017 as would have been required if the parties had cooperated to undertake the hearing. This case is exceptional because, after conspicuously careful, thoughtful, and fair case management, the claimant demonstrated that he was not prepared to cooperate with the respondent and the Employment Tribunal to achieve a fair trial. He robbed himself of that opportunity.” The procedural history of this case

[39]The Tribunal will now set out the procedural history in this case before moving on to deal with the events of 16 to 19 January 2024.

[40]The claimant presented her claim form on 3 August 2022. The respondent presented their response to the claim on 14 September 2022. The matter was listed for a case management preliminary hearing to take place by way of telephone on 21 October 2022.

[41]This was postponed to 13 December 2022. The matter then came before Employment Judge Jones. He identified that the claimant was making the following complaints:• Victimisation.

• Direct race and sex discrimination in the form of constructive dismissal and detrimental treatment.

• Unauthorised deduction from wages.

• Compensation for accrued but untaken holiday pay. [A complaint raised by the claimant of unfair dismissal was dismissed upon withdrawal].

[42]Ahead of the hearing, the claimant had produced a schedule of allegations in tabular form. The respondent was represented at the hearing of 13 December 2022 by their solicitor, Louise Stratton. She is (relevantly, as we shall see) white. She raised concerns that whilst some of the matters raised in the claimant’s table were extant and within the claim form, some were not and for which the claimant would be required to make an application to amend her claim. The matter was therefore listed for a further telephone case management hearing.

[43]This came before the Employment Judge. The hearing was preceded by correspondence with the Tribunal from each party. It is not necessary to go into the detail about this. However, on 10 February 2023 the claimant drew to the respondent’s and the Tribunal’s attention a mental health assessment which she had undergone on 16 December 2022 following which her general practitioner had increased her antidepressant medication. She requested, as an adjustment, that, when listing the case for hearing, the Tribunal allow for a weekend break after the first three days of the hearing.

[44]The Employment Judge allowed the claimant to amend her claim to include several of the allegations in the table, refused others, and held that some within the table were extant as they were within the claim form in any case. The case was listed to be heard on 13, 14 and 15 September 2023, and then after the weekend of 16 and 17 September, to resume for a further four days on 18, 19, 20 and 21 September 2023. The claimant’s adjustment request was therefore accommodated by the Tribunal.

[45]On 27 February 2023, the respondent made an application to strike out the claimant’s claim upon the basis that it had no reasonable prospect of success. In 10.5 Reserved judgment with reasons – rule 61 10 March 2017 the alternative, the respondent made an application that the claimant should pay a deposit as a condition of continuing to advance the claim on the basis that it enjoyed little reasonable prospect of success.

[46]On 28 February 2023, the claimant objected to the listing of a preliminary hearing to determine the respondent’s applications. In an application to vary case management orders made by Employment Judge Davies (dated 27 April 2023 at paragraph 26) she acknowledged that the Employment Judge’s Orders made at the hearing of 13 February 2023 had considered her mental impairment (by allowing for a weekend break after the first three days of the hearing).

[47]The respondent’s strike out and deposit application came before Employment Judge Miller on 12 May 2023. He identified the claimant’s claims and then made an Order that she pay a deposit of £2.50 as a condition of being permitted to continue to advance each of them. It was identified that there were 33 allegations. The respondent’s application to strike out the claims upon the grounds that they enjoyed no reasonable prospect of success was dismissed. In the schedule to his Order, Employment Judge Miller attached an appendix setting out 32 allegations. (There was in fact a thirty-third allegation, that being the claimant’s contention that individually or cumulatively the acts of discrimination and victimisation amounted to a discriminatory constructive dismissal of her).

[48]Employment Judge Miller identified one complaint of direct sex discrimination, ten complaints of direct race discrimination and 21 allegations of victimisation. The list of allegations is at pages 139 to 141 of the final hearing bundle.

[49]On 15 May 2023 the claimant sent an email to the Employment Tribunal (copied to Miss Stratton). This concerned issues around her means relevant to the deposit order. She also attached her latest prescription of antidepressants.

[50]On 25 August 2023, the claimant made an application to strike out the response. This was upon the basis that the manner in which the proceedings were being conducted by Miss Stratton was unreasonable. This application was refused by the Employment Tribunal on the first morning of the hearing on 13 September 2023. (The Tribunal notes that in support of her strike out application that the claimant cited paragraph 55 and 56 of the judgment of Chadwick LJ in Arrow Nominees which is referred to in paragraph 9 above).

[51]It follows therefore that the claimant is aware of the principles that: first, the court will not do justice to the other parties to the proceedings if its process is allowed to be abused such that the real point in issue becomes subordinated to an investigation into the effect which the conduct of one party has on the fairness of the trial; second, that hijacking a trial is to be deprecated; and third that the decision to stop a trial in those circumstances is not one based on punishment of a party but rather that the fairness of a trial has been compromised by the impugned conduct of a party.

[52]On 5 September 2023 the respondent’s solicitor made a second application to strike out the claimant’s claim. This was made upon the basis of several of the grounds in Rule 37(1), these being: (b) that the manner in which the proceedings had been conducted by the claimant was scandalous, unreasonable and/or vexatious; (c) there was non-compliance with Orders of the Tribunal (d) that the claimant was not actively pursuing her claim. This application was withdrawn by the respondent’s solicitor on 8 September 2023. 10.5 Reserved judgment with reasons – rule 61 11 March 2017

[53]The hearing commenced on 13 September 2023. After hearing the parties, the Tribunal utilised 13 and 14 September as reading days.

[54]The Tribunal made an Order on 13 September 2023 that the claimant be given permission to serve a supplemental witness statement. This was to be served upon the respondent’s solicitor by 2pm on 14 September 2023. This arose out of late disclosure on the part of the respondent.

[55]The claimant gave her evidence on 15 and 18 September 2023. Her case concluded just before the lunchbreak on the latter date.

[56]The respondent then called their first witness who was Christopher Shaw. Mr Shaw’s cross-examination concluded just after 4 o’clock on 18 September.

[57]On the morning of 19 September 2023, the claimant applied for “half a day’s leave”. This was upon the basis that she did not feel well enough to continue that day. This was because of an issue which she said had arisen the previous day, 18 September 2023. The claimant alleged that Mr Shaw and others associated with the respondent had sought to enter the claimant’s consulting room.

[58]At this point, it is right that the Tribunal should give a brief description of the layout. The proceedings were heard in court 15 in the Sheffield Combined Court Centre. (This is where the Sheffield Employment Tribunal is based). The claimants’ waiting room is in the anteroom adjoining the public entrance door to court 15. At one end of the waiting room is a consultation room which is reserved for claimants and their representatives. The court 15 waiting room is also used as a waiting room for other court users. The respondents’ waiting room is elsewhere within the building.

[59]The waiting room is covered by CCTV. The CCTV footage is above the door of the consulting room, the interior of which is not therefore captured on CCTV.

[60]As was said, the claimant applied for an adjournment of the hearing on 19 September 2023 with a view to resuming the next day. However, the Tribunal was concerned about the claimant’s fitness to conduct proceedings during the rest of the week. Of their own motion, therefore, the Tribunal adjourned matters to 20 November 2023. This was out of concern for the claimant’s welfare.

[61]An order was made for the claimant to serve upon the respondent’s solicitor a General Practitioner’s fit note about her fitness to proceed (with which the claimant complied very quickly). She was also ordered to serve upon the respondent’s solicitor and file with the Employment Tribunal a report or a letter from her GP certifying her as fit to attend the hearing for 20 to 24 November 2023. (In the event, the Tribunal varied this order and waived these requirements upon the basis that the claimant self-certified her fitness to resume on 20 November 2023 and to which the respondent raised no objection).

[62]The case was therefore relisted for a hearing between 20 and 24 November 2023. Upon the resumption of the matter on the morning of 20 November 2023 the Tribunal converted the hearing to a private case management hearing to discuss the claimant’s wish to play the CCTV footage from the relevant time on 18 September 2023 at which the alleged conduct mentioned at paragraph 57 took place.

[63]The Tribunal had concern that other court users may have been captured on the CCTV footage (as had been the respondent’s witnesses). While there was no issue regarding the latter, the Tribunal was concerned about the rights of the 10.5 Reserved judgment with reasons – rule 61 12 March 2017 members of the public captured on the footage. Article 8 of Schedule 1 to the Human Rights Act 1998 provides that everyone has the right to respect for their private and family life, their home and correspondence. As a public authority, there is an obligation upon the Employment Tribunal to act in a way compatible with Convention rights. This is provided by section 6 of the 1998 Act. Those Article 8 rights of course must be balanced against the parties’ right to a fair trial in accordance with Article 6 of Schedule 1.

[64]The solution arrived at by the Tribunal was to invoke the powers under Rule 50 of Schedule 1 to the 2013 Regulations. To protect the Convention rights of other court users to a private life, the Tribunal held that the part of the hearing at which the Tribunal would view the CCTV footage of 18 September 2023 and receive evidence about it would be held in private and that the identities of others would not be disclosed to any members of the public in attendance at the hearing of this case. (When making findings of fact in the case for the public record, the anonymisation of the court users could be maintained without in any way denuding the findings of content such that a reader could not understand the reason why the findings had been made).

[65]The private case management hearing held on the morning of 20 November 2023 was therefore concluded. An adjournment was allowed to enable the setting up of the video evidence. The hearing then proceeded in private pursuant to the Order made under Rule 50. The video evidence was viewed. Then, matters resumed in public. Mr Shaw was recalled for further cross-examination on the afternoon of 23 November 2023. When he was recalled, the Tribunal converted the hearing to a private hearing from which the members of the public present were excluded to preserve the anonymity of the court users.

[66]At around 3.30pm on 23 November 2023 the Tribunal was informed that the respondent wished to make a third application to strike out the claimant’s claim. This was made upon the grounds that the manner in which the proceedings had been conducted by or on behalf of the claimant has been scandalous, unreasonable and/or vexatious. The application was emailed to the Tribunal by the respondent’s solicitor at 15.17 that day.

[67]Late in the afternoon of 23 November 2023, the respondent’s counsel made an application that this be heard on 24 November 2023. The claimant objected to this suggestion.

[68]The Tribunal adjourned for 15 minutes between 3.35pm and 3.50pm on 23 November 2023. This was to consider the application for the strike out application to be heard the next day. Upon the resumption, the Employment Judge informed the parties that it was the decision of the Tribunal that there was insufficient time for the claimant to properly respond to the strike out application. Hearing the application of the morning of 24 November 2023 (where she had only received notice of it at around 3.30pm on 23 November 2023) would not be to give her a reasonable opportunity to make representations as required by Rule 37(2) of sch. 1 to the 2013 Regulations. This was even more so given that the claimant was scheduled to cross-examine one of the respondent’s witnesses on 24 November in any case.

[69]At the conclusion of the hearing on 24 November 2023, the Tribunal gave directions. The strike out application was provisionally listed for hearing on 23 December 2023. Subject to the respondent’s strike out application, the matter 10.5 Reserved judgment with reasons – rule 61 13 March 2017 was listed to resume on 15 January 2024 and then to continue for the remainder of that week.

[70]The Tribunal directed the respondent to write to the Tribunal and the claimant on or before 1 December 2023 to confirm whether the strike out application was pursued. The Tribunal drew to the respondent’s attention that the strike out application had not addressed the second, third and fourth criteria to be considered upon strike out applications per Bolch v Chipman (at paragraph 7 above). The Tribunal directed the respondent’s solicitor to address the question of whether a fair trial remained possible and if not whether a lesser remedy than strike out may be more proportionate.

[71]On 1 December 2023 the respondent’s solicitor wrote to the Employment Tribunal to confirm that the respondent did not pursue the strike out application dated 23 November 2023. The matter therefore remained listed for hearing during week commencing 15 January 2024. The hearing listed for 23 December 2023 was vacated.

[72]At the conclusion of the hearing on 24 November 2023 the Tribunal ruled in the claimant’s favour upon her application for a specific disclosure order. The class of documentation the subject of the specific disclosure order was that generated by the grievances raised against the claimant by two of the respondent’s witnesses (Mr Shaw and Jessica Pitcher). The Tribunal also ruled in the claimant’s favour that a disclosure statement should be given by a nominee of the respondent to be agreed between the parties (or in default of agreement to be ordered by the Tribunal). In the event, there was no agreement and Tribunal ordered that the disclosure statement be given by Ross McIntosh.

[73]When the matter concluded on the afternoon of 24 November 2023, there were four witnesses still to be heard. One of these was Mr McIntosh. The expectation was that the evidence would be finalised, submissions made by each party and then the Tribunal may use the remainder of the week commencing 15 January 2024 for chambers deliberations. The events during week commencing 15 January 2024.

[74]It is most unfortunate that these plans were upset by a serious flooding incident which occurred at the Sheffield Combined Court Centre on the evening of Thursday 11 and Friday 12 January 2024. The building was closed on Friday 12 January 2024. A decision was taken that day also to close the building on Monday 15 January 2024. The parties were notified.

[75]On Monday 15 January the Employment Judge directed the Employment Tribunal administration in Leeds to invite the parties to say whether they would agree to the case being heard by video the next day (and possibly for the rest of the week). The parties agreed.

[76]The case was therefore listed to proceed by way of a video hearing on Tuesday 16 January 2024. There was an unfortunate delay of 40 minutes as Mr Fields experienced technical issues in joining the video link. Happily, this was resolved, and the proceedings were able to commence at 10.40am.

[77]The claimant said at the outset that she wanted to say something. She was permitted to do so by the Tribunal but was directed to wait until Mr Fields joined as otherwise the Tribunal was not fully constituted. Upon him joining and the hearing resuming at 10:40. the claimant said that the Tribunal “should not accept 10.5 Reserved judgment with reasons – rule 61 14 March 2017 money from the respondent to sway a case.” She complained that one day of the trial window (between 15 to 19 January 2024) had been lost because of what she referred to as the “apparent flood” (a phrase which she has used several times, suggestive of scepticism on her part that a flood had occurred).

[78]She went on to say that the respondent’s solicitor had connections with the Employment Tribunal. (The Tribunal observes that this is not the first time that the claimant had mentioned connections between the respondent’s solicitor and the Employment Tribunal. On 22 November 2023 the claimant had said that she believed that Employment Judge Davies knew Louise Stratton).

[79]The claimant said that there are “inappropriate connections” involving two Employment Judges. She said that the Employment Tribunal favoured Miss Stratton as correspondence from her was responded to more promptly than was correspondence from the claimant. She went on to say that there needed to be an investigation into “corruption in HM Courts and Tribunal Service.” (We shall now refer to HM Courts and Tribunals Service as ‘HMCTS’).

[80]The claimant then applied for the case to be heard in person to which the respondent’s counsel said he had no objection. At this point, the Tribunal took a short break between 11.40 and 12.10pm.

[81]Upon the resumption of the hearing, the respondent appeared to have changed their position and asked for the Tribunal to take live evidence that day by video. This met with a strenuous objection from the claimant. Rightly, she reminded the Tribunal of the need to make reasonable adjustments to accommodate any disability issues. The respondent’s counsel then agreed to proceed by way of an in-person hearing after all.

[82]Mr Benjamin had experienced technical difficulties that morning. His connection went down at 11.02 (before the short adjournment) and then (after the adjournment) at 12.27 and 12.53. This was frustrating for all and did not help the smooth running of proceedings.

[83]The claimant voiced her concern (quite properly) about the loss of the two hearing days on 15 and 16 January 2024 and that she would therefore come under a time constraint in cross-examining the four remaining respondent witnesses, there now only being three days for the hearing instead of five as anticipated. During the short adjournment, the Tribunal had identified that they could sit as a panel during the entire week of 22 April 2024. This was announced in Tribunal upon the resumption to reassure the claimant that she did not fall under any time constraint as additional days could be made available.

[84]The Tribunal then took the opportunity to warn the claimant about her conduct. The Tribunal referred to paragraph 27 of Bennett and the definition of the word “scandalous” in Sedley LJ’s judgment (cited at paragraph 22 above). The Tribunal expressed concern that the claimant was misusing the privilege of legal process to vilify others and was giving gratuitous insult to the court during such process. The claimant had vilified Miss Stratton, the staff of HMCTS (alleging that they were not responding to her correspondence), and the Employment Tribunal. The claimant had also given gratuitous insult to the Tribunal in alleging that the Tribunal was corrupt.

[85]The claimant protested that she “cannot open my mouth”. The Tribunal assured her that she could legitimately prosecute her case, but it was not open to her to 10.5 Reserved judgment with reasons – rule 61 15 March 2017 level unfounded gratuitous allegations against the Employment Tribunal, HMCTS and members of the respondent’s legal team.

[86]The claimant then accused the Tribunal of “retaliatory treatment” and that this was “to justify the respondent making a strike out application.” She added that all of this would come out “at a future public inquiry”. The claimant had mentioned the prospect of a public inquiry into the respondent’s conduct on a number of occasions throughout the hearing in September and November 2023. Plainly, the claimant was now suggesting that the Tribunal would fall within the purview of the putative inquiry. The claimant accused the Tribunal of unreasonably delaying the case until April 2024. The difficulty in co-ordinating three busy people’s diaries was explained. The Tribunal informed the parties that while a potential three months’ delay was less than ideal, on balance offering additional days and extending the trial window to compensate for the lost time was preferable to imposing an artificial limit on the claimant’s cross-examination of the respondent (particularly as there had been no time constraint upon the respondent’s cross-examination of her).

[87]Unfortunately, this did not mollify the claimant. She went on to again accuse the Tribunal of retaliatory treatment of her. She said the Tribunal was, “doing this to a coloured person, and a person with a tongue in my head”. The Tribunal took the view that this was tantamount to an accusation of race discrimination on the part of the Tribunal.

[88]The claimant expressed concern that the Tribunal was laying a foundation for the respondent to make a further strike out application. This was a surprising submission. The Tribunal took the opportunity to remind the parties that the strike out application of 23 November 2023 had been withdrawn (presumably upon the basis of the respondent’s acceptance, after the Tribunal had pointed out the Bolch criteria, that they were unable to demonstrate that a fair trial was no longer possible and that it would be proportionate to strike out the claim). The Tribunal had put it to Mr Benjamin that it was difficult to see why a fair trial was no longer possible as of 16 January 2024 when it had been on 15 January. Therefore, far from laying the foundation for a strike out application the Tribunal was in fact counselling caution on the part of the respondent before making another application.

[89]At the hearing of 16 January 2024, the Tribunal followed the guidance as to how to approach matters per paragraph 43 of Bennett cited at paragraph 25 above. The Tribunal had returned from its deliberations after the break during the morning of 16 January 2024 and informed the parties of their collective view about the claimant’s remarks and warned her as to her conduct. The Tribunal had not at this stage required the claimant to affirm or withdraw her accusations. To borrow the words of Ward LJ in Bennett (at paragraph 56) the Tribunal had metaphorically shrugged its shoulders and resolved to get on with the case in order not to jeopardise the hearing of the case, mindful that the case had already occupied 10 days of hearing time.

[90]After the adjournment at 13:10, later the afternoon of 16 January 2024, the claimant emailed the Employment Tribunal. She sent a copy of the latest prescription of her antidepressant medication. She enclosed a disability impact statement in compliance with section 6 of the 2010 Act. She reminded the Tribunal that one of the side effects of the antidepressants is anxiety. 10.5 Reserved judgment with reasons – rule 61 16 March 2017

[91]She asked, as a reasonable adjustment, for the matter to proceed in person rather than by video. This adjustment in fact had already been made as the Tribunal had directed that morning that no live evidence would be taken by video and the matter would proceed in person the next day (17 January 2024).

[92]Matters went relatively well on 17 January 2024. The claimant had estimated that she would take one day to cross-examine Mr McIntosh. This time estimate held good. A timetable was then agreed for the remaining two days to dispose of the three outstanding respondent’s witnesses. Built into the timetable were submissions from each party which it was hoped could be entertained on the afternoon of 19 January 2024.

[93]The metaphorical shrugging of the Tribunal’s shoulders seemed to have paid dividends. There was no suggestion on the part of the respondent at this stage that a fair trial was no longer possible. The respondent did not that day apply for strike out of the claimant’s case. The Tribunal had listened to the claimant’s representations on 16 January 2024 with ‘phlegmatic fortitude’ (to borrow Ward LJ’s description in paragraph 42 of Bennett). Mr McIntosh began his evidence at 10.15am on 17 January 2024. Sufficient time therefore had been allowed for the Tribunal to compose themselves and the claimant’s ‘ardour’ (to again use Ward LJ’s description) appeared to have calmed. The Tribunal had guarded against the trap of allowing the claimant’s ‘invective’ to infect it with prejudice. As Ward LJ said, the accusations against the Tribunal were unpleasant and uncomfortable but the Tribunal had taken care to avoid getting on its ‘high horse’ about matters.

[94]Unfortunately, notwithstanding the relatively smooth running of proceedings on 17 January 2024, matters took a turn for the worse on the morning of 18 January 2024. The Tribunal entered the hearing at 10.20am. Barely had the Tribunal sat down when the claimant started to repeat many of the accusations that she raised on 16 January 2024. She said that she was concerned about how she had been unfairly treated by the Tribunal. She asked rhetorically, “why is there corruption?” and “the respondent has links with certain people.” She raised concerns about the several disconnections from the video link experience by Mr Benjamin on 16 January. It was clear that implicit within this was a suggestion that these had not been genuine or accidental.

[95]She then went on to say that the Tribunal had not rebuked Mr Benjamin at any point, but the Employment Judge had spoken to her “like dirt on his boots.” She went on to say, “the corruption has to stop. We have corruption in the police [there was then mention of the Sarah Everard case] and that Judges have committed crimes.” She then said that the Employment Judge “had spoken to Louise Stratton like she has because she’s white”. She went on to say “I am a Royal Navy veteran. Does my service to this country mean nothing? These people pay bribes. There should be no corruption. Does the Equality Act mean nothing? Somebody out there must stand up for what’s right”.

[96]The contention that the Tribunal had not rebuked Mr Benjamin was unfounded. During Mr McIntosh’s evidence on 17 January 2024, the Tribunal had ruled that an intervention by Mr Benjamin was inappropriate as he had sought to assist Mr McIntosh with an answer to one of the claimant’s questions. However, it is right to observe that the claimant had raised several times her concern that Mr Benjamin was allegedly helping witnesses. This was not in fact the case. He was simply helping to locate documents referred to by the witnesses. This was compliant with 10.5 Reserved judgment with reasons – rule 61 17 March 2017 his duty to further the overriding objective to assist the Tribunal. The Tribunal had assured the claimant that were Mr Benjamin to have acted inappropriately the Tribunal would stop him (as indeed was done on 17 January). It is of course open to the Tribunal, in the exercise of proper case management in accordance with the overriding objective, to exclude irrelevant evidence and argument and stop lines of questioning and submissions which do not assist. During the hearing on 18 January 2024, the Tribunal mentioned the dicta of Peter Gibson LJ in Barche v Essex County Council

[2000] IRLR 251

to this effect (This passage is in fact referred to in Edmondson at [33]). Whereas Mr Benjamin’s cross examination of the claimant had been focussed and called for little intervention from the Tribunal, the same cannot be said for the claimant’s cross examination of the respondent’s witnesses. This has, perhaps unsurprisingly, not been as focussed and called for the Tribunal’s intervention from time-to-time. (If further authority were needed, in Davies v Sandwell Metropolitan Borough Council

[2013] EWCA Civ 135

[2013] IRLR 374

, both Mummery LJ (at [28]) and Lewison LJ (at [33]) reiterated, in forthright terms, the necessity for tribunals to concentrate on the relevant and to eliminate the irrelevant. Thus, tribunals are ‘not obliged to read acres of irrelevant materials nor do they have to listen, day in and day out, to pointless accusations or discursive recollections which do not advance the case’ (Mummery LJ). Moreover, tribunals should not hesitate to use their powers to prevent irrelevant cross-examination and should ‘take a firm grip on the case’ if the parties fail to assist it to further the overriding objective (Lewison LJ).

[97]The Tribunal adjourned at 10.30am on 18 January 2024 to deliberate. The Tribunal resolved to follow the guidance at paragraph 43 of Bennett (quoted at paragraph 25 above). Upon the resumption at 11:45am the Tribunal referred to this passage from Ward LJ’s judgment in Bennett and to Edmondson (and the opportunity offered to the claimant in that case to distance herself from her representative and effectively disavow his behaviour). By application of the guidelines in these cases, the claimant was therefore invited to affirm or withdraw and disavow her accusations and comments.

[98]The claimant’s response was to say, “I cannot withdraw the remarks. I have been targeted.” She then referred to Mr Benjamin as “so-called counsel”.

[99]She went on to say that she has a right under Article 10 of Schedule 1 to the Human Rights Act 1998 to freedom of expression. The claimant does, of course, have such a right. However, it is a qualified right. As is said in Article 10(2) the exercise of the freedoms in Article 10(1) carries duties and responsibilities and “may be subject to such formalities, conditions, restrictions or penalties for [amongst other things] maintaining the authority and impartiality of the judiciary.” The right to freedom of expression does not give an untrammelled right to make baseless accusations or be offensive.

[100]The claimant reminded the Tribunal that she is a disabled person for the purposes of section 6 of the 2010 Act. The case is not one of disability discrimination. The Tribunal observes that there has in fact been no adjudication of her disability status. However, the Tribunal is of course accepts that the claimant has depression for which she is prescribed antidepression medication. She has, as we have seen, mentioned her mental health issues several times in her correspondence with the Tribunal. The claimant rightly drew to the Tribunal’s attention the Employment Tribunal’s Presidential Guidance to General Case Management published in 2018. Note 4 of the Guidance deals with disability. 10.5 Reserved judgment with reasons – rule 61 18 March 2017 Paragraph 14 of the Guidance provides that an application should be made to the Tribunal as soon as possible so that the Tribunal can consider any reasonable adjustments that might be made. The Tribunal put it to the claimant that the reasonable adjustments which she has sought have been made (those being arranging for there to be a weekend after the first three days of the hearing in September 2023 and not holding any part of the hearing at which evidence is given by video).

[101]The claimant then repeated her accusation that the Tribunal was inviting the respondent to make a further strike out application against her. The Tribunal pointed out that the respondent had been positively discouraged from doing this on 16 January 2024 and had not done so, but now matters had moved on, given that the claimant had repeated the accusations against the Tribunal and the respondent of corruption and the Tribunal of racism. In any case, the Tribunal was doing no more than applying Court of Appeal authority: per paragraph 43 of Bennett the prospect of a strike out ought to be contemplated in the event of affirmation of the impugned remarks and behaviour.

[102]The Tribunal adjourned at 12.30pm on 18 January to allow the parties to reflect upon their position. The claimant asked just before the adjournment, “If I withdraw the remarks can I still complain?” It is of course the claimant’s right to raise such complaint as she sees fit. Her wish to effectively reserve her right to do so left the Tribunal with real concerns that any withdrawal of her remarks would be insincere and disingenuous.

[103]The Tribunal adjourned for a little over 90 minutes to enable the parties to reflect upon their positions.

[104]Matters resumed at 2.10pm. The claimant again asked as to the consequences for her of the withdrawal of her remarks. The Tribunal was concerned that the claimant was only prepared to withdraw them conditionally (that is to say, she seemed to be willing withdraw them only if there were no adverse consequences for her in the future pursuit of any complaints or process arising out of the litigation).

[105]The claimant was asked by the Tribunal for the evidence she had of corruption on the part of the respondent. She maintained that she had evidence of the respondent’s corruption and links with the Employment Tribunal Service. The Tribunal invited her to disclose her evidence. She said, “I cannot disclose it now” and maintained that she had a right to privacy of correspondence under Article 8 of Schedule 1 to the Human Rights Act 1998. This is of course a qualified right, taking into account the protection of the rights and freedoms of others. This encompasses the respondent’s right to a fair trial.

[106]To reassure the claimant, the Tribunal suggested of their own motion holding that part of the hearing at which the evidence of the respondent’s corruption will be disclosed in private pursuant to Rule 50 of Schedule 1 to the 2013 Regulations. This power had been utilised already in the proceedings in connection with the CCTV footage of the court 15 waiting room referred to in paragraphs 62 to 64 above. The claimant was therefore familiar with this power. It had been utilised effectively by the Tribunal already to air relevant evidence while preserving the privacy of others. The claimant refused. She said that the matter was to be the subject of a public inquiry. She commented, “There is a planned campaign against me. There is an element of corruption, the respondent is a very large organisation. They have attempted to get my medical details. There is a plan of 10.5 Reserved judgment with reasons – rule 61 19 March 2017 destruction.” The Tribunal asked the claimant to confirm that the respondent was implicated in this. She replied, “I cannot say”.

[107]At this point, the claimant apologised to each member of the Tribunal individually. She contended that she was not being disrespectful but was standing up for her rights. She went on to say, “I am not a hypocrite. If a party favours one party over another I cannot say that is not case.” The Tribunal asked the claimant if she was prepared to unequivocally withdraw her comments. She said that she was unable to do so. She maintained there to be “a plan against me but I’m covered by the blood of Jesus. They can’t touch me as I’m covered by the blood of Christ.”

[108]The Tribunal then invited Mr Benjamin’s submissions as to the respondent’s position. The respondent made an application to strike out the claim upon the basis that a fair trial was now no longer possible. (Before inviting his submissions, the Tribunal referred the parties again to the cases of Bennett and Edmondson, and in addition referred to Sud, Tesco Stores Limited, and Chidzoy).

[109]The Tribunal invited Mr Benjamin to make his submissions solely upon the basis of the conduct of the claimant on 16 and 18 January 2024. In the Tribunal’s judgment, it was not open to the respondent to revisit the strike out grounds in the withdrawn application dated 23 November 2023 and nothing untoward had happened between then and 16 January 2024. Mr Benjamin had in fact used the time during the adjournment to prepare his submissions in note form which he consulted when making his submissions. The Tribunal suggested that these be emailed to the claimant so that she had them before her and which may help her to prepare her response. Mr Benjamin did so, after being allowed a short period to tidy them up.

[110]After hearing from Mr Benjamin, the Employment Judge asked the claimant if she was maintaining her suggestion that Mr Benjamin had deliberately caused a disconnection during the hearing on 16 January 2024. She said that was her position. However, this was quickly retracted.

[111]The Employment Judge asked the claimant whether she was definitively affirming or withdrawing the remarks which she had made during the morning. The Tribunal still did not have a clear position. The claimant replied, “I won’t say anything again, but I do have to put things in writing as the people involved are in a position of trust.” The claimant would not enlighten the Tribunal about to whom she was referring.

[112]The Tribunal asked the claimant if she would have sufficient time to prepare her response to the strike out application the next morning (19 January 2024). (By this stage, we had got to around 3.30 in the afternoon). The claimant confirmed that she would have sufficient time to prepare her submissions for the next morning. She added that “there is a secret plan to get my documents. I need to investigate it.” She accused Mr Benjamin of being “callous” towards her. Mr Benjamin replied that he was “disgusted with the claimant’s statement, as a man of colour.”

[113]The Tribunal was mindful that it was highly unlikely that with the time available we would be able deal with the strike out application and finish any of the three outstanding respondent’s witnesses without the risk of one of them going part heard while under oath. That being the case, the Tribunal released the three witnesses from attending on 19 January 2024. The Tribunal directed that if the 10.5 Reserved judgment with reasons – rule 61 20 March 2017 case survived the strike out application, then we would hear from them during week commencing 22 April 2024. With that in mind, the Tribunal directed that the hearing on 19 January 2024 would resume at 11am thus affording the claimant a little extra time.

[114]In the event, the hearing on the morning of 19 January 2024 commenced at 11.25am. The claimant observed (rightly) that this was the fourth application made by the respondent to strike out her claim.

[115]She said that “as a Christian I cannot be hypocritical … I cannot say something I do not whole heartedly believe. I cannot unequivocally withdraw a heartfelt statement.

[116]The claimant then said that she was disappointed not to have got closure by today. She observed that the evidence and the submissions could have been heard on 18 and 19 January 2024. That may be correct. However, that of course overlooks that the Tribunal had to deal with what was said by the claimant between 10.20 and 10.30am on 18 January.

[117]The claimant maintained that the statements that she had made were not malicious and that a fair trial was still possible. She asked the Tribunal to take account of her protected characteristics of race, disability, and her Christian belief.

[118]In mitigation, the claimant relied upon her disability and that a side effect of the medication was anxiety. She said that the circumstances which arose because of the flood had led to an exacerbation of her anxiety and to her not being in the best frame of mind. The claimant submitted that she had not mentioned HMCTS staff by name. (The Tribunal observes that the claimant did in fact name the individual who has acted as the Tribunal clerk throughout the hearing).

[119]She maintained that the Tribunal Service was preferring Louise Stratton because “she doesn’t share my protected characteristic”. Plainly, this was a reference to Miss Stratton being white and was a further accusation of race discrimination against the Tribunal and HMCTS. The claimant then cited one example of Legal Officer Singh having decided upon an application made by the respondent without giving the claimant the opportunity of filing her representations. (The Tribunal notes that the claimant complained about this on 20 April 2023).

[120]The claimant repeated her contention that Miss Stratton has connections in the Employment Tribunal. She said that there must be a formal inquiry.

[121]She mentioned that she had been participating in online forums (or at any rate reading them). She said there was a widespread belief amongst the forums’ participants that the Employment Tribunals have a history of favouring large and powerful respondents, and that corruption exists.

[122]The claimant again sought to rely upon her disability as mitigation of the need to vent her feelings. She said that she had been told by “a therapist to get it out.” She said that in future she would do as her therapist had suggested and write down her feelings in her diary and would not verbally ventilate them. The Tribunal observed that no evidence from a therapist or other treating medical practitioner has been seen to support the claimant’s claim upon this issue.

[123]The claimant said that if her claim is struck out then she will not have achieved closure. She said that it would be draconic to strike out after all this time and that her hard work may be for nothing. 10.5 Reserved judgment with reasons – rule 61 21 March 2017

[124]Her parting words were to say that there must be a public inquiry and that as a Christian she was unable to unequivocally withdraw he remarks. She said that to do otherwise would be hypocritical. Such would be contrary to the Christian faith. The claimant apologised unreservedly for any offence that she may have caused. Judgment was reserved at 15:10. At 17:53 on 19 January 2024 the claimant emailed the Tribunal with some written submissions. She said that “in hindsight, expressing my views and opinions in respect of being treated less favourably on 16 and 18 January 2024 was not the most appropriate way of going about things.” She said that her focus was to ensure she received fair treatment “with an intention to help in improving the services provided by [HMCTS].” She described her views about HMCTS as “subjective” and that she did not intentionally behave in the impugned manner but her belief in the legal basis of them exonerates them from being scandalous or unreasonable. She recorded her apology proffered to the tribunal during the hearing on 18 January 2024. Discussion and conclusions upon the strike out application

[125]While the Tribunal was able to (metaphorically) shrug its shoulders and continue following the events of 16 January 2024, in our judgment the claimant’s actions on 18 January 2024 put a different complexion on matters. To repeat that day the allegations against the Tribunal, HMCTS and the respondent’s legal team of corruption and the allegation against the Tribunal of discrimination upon the grounds of race was not something that could be simply shrugged off, coming as it did 48 hours after the comments made on 16 January and the warning issued to the claimant that day.

[126]The claimant had been warned as to her behaviour on 16 January 2024. She was clearly told that her conduct was scandalous. The salient passage from Bennett (cited at paragraphs 22) was read to her. She appeared to have heeded the warning as nothing untoward happened on 17 January. Then, on 18 January she appeared to effectively double down on what she had said on 16 January and repeat the allegations. This is most unfortunate. On 17 January the Tribunal was hopeful that matters had been resolved and that the tension been diffused, but to no avail. The claimant’s conduct on the morning of 18 January 2024 was of a most serious nature in the light of the events which had taken place two days earlier. Disappointment about the delays caused by the flood may not have helped the claimant’s state of mind and approach on 16 January 2024 but can in no way mitigate the conduct two days later after the claimant had been assured that additional days were available, and the trial window was extended so as not to disadvantage her by the loss of hearing time.

[127]At no stage has the claimant withdrawn her remarks. On the contrary, she affirmed them upon the basis that to withdraw them would conflict with her Christian faith not to act hypocritically. Plainly, therefore, she continues to maintain her belief of corruption and that the Employment Tribunal has been infected with discrimination related to race. It is acknowledged that the claimant apologised to the Tribunal both on 18 and 19 January 2024. She said on 18 January that she “was not being disrespectful.” She repeated that apology in writing on 19 January 2024 (per paragraph 124). However, that was only after she had sought to elicit from the Tribunal an assurance that doing so would not prejudice her right to complain to another body. She also made clear on 19 January 2024 her intention to reduce her allegations of corruption and racism to writing rather than ventilating them verbally. 10.5 Reserved judgment with reasons – rule 61 22 March 2017

[128]We consider that Mr Benjamin made a valid point that the Tribunal can have no faith that the claimant will not seek to raise allegations of this kind verbally during the hearing were the case to continue. She was firmly warned against doing so on 16 January and yet repeated the conduct on 18 January. In her submissions on 19 January, she did not resile from her position and repeated her contentions that there exists corruption and racism within the Employment Tribunal. The emailed submissions of 19 January 2024 accept only that levelling allegations of racism were not the most appropriate way of proceeding. She did not withdraw them or address the issues of alleged collusion or corruption on the part of the respondent, HMCTS and the Tribunal at all. The Tribunal fails to see how making such serious allegations can be with a view to improving the service offered by HMCTS to the public. Such a motive was not mentioned at any stage by the claimant. In the Tribunal’s judgment, the claimant meant what she said when she levelled the accusations against the others involved in the case on 18 January, having had two days to reflect on the Tribunal’s warning of 16 January.

[129]By application of the first of the Bolch criteria, the Tribunal concludes that the claimant has conducted the proceedings in a scandalous manner. This encompasses the conduct on 16, 18 and 19 January 2024. By way of reminder, in paragraph 27 of Bennett, Sedley LJ defined “scandalous” as the misuse of the privilege of legal process to vilify others; and giving gratuitous insult to the Court during such process. In our judgment, the claimant’s conduct meets both definitions. There has been vilification of the Employment Tribunal panel members, the respondent’s legal team and HMCTS staff. There has been gratuitous insult in accusations towards the Tribunal of racism and corruption without foundation. The claimant has produced no evidence in support of her allegations (even with procedural safeguards in place in the form of a private hearing). She cannot do so because (the Tribunal is confident) that there is none. It cannot excuse such conduct that there is a subjective belief. If that were the case, then such would be a license for a disgruntled party to level any kind of allegation. The test must be an objective one of whether in the minds of the reasonable person, such accusations are scandalous as defined by Sedley LJ in Bolch. Such is the case here as there was no basis for any of the claimant’s accusations.

[130]That is sufficient to satisfy the first of the Bolch criteria. For the sake of completeness however the conduct may equally be and should be regarded as unreasonable. This bears its ordinary meaning. On any view, levelling baseless and very serious accusations is unreasonable conduct. The Tribunal accepts that the claimant’s conduct was not vexatious (where that word is used to describe a hopeless claim brought out of spite or for some other improper motive).

[131]The next question then is whether a fair trial is possible. With great regret, the Tribunal concludes that it is not.

[132]As has been said, the claimant’s complaint is one of direct discrimination upon the grounds of the protected characteristics of sex and race and of victimisation. The claimant’s case may be characterised essentially as one where the respondent’s witnesses have conspired and colluded together with a view to derailing the claimant’s career with them from the outset. She says that much of the impugned conduct was pursued after she did protected acts complaining of race discrimination and sex discrimination on 27 and 28 April, 5 May, and 13 May 2022. Her case has been advanced on the premise that the respondent is improperly seeking to defend her claim, that the Employment Tribunal is 10.5 Reserved judgment with reasons – rule 61 23 March 2017 improperly corrupting the proceedings to enable them so to do and that in so doing the Employment Tribunal is also discriminating against the claimant alongside the respondent.

[133]Her allegation therefore in summary is that the respondent has suborned the Tribunal into acting in concert with them to defeat the claimant’s legitimate case.

[134]Such a serious allegation places the Tribunal in an invidious position. The claimant’s stance effectively puts the Tribunal in the position of having to sit in judgment of itself. How, it may be asked rhetorically, can the Tribunal make findings of fact about the alleged collusion between the respondent’s solicitor and the Tribunal in which the Tribunal is directly implicated? How can the Tribunal make findings of fact that it is not infected with racism yet remain impartial? How can the Tribunal be disinterested where they have an interest in exoneration of themselves and the respondent in a conspiracy? The simple answer is that it cannot. The pursuit of such allegations by the claimant places the Tribunal in the position of sitting in judgment of its own cause. It is a cardinal principle that no one can sit on judgment of their own case. The claimant’s allegations against the Tribunal and the respondent of a joint conspiracy and of collusion and racist conduct can only lead to the conclusion that is impossible for the Tribunal to conduct a fair trial. We will return to this issue and the implications of this finding at paragraph 145 et seq below.

[135]To use the words of Chadwick LJ in Arrow Nominees, this Tribunal hearing has been hijacked by the need to investigate the claimant’s contention that there is a conspiracy afoot between the respondent and the Tribunal. (The claimant is familiar with this principle as she cited paragraphs 55 and 56 of Arrow Nominees herself in her strike out application dated 12 September 2023). As matters progressed, the hearing has become less about the alleged acts of discrimination and victimisation contrary to the Equality Act 2010 and more about the claimant’s wish for there to be a public inquiry into the conduct of the respondent and the conduct of the Employment Tribunals. The Tribunal process has been abused such that the real point of the case (and the matter lying within the Tribunal’s jurisdiction) became subordinated to wider issues of alleged corruption on the part of the respondent and institutional corruption and bias towards large respondents on the part of the Tribunal.

[136]As a further point, the Tribunal’s trust in the claimant been greatly harmed. The Tribunal can place no faith in the claimant’s assurances that the vilification of others involved in the case and the gratuitous insult to the Court will not be repeated. She flouted the clear warning against the repetition of such conduct issued on 16 January. The EAT held in Chidzoy that the flouting a Tribunal’s instruction or warning may lead to loss of trust such as to render a fair trial impossible. The claimant clearly continues to believe that there is corruption and racism afoot against her on the part of the respondent and the Tribunal. She has simply refused to unequivocally withdraw her allegations. These have caused upset to the members of the Employment Tribunal. Principles of integrity and equality lie at the heart of the Tribunal’s jurisdiction and form much of the panel members’ life work. While the Tribunal was phlegmatically able to shrug off these untoward comments made on 16 January 2024, their repetition on 18 January (and the claimant’s refusal to resile from them on 19 January) has been damaging of the trust which the Tribunal may place in the claimant. Per Sud, this has undermined the trust the Tribunal has in her veracity. Her apologies were insincere and disingenuous as she was seeking to hedge her position by 10.5 Reserved judgment with reasons – rule 61 24 March 2017 preserving her right to raise the issues elsewhere. The Tribunal can have no confidence that they won’t be repeated where a warning was flouted, the allegations were repeated on 18 and 19 January and the claimant announced her intention to reduce her thoughts to writing in her diary going forwards. The Tribunal can have no faith that such writings will be kept to herself.

[137]Indeed, they have not been kept to herself. Matters have now been compounded by the application which the claimant made on 20 February 2024 for the recusal of the Employment Judge. The allegation of race discrimination is repeated at paragraph 29 of that application. This is contrary to the claimant’s assurance given on 19 January 2024 that such thoughts would be confined to making entries in her diary.

[138]Per Tesco Stores Ltd and Edmondson, the Tribunal can have little faith that the claimant will cooperate with the Tribunal to achieve the overriding objective to deal with the matter fairly and justly by refraining from vilifying others involved in the case and giving insult.

[139]Where a Tribunal has no confidence that a party has given full disclosure then per Arrow Nominees this may give rise to a substantial risk of injustice. By way of reminder, in Arrow Nominees Chadwick LJ said that “the function of the court is to do justice between the parties, not to allow its process to be used as a means of achieving injustice.” The claimant maintained that she has documentation in her possession pointing against the respondent. The claimant is aware of the principle that there is a continuing obligation to give disclosure of relevant and necessary documents. It is a regrettable feature of this case that there has been late disclosure by the respondent on a number of occasions. The claimant was right to express concerns about this late disclosure. The Tribunal reminded her that while late disclosure is always regrettable there is a continuing disclosure obligation. That she seeks to suppress whatever it is that she claims to have undermines the Tribunal’s faith in her veracity and the fairness of the proceedings.

[140]She has simply refused to disclose the material which she says that she has notwithstanding the Tribunal’s suggestion and willingness to utilise its powers under Rule 50 of Schedule 1 to the 2013 Regulations. Subjectively felt threats to life may be considered when exercising the Tribunal’s powers under Rule 50 (see Millicom Services UK Limited v Clifford

[2022] EAT 74

). (This is pertinent given the claimant’s claim of a “plan of destruction”- see paragraph 106). However, even with the benefit of measures such as holding in private that part of the hearing at which the documentation may be disclosed and anonymisation of those implicated in the documents, the claimant was not prepared to divulge what it is that she says that she has. She was seeking to suppress them. The Tribunal’s Rule 50 powers had been exercised in the proceedings already. The claimant had seen how effective they can be. They were used to balance the Convention rights of the parties to a fair hearing and the court users to privacy. This notwithstanding, she remains unyielding.

[141]The claimant’s position is unsatisfactory. However, the Tribunal adopts a realworld view and proceeds on the basis that the claimant has nothing to disclose. As we said in paragraph 129, she had not disclosed anything because the Tribunal can be confident that she has nothing. An adverse inference may be drawn against her upon the issue of credibility for contending that she has something which she does not have and seeking to mislead the Tribunal. 10.5 Reserved judgment with reasons – rule 61 25 March 2017

[142]In contrast, the position in Sud, Chidzoy, and Arrow Nominees was that there was positive evidence of a taint (or the real possibility of a taint) in the evidence of the offending party. In Sud, medical evidence had been tampered with. In Chidzoy, the claimant’s evidence was possibly tainted by her discussing her evidence with another while she remained under her oath. In Arrow Nominees, falsified documents were produced. All these impugned actions led to a risk of the court being a party to an injustice by deciding a case based on falsified or tainted evidence. Loss of faith in the complainant was not enough of itself- it was coupled with interference with evidence., In the instant case, significantly, all we have is an improbable assertion by the claimant that she has material pointing to corruption on the part of the respondent and a conspiracy between them and the Employment Tribunal. There is nothing to disclose to support this as there can be nothing. Therefore, there is no positive case of the corruption of evidence. This is of significance to the issue of proportionality of strike out notwithstanding that a fair trial is no longer possible. It is to that question that we now turn.

[143]The third Bolch criteria is that of the proportionality of strike out. The Tribunal must ask itself whether there are any alternatives to striking out the claimant’s claim where a fair trial is no longer possible. In Blockbuster Entertainment Limited v James at [21], Sedley LJ emphasised the need to consider the proportionality of striking out a claim, against a backdrop of the right to a fair hearing, particularly where a case has reached the point of trial. He said, “It is not only by reason of the Convention right to a fair hearing vouchsafed by Article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr Jones has reminded us, has for a long time taken a similar stand (see Re: Jokai Tea Holdings

[1992] 1 WLR 1196

, especially at 1202E-H). What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact — if it is a fact — that the Tribunal is ready to try the claims; or — as the case may be — that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen, but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now justify its summary termination. Proportionality, in other words, is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check in the overall interests of justice upon their consequences.” Sedley LJ commented that ‘it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, [unreasonable] or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it’ (at [28]). This is particularly so, per Blockbuster, where a claim has reached the point of trial (and in this case, we are a long way into the trial).

[144]The Tribunal has little doubt that a fair trial has been compromised by the claimant’s actions. By way of reminder, the right at common law and in Article 6 to sch. 1 of the Human Rights Act 1998 is to a determination of the issues by an independent and impartial court or tribunal. A judge is disqualified from sitting on 10.5 Reserved judgment with reasons – rule 61 26 March 2017 cases in which they have a direct interest. This can be financial or propriety or the promotion of a cause in which the judge is involved: see R v Bow Street Metropolitan Stipendiary Magistrates ex parte Pinochet Ugarte (No 2)

1999 2 WLR 272

[145]In ex parte Pinochet Ugarte (No 2) Lord Browne Wilkinson said at [133], “The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”

[146]At [145] Lord Hutton said that, “ I find persuasive the observations of Lord Widgery C.J. in Reg. v. Altrincham Justices, Ex parte N. Pennington [1975] Q.B. 549 , 552: "There is no better known rule of natural justice than the one that a man shall not be a judge in his own cause. In its simplest form this means that a man shall not judge an issue in which he has a direct pecuniary interest, but the rule has been extended far beyond such crude examples and now covers cases in which the judge has such an interest in the parties or the matters in dispute as to make it difficult for him to approach the trial with the impartiality and detachment which the judicial function requires. Accordingly, application may be made to set aside a judgment on the so-called ground of bias without showing any direct pecuniary or proprietary interest in the judicial officer concerned."

[147]The claimant was raising issues against the Tribunal which may fall into both categories referred to by Lord Browne Wilkinson. She alleged a direct financial interest because of corruption or at the very least partiality towards the respondent and colluding with them to defeat her case. The conclusion that the Tribunal would have to sit in judgment on itself inexorably follows. That the allegations are completely baseless does not detract from that position. The claimant’s allegations of corruption and racism on the part of the Tribunal give rise to the very difficult of impartiality and detachment alluded to by Widgery C.J.

[148]In summary, the claimant’s conduct has been scandalous and unreasonable. For the reasons given, a fair trial is no longer possible. However, in the Tribunal’s judgment it is not proportionate to strike out the claim as the situation is retrievable.

[149]This is because the Tribunal can adopt the position that (in contrast to Sud, Chidzoy, and Arrow Nominees) there is little if not no risk that the claimant’s evidence is tainted such that a ruling in her favour upon the issues which arise for adjudication under the 2010 Act may be unsafe because of contamination of the evidence due to suppression of documents or concealment of evidence. As 10.5 Reserved judgment with reasons – rule 61 27 March 2017 has been said, the Tribunal is very confident that there is simply no evidence of corruption involving the Tribunal and the respondent. Had there been, we are sure the claimant would have disclosed it. The claimant’s evidence upon the issue of corruption can therefore be taken at face value and judged accordingly. The Tribunal can of course consider the baseless allegations which she had made in our assessment of her credibility. These cases may be distinguished accordingly.

[150]The Tribunal can also bear with broad shoulders the unfounded allegations of race discrimination and Tribunal corruption. The Tribunal must sit in judgment of itself on these, hence a fair trial not being possible. However, they are baseless. It would be disproportionate to recuse ourselves upon the basis of having to adjudicate upon these unfounded allegations with the result that the trial is abandoned and put off to another tribunal in circumstances where they can be simply disposed of as unmeritorious and effectively put to one side (save for the impact of the allegations upon her credibility). The Tribunal can then focus on the merits of the case itself. This is even more so given the amount of Tribunal resource occupied by this case already, and that we are now towards the end of the trial. Weighing in the balance the cost to the Tribunal service and the parties of starting afresh on the one hand against the invidious position in which the Tribunal has been put by the claimant’s allegations (in having to judge itself) on the other gives of only one answer. To recuse based on unfounded allegations with the consequences that would follow is a disproportionate course and not one which this Tribunal is prepared to take.

[151]There can also be little guarantee that the claimant will not repeat her conduct before a different tribunal: she has, after all, doubled down on the discrimination allegations in the recusal application. However, the Tribunal can approach matters phlegmatically even if called upon the sit in judgment of our own conduct. Further, the Tribunal is confident that it can retain its impartiality to fairly judge the case even though the Tribunal’s confidence in the claimant has been badly shaken as there is no corresponding taint in evidence was there was to be found in Arrow Nominees, Sud and Chidzoy.

[152]As was the case in Sud and Chidzoy, the claimant’s conduct in this case has given rise to a fundamental problem in terms of trust. Any new Tribunal (should this Tribunal recuse itself and remit the case to a fresh Tribunal) will be aware of the reasons why this hearing has been aborted. Nothing can be done to prevent a second Tribunal from being aware of these reasons. It is likely that the claimant would continue with her animus towards the Tribunal. She has after all raised allegations of institutional bias by Employment Tribunals against claimants. A second Tribunal would still find itself having to sit in judgment upon the question of whether the respondent is corruptly acting in concert with the Tribunal to defeat the claimant’s claim and pass judgment effectively on itself consequently. The issue of institutional racism would also loom large. That being the case, all the remission to a new panel would achieve is to significantly drive up the costs of the case and the resources allocated to it. A new panel would face adjudicating upon the same issues anyway. Having got a significant way through the trial, it would be a disproportionate course to take to strike out where there is a less draconic alternative of dismissing as fanciful the corruption and discrimination allegations. While the claimant has placed the Tribunal is this invidious position, the purist approach of recusal is not a proportionate one to take. 10.5 Reserved judgment with reasons – rule 61 28 March 2017

[153]WE should add that in Hargreaves v Evolve Housing Support and another

[2023] EAT 154

the Employment Tribunal held that a fair trial was not possible as the proceedings had been weaponised by the claimant’s wish to use them for political gain. The Tribunal in Hargreaves concluded that consequently the respondent’s witnesses had been intimidated. This was held by the EAT to be surmise on the part of the Tribunal. The claimant had by the time of the EAT hearing ceased to be in politics and just wanted his “day in court.” That being the case, the EAT held that strike out of the claim was disproportionate as a fair trial is possible.

[154]Applying the ratio of Hargreaves to the facts of this case, these proceedings have been hijacked or weaponised (either epitaph describes the position) by the claimant’s references to the respondent’s alleged corruption and her wish for this to be exposed at a future public inquiry of some kind. The complainant in Hargreaves vested the EAT with confidence as to his future conduct by the way he had conducted himself before them. The Tribunal cannot place as much faith in the claimant’s future conduct given the contents of the recusal application and our finding that a fair trial is not possible. However, for the reasons given however we have concluded that it is disproportionate to strike out the claim as, with proper case management and a phlegmatic real-world approach, it is possible to conclude proceedings in relatively short order in the context of the days already devoted to the matter.

[155]The Croma Vigilant principle is of little applicability here as the trial window was extended to include dates in April 2024. The question posed in that case was whether a fair trial is possible in the trial window. In our case, the loss of effectively all but one day of the January 2024 trial window has not caused a fair trial to be impossible for that reason, given the extension of the trial window to April 2024.

[156]The fourth Bolch criteria is a consideration of the consequences of strike out. The consequence is that the claim shall now proceed as listed.

[157]It is most unfortunate that the claimant did not simply proceed on 18 and 19 January as she had on 17 January. Had she done so, then at the very least the matter would by now have been put over to the Tribunal’s chambers’ deliberations on the merits of the case. To borrow HHJ Tayler’s words from Tesco Stores Limited, the claimant, most regrettably, robbed herself of that opportunity. The claimant’s application for the recusal of the Employment Judge

[158]The Tribunal now turns to the recusal application. The following principles are taken from Harvey on Industrial Relations and Employment Law (at Division P1 para [912.01] et seq, excerpts of which are set out in paragraphs 159 to 164 below.

[159]It is the fundamental right of every person whose rights and liabilities are determined by judicial process to have a fair hearing by an independent and impartial tribunal. This fundamental tenet of the common law is also now guaranteed, through Article 6 of sch. 1 to the Human Rights Act 1998. Because of the importance attached to the concept of impartiality in the administration of justice, the existence or appearance of bias on the part of any person sitting in a judicial capacity will ordinarily lead to the disqualification of that person from sitting, or, if the proceedings have been concluded, to the hearing being declared a nullity and the decision set aside. 10.5 Reserved judgment with reasons – rule 61 29 March 2017

[160]There are three categories of bias which can undermine the impartiality of the tribunal: actual bias; bias giving rise to automatic disqualification; and situations where there is a real danger or real possibility of bias. These categories are considered further below.

[161]Actual bias refers, as its name suggests, to a situation in which a judicial decisionmaker allows their decision to be influenced by partiality or prejudice. As the Court of Appeal pointed out in Locabail (UK) Ltd v Bayfield Properties Ltd

[2000] IRLR 96

(at [3]), instances of actual bias are very rare and, in any event, difficult to prove: ‘The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.’ 161. Automatic disqualification refers to a situation in which a judge is shown to have an interest in the outcome of the case which they are to decide or have decided. If they have such an interest, he is improperly acting as a judge in their own cause, whether or not it did affect any decision made by them in the course of the litigation. The question is not ‘whether the judge has some link with a party involved in a cause but whether the outcome of that cause could, realistically, affect the judge’s interest’ (Locabail at [8]). Traditionally, this category was confined to cases where the judge had a pecuniary or proprietary interest in the outcome of the litigation (as in Grand Junction Canal v Dimes (1852) 3 HL Cas 759, where orders of the Lord Chancellor were set aside on the ground that he had a substantial shareholding in the respondent company), but the rule has been extended to a limited class of non-financial interests, such as ‘the promotion of a cause in which the judge is involved together with one of the parties’ (Re Pinochet Ugarte (No 2)

[2000] 1 AC 119

[1999] 1 All ER 577

at 588, per Lord Browne-Wilkinson. (This case is referred to in paragraphs 144 and 145 above).

[162]The most common allegation of judicial partiality falls within the category of there being a real possibility of bias. This test as set out Porter v Magill [UKHL] 67 per Lord Hope of Craighead (at [103]) is this: ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’

[163]In Lawal v Northern Spirit Ltd

[2003] UKHL 35

[2003] IRLR 538

[2003] ICR 856

, Lord Steyn stated that the key to the test is public perception of the possibility of unconscious bias (at [14]). Therefore, where it is found that there is or was a real possibility of bias, then, as in the other two categories, the judge (or in tribunal cases, judge or lay members) will be disqualified from sitting and/or the decision (if any) will be set aside.

[164]A tribunal or judge should not decide an application for recusal without first notifying the other party and allowing it to make representations upon it, or at least, if an order for recusal is made, without specifying in the order that the other party has the right to apply for it to be varied or revoked. (West LB AG London Branch v Pan

UKEAT/0308/11

(19 July 2011, unreported) at [29]). In this case, the Tribunal invited the respondent’s submissions on the claimant’s application. In her response of 21 February 2024, Miss Stratton submitted that the respondent had no concerns 10.5 Reserved judgment with reasons – rule 61 30 March 2017 about the Tribunal’s conduct but declined the opportunity to make any detailed submissions.

[165]Valuable guidance was given by the Court of Appeal, on addressing allegations of a real risk of bias in the context of employment tribunals, in Ansar v Lloyds TSB Bank plc

[2006] EWCA Civ 1462

[2007] IRLR 211

. There, the court approved the following summary of the principles to be applied which Burton J had articulated in the EAT in the same case: ‘1. The test to be applied as stated by Lord Hope in Porter v Magill

[2002] AC 357

, at paragraph 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at paragraph 18 in determining bias is: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. 2. If an objection of bias is made, it will be the duty of the [employment judge] to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at paragraph21. 3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL

(1986) 161 CLR 342

at 352, per Mason J, High Court of Australia recited in Locabail at paragraph

22. 4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1991] VSCA 35 recited in Locabail at paragraph 24. 5. The EAT should test the employment tribunal’s decision as to recusal and also consider the proceedings before the tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick, at paragraph 18… … 8. Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett [v Southwark London Borough] at paragraph 19. 9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal employment tribunal hearings, of the dialogue which frequently takes place between the judge or tribunal and a party or representative. No doubt should be cast on the right of the tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simper & Co Ltd v Cooke

[1986] IRLR 19

EAT at paragraph 17. 10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at paragraph 25.’

[166]Perhaps the easiest way to deal with the recusal application is for the Tribunal to set out the allegations in the schedule below together with the Tribunal’s comments in italics. The schedule does not repeat the claimant’s allegations in her 10.5 Reserved judgment with reasons – rule 61 31 March 2017 recusal application verbatim. They only set out those matters concerning the Employment Judge’s conduct. (The same paragraph numbers as used by the claimant in her application are adopted for ease of reference). The application was accompanied by a bundle of documents in support.

[167]From this, the Tribunal’s conclusion is that the claimant has failed to show actual bias on the part of the Employment Judge. The preponderance of interlocutory decisions have been in her favour and the Tribunal was solicitous in care for her welfare on 19 September 2023. Reasonable adjustments were out in place for her as was said in paragraph 100 above.

[168]In the alternative, the fair-minded observer cognisant of all of the facts could not entertain the notion of a real possibility of bias. This is for much the same reason as upon the claimant’s allegation of actual bias. If the Employment Judge and Tribunal really were set on striking out the claimant’s case, there have been several opportunities so to do. It would have been legally wrong to have done so and the Tribunal acted as should an impartial and fair-minded judicial body in vindicating the rights of both parties to a fair hearing. The claimant’s allegations are unmeritorious, and it would be wrong to readily accede to her application. The Schedule 4. I begin by drawing …attention to some examples of [The Employment Judge’s] actual bias:• He repeatedly allowed the Counsel for the Respondents (Mr Benjamin) to assist the witnesses, whilst I was questioning them. See paragraphs 95 and 96 above.

• He openly sided with the Respondents on a number of occasions, and this has had the effect of influencing the two non-legal members into his way of thinking. This is an unspecified allegation and difficult to respond to. There is no evidence that the non-legal members have been improperly influenced. They are equal members of the Tribunal and may in any case outvote the judge.

• He allowed the witnesses to look at their Witness Statements during questioning. There can be nothing improper in allowing witnesses to look at their statements while giving evidence. Tribunal proceedings are not a memory test.

• None of the Respondent’s Witness Statements were signed. Additionally, the name of the witness was not even printed on any of the said Statements. The witnesses all adopted their statements after taking their oath or their affirmation. That the statements are unsigned does not impact their validity once adopted as the witness’s evidence-in chief. 10.5 Reserved judgment with reasons – rule 61 32 March 2017

• During questioning of Mr Ross McIntosh, I attempted to draw Mr McIntosh’s attention to specific pieces of evidence. When Mr McIntosh attempted to find them in the Hearing Bundle, they were not there. This is a matter for closing submission as to the weight to be given to Mr McIntosh’s evidence. This has nothing to do with the Employment Judge’s conduct of the case. 5. EJ Brain is wholly biased against me, even in the face of tangible evidence which proved my points. By way of example, I competently showed that Ross McIntosh had failed to comply with the Respondent’s Procedural Guidance on Grievance Resolution. Yet, Sir still maintained that Mr McIntosh followed the Policy. There is a paper trail within the Employment Tribunal which substantiates my arguments. Please note that Sir afforded me the opportunity to send to the Tribunal and serve upon the Respondent’s solicitor a Supplemental Witness Statement of Fact. The Employment Judge did not say that the respondent had followed the respondent’s grievance policy. He said that it was the respondent’s evidence that they had, and it was a matter for the Tribunal to decide whether there was compliance. It is disappointing that the claimant has repeated this allegation in her application when this was explained to her at the hearing on 17 January 2024. That the claimant was afforded an opportunity to file a supplemental witness statement dealing with the respondent’s specific disclosure around the grievances raised by Mr Shaw and Miss Pitcher tells against actual or apparent bias, 6. Employment Judge Brain is desperate to get my Claims struck out primarily for the following reasons: he wishes to protect the Respondents, specifically two of their witnesses, namely Jessica Pitcher and Christopher Shaw. 7. Upon perusing my Supplemental Witness Statement (which appears on pages 11-19 [of the recusal application bundle], you would vividly see that neither Jessica Pitcher nor Christopher Shaw had complied with the Respondent’s Grievance Policy, which means that they were both untruthful in their testimonies. Both these former co-workers are of the white race. EJ Brain does not want to commence Contempt of Court proceedings against these witnesses, which he has an obligation to do. Therefore, he is determined to unreasonably and unfairly Strike out my Claims. It is convenient to take (6) and (7) together. It is a matter for the Tribunal to weigh the evidence of Mr Shaw and Miss Pitcher. Even if the Tribunal prefers the claimant’s account to theirs, it does not follow that they are in contempt of court. If it were to be the case that a witness is in contempt of court simply because the Tribunal prefers another’s account, then the workload of the President of Employment Tribunals, the Regional Employment Judges, and the Attorney General in processing contempt proceedings would be unmanageable. The Tribunal has not struck out the claimant’s claims. The processes adopted in November 2023 (paragraphs 66 and 71) and January 2024 (paragraphs 112 to 115) were to ensure the claimant had a fair opportunity to address the strike out applications. The flaws in the respondent’s November 2023 strike out application 10.5 Reserved judgment with reasons – rule 61 33 March 2017 were pointed out by the Tribunal. The respondent was discouraged from making such an application on 16 January 2024 (paragraph 88). The claimant’s claim has not been struck out. This tells against the Employment Judge being determined so to do. 15. At the second Preliminary Hearing which took place on 10 February 2023, further Case Management Orders were made. Employment Judge Brain decided that my Claims should proceed to a Final Hearing. Furthermore, he has adjourned my case on at least three occasions. This is not in accordance with the overriding objective pursuant to Rules2(d) and (e), in respect of:“(d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. ” It is an odd allegation that the Employment Judge showed actual or apparent bias when allowing some of the claimant’s claim to proceed (as extant claims and by way of amendment) at the hearing in February 2023 (paragraph 44). The hearing in September 2023 was adjourned of the Tribunal’s own motion because of concern the Tribunal had about the claimant’s health (paragraphs 60 to 62). The mater had to be adjourned in November 2023 as there was insufficient time to conclude matters. The matter was adjourned in January 2024 for the same reason (arising from the claimant’s conduct). The claimant is not prejudiced as additional days have been allocated for the case. 16. I have sought to demonstrate that EJ Brain is biased,as he is in favour of the Respondents. For avoidance of doubt, I am referring to actual bias. My ET1 form was submitted to the Employment Tribunals since 03 August 2022. At the time of submitting this application, it is now 1 year, 6 months, 17 days. The Employment Tribunals has seriously wronged me. They have had sight of my Disability Impact Statement on more than one occasions. It is cruel and unjustifiable for Employment Judges to deliberately delay my Claims for all this time. I have been treated unfairly in numerous instances. The following are just some of the instances of injustice I have suffered during the course of these proceedings. See the comments at 4 and 15. 17. EJ Brain has excluded the public from the Final Hearing on the majority of days, in an effort to protect the Respondents. He has deceived me into thinking the proceedings were made accessible to the public. However, I am inclined to believe that he had later converted the proceedings so that the public was excluded. This is wholly unreasonable. The public have not been excluded from any part of the proceedings save in respect of the issue dealt with in paragraphs 62 to 65 above. 18. When the Hearing was meant to resume (most recently) on Monday, 15 January 2024, the parties received correspondence claiming that the court was flooded, and therefore closed. You would notice that the Listing Clerk did not even put the Claim Number anywhere in the email. This greatly concerns me. The following day, I discovered that each and every one of the Tribunals Cleaning staff were instructed not to speak to me. If the court were indeed flooded (on the exact day when the Hearing 10.5 Reserved judgment with reasons – rule 61 34 March 2017 was to resume) the said staff would not have been forbidden to speak to me. This is very upsetting and unjustifiable. It is absurd to suggest that the cleaners were told by the Employment Judge not to speak with the claimant or for her to suggest that court building was not flooded. It is disappointing that the claimant continues with her insinuation that the building did not suffer a flood. It did, with thousands of pounds worth of damage being caused and three court rooms rendered out of action for weeks. 19. The parties received notification on 15 January 2024 that the case will start the following day at 10:00 via CVP link. We were then told that the case will be fully remote. This is also grossly unfair and inappropriate. Employment Judge Brain is fully aware that a case of this nature and complexity should be heard in person. However, I strongly believe that this was arranged so as to create further problems and delays. The parties were invited to consent to proceeding electronically after the building was flooded. This was in the hope of progressing the case in the light of the closure of the building. The parties consented. The claimant then changed her mind. This is her prerogative. The video hearing was abandoned upon her application without the hearing of any evidence at around 1:10 pm on 16 January 2024. The claimant suffered no prejudice. The matter proceeded in person on 17 January 2024. 20. The following day, I was first to join the Hearing via CVP. Refer to the Notice of Hybrid Hearing on... The parties were late in joining and when EJ Brain joined, he surprisingly informed everyone that one of the members of the panel, namely Mr Fields, was not present. To my great surprise, he stated that we have to adjourn until Mr Fields could become available. The Tribunal is not properly constituted without all three panel members present. It would have been legally wrong to continue without Mr Fields. 21. When Mr Fields finally joined, the Counsel for the Respondent (Mr Benjamin) kept losing internet connection. Each and every time this happened, Sir informed us that we could not proceed until Mr Benjamin rejoined the CVP Hearing. Any fair and reasonable person would conclude that the Employment Tribunals has greatly disadvantaged me during the course of these proceedings. Quite the contrary, the fair and reasonable observer would have thought it manifestly unfair to the respondent to continue without their counsel. To press on without him would have been a legal error. It would have violated the respondent’s right to a fair trial. 22. There has been a violation of both my Equality and Human Rights, pursuant to the Equality Act 2010 and the Human Rights Act 1998. Employment Judge Brain has encouraged the Respondents to submit 2 applications to strike out my Claims (in entirety) during the actual trial windows of the reconvened Hearings. This is wholly unreasonable. Furthermore, the Employment Tribunal has put someone with my Protected Characteristic of Disability at a disadvantage, particularly in respect of the deliberate delays. These delays have resulted in detriments, which include undue stress and extreme weight loss. 10.5 Reserved judgment with reasons – rule 61 35 March 2017 This is repetitious: see paragraph 100 of the judgment and paragraphs 7 and 15 of this schedule. 23. Following submission of the initial Strike Out application, Ms Stratton made another 2 applications. Please see the second one on pages 38-40. The third application appears on pages 41-49. EJ Brain has encouraged the Respondents to make an in-person application to strike out my Claim during the Trial window of the most recent reconvened Final Hearing. This application was made on 18 January 2024. For avoidance of any doubt, this is the fourth application of this kind. As to the strike out applications made by the respondent (three of which have failed and one of which was withdrawn) see paragraph 7 of this schedule. 24. On the day, my oral submissions lasted well over an hour and were made from the heart. This is to say, there was no script. Following the oral submissions, I emailed written submissions, which encapsulated what I had said earlier. Please see pages 60-62. Employment Judge Brain informed us that he would email his decision (via CMO) to the parties the following week. To date, no CMO has been received informing the parties of Sir’s decision. This is wholly unacceptable. The Tribunal did not say that decision would be sent out during week commencing 22 January 2024. When the case was adjourned and judgment reserved on 19 January 2024, it was 3:10 pm. The Tribunal was cognisant of the possibility of being unable to reach a decision in such a hotly contested application by around 4:30 pm and the possibility of needing further time in chambers. .25. I am confident that EJ Brain is planning to subject me to Costs Order and payment of the Respondent’s Legal fees. This is why he has allowed all this time to pass, with no notification. This is also why I have received a Summons that was apparently issued on 1 January 2024, which informs me that I have been selected for Jury Service. I am confident that this is not a genuine Summons. Instead, it has been arranged so that EJ Brain could get details about my health and finances, both of which are private to me. He is aware that the Jury Central Summoning Bureau can demand such private details from me. As soon as he learns that I am financially stable, his intention is to unfairly and unreasonably deprive me of everything I have worked for. These are preposterous and baseless allegations which do the claimant little credit. 26. Employment Judge Brain has no legal right to plan on granting the Respondents a Cost Order. Their conduct has been wholly unreasonable, particularly in the submission of 4 applications to strike out my Claims in entirety. As a reminder, 2 of these applications were in the actual trial windows of the reconvened Hearing. It is a matter for the respondent as to whether to make a costs application. Should they do so then it will be decided on its merits. This is a matter in which the Tribunal is legally disinterested. 28. The delays in this case have been unhelpful in ensuring that proceedings are dealt with in a proportionate manner. I still have 3 remaining key witnesses to question. My right of access to justice for breach of my discrimination rights has been severely threatened. 10.5 Reserved judgment with reasons – rule 61 36 March 2017 The claimant’s right to a fair trial has been preserved by the allocation of a new trial window. 29. I am confident that the test for actual bias has been met. Kindly note that EJ Brain had asked me if I wished to unequivocally withdraw my comments that I had been treated unfairly by him. I told him that I was unable to do so as I strongly feel that he has treated me unfairly. By way of example, he would often times speak to me in a condescending manner during the proceedings. However, when communicating with my opponent (Ms Stratton), he is always courteous. Ms Stratton does not share my Protected Characteristic of race. I wish to re-iterate that Sir has also not properly catered for my disability. I have also been disadvantaged by EJ S-J Davies, in respect of not catering for my disability. It is disappointing that the unfounded allegation of race discrimination is repeated.

Findings of fact

[169]The claimant replied (539) to say that “with reference to being away on Teams for 16 hours, this has NEVER been the case. I will be doing my investigations into this as something does not seem right.” She then referred to having been removed from the workplace on 13 May 2022 because of a protected act. We should observe that this is a further example of innocuous suggestions being greeted with suspicion by the claimant which behaviour was on occasions demonstrated before the Tribunal. 10.5 Reserved judgment with reasons – rule 61 46 March 2017

[170]On 25 May 2022 Sarah Todd emailed Mrs Baguley (page 542). She reported that the claimant had suggested that “one of her previous buddies was lying to her like ‘my buddy said they have worked here for years but expected me to believe they’ve never taken a payment on [one of the respondent’s systems] in all of that time and so couldn’t show me how to use this.’”

[171]Mrs Baguley’s account in paragraph 17 of her witness statement is that she then spoke to Ms Todd. She [Ms Todd] became upset to the point of tears and said she could not work with the claimant anymore. Ms Todd relayed that there had been a data breach committed by the claimant which resulted in Ms Todd having to step in and take over the call.

[172]Mrs Baguley telephoned Mrs McLean. Mrs Baguley was concerned that Mr Shergold and Ms Todd did not wish to buddy the claimant and there were therefore no free buddies left to assist her. It was agreed that the claimant could do some training through the Aviva University while the respondent came up with a plan to move her core training forwards.

[173]Mrs Baguley says that she instructed the claimant to put herself onto ‘meeting code’ (page 534). The claimant questioned this instruction (page 555). The email at page 555 was sent to Mrs Baguley after she (Mrs Baguley) had finished her shift and therefore she did not respond to the claimant. Mrs Baguley explained in evidence that the meeting code was that which she had instructed should be used.

[174]This narrative segues to the twenty second allegation which is that Mrs Baguley told the claimant to do training via the Aviva University rather than take live calls on 25 May 2022. That this is the case is accepted by the respondent. It is convenient that the twenty second allegation is read in conjunction with the twenty fourth which is that the claimant was taken off live calls by Amanda Baguley on 25 May 2022. This is the case.

[175]The twenty third allegation is that the claimant was never given a one-to-one by Amanda Baguley. Mrs Baguley accept this to be the position. She explains in paragraph 18 of her witness statement that the claimant was only in her team for three days. She did have three meetings with her albeit perhaps not formal oneto-one training as wished for by the claimant.

[176]The twenty fifth allegation is that the claimant’s schedule on the Verint system had been altered to show incorrect working hours on 25 May 2022. This allegation can be quickly disposed of. It is misconceived. The Verint schedule shows her working hours as from 9.30 to 17.00 on each day during week commencing 23 May 2022. The different shade of blue coincides with the period when she was instructed by Amanda Baguley to go into the Aviva University by use of the ‘meeting code.’ The schedule therefore correctly shows the claimant’s working hours.

[177]Mrs McLean received reports from James Shergold (page 523), Mrs Baguley (pages 524 to 526), Ross Pennant and Matthew Revell (pages 533 and 536), Sarah Todd (pages 541 and 542) and Luke Kitchener (pages 543 and 544) on their experiences with the claimant after she had joined Amanda Baguley’s team on 23 May 2022.

[178]Mrs McLean says in paragraph 27 of her witness statement that, “I felt that we needed to consider possible disciplinary action against Sabrina, as her approach to dealing with concerns was accusatory, disruptive and proving upsetting to 10.5 Reserved judgment with reasons – rule 61 47 March 2017 colleagues who were trying to support her.” She sent her a calendar invite to meet with her and Sian Daubney on 25 May 2022. The invite is at page 557. Ms Daubney was there in the capacity of note taker.

[179]The attendance report for the Teams meeting is at page 1228. This shows that all participants joined at 16:15 and left at 16:36. The meeting therefore lasted for a little over 20 minutes.

[180]Following the meeting, Mrs McLean sent the claimant two letters. The one at pages 558 to 560 confirmed that she was suspended from duties. The one at pages 561 to 563 invited her to a disciplinary meeting.

[181]There are no notes of the meeting. However, Mrs McLean and Sian Daubney both emailed Joanne Clifton, an in-house chartered legal executive, with their summary of the meeting. These emails are at pages 580 to 583.

[182]Mrs McLean says in page 580 that the call was particularly difficult as the claimant “was angry and upset from the outset and would not let me or Sian speak very easily to explain anything. Her voice was raised and she said ‘ladies you should be ashamed of yourselves.’ This was in response to me trying to explain the first sentence below.” This presumably was a reference to an explanation as to the reason for the meeting and that the behaviour demonstrated towards Amanda Baguley’s team could not continue.

[183]She then said in her email that the claimant “became quite angry raising her voice and asking “what behaviours”. She said that she had not had any warnings or disciplinary messages before so I could not do this and we must explain which was repeated several times.” Mrs McLean said that she informed the claimant that she was going to invite her to a formal disciplinary hearing to take place on 27 May 2022. At this, the claimant said that she had “never been made aware of any issues with her behaviour and she should have details of these – it was difficult to speak again as the claimant was repeating about her protected act and how she has been targeted and this was all about her raising her grievance.”

[184]Mrs McLean then recounted in the email that she explained in a little further detail the issues of concern. She then informed the claimant that she was suspended with immediate effect. Mrs McLean said that the claimant “had also expressed that unless she could have this meeting recorded she would leave. We explained that she was unable to record it. She then said that Sian should stop taking any notes and repeatedly should be ashamed of ourselves and this was disgusting and against her protected act and we cannot do this. She said in a raised voice that we are breaking the law.”

[185]It is then recorded that Ms Daubney offered a five minutes’ break which the claimant declined, saying that she was going to be leaving. Ms Daubney also offered the claimant the benefit of the respondent’s employee assistance programme. Mrs McLean says that she found the meeting “quite upsetting as I just wanted to help her and the impacted colleagues. I then spoke to Sian afterwards and I did break down in tears as I found the meeting upsetting particularly to think that Sabrina was referring to us being ashamed of ourselves.” Mrs McLean said that both she and Ms Daubney had been shaken by the experience. Ms Daubney’s email at pages 582 and 583 is corroborative of Mrs McLean’s account.

[186]Given the Tribunal’s experience during these proceedings, Mrs McLean’s account of the events of 25 May 2022 is entirely credible. On a number of 10.5 Reserved judgment with reasons – rule 61 48 March 2017 occasions throughout the proceedings before the Tribunal, the claimant has become angry and has raised her voice, speaking over the Employment Judge. That she did so very early on in the suspension meeting (as such we accept it to be) is resonant of the claimant’s conduct on the morning of 18 January 2024 (at paragraph 94 of the reserved judgment of 14 March 2024 cited in paragraph 9 above). Further, Mrs McLean’s and Mrs Daubney’s accounts in their emails were contemporaneous with events when their memories would be at their freshest. This makes them all the more reliable.

[187]The letter of 25 May 2022 confirming the suspension is at pages 559 and 560. The claimant was told that during the suspension meeting that Mrs McLean would be investigating the following allegations of misconduct:  Accusatory and unreasonable responses towards your leader when reporting and overcoming perceived IT issues (week commencing 23 May 2022).  Unreasonably resisting support, coaching and feedback which has been delivered to you by your buddies and is a requirement of your training. This has led to a possible customer detriment (week commencing 23 May 2022).  Derogatory comments about a number of colleagues and leaders in your department, including directly accusing Matt Revell of being a liar (24 May 2022). [The latter allegation arises out of the exchange between Mr Revell and the claimant on 23 May 2022 recorded at pages 535 and 536. Again, it is credible that the claimant accused Mr Revell of lying. She has, after all, made the same unfounded allegation against the Tribunal].

[188]On the same day, 25 May 2022, Mrs McLean emailed the claimant the letter at pages 562 and 563. She was informed that there was to be a disciplinary meeting on 27 May 2022 via Teams to consider the allegations of misconduct set out in the suspension letter. These are in fact repeated in the disciplinary hearing invitation letter as well. The claimant was informed of her right to be accompanied at the meeting by a work colleague or trade union representative. Mrs McLean said that she did not intend to call any witnesses. The claimant was reminded of the availability of the employee assistance programme.

[189]The claimant resigned with immediate effect on 25 May 2022. Her resignation letter was sent by email to Karin Fisher, HR administrator, at 7:06 pm that day.

[190]The claimant sought to maintain during the cross-examination of Lani Jaques that she had not in fact opened the suspension letter. Hence, she was unaware of the restriction upon her contacting fellow employees in the suspension letter. The claimant may have chosen not to open the email containing the letter of suspension. This cannot detract from the fact that she was clearly informed of her suspension on 25 May 2022.

[191]Even if the claimant is correct (which we hold she is not) to say she had not been suspended on 25 May, she had no reason to contact Thomas Weeks, HR adviser and Karin Fisher anyway on 26 May as by then she had left her employment with the respondent. The matters about which she contacted them were issues in which they had no involvement.

[192]The grievance resolution meeting with Helen Graham went ahead on 27 May 2022. Isabell Schneider attended as note taker. The notes are at pages 592 to 10.5 Reserved judgment with reasons – rule 61 49 March 2017 595. By this stage, of course, the claimant had not read Mrs Graham’s conclusions as to the first part of the grievance. Having had the resolution meeting with the claimant, Mrs Graham then set about making her enquiries.

[193]She spoke to Jessica Pitcher, Mark Shearing, Claire Eade, Stephen Curry, and Christopher Shaw. Notes of those meetings are at pages 598 to 605. She also reviewed the Teams messages at pages 343 to 350 between the claimant and Mr Curry.

[194]The grievance outcome in relation to parts one and two of the claimant’s grievances is at pages 657 to 662 (being part of the letter of 23 June 2022). She did not uphold the claimant’s allegations against Mr Curry, Mr Shaw and Claire Eade.

[195]Mrs Graham said that she would not investigate any of the claimant’s complaints concerning Miss Saunders and Miss Walker. This was upon the basis of advice received from HR that such would be an infringement of Miss Saunders’ and Miss Walker’s personal data.

[196]In relation to the allegations in the grievance of 20 May 2022, it was Mrs Graham’s conclusion that: - 196.1. It was appropriate for Mr Pennant to have dealt with matters on 27 and 28 April 2022. There was no conflict of interest between him and Mr Shaw. 196.2. It was appropriate for Mr Pennant and Mr McIntosh to suggest the claimant go home after the altercation with Jessica Pitcher. 196.3. The complaint raised by the claimant of her treatment by Jessica Pitcher was not upheld. 196.4. The complaint about her interaction with Elizabeth Harding was not upheld. 196.5. She did not uphold the claimant’s complaint about Daniel Cave. This appeared to involve the use of the word “soz”. The claimant thought this was reference to her. It is, in fact, a Yorkshire colloquialism for the word “sorry”. 196.6. Mrs Graham did not uphold the complaint about being buddied with Mr Curry on 29 April 2022 as Mr Pennant was not aware at that stage of the issues between Mr Curry and the claimant. 196.7. Mrs Graham accepted Mr Pennant’s explanation as to why the claimant had not been signed off tasks as she had not done a sufficient number of calls to demonstrate her competence. 196.8. The claimant’s complaint about the allocation of a new headset was not upheld. 196.9. Mrs Graham found there to be nothing wrong with the cancellation of the one-to-one which had been scheduled for 22 April 2022. 196.10. Mrs Graham was satisfied there was no leak about the claimant’s grievance of 5 May 2022. The claimant had informed others of it when she posted on the Five9 Teams chat on 13 May 2022.

[197]These conclusions were communicated to the claimant in the report at pages 657 to 662. 10.5 Reserved judgment with reasons – rule 61 50 March 2017

[198]It was accepted by the respondent that Mrs Graham had not held an outcome meeting. The claimant expected such to have taken place pursuant to the respondent’s resolution procedure which is in the bundle starting at page 194. The introduction says that “This procedure applies to current employees of Aviva Employment Services Limited.” At the point at which Mrs Graham was able to reach her conclusions, the claimant was no longer an Aviva employee.

[199]On 1 June 2022 Mr McIntosh said, by reference to the claimant’s intimation of a wish to submit a third part of her grievance, that “If someone has left Aviva, any further issues raised regarding your employment with us would be handled as a complaint. However, as you started your request for formal resolution (grievance) when you were still employed with us, we will allow part 3 paperwork to be submitted as part of your overall formal grievance/resolution”. We refer to Mr McIntosh’s email to the claimant of 1 June 2022 at page 614.

[200]In the Tribunal’s judgment, the respondent is correct to say that the resolution procedure only applies to current employees. However, there is merit in the claimant’s contention that she was expecting an outcome meeting given the contents of Mr McIntosh’s email of 1 June 2022. He certainly gives the impression, on a reasonable interpretation, that there would be a continuation of the resolution procedure notwithstanding that the claimant had left the respondent’s employment.

[201]Mrs Graham also accepted that the notes of the grievance meeting of 27 May 2022 were sent to the claimant outside of the five-days’ timescale within the policy at page 200. This failure was fairly acknowledged by Mrs Graham and Mrs Jaques.

[202]The third part of the claimant’s grievance was submitted on 6 June 2022. This is at pages 616 to 621. Mrs Graham’s conclusions upon it are at pages 662 to 663.

[203]The first allegation raised in this part of the grievance was about the Verint schedule. Mrs Graham said that she had a look at the schedule and confirmed that it correctly shows her shift time of 9:30 to 17:00. She says that “If the block starting at 17:00 was shaded, this would have meant you worked until 18:00.”

[204]The next fresh matter raised in the third part of the claimant’s grievance was that the resolution meeting notes of 27 May 2022 were not provided. Mrs Graham investigated this and confirmed that they were sent to the claimant on 15 June 2022. As has been said, Mrs Graham accepts that this was outside the resolution policy timescales.

[205]The third new matter raised by the claimant in the third part of her grievance was that she was removed from the respondent’s systems on 23 May 2022. Mrs Graham said that this was attributable to technical issues that day.

[206]In the third part of the grievance, the claimant complains about Mrs Baguley’s instruction for her to do some training via the Aviva university on 25 May 2022. She says that the summons to the meeting with Mrs McLean that day was the “last straw.”

[207]The claimant then alleges serious fraudulent activity around the Verint schedule and complains that Mr Pennant let the department know on 26 May 2022 of the claimant’s resignation.

[208]Mrs Graham did not investigate the dealings between Mrs McLean and the claimant. However, she was not asked to as the claimant asked her only to 10.5 Reserved judgment with reasons – rule 61 51 March 2017 investigate the issue around Verint, what the code “HC – Development Time – 119647” means, whether there was any instruction to alter the claimant’s schedule and if so, who gave the instructions. She concluded there to be nothing untoward.

[209]The twenty seventh issue in the list of issues is that Mrs Graham did not conduct a thorough investigation of the claimant’s grievance resulting in her not dealing with the grievance properly. The claimant was encouraged during her crossexamination of Mrs Graham to focus upon why she contended the grievance not to be thorough. With this guidance, the claimant focused upon the omission to investigate the claimant’s complaints about Lizzie Walker and Ajibola Saunders. The claimant struggled to articulate in what respect otherwise there was a lack of thoroughness upon the part of Mrs Graham.

[210]The claimant appealed the outcome of the grievances. Her appeal is at pages 669 to 681. This was dealt with by Mrs Jaques.

[211]A Teams meeting was arranged for 11 July 2022 to enable the claimant to meet with Mrs Jaques. The claimant was accompanied by a trade union representative. Mrs Jaques was accompanied by a note taker. The notes are at pages 716 to 720. The claimant’s appeal was comprehensive. There were 11 issues raised by her with several sub points. The appeal points were:  Non-compliance with procedural guidance on grievance resolution.  Breach of the ACAS Code of Practice.  Breach of the employment contract.  Lack of impartiality when conducting investigations.  A refusal to address the following complaint points: o Race and ethnicity of Ajibola Saunders. o If Ajibola has experienced any racism at Aviva. o If Lizzie Walker had her one-to-one.  Omission of references to race so as to cover up discriminatory conduct.  Refusal to consider tangible evidence which shows that Jessica Pitcher was treated more favourably than the claimant because of her race.  Refusal to consider tangible evidence that Anna Krol was visible on the system the same day that the claimant was not (that being 23 May 2022).  Insufficient explanations as to how conclusions were reached in relation to: o Jessica Pitcher treating the claimant fairly. o Elizabeth Harding being friendly, helpful, and receptive to the claimant. o Details of the claimant’s grievance being leaked to Luke Kitchener and Matthew Revell.  No explanation as to why Mark Shearing and Luke Kitchener were seemingly telling colleagues bad things about the claimant to prevent her progression. 10.5 Reserved judgment with reasons – rule 61 52 March 2017  Failure to address the following complaint points: o Why Gary Sharp was given a new USB headset and the claimant was not. o Why Rebekah Gore and Chloe Pullen got new USB headsets and the claimant did not. o Who fraudulently tampered with the claimant’s schedule on Verint. o What does HC Development Time 119647 mean. o Was Rebecca Johnson and/or Simon Lawrence instructed to alter her schedule. o Who gave the instructions. o The claimant’s claim of being underpaid.

[212]Mrs Jaques says in paragraph 15 of her witness statement that the call of 11 July 2022 “went quite well and Sabrina was cordial. Her union representative was also very pleasant and helpful.” That said, she says in paragraph 17 of her witness statement that the claimant became quite heated at one point and said that Anna Cipriani (the note taker) and Mrs Jaques “should be aware she would be bringing a claim against us personally if we did not essentially find in her favour with the appeal.”

[213]The notes of the meeting were typed by Miss Cipriani. They were sent to the claimant on 14 July 2022 (page 737). The claimant was suspicious that Miss Cipriani could have typed the notes as she was looking straight at the camera. She alleged that the respondent was recording the meeting. She commented that to record without permission is “intrusive, morally wrong and a form of entrapment to record without one’s permission.”

[214]In the Tribunal’s judgment, there is no basis to the claimant’s contention that the appeal hearing notes were being recorded mechanically. It is plain from the evidence of several of the witnesses that it is against the respondent’s policy to allow audio recording. Skilled typists can take a detailed note without looking down at a keyboard. Further, if the proceedings were being recorded then the laptop would display a banner alerting participants to the recording. There is no evidence that such a banner was being displayed.

[215]On 18 July 2022, the claimant wrote to Mrs Jaques (page 819). The attachment included amendments to the draft of the meeting minutes. An issue before the Tribunal arose as to whether the claimant had requested Mrs Jaques to interview Jessica Pitcher. This does not feature in the notes taken by Miss Cipriani and was not included as an amendment by the claimant. Upon this basis, we find that Mrs Jaques was not requested to interview Miss Pitcher.

[216]On 22 July 2022, Mrs Jaques emailed the claimant with the outcome of the grievance. This is at pages 864 to 890. Beforehand, the parties had met at an appeal outcome meeting. Mrs Jaques says in paragraph 67 of her witness statement that “During the meeting it became increasingly difficult to discuss matters with Sabrina as we were going round in circles. I can understand that she was disappointed with my findings but we were unable to make any progress. We only made it to point 2b.” This left points 3 to 11(f) to deal with. Mrs Jaques says in the same paragraph that, “Sabrina began making accusatory comments of Arriva fabricating evidence and I felt there was nothing further to be gained.” 10.5 Reserved judgment with reasons – rule 61 53 March 2017

[217]Given the way in which the claimant presented before the Employment Tribunal, the evidence given by Mrs Jaques in paragraph 67 of her witness statement is credible. We have commented already upon the claimant’s propensity not to accept decisions which go against her and to seek to argue points after those vested with making decisions have communicated their rulings.

[218]Mrs Jaques upheld the claimant’s appeal to the extent that Helen Graham had omitted to hold a grievance outcome meeting. Otherwise, all of the claimant’s points of appeal were dismissed.

[219]On any view, Mrs Jaques’ appeal report is extremely thorough. It is not necessary for the Tribunal to go into any great detail about her conclusions. Much of the ground covered by her is before the Employment Tribunal and Mrs Jaques considered much the same evidence. Her findings of fact accord with those of the Tribunal upon those issues.

[220]Mrs Jaques faced cross-examination for two days. At the conclusion of this, she said that she was not inclined to get involved in any grievances or grievance appeals in future. In the Tribunal’s judgment, this would be unfortunate. The thoroughness of her approach can only be of benefit to the respondent and the respondent’s employees who may find themselves having to bring a grievance.

[221]Mrs Graham and Mrs Jaques both said that this was the only second grievance that they had dealt with. That being the case, their efforts to conscientiously investigate the claimant’s grievances are even more impressive given their inexperience.

[222]The one issue raised by the claimant in the appeal which is not before the Tribunal is that of the respondent’s compliance with the ACAS Code of Practice. That is not raised as an act of discrimination or victimisation by the claimant. There is therefore no need to consider this issue in any detail. Suffice it to say that Mrs Jaques’ conclusion that there was no such breach was a reasonable one which it was open to her to take.

[223]In paragraph 16 of her witness statement, Miss Pitcher says that she raised a grievance against the claimant. She refers to pages 432 to 436. Mr Shaw submitted a grievance against the claimant also on 25 May 2022. This is at pages 548 to 553. Mr Shaw says that after the claimant’s resignation he did not feel there was any benefit in pursuing the complaint. Likewise, Miss Pitcher’s grievance was not pursued following the claimant’s departure for the same reason.

[224]Mr McIntosh said that no one was assigned to deal with Miss Pitcher’s and Mr Shaw’s grievances. The claimant contrasted the position with her own grievance. Helen Graham was assigned to deal with it the day after her first grievance was submitted on 5 May 2022. This formed the basis of the claimant’s case as it was put to Mr McIntosh and in closing submissions that Mr Shaw’s and Miss Pitcher’s grievances were not genuine and had been staged. Mr McIntosh said, in evidence given under cross-examination, that, “it’s unbelievable to say they’re not genuine. They [Christopher Shaw and Jessica Pitcher] were distraught. I’m almost lost for words. How can you say that? I spoke to both of them. I followed the process to the point you left.”

[225]The Employment Judge asked the claimant if it was her case that Miss Pitcher and Mr Shaw were put up to raise grievances. The claimant confirmed it was and that “it was a plot, collusion, and [Ross McIntosh] was involved because of the 10.5 Reserved judgment with reasons – rule 61 54 March 2017 protected acts to stage a grievance so it looks like I had a poor record to tarnish me, linked to sending me away on 13 May.” Mr McIntosh replied, “I absolutely refute that. You have to accept that they were so upset by your treatment of them.”

[226]To corroborate that there was a genuine grievance, the respondent disclosed documentation during the hearing. Amongst this was a message from Mr Shaw to Ross McIntosh of 16 May 2022 (page 1236). Mr Shaw said, “Hi Ross, hope you’re well. Jessica Pitcher has emailed me to raise a grievance against Sabrina Bailey.” Mr McIntosh refuted the suggestion that the documentation generated by Mr Shaw and Miss Pitcher’s grievance had been concocted.

[227]The claimant then cross-examined Mr McIntosh to the effect that the grievances were not authentic given that the respondent had not followed the resolution procedure. Mr McIntosh’s answer for this was that there is flexibility within the process. Mr McIntosh’s account was that an initial discussion would be held with the complainants to discuss their desired resolution.

[228]Again, the respondent’s evidence is credible. It is a real stretch for the Tribunal to accept that Mr McIntosh cajoled Mr Shaw and Miss Pitcher into staging grievances to cover up matters. This was, regrettably, another instance of the claimant baselessly impugning the professional credibility of the respondent’s senior management and other employees.

[229]The next allegation which we shall consider is that which is numbered twenty nine. This is that the claimant “was falsely accused by the respondent of opening an email from someone who claimed to be from the Aviva Data Protection Team which was not the case as the email accessed was a genuine email from the Data Protection Unit in Perth.”

[230]Mr Shaw deals with this issue in paragraph 47 and 48 of his witness statement. He refers to the relevant emails at pages 401 to 408 of the bundle. He explains that “These emails are generated automatically by our internal teams and Sabrina would not acknowledge that she had clicked on it. Phishing exercises are sent on a monthly basis at Aviva to ensure that staff remain vigilant to the dangers of phishing and other cyber security risks. The exercise phishing email will look real, but with a few tell-tale signs that it is not legitimate. Sabrina was then asked to complete further cyber security training and to sign an attestation confirming that she understood the risks of phishing emails. I remember asking Sabrina to complete a task set for her by IT, namely completing some training after she incorrectly clicked on a “phishing test” email from IT. She would ignore my request to do this and I had to chase her.”

[231]He goes on to say in paragraph 49 that, “I dispute Sabrina’s suggestion that she was “falsely accused” of opening an email and that she was victimised as a result. This exercise was carried out across all employees of Aviva as per the monthly tests and any person who had incorrectly clicked on a link would have received the exact same response.”

[232]The claimant was suspicious because the phishing awareness email of 28 April 2022 (page 381) was sent on the same day as the claimant had her discussion with Mr McIntosh and Mr Pennant. The claimant contended that this was no coincidence. During Mr Pennant’s cross-examination she suggested that there was “a plot against me orchestrated, involving Ross Pennant.” 10.5 Reserved judgment with reasons – rule 61 55 March 2017

[233]Again, the respondent’s explanation is credible. There was nothing to suggest other than that the phishing emails are sent routinely to test employees for their cyber awareness. Mr Pennant said that the claimant clicking on the phishing email did not lead to her being in any kind of trouble. The idea was for employees to be alert to the risks. There was no suggestion that any action was taken against the claimant other than for her to engage with the process to support her in her role. Had it been the case that the respondent was orchestrating the phishing email with a view to entrapping the claimant, one may have expected some disciplinary action to be taken against her prior to 25 May 2022. That no action was taken other than requiring her to engage with the process per the email at page 391 tells against this being any kind of collusion.

[234]The thirtieth allegation is that the respondent attempted to deny the claimant the opportunity to submit a Subject Access Request in or around October 2022. The claimant submitted Data Subject Access Requests on 25 October and 3 November 2022 (pages 902 to 904). The allegation appears to be that there was a delay in dealing with the request. The claimant had made a DSAR request on 27 April 2022 (page 377). This was responded to by the respondent on 28 April 2022 (page 380). Sharon Spencer asked the claimant to forward further details of her request. Nothing was heard and so on 5 May 2022 Mrs McCafferty emailed the claimant to chase the claimant for a response. Nothing was heard from her until October 2022. The claimant’s inaction therefore delayed matters by six months.

[235]Mrs McCafferty describes in some detail how the Data Subject Access requests were handled. The Tribunal does not consider it necessary to go into great detail about these matters. Suffice it to say that Mrs McCafferty presented the claimant with a variety of options as to how she would like the data to be delivered. The claimant said on 6 November 2022 that she would agree to the data being sent password protected but not for it to be encrypted (page 911). Mrs McCafferty was at a loss to understand why she would not consent to encryption, there being no difference from an end user perspective in accessing documents that are just password protected or are password protected and encrypted.

[236]On 8 November 2022, Mrs McCafferty wrote to the claimant to explain that due to the extreme volume of data and the initiation of Employment Tribunal proceedings the requests were too complex to be dealt with within a month, but such would be dealt with utilising an extension of two months (pages 913 and 914). Mrs McCafferty then wrote to the claimant on 30 November 2022 providing a summary of the data information (pages 919 and 920). This information was sent with password protection. She acknowledged that the claimant had been mistakenly informed that contrary to her wishes, the information was sent in an encrypted form. The information was then re-sent on 13 December 2022 without a password or encryption (pages 928 and 929). Information was sent again on 25 January 2023 in password protected form.

[237]The final two allegations concern issues around unused holiday pay and arrears of salary. These matters are explained by Mr McIntosh in paragraphs 45 to 53 of his witness statement. The Tribunal can do no better than set these out here: “(45) Sabrina has alleged that she is owed £369.23 in accrued but unused holiday pay. I believe this allegation is incorrect. (46) Aviva’s holiday year runs from 1 July to 30 June each year. When Sabrina’s employment commenced in March 2022, she was allocated a 10.5 Reserved judgment with reasons – rule 61 56 March 2017 pro-rated holiday entitlement of 57 hours, equivalent to just over eight days. Had Sabrina remained in employment, her holiday allowance would have been reset on 1 July 2022 to 29 days plus bank holidays. (47) Sabrina’s employment terminated with immediate effect on her resignation on 26 May 2022. Her entitlement of 57 hours was therefore reduced to 49 hours. (48) During her employment, the Verint schedule at page 957 shows that Sabrina took annual leave on 6, 7 and 8 April 2022. Each full day’s holiday uses seven hours of annual leave entitlement, meaning that Sabrina used 21 hours of annual leave. (49) Aviva’s pay day is the 27th day of each month, but the pay period is for the entire month. For example, a colleague paid on 27 April will receive salary for 1 to 30 April in the pay received on the 27th. (50) Sabrina resigned with immediate effect on 26 May 2022. However, as the payroll cut-off date had passed, on 27 May, she received a payment for salary for the entire month, meaning that she received an overpayment for the period 27 to 31 May. (51) On termination of employment, Sabrina had 28 hours of annual leave outstanding. This meant a total payment of £369.23 was due to Sabrina in respect of accrued but untaken holiday pay. (52) This amount was offset against the overpayment of salary made to Sabrina and she was paid a net amount of £61.97 in June 2022. (53) I do not understand on what basis Sabrina asserts that she is owed arrears of one months’ pay to the amount of £1626.96. Sabrina worked for Aviva from 21 March 2022 to 26 May 2022. She was paid in respect of all work undertaken in this time period. Payslips for this time are at pages 948 to 950 of the bundle.”

[238]There was no challenge from the claimant to Mr McIntosh’s evidence upon the issue of holiday pay and arrears of pay. As the claimant resigned from her employment with effect from 25 May 2022 (and it appears was treated as having worked for the respondent until 26 May 2022) she is not entitled to payment of any salary after 26 May 2022. The payslip demonstrated that she has been paid for all of the work undertaken by her. Mr McIntosh’s explanation about the holiday pay is logical and legally correct.

[239]This concludes our findings of fact. The issues in the case

[240]We now turn to the issues in the case. These are recorded in the case management order of Employment Judge Miller dated 12 May 2023. The issues are in paragraph 49 of the case management order which (together with the Appendix) is now set out, (subject to the annotations in square brackets in paragraphs 1.1.4.2 and 3.1.1). The Issues 10.5 Reserved judgment with reasons – rule 61 57 March 2017 1. The issues the Tribunal will decide are set out below. 1. Time limits 1.1 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.1.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.1.2 If not, was there conduct extending over a period?

1.1.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.1.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.1.4.1 Why were the complaints not made to the Tribunal in time?

1.1.4.2 In any event, is it just and equitable in all the circumstances to extend time? [The Tribunal interposes to say that no issue of jurisdiction arises in the case. The claimant went to early conciliation on 22 July 2022 and presented the claim on 3 August 2022. The former was the date of the grievance appeal outcome per the chronology of events in paragraph 58. There was no argument by the respondent that the events culminating in the grievance appeal outcome was not part of a continuing course of conduct nor realistically could there be on our findings. Accordingly, we shall say nothing further on the issue of jurisdiction]. 2. Direct race and sex discrimination (Equality Act 2010 section 13)

2.1 The claimant describes her race as a black British person of Caribbean descent, and her sex as a woman.

2.2 Did the respondent do the following things:2.2.1 Constructively dismiss the claimant (as set out in the Case Management orders of EJ Jones made at the hearing on 13 December 2022 at paragraph 9)

2.2.2 The allegations set out in the table appended to these orders.

2.3 Was that less favourable treatment? 10.5 Reserved judgment with reasons – rule 61 58 March 2017 The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether s/he was treated worse than someone else would have been treated. The claimant says she was treated worse than the comparators set out in the appended table in respect of each allegation.

2.4 If so, was it because of race and/or sex (constructive discriminatory dismissal) and as set out in the table appended.

2.5 Did the respondent’s treatment amount to a detriment? 3. Victimisation (Equality Act 2010 section 27)

3.1 Did the claimant do a protected act as follows: 3.1.1 Make a complaint of race and sex discrimination in her grievance on 5 May 2022? (The respondent accepts that the claimant did do a protected act in the course of making this grievance). [The Tribunal interposes to say that there are in fact six protected acts: the meeting of 27 and 28 April 2022, the grievance of 5 May 2022, the grievance of 20 May 2022, the grievance of 6 June 2023, the appeal of 28 June 2022, and the Tribunal proceedings presented on 3 August 2022].

3.2 Did the respondent do the following things: 3.2.1 The list of alleged detriments is set out in the appended table.

3.3 By doing so, did it subject the claimant to detriment?

3.4 If so, was it because the claimant did a protected act?

3.5 Was it because the respondent believed the claimant had done, or might do, a protected act? 4. Remedy for discrimination or victimisation

4.1 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend? 10.5 Reserved judgment with reasons – rule 61 59 March 2017

4.2 What financial losses has the discrimination caused the claimant?

4.3 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

4.4 If not, for what period of loss should the claimant be compensated?

4.5 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?

4.6 Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?

4.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

4.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

4.9 Did the respondent or the claimant unreasonably fail to comply with it?

4.10 If so is it just and equitable to increase or decrease any award payable to the claimant?

4.11 By what proportion, up to 25%?

4.12 Should interest be awarded? How much? APPENDIX – specific allegations Allegation Legal claim 1 That Christopher Shaw did not provide the Direct race discrimination Claimant with the details to log onto relevant computer systems on 21 March 2022 Comparator: Lizzie Walker 2 That Christopher Shaw did not provide the Direct race discrimination Claimant with a locker on 21 March 2022 Comparator: Chloe Pullan 10.5 Reserved judgment with reasons – rule 61 60 March 2017 3 That Christopher Shaw did not inform the Direct race discrimination Claimant about taking breaks on or around the Claimant’s first few days. Comparator: Chloe Pullan 4 That Christopher Shaw informed the Claimant Direct race discrimination that “breaks will be factored in as and when you start your training” which was a ‘false’ claim on or around the Claimant’s first few days. Comparator: Chloe Pullan 5 That Christopher Shaw informed the Claimant Direct race discrimination that IDD hours were not applicable to her on either 15 or 22 April 2022. Comparator: Lizzie Walker 6 That Christopher Shaw abruptly cancelled the Direct race discrimination Claimants 1-2-1 meeting that had been booked for 22 April 2022. Comparator: Lizzie Walker 7 That Christopher Shaw refused to give the Direct race discrimination Claimant a new headset on 6 May 2022 Comparator: Gary Sharp 8 That Christopher Shaw refused to give the Direct sex discrimination Claimant a new headset on 6 May 2022 Comparator: Gary Sharp 9 That Ross Pennant and Ross McIntosh asked Direct race discrimination the Claimant to leave her workplace following a disagreement with Jessica Pitcher on 13 May 2022. Comparator: Jessica Pitcher 10 The claimant was not put on a level playing field Direct race discrimination. with her white colleague, Lizzie Walker, who was able to do her training uninterrupted. Lizzy had the privilege of remaining in her workplace, whilst the Claimant was unreasonably sent away from her place of duty at a crucial stage in her new role. The claimant says that these were acts of Ross McIntosh and Ross Pennant on 13 May 2022. The claimant returned to work on 23 May 2022 Comparator: Lizzie Walker 10.5 Reserved judgment with reasons – rule 61 61 March 2017 11 That Ross Pennant and Ross McIntosh asked Direct race discrimination the Claimant to leave following a disagreement with Jessica Pitcher on 13 May 2022. Comparator: Jessica Pitcher 12 That Ross Pennant and Ross McIntosh asked Victimisation the Claimant to leave following a disagreement with Jessica Pitcher on 13 May 2022. 13 That Ross McIntosh told the Claimant words to Victimisation the effect of “By remaining in the organisation, things are being compounded daily” on 13 May 2022. 14 That Jessica Pitcher tried to get the Claimant to Victimisation give a customer (Iris) incorrect information in respect of a bank card number on 12 May 2022. 15 That Jessica Pitcher denied the Claimant the Victimisation opportunity to take live calls on 13 May 2022 16 That Jessica Pitcher failed to mark the Victimisation Claimant’s calls during the time she was her assigned buddy. 17 That Jessica Pitcher took an hour for lunch Victimisation when the Claimant took half an hour, causing the Claimant to miss out on half an hour of taking live calls each time Jessica was the Claimant’s ‘buddy’. 18 That the Respondent (Ross Pennant) held the Victimisation Claimant back from progression following the fact find meeting on 27-28 April and the grievance being submitted on 5 May 2022. 19 That the Claimant was unable to take live calls Victimisation on 23 May 2022 and believes that she was removed on the system. 20 That James Shergold was not supportive and Victimisation hung up during live listening with the Claimant on 23 May 2022. 21 The Claimant’s first day back was 23 May 2022. Victimisation Yet none of the managers discussed giving her the time back in relation to being sent away. This, despite the HR People Advice Partner, Ross McIntosh saying, “Whilst not at work you will continue to be in receipt of full pay and 10.5 Reserved judgment with reasons – rule 61 62 March 2017 benefits. When you return to work your leader will talk to you about whether your training should begin again or whether it can be picked up from the stage where it is today. Please accept my assurances that no detriment will arise in terms of your training due to the time away from work". The claimant says it was Ross McIntosh’s decision not to give her her time/benefits back. 22 That Amanda Baguley told the Claimant to do Victimisation training via Aviva University rather than take live calls on 25 May 2022 23 That the Claimant was never given a 1-2-1 by Victimisation Amanda Baguley 24 That the Claimant was taken off live calls by Victimisation Amanda Baguley on 25 May 2022. 25 That the Claimant’s schedule on Verint had Victimisation been altered to show incorrect working hours on 25 May 2022 26 That Ross Pennant informed all the Victimisation departments that the Claimant had resigned on 26 May 2022. (Her notice to end employment was submitted on 25 May 2022) 27 That Helen Graham did not conduct a thorough Victimisation investigation of the Claimant’s grievance resulting in her not dealing with the grievance properly. 28 That Lani Jaques-Hoare did not deal with the Victimisation grievance appeal properly. 29 That the Claimant was falsely accused by the Victimisation Respondent of opening an email from someone who claimed to be from the Aviva Data Protection team at some time during her employment. This was no the case as the email accessed was a genuine email from the actual Data Protection Unit in Pitheavlis, Perth. 30 That the Respondents attempted to deny the Victimisation Claimant the opportunity to submit a subject access request in or around October 2022. 31 That the Claimant has not been paid for unused Victimisation holiday pay of £369.23 10.5 Reserved judgment with reasons – rule 61 63 March 2017 32 That the Claimant is owed arrears of one Victimisation month’s salary of £1,626.95

The relevant law

[241]We now turn to a consideration of the relevant law.

[242]The claimant’s complaints are of direct race discrimination, direct sex discrimination and victimisation. By section 13 of the 2010 Act, a person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[243]By section 23 of the 2010 Act, on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.

[244]By section 39(2) of the 2010 Act, an employer(a) (A) must not discriminate against an employee of A’s

(b) (B) by (amongst other things) dismissing B or subjecting B to any other detriment. By section 39(7), the reference to a dismissal of B includes a reference to the termination of B’s employment by an act of B’s (including giving notice) in circumstances such that B is entitled, because of A’s conduct, to terminate the employment without notice. In other words, the concept of a discriminatory dismissal encompasses a constructive discriminatory dismissal.

[245]There is no statutory definition of the word “detriment” per section 39(2)(d) of the 2010 Act. In Ministry of Defence v Jeremiah

[1980] ICR 13

, Brightman LJ said that “A detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment.” An unjustified sense of grievance cannot amount to detriment: Barclays Bank Plc v Kapur (No 2)

[1995] IRLR 87

[246]Direct discrimination is based upon the concept of less favourable treatment and therefore envisages a comparative exercise and consideration of appropriate comparators. In Earl Shilton Town Council v Miller

[2023] EAT 5

HHJ Tayler commented that it is helpful to consider the issues by looking at the treatment, whether it was less favourable than that of an actual or hypothetical comparator and then the detriment (or dismissal as the case may be).

[247]It is not always necessary to take a comparator approach. In Hewage v Grampian Health Board

[2012] ICR 1054

, Lord Hope suggested that it is appropriate to go straight to the question of the reason why a complainant was treated as they were unless there is room for doubt. He said that “… it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the Tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the Tribunal found itself in in this case.”

[248]Similarly, in Shamoon v Chief Constable of The Royal Ulster Constabulary

[2003] ICR 337

, HL, Lord Nicholls stated, “No doubt there are cases where it is convenient and helpful to adopt this two-step approach [to be found in section 136 of the 2010 Act] to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, 10.5 Reserved judgment with reasons – rule 61 64 March 2017 especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.” He went on to say that “The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions Employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.” Lord Hope in Shamoon said at [54] that, “The vital question to which I now turn is whether this is truly the reason why she was treated as she was by her employer or whether, as the applicant alleges, the difference in treatment was on the grounds of her sex.”

[249]Where the reason why cannot be determined on the evidence, the initial burden is on the claimant to prove, on a balance of probabilities a prima facie case of discrimination. If the complainant succeeds in doing so, then the burden will shift to the employer to explain the reason for the treatment. By section 136(2) of the 2010 Act, “If there are facts from which the court could, in the absence of any other explanation, decide that a person (A) contravened the provision concerned, the court must hold that contravention occurred.” By section 136(3) “Subsection (2) does not apply if A shows that A did not contravene the provision.” (By section 136(6) a reference to a court includes a reference to an Employment Tribunal).

[250]In Madarassy v Nomura International Plc

[2007] EWCA Civ 33

, Mummery LJ said at [56] that, “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[251]No comparator is required where the treatment is inherently discriminatory. An example of this would be a shop displaying a sign excluding a particular racial group or specifying different ages for women and men being allowed free admission to a swimming pool. These examples were given by Underhill P (as he then was) in Amnesty International v Ahmed

[2009] ICR 1450

[252]If a comparator is required, then there must be no material difference between the circumstances relating to the comparator and the complainant. Where there is a material difference, then the comparator cannot stand as a statutory comparator. However, it may well be that the comparator has an evidential value in enabling the Tribunal to draw inferences that the complainant was treated less favourably than they would have been if the evidential comparator could stand as a statutory comparator. This observation was made by Lord Scott in Shamoon at [109 to 110].

[253]In De’Silva v NATFHE

[2008] IRLR 412

, Underhill P (as he then was) deprecated the use of a hypothetical comparator in circumstances where the reason why the complainant was treated as they were is clear. He commented that, “It might reasonably have been hoped that the Frankensteinian figure of the badly constructed hypothetical comparator would have been clumping his way rather 10.5 Reserved judgment with reasons – rule 61 65 March 2017 less often into discrimination appeals since the observation of Lord Nicholls in Shamoon v Chief Constable of The Royal Ulster Constabulary” [to which this Tribunal referred above].

[254]One of the most difficult tasks which the Employment Tribunal faces is determining whether the treatment is because of a protected characteristic. That requires an examination of the mental processes of the alleged discriminator. In Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

Lord Nicholls said that the question which arises is “why did the alleged discriminator act as he did? What, consciously or unconsciously was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.” However, mental processes need not be considered where the factors which influence the alleged discriminator are clear (per HHJ Tayler in Miller). This could arise where discrimination in relation to a protected characteristic is inherent in the treatment.

[255]By section 27 of the 2010 Act, a person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because B does a protected act or A believes that B has done, or may do, a protected act. Section 27(2) then sets out those matters which constitute protected acts.

[256]There is no issue in this case that the claimant did six protected acts. These are:  What was said by her at the meeting with Mr Pennant and Anita Walters on 27 and 28 April 2022.  The first grievance of 5 May 2022.  The second grievance of 20 May 2022.  The third grievance of 6 June 2022.  The appeal against the grievance outcome of 28 June 2022.  These Employment Tribunal proceedings.

[257]By section 39(4) of the 2010 Act, an employer(a) (A) must not victimise an employee of A’s

(b) (B) by (amongst other things) dismissing B or subjecting B to any other detriment. As has been said, dismissal in this context encompasses a constructive dismissal.

[258]The respondent accepts the claimant to have done the protected acts. They do not contend that the protection given to some or all of those listed in paragraph 256 is lost pursuant to section 27(3) of the 2010 Act because they were raised in bad faith. The Tribunal shall therefore not deal with that as an issue. The question which does arise, therefore, is whether the claimant was subjected to a detriment or was constructively dismissed because the claimant did protected acts. This gives rise to the same question as for direct discrimination per Khan. The protected act must have a significant influence upon the detrimental treatment or upon the constructive dismissal. However, it need not be the primary cause of detriment or constructive dismissal so long as it is a significant factor.

[259]Detriment cannot because of a protected act in circumstances where there is no evidence that the person who allegedly inflicted the detriment knew about the protected act.

[260]The same burden of proof provisions apply to victimisation complaints as they do to complaints of direct discrimination. The initial burden therefore is on the 10.5 Reserved judgment with reasons – rule 61 66 March 2017 claimant to prove facts from which the Tribunal could decide, in the absence of another explanation, that the respondent has contravened a provision of the 2010 Act. The burden will then pass or shift to the respondent to prove that the victimisation did not occur. If the respondent cannot do so, then the Tribunal is obliged to uphold the victimisation complaint.

[261]As with direct discrimination, the burden of proof provisions do not come into play where the Tribunal is able to make positive findings on the evidence one way or the other per Hewage.

[262]We now turn to a consideration of constructive dismissal. A resignation may amount to a constructive dismissal if it is in response to a fundamental breach of contract by the employer. To found a claim of constructive dismissal, there must be a causal link between the employer’s breach and the employee’s resignation. That is to say, the employee must have resigned because of the employer’s breach and not for some other reason, such as the offer of another job.

[263]In Western Excavating (ECC) Limited v Sharp

[1978] ICR 221

, CA Lord Denning MR said that, “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct, he is constructively dismissed.”

[264]To claim constructive dismissal, the employee must establish firstly that there was a fundamental breach of the contract on the part of the employer that repudiated the contract of employment, that the employer’s breach caused the employee to resign, and that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.

[265]The relevant term engaged in this case is the implied term of trust and confidence. Implied into every contract of employment is a term that the parties will not without reasonable and proper cause act in a manner calculated or likely to destroy or seriously damage mutual trust and confidence. A breach of the implied term of trust and confidence is a fundamental breach. The question is whether the employer’s conduct as a whole is such that the employee cannot be expected to put up with it.

[266]The employer’s conduct must be an effective cause of the resignation but need not be the sole cause. Authority for this proposition may be found in Wright v North Ayrshire Council

[2014] ICR 77

, EAT and Meikle v Nottinghamshire County Council

[2004] EWCA Civ 859

[267]In this case, it is not enough for the claimant to establish that she was constructively dismissed because of a breach by the respondent of the implied term of trust and confidence in and of itself. The claimant does not have sufficient service to pursue a complaint of constructive unfair dismissal under the Employment Rights Act 1996. She must therefore establish a breach of the implied term of trust and confidence by reason of conduct made unlawful by the 2010 Act. Discussion and conclusions 10.5 Reserved judgment with reasons – rule 61 67 March 2017

[268]We now turn to our conclusions. We shall deal with the 32 allegations in the appendix in paragraph 240 and then what is effectively the thirty third allegation of a constructive dismissal by reason of direct discrimination and/or victimisation. Taking each in turn and in the order which they appear in the appendix to Employment Judge Miller’s Order (reproduced in paragraph 240 of these reasons).(1) The factual findings on this issue are in paragraphs 75 to 76. This allegation fails on the facts as there is no evidence that Lizzie Walker was treated more favourably than was the claimant in the provision of login details. Ms Walker is an appropriate comparator as she was in the same or similar circumstances as the claimant as a new starter. However, she was not more favourably treated. In any case, the claimant was given sufficient login details to enable her to undertake her work on her first day in employment. Even if (which is not the case) Lizzie Walker was given access to more of the system than was the claimant, such would in the context of her being a new starter be an unjustified sense of grievance on the part of the claimant as she did not need such extensive access.

(2) This fails on the facts. There is no evidence that Chloe Pullen was allocated a locker whereas the claimant was not. In any case, again, even if she was this is an unjustified sense of grievance on the claimant’s part given that she managed to arrange her own locker in any case by dealing directly with reception. The relevant findings of fact are at paragraphs 77 above.

(3) &

(4) It is convenient to take these together. These allegations fail on the facts. We refer to paragraphs 78 to 82 above. In any case, Chloe Pullen is not an appropriate comparator as she was a fully trained customer expert and therefore was allocated her breaks on the adherence system which was not applicable to the claimant as a new starter.

(5) Our finding is that the claimant and Lizzie Walker were treated the same in respect of IDD hours. This complaint therefore fails. We refer to paragraphs 83 to 88 above.

(6) Our finding is that the claimant and Lizzie Walker were treated the same in respect of the cancellation of the one-to-one meetings. There is no evidence that Lizzie Walker got the benefit of a one-to-one meeting whereas the claimant did not. This therefore fails on the facts. The relevant findings are at paragraph 89 and 90 above.

(7) &

(8) It is convenient to take these together. This is the same allegation but pleaded in the alternative as a complaint of direct race and/or direct sex discrimination. These allegations fail on the facts. There is no evidence that the claimant needed a new headset. In any case, she was treated the same as Mr Sharp who is of a different race and sex to her. The factual findings are in paragraphs 91 to 95.

(9) (11) (12) & (13) It is convenient to take these together. Upon allegation (9) the evidence is that the claimant was treated the same as Jessica Pitcher as both were required to leave the workplace. Therefore, there is no discriminatory treatment. The same conclusion 10.5 Reserved judgment with reasons – rule 61 68 March 2017 arises upon allegation (11) which is couched in very similar terms. The relevant factual findings are in paragraphs 105 to 108 and 118 to 122. Upon allegation (12), Mr Pennant was of course aware of the protected act of 27 and 28 April 2022 (paragraph 98). He was aware of the protected act of 5 May 2022 on 13 May 2022 (see paragraph 106). He was not aware of the content of the grievance but knew enough that a protected act had been done by the claimant. However, there is no evidence that his knowledge of these protected acts caused him to require the claimant to leave following the disagreement with Miss Pitcher on 13 May 2022. His reason for requiring both to leave work was because of the disagreement and the upset caused to Miss Pitcher and to work out how to progress with the claimant’s employment. There is no evidence to suggest that Mr McIntosh knew of the claimant’s protected act of 27 and 28 April 2022. He knew of the protected act of 5 May 2022 (paragraph 129). (The other four protected acts all post-date 13 May 2022 and therefore cannot be causative of Mr Pennant’s and Mr McIntosh’s actions on 13 May). The Tribunal is satisfied from the evidence that Mr Pennant and Mr McIntosh were consciously influenced by the disagreement between the claimant and Miss Pitcher of 13 May 2022 to act as they did. The claimant’s race and the fact that she had done protected acts were not the reasons why Mr Pennant and Mr McIntosh acted as they did. Upon allegation (13), Mr McIntosh’s comment that the claimant remaining in the organisation was compounding matters was again uninfluenced by any protected act. What consciously influenced him was his concerns about the rising tensions within the team caused by the claimant’s conduct. Our factual findings are in paragraph 125. It is the case that Miss Pitcher was allowed to return to work sooner than the claimant. Miss Pitcher is not a statutory comparator. She is not in the same or similar circumstances as the claimant as she was at the material time an experienced customer expert whereas the claimant was a new starter. The reason why Miss Pitcher was allowed to return to work whereas the claimant was not is that Miss Pitcher was able to give effective service as an experienced employee whereas the claimant was in training for which arrangements needed to be made. That was the reason why the claimant was not allowed to return to work whereas Miss Pitcher was. There is nothing to suggest that a new starter of a different race or sex who was asked to leave the workplace in similar circumstances was or would have been treated any better than was the claimant. (Broadly upon all of these issues, the relevant findings of fact are at paragraphs 96 to 126).

(10) The relevant findings are at paragraphs 141 and 142. The reason why Lizzie Walker’s training was not interrupted is because she had not become involved in a disagreement or dispute with her buddy or any 10.5 Reserved judgment with reasons – rule 61 69 March 2017 other work colleague. The reason why Lizzie Walker benefitted from uninterrupted training whereas the claimant did not was nothing to do with the claimant’s race but rather because the claimant had become embroiled in a dispute with a colleague whereas Miss Walker had not. (14) There is no evidence that Miss Pitcher was aware of the claimant’s protected acts of 27 and 28 April 2022. She was aware of the one of 5 May 2022 (see paragraph 115) but only on 13 May, the day after the incident with the customer. The reason why Miss Pitcher gave the claimant a direction to pass incorrect information on to the customer (Iris) was due to Miss Pitcher’s error. That was what consciously motivated Miss Pitcher to act as she did that day. This was nothing to do with the claimant’s protected acts. The relevant factual findings are at paragraphs 110 to 112 above. (15) This fails on the facts. The relevant factual findings are at paragraphs 113 to 117 above. The reason why the claimant was not able to take live calls on 13 May 2022 was simply because Miss Pitcher had an urgent data protection complaint to deal with and then the claimant levelled unwarranted allegations towards her over the training pack issue, causing Miss Pitcher to become very upset. Matters were not helped by the technical issues which arose that morning. None of this was anything to do with the claimant’s protected acts of which Miss Pitcher was unaware in any case. (Miss Pitcher did not read the message at page 423 referring to part two of the grievance until after the disagreement which caused Miss Pitcher to become upset). (16) The relevant findings of fact are at paragraphs 143 and 144 above. The reason why Miss Pitcher failed to mark the claimant’s calls is that she was not sufficiently advanced for this to be a worthwhile exercise. Again, this was unconnected to the claimant’s protected acts. (17) This fails on the facts. The reason why the claimant missed out on half an hour a day of taking live calls was attributable to Miss Pitcher’s and her (the claimant’s) lunchbreak arrangements. Miss Pitcher’s hours had been organised before the claimant joined the respondent and were nothing to do with the protected acts or the claimant at all. The relevant findings of fact are at paragraphs 145-147 above. (18) This allegation fails on the facts. There was simply no evidence of Mr Pennant somehow holding the claimant back from progression. The factual finding is at paragraph 148. (19) & (20) It is convenient to take these two together. The factual findings are at paragraphs 154 to 163 above. The reason why the claimant was unable to take live calls on 23 May 2022 was because of a widespread IT issue which beset the respondent. The reason why Mr Shergold hung up during live listening to try to resolve the IT issues which was attributable to the claimant not operating the system properly per paragraph 168. There is no evidence that Mr Shergold was aware of the claimant’s protected acts. (By this stage there had been three). (21) This fails on the facts. It is difficult to see how the respondent was able to somehow give the claimant her time/benefits back, the claimant 10.5 Reserved judgment with reasons – rule 61 70 March 2017 having been sent home from work on 13 May 2022, being paid in full, and not required to use annual leave to cover the absence. This is an unjustified sense of grievance on the claimant’s part, given that there was in any case no requirement to complete the training by a given date. The relevant findings are at paragraphs 74, 155 and 156. (22) & (24) It is convenient to take these together. The relevant findings of facts are at paragraphs 170 to 174. It is the case that Mrs Baguley told the claimant to do training via Aviva University rather than take live calls on 25 May 2022. This was because of the IT issues which beset the respondent that day and the problems being created by the claimant within her team. There is no evidence that Mrs Baguley was aware of the claimant’s protected acts at this stage in any case. What caused her to direct the claimant to attend the Aviva University was the IT issues and the reports coming into her about the claimant’s conduct and its impact on her team and her wish to consider how to deal with matters. (23) The factual findings upon this issue are at paragraph 175. The claimant was never given a one-to-one assessment by Mrs Baguley simply because she had worked with her for only three days. There was therefore not enough developed experience to make a one-to-one worthwhile. This was nothing to do with the protected acts which had been raised by this stage of which she was unaware anyway. (25) This fails on the facts. There is simply no evidence that the Verint schedule was in any way altered. The Tribunal refers to paragraph 176 above. (26) It is the case that Mr Pennant informed all departments of the claimant’s resignation (page 575). This was nothing to do with the claimant’s protected acts. Mr Pennant was consciously influenced to take this action because fellow employees needed to know that the claimant was no longer in employment. This was so that they themselves were informed and would know of that fact should a customer telephone and ask to speak to the claimant. There can be nothing improper in Mr Pennant’s actions. Indeed, it would have been remiss of him not to inform others of the claimant’s departure. (27) Mrs Graham was of course aware of the claimant’s protected acts at the at the material time when she became involved. Indeed, two of them were the grievance addressed to her (dated 20 May 2022 and 6 June 2022). The relevant factual findings are at paragraphs 102 to 104, 149, and 192 to 209. The Tribunal has found as a fact that Mrs Graham conducted a thorough investigation. The respondent has accepted deficiencies in that Mrs Graham neglected to send the meeting notes of 27 May 2022 within the grievance procedure timescales or hold an outcome meeting. The Tribunal is satisfied that the reason why these steps were not taken was not in any way influenced by the claimant’s protected acts. These omissions were by way of oversight, confusion, and interpretation of the grievance policy. 10.5 Reserved judgment with reasons – rule 61 71 March 2017 Mrs Graham did not investigate the claimant’s allegations involving Miss Saunders and Miss Walker on advice. This was not because of the protected acts. Not holding the outcome meeting was based upon Mrs Graham’s interpretation that the resolutions procedure did not apply to the claimant as a former employee. This was a reasonable interpretation of the terms of the policy. The reason why the meeting notes of 27 May 2022 were not sent to the claimant was, on Mrs Graham’s account, because of confusion in the process caused by the claimant requesting one outcome for all her grievances. The Tribunal is satisfied that this was the reason why the claimant was not supplied with the notes within the timescale in the respondent’s internal resolutions procedure. That Mrs Graham conducted such a thorough investigation with knowledge of four of the claimant’s six protected acts is at odds with an allegation that she deliberately withheld a set of notes while undertaking an otherwise thorough process. This is against the probabilities. There is no logic to the claimant’s allegation which stands dismissed. (28) The Tribunal is satisfied that Mrs Jaques conducted a very thorough grievance appeal. The factual findings are in paragraphs 210 to 222. This allegation therefore fails on the facts. Of course, by this stage, Mrs Jaques was aware of all five protected acts made at this stage. The claimant had some difficulty articulating where the appeal was improperly dealt with. Mrs Jaques rectified the omissions of Mrs Graham by seeking information about Lizzie Walker and determined that she had never had a one-to-one. She also sought to elicit by open questioning whether Miss Saunders had any issues with the respondent. This was, in the Tribunal’s judgment, a clever way of investigating matters without placing Miss Saunders in an embarrassing position. Nothing was ascertained by Mrs Jaques supportive of the claimant’s position. Mrs Jaques acknowledged that Mrs Graham had neglected to forward the notes of the meeting of 27 May 2022 within the necessary timescales and also agreed to hold an outcome meeting with the claimant (albeit this had to be aborted due to the claimant’s conduct). It is difficult, frankly, to see how much more Mrs Jaques could have done. The Tribunal is satisfied that notwithstanding her being on notice of the protected acts she was motivated solely by a wish to conduct a thorough investigation. We agree with Mrs Jaques that what lies behind the allegations against her and Mrs Graham is that the claimant simply did not like the outcomes. (29) This fails on the facts. There is no evidence that the sender of the phishing email was aware of the meeting which the claimant had had with Mr Pennant on 28 April 2022. Our finding is that this was simply a routine phishing email. The relevant findings of fact are at paragraphs 229 to 233 above. 10.5 Reserved judgment with reasons – rule 61 72 March 2017 (30) The relevant findings of fact are at paragraphs 234 to 236 above. There is nothing to suggest that Mrs McCafferty did anything other than a conscientious job in replying to the claimant’s extensive Data Subject Access Request. She did of course come across the protected acts as part of the data protection exercise. However, there is nothing to suggest that it was dealt with other than in accordance with the necessary statutory timescales. There was no detriment to the claimant. She has an unjustified sense of grievance upon this issue. (31) & (32) It is convenient to deal with these together. They fail on the facts. The claimant was paid the proper amounts for the work undertaken and for her accrued holiday pay. We refer to paragraph 237.

[269]We now turn to the complaint of constructive dismissal. The claimant said that the “final straw” was Amanda Baguley’s decision to ask her to carry out training rather than taking live calls on the afternoon of 25 May 2022. The claimant was suspended by Mrs McLean the same day and notified that she was facing disciplinary action.

[270]The Tribunal accepts that from the claimant’s perspective that it was an unwelcome instruction to undertake work within the Aviva University. It was not disputed that the claimant had accrued the second highest number of training hours. The reason why she was requested to do the training through the Aviva University was because the respondent had run out of buddies for her at that stage.

[271]The Tribunal can accept that from the claimant’s perspective, this would be damaging of mutual trust and confidence. However, the respondent was acting with reasonable and proper cause. The respondent needed to work out what to do with the claimant given that there was no one willing to buddy with her that afternoon. There was therefore no breach of the implied term of trust and confidence given that the respondent had reasonable and proper cause for taking the action that they did on 25 May 2022.

[272]The Tribunal also accepts that it will have been damaging if not destructive of mutual trust and confidence for the claimant to face suspension and disciplinary allegations. Again, however, this is not a breach of the implied term as the respondent plainly had reasonable and proper cause to act as they did. Mrs McLean had received complaints from no fewer than five members of staff about the claimant’s conduct on 23 and 24 May 2022. It is difficult to see what action realistically was open to the respondent in the circumstances other than to act as they did.

[273]More generally, there was no conduct on the part of the respondent contrary to the 2010 Act. Therefore, even if the Tribunal is wrong to reach these conclusions, the claimant’s claim will fail anyway as the cause of the impugned acts on the part of the respondent behind the constructive dismissal claims were not on our findings acts contrary to the 2010 Act and there can be no discriminatory constructive dismissal.

[274]More generally, the respondent had reasonable and proper cause for all the impugned acts save for those at allegations 14 (Miss Pitcher giving the wrong information leading to the issue with the customer Iris), the IT failures (in 10.5 Reserved judgment with reasons – rule 61 73 March 2017 allegations 19, 20, 22 and 24), and the failure to send the meeting notes of 27 May 2022 and hold a grievance outcome meeting (allegation 27).

[275]The latter was post-resignation and therefore cannot be causative of the claimant’s resignation. The same applies to the impugned acts in allegations 26 and 30.

[276]The IT issue beset all employees and was not demonstrative of any intention by the respondent not to be bound by any of the essential terms of the contract per Western Excavating.

[277]Miss Pitcher’s conduct on 12 May 2022 was a product of human error. It was a minor mistake. It does not come close to showing an intention by the respondent not to be bound by the contractual terms.

[278]There were no breaches of the implied term of trust and confidence over the course of the claimant’s employment. Amanda Baguley’s actions on 25 May 2022 were not a fundamental breach. There being no earlier fundamental breaches which had been affirmed by the claimant, there can be no issue that her actions that day served to revive any affirmed breaches by the respondent, there being none. It follows therefore that all the claimant’s complaints fail and stand dismissed.

[279]The claimant’s claim is essentially one based upon there being wide-ranging collusion amongst members of staff at the respondent, including numerous senior individuals within the respondent conspiring to end her career because she made a series of protected acts. The claimant has made serious, unfounded, and hurtful allegations against the respondent’s witnesses of conspiracy, collusion, and racism. Mrs Jaques, we think, put matters rather well when she commented that were she to have embarked upon such a course of action and be found out, she would lose her job. She said that the purpose of undertaking such thorough investigations as were carried out by her and Mrs Graham is in order that the respondent may learn if things have gone wrong to improve systems for the benefit of staff and customers alike. This is a far more credible explanation for their approach to maters than that the respondent was seeking to cover up victimisation and discrimination.

[280]The Employment Judge suggested to the claimant (during her cross-examination of Mrs McLean) that she may wish to reflect as to how realistic is an allegation that several senior members of the respondent would spend a great deal of time and effort conspiring to procure the dismissal of a junior employee who was a new starter and whom they barely knew. They would be risking their careers to do so. This is all more the case where the respondent works as part of a regulated profession. Why, it may be asked rhetorically, would so many risk their careers for such negligible gain? This is all the more the case where there is no credible evidence of any victimisation or discrimination having occurred.

[281]Mrs Jaques said in the concluding paragraphs of her grievance appeal outcome letter (page 889) that while there had been a breakdown of trust, this was led to a large extent by the claimant’s own behaviour. Given the behaviours displayed by the claimant before the Employment Tribunal, the respondent’s evidence about that behaviour and the impact which it had upon so many individuals within the respondent is entirely credible.

[282]The Tribunal can only hope that the claimant will now reflect that her failure in this role was down to her own shortcomings, approach, and attitude, that she will 10.5 Reserved judgment with reasons – rule 61 74 March 2017 take responsibility for these, and not seek to excuse that failure upon the basis of a solipsistic belief this was the doing of others.