Mr A Waddington v Cheshire and Wirral Partnership NHS Foundation Trust: 6005963/2024

EMPLOYMENT TRIBUNALS

Case No 6005963/2024

Between

Mr A WaddingtonClaimant

Cheshire and Wirral Partnership NHS Foundation TrustRespondent

Before

Employment Judge Shotter

In person for claimant

Ms L Rogers-solicitor for respondent

Date 7 January 2025

JUDGMENT

[1]The applications made by the claimant on 27 December 2024 to strike out the response form is dismissed.

[2]The application made by the claimant on 12 November 2024 for an unless order is dismissed.

[3]The claimant is granted leave to amend his claims and the document titled “ET1-8.2 1 amendment” shall stand as the claimant’s Particulars of Claim in this case.

REASONS

[1]This was a public hearing to consider the claimant’s application for an unless order dated 12 November 2024 and strike out the respondent’s defence set out in two emails both dated 27 December 2024, which have been dismissed today. I also heard the claimant’s application to amend his claims. The strike out application was followed by a private preliminary hearing for case management purposes and case management orders were made in a separate document sent to the parties. As a reasonable adjustment the claimant was offered breaks during this hearing.

[2]The claimant was employed from the 4 February 2011 as a admin assistant on band 2 and remains employed to date although he is not physically working pending the respondent finding him a role that complies with the reasonable adjustments suggested by occupational health, including the type of lighting the claimant can work under and the physical state of the workplace. The claimant remains on full pay. Amended claims

[3]In his Claim Form the claimant pleaded disability discrimination failure in the duty to make reasonable adjustments under section 20-21 of the Equality act 2010 (“the EqA”) and protected disclosure detriment (without setting out what the disclosure made as and the detriments which allegedly followed). The claimant has applied to amend his claim in a document titled “ET1-8.2 1 amendment” which was not objected to by the respondent and has been accepted by me today as an amendment to the claims, including the claimant introducing new grounds of complaints and new claims brought under sections

[13](direct disability discrimination), 26 and 27 of the Equality Act 2010 (“the Equality Act”) in addition to the existing claims brought under section 20-21 of the Equality Act. The claimant has also introduced 24 new acts of detriment that have been set out in a draft list of issues appendix to the Summary of Case Management. In short, his claim is that the respondent failed to comply with the adjustments set out in occupational health reports because he had made a protected disclosure about the health and safety of a patient. The alleged disclosure was made on the 29 July 2020 when the claimant was on a three year authorised career break and the detriment/breach of duty to make reasonable adjustments commenced on 23 August 2021 which has continued to date. The time period includes an additional authorised career break and periods of sickness absence as the claimant has not physically worked for the respondent (apart from a temporary bank shift in July 2020 and a few weeks in September 2021) since 2018 and the claimant believes that throughout the period when he was available for work, the respondent through a number of managers, has intentionally offered him roles that are unsuitable due to his disabilities because he had made a protected disclosure on the 29 July 2020 4) The respondent has agreed to the amendments. I took the view that it was in the interests of justice to grant the claimant’s application despite the length and complexity of the amendment document which we started to work through today (but did not finish) in order that the respondent understands the case it has to meet, which is not entirely clear. The draft list of issues have clarified the claimant’s claims which have been set down for a public preliminary hearing in order that strike out and/or a deposit order can be considered by a judge on the basis that many of the claims appear to be out of time with lengthy gaps, and for example, the direct discrimination complaint may have no reasonable prosects of success, as we did not have time to deal with this at this preliminary hearing. The applications for an unless order and strike out 5) The applications were dismissed today as having no merit and the claimant was warned that it was not appropriate for him to make applications to strike out and/for unless orders when the matters complained of were outside the power of the Tribunal to consider during the course of this litigation. 6) The application for an unless order requires the Tribunal to order the respondent to “consider other alternative vacancies for the claimant to return to from his agreed career break. This behaviour is vexatious and unreasonable, resulting in increasing anxiety in a challenging and discriminatory fashion. On the 8th of October 2024, the claimant was available for work with the respondent, with a sick note expiring. The claimant had previously asked the respondent to consider other roles that are vacant at the trust concurrently with the disputed vacancy documented in the ET1 claim form (application to amend pending). This request was refused by the respondent. The claimant has since asked the respondent questions regarding salary, to which the respondent replied by insisting that discussions regarding salary can only happen once we have agreed the next steps to return to work. This would mean that the claimant would be forced to undergo yet another occupational health assessment that would be unnecessary as it would only ask questions that had already been answered in recent assessments.” The claimant seeks an order that the “respondent shall comply with the order to acknowledge the concerns mentioned and adjust the behaviour towards the claimant so that the respondents avoid discriminating against the claimant even further.” The claimant now understands the Tribunal does not have the jurisdiction to make such orders and he will refrain from making similar applications in the future. The claimant made it clear that he did not intend to return to work in any event, which makes his application all the more questionable. 7) Turning to the strike out applications, the same points apply. The claimant makes two applications, the first relates to the following: ”The Respondent has ceased the process of searching for a job role for the Claimant. No further discussion from the Respondent has been engaged with in relation to their insistence of an Occupational Health assessment since the 4th of November 2024. The Respondent has limited all communication…” In short, the claimant is complaining about the respondent requiring a further occupational health report (see also acts of alleged detriment in the list of issues which repeats this) alleging the respondent’s behaviour is vexatious and scandalous. 8) The second application refers to the respondent’s failure to correct the claimant’s employment start date on the ET3 and the refusal to include the respondent’s Flexible Leave Policy in the bundle for this preliminary hearing. Ms Rogers was not in a position to agree the start date today, and took the view that it was not relevant for this preliminary hearing but may be a relevant issue in the litigation at final hearing stage. I explained that the correct start date was relevant for the list of issues only, and whether the respondent has made a typing error or believes the claimant’s career breaks have affected his original start date of 4 February 2011 should be clearly set out in the amended Grounds and the agreed list of issues in order that the claimant understands the position. It is not a matter suitable for a strike out. Relevant Legal Principles 9) The power to strike out a response arises under rule 37 which reads as follows: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –(a) ………..;

(b) That the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) …………….;

(e) That the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).” 10) There exist well-known authorities on the power to strike out a claim or response: Arrow Nominees v Blackledge

[2001] BCC 591

the Court of Appeal considered the effect of forgery of documents on whether a fair trial might be possible. The court commented in paragraph 54: “…The object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and…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…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.” 11) In Blockbuster Entertainment Limited v James

[2006] IRLR 630

the Court of Appeal described the power as a “Draconic” power, not to be readily exercised. It comes into being if a party has been conducting its side of the proceedings unreasonably, in which case: “The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.” 12) It follows from these cases, and Bolch v Chipman

[2004] IRLR 140

that the Tribunal should consider the following: a) Firstly, whether proceedings have been conducted in a manner which is scandalous, unreasonable and/or vexatious; b) Secondly, whether as a result of this conduct there cannot be a fair trial; and c) Thirdly, whether it is proportionate to strike out the response forms or whether some other action can secure a fair trial, and d) Fourthly, if the response is struck out, whether there are other steps which the respondent is entitled to take in the action. 13) I concluded that Mr Waddington’s applications had not met the tests or even come close to meeting them. The litigation had not been conducted by the respondent in a manner which is scandalous, unreasonable and/or vexatious; there is a real issue about what work the claimant can and cannot do, the respondent has sought a further occupational health report which the claimant complains about maintaining it is an act of harassment and victimisation under section 26 and 27 of the EqA, despite his claim that he was unable to attend meetings without breaking down and confirming to me at this preliminary hearing that he did not intend to return to work due to the relationship breakdown.

[14]There can be a fair trial, and were I to strike out the respondent’s response a fundamental unfairness would result as there are triable issues and the claim is suitable for a strike out and/or deposit order hearing. It is well-known that in discrimination and whistleblowing cases, particularly where they are factsensitive, there is a public interest in having such cases determined at a final hearing rather than disposed of on a summary basis. Those authorities include the decision of the House of Lords in Anyanwu and Another v South Bank Student Union

[2001] ICR 391

. Disposing of the claim in favour of the claimant without allowing the respondent to defend the claim on the facts at a final hearing should also be regarded as a rare exception to the principle that such claims should be determined on the merits rather than by summary process.

[15]For that reason the applications are dismissed. The parties now understand how busy the Tribunal is, and unmeritorious applications and correspondence does not assist the case, the Tribunal and the smooth running of this ligation through to a final hearing. The claimant will refrain from making applications for unless orders and strike outs unless there is genuine merit in his application. 7.1.25