P Ibinson v Tyne and Wear Passenger Transport Executive T/a Nexus: 6006332/2024
EMPLOYMENT TRIBUNALS
Case No 6006332/2024
Between
P IbinsonClaimantTyne and Wear Passenger Transport Executive T/a NexusRespondent
Before
Employment Judge GowlandIn person for claimantMr Anderson - Counsel for respondentDate 26 February 2026
REASONS
[1]The Respondent set out the different issues in their application that they wished me to consider within the bundle of documents that was provided to me at the hearing. These are as follows below. Abuse of Process[2]The Claimant has brought two previous claims against the Respondent. The final hearing of the Claimants second claim against the Respondent began on the 4th of December 2023. This is the third claim against the Respondent.[3]The Respondent contends that although detriment two post-dates the issue of the Claimant’s second ET1, the Claimant could have applied to amend the ET1 during case management of the second claim to include detriment two.[4]The Respondent also contends that for the Claimant to include in the ET1 of the current claim a paragraph asserting discrimination is an abuse of process as no such finding has been made against the Respondent.[5]It is for me to determine whether the fact that detriment two was not included in an earlier claim and whether the inclusion of a paragraph asserting discrimination, are abuses of process. Rule 38 strike out[6]The Respondent contends that the claim is scandalous or vexatious on the basis that this is the third claim brought by the Claimant against the Respondent and the first two claims have been struck out.[7]The employment relationship ended in 2022, and the Respondent contends that this claim is the “latest stage in a process of attrition against the Respondent.”[8]It is for me to determine whether the Claimant is conducting these proceedings in a way that is scandalous and vexatious and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’.[9]The Respondent also contends that there are no reasonable prospects of success and that the facts in dispute are at the most minimal.[10]It is for me to determine whether there are no reasonable prospects of success and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’.[11]In addition, the Respondent included different reasons, as to why the case should be struck out, within their strike out application and these are set out below. Absence of causation[12]The Respondent contends that, “There is no pleaded basis on which it could sensibly be said that there is causation between the protected act of commencing litigation and the alleged detriments.”[13]It is for me to determine whether there are no reasonable prospects of success in relation to causation and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’. No detriment[14]The Respondent finally contends that there is no detriment in this case and, “that no reasonable worker would or might take the view that they had been disadvantaged.”[15]The Respondent further states that the Tribunal can consider the inherent implausibility of the Claimant establishing that something adverse had happened to her.[16]It is for me to determine whether there are no reasonable prospects of success in relation to the detriments and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’. Time limits[17]The Respondent submits that detriments two and three are out of time and that the Claimant has little reasonable prospects of success in establishing that acts so far apart in time will amount to a continuing act for the purposes of s.123 Equality Act 2010.[18]It is for me to determine whether there are no reasonable prospects of success in relation to time limits and then exercise my discretion as to whether the claims should be struck out having regard to the overriding objective of dealing with cases ‘fairly and justly’.[19]In relation to all the aspects of the Respondents application, when considering whether to strike out a complaint, a Tribunal needs to form a view of its merits and be satisfied that it has no reasonable prospects of success. Tribunals should take particular care when considering striking out discrimination complaints, particularly those which are fact sensitive. Deposit order[20]In the alternative, the Respondent asks me to consider a deposit order relying upon their submissions relating to strike out and additionally that the Claimant will have little reasonable prospects of success in establishing that acts, so far apart in time will amount to a continuing act for the purposes of s.123 Equality Act 2010 given that detriments two and three on the face of it appear to be out of time.[21]The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation. There must be a proper basis for doubting the likelihood of the Claimant being able to establish facts essential to this claim.[22]It will be for me to determine whether the Claimant has little reasonable prospects of success in relation to each of the three remaining detriments taking into account the arguments submitted in relation to this issue and those reasons submitted in relation to strike out.
Background
[23]The Respondent applied to strike out parts of the claimant’s victimisation complaint on various grounds. In the alternative, it submitted that a deposit order should be made. The Respondent submitted, after hearing evidence of the Claimant’s means to pay, that a sum of £50 should be ordered as a deposit for each individual element of the claim made. The three detriments set out below are the only remaining parts of the claim following a previous case management order dated 15th November 2024 and the Claimants withdrawal of detriment one at this case management hearing.[24]The Respondent had provided written submissions, and made oral submissions at the Preliminary Hearing. The Respondent says the application relates to allegations involving a claim of victimisation with four alleged detriments as follows:a. Alleged Detriment One, This claim was withdrawn by the Claimant at the hearing and is recorded in a separate order dated 9th January 2025.b. Alleged Detriment Two, The Respondent received a request for a reference for the Claimant from Tyne Coast College on 6 October 2023. The reference was provided by HR on 13 October 2023. The Respondent submits that any allegation in relation to this reference is out of time.c. Alleged Detriment Three The Respondent received a request for a reference for the Claimant from Humley on 29 January 2024. The reference was provided by HR on 2 February 2024. The Respondent submits that any allegation in relation to this reference is out of time.d. Alleged Detriment Four The Respondent received a request for a reference for the Claimant from Tutor Recruitment (The Skills Network) on 10 April 2024. The person to whom the reference request was sent was on annual leave from 5 - 22 April 2024. An out of office message contained email addresses of three colleagues to whom emails could be referred in the event an urgent response was required. The requestor did not forward the reference request to those colleagues. Upon return from annual leave, the request was sent to HR on 22 April 2024 and the reference was provided by HR on 24 April 2024.[25]The protected acts are the bringing of proceedings in the Employment Tribunal in August 2021 and August 2022. There is no dispute over this point.[26]The Claimant provided written submissions and made oral submissions at the Preliminary Hearing. The Claimant provided information about her means to pay at the Preliminary Hearing, and I asked her some clarification questions in this respect. The legal principles Strike Out
The legal principles
[27]Under Rule 38 a claim or part of a claim can be struck out on a number of grounds, as set out below. A claim cannot be struck out unless the party has been given a reasonable opportunity to make representations either in writing or, if requested by the party, at a hearing. Rule 38 of The Employment Tribunal Procedure Rules 2024 Striking out[38](1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) or non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(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.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 22. 28. Operation of rule 38(1)(a) requires a two-stage test. Firstly, has the strike out ground been established on the facts. 29. If so, secondly is it just to proceed to a strike out in all the circumstances (which will include considering whether other lesser, measures might suffice). 30. When assessing whether a claim has no reasonable prospect of success the Tribunal must be satisfied that the claim or allegation has no such prospect, not just that success is thought to be unlikely (Balls v Downham Market High School and College [2011] IRLR 217). The Tribunal must take the allegations in the claimant’s case at their highest. If there remain disputed facts, there should not be a strike out unless the allegations can be conclusively disproved as demonstrably untrue, or the claim is fanciful or inherently implausible (Ukegheson v Haringey London Borough Council [2015] ICR 1285; Merchkarov v Citibank NA [2016] ICR 1121). In other words, a strike out application must be approached assuming, for the purposes of the application, that the facts are as pleaded by the claimant. The determination of a strike out application does not require evidence or actual findings of fact. 31. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a striking-out application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in Ezsias, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per Maurice Kay LJ). 32. A strike out application succeeds where it is found that, even if all the facts were as pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways [2017] EWCA Civ 1392 that “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.” 33. There is a special need for caution in strike out discrimination cases because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof. 34. Where a litigant in person is involved, the tribunal should not simply ask the question orally to be taken to the relevant material in support of the claim but should also carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; Cox v Adecco Group UK [2021] 1CR 1307. 35. If a strike out application fails, the argument about the overall merit of the claim is not decided in the claimant’s favour. Both the claimant and the respondent argue their positions on the merits in full and afresh at the full hearing. 36. The EAT, in the case of Mechkarov v Citibank NA [2016] ICR 1121, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. Abuse of process 37. The modern approach to the Henderson v Henderson principle was set out by Lord Bingham in the following terms in Johnson v Gore Wood & Co [2002] 2 AC 1: “The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all…… It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgement which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.” 38. In Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] 4 All ER 715, at paragraph [18], Lord Sumption said, of the Henderson v Henderson principle: “…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”[39]In James v Public Health Wales NHS Trust UKEAT 0170/14 the EAT said: “32. … the question of whether there has been an abuse is not a matter of discretionary decision. It has to be based properly on evidence and approached not only by recognising but by applying the right law [and] … reading the Tribunal Judgment as a whole … to place it in context. …”[40]The EAT in James said that consideration needs to be given to the claimant’s reasons for not pursuing the claim earlier (para 33) and to consider whether evidence in support of the claim alleged to be an abuse would in any event have to be considered in determining a claim not alleged to give rise to such abuse (para 34).[41]In London Borough of Haringey v O Brien [UKEAT/0004/16/LA], HHJ Eady QC (as she then was) held at [59] that there was “no rule of law stating it could not be a Henderson abuse for a party to fail to amend to include all issues live between the parties prior to the full merits determination of the initial claim” and it was an error of law for the Tribunal to state that the principle in Henderson v Henderson did not apply following the submission of the claimant’s second ET1. She went on to hold that on the facts of that case the claimant had the opportunity at a pre-hearing review to apply to amend her claim to add matters occurring after she had presented her first ET1. Considering the Tribunal’s conclusions on the Henderson point with respect to the matters arising prior to the submission of the first ET1 the same reasoning would apply with respect of the events occurring after that and prior to the full merits hearing “(or, at least, sufficiently prior to have allowed for an amendment of the claim)”, i.e. it was a Henderson abuse to pursue complaints in the second ET1 related to such events.[42]In Franked Income Investment Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 Lord Reed and Lord Hodge (with whom Lord Lloyd-Jones and Lord Hamblen agreed) stated that determining issues as to abuse of process did not involve the exercise of a discretion, saying that: “75 ……..If the court, on making the broad, merits based judgment of which Lord Bingham spoke, concludes that a claim, a defence, or an amendment of a claim or of a defence involves an abuse of process or oppression of the opposing party, it must exclude that claim, defence or amendment. A finding of abuse of process operates as a bar.” “76 ……it is clear that for the courts to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive.”[43]Abuse of process/Res Judicata is also alleged in relation to the wording used at paragraph 8.2 of the ET1.[44]The wording used by the Claimant is as follows: "Between 2019-2022 the respondent subjected me to pregnancy and maternity discrimination, direct sex discrimination, victimisation and harassment, and assault. In 2022, my employment was threatened and a short while later, I was constructively dismissed."[45]The Respondent asserts that as there is no previous finding of these allegations, they should be struck out.[46]I have not had sight of any previous claims or judgments other than the information contained within the preliminary hearing bundle relating to this claim. Absence of Causation[47]To succeed in a claim of victimisation the claimant must show that he or she was subjected to the detriment because of doing a protected act or because the employer believed the claimant had done or might do a protected act. Where there has been a detriment and a protected act, but the detrimental treatment was due to another reason, e.g. absenteeism or misconduct, a claim of victimisation will not succeed.[48]The Respondent agrees that the protected act was bringing Employment Tribunal proceedings against the Respondent. Absence of Detriment[49]Section 27(1) of the Equality Act 2010 replaced the concept of ‘less favourable treatment’, which appeared in the previous legislation, with that of ‘detriment’, which is not defined by the Act but is a familiar concept in discrimination law. In that context, courts and tribunals have generally taken the view that it covers a wide range of conduct and treatment, and the meaning of ‘detriment’ for the purposes of Section 27(1) has similarly been given a broad interpretation.[50]The issue was revisited in Warburton v Chief Constable of Northamptonshire Police 2022 EAT 42, where an employment tribunal found that an applicant for a role of police officer had not been subjected to a detriment by Northamptonshire Police’s failure to progress the vetting process while he was in dispute with other police forces in relation to various employment matters. The tribunal considered it significant that the delay in vetting was principally caused by Avon and Somerset Police’s refusal to respond to Northamptonshire Police’s requests for information. In the tribunal’s view, the decision to place the vetting process on hold was reasonable and was consistent with Northamptonshire Police’s policies. The EAT allowed W’s appeal, holding that the tribunal had failed to apply the correct approach to the meaning of ‘detriment’, as set out in Shamoon v Chief Constable of the Royal Ulster Constabulary and Chief Constable of West Yorkshire Police v Khan. Although the test is framed by reference to ‘a reasonable worker’, it is not a wholly objective test. It is sufficient that a reasonable worker might take the view that the conduct in question was detrimental. This meant that the answer to the question of whether there has been a detriment cannot be found solely in the view taken by the tribunal.[51]According to the EAT, a tribunal might perfectly reasonably take the view that certain conduct did not constitute a detriment. However, if a reasonable worker (even if not all reasonable workers) might take the view that, in all the circumstances, the conduct was to the worker’s detriment, the test is satisfied.[52]Accordingly, the test of detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. Deposit Order[53]The power to make a deposit order is provided by rule 40 of the ET Rules, as follows: 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a)the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded.(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.[54]The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails” and it is“ emphatically not…to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.[55]As for the approach the Tribunal should take, in Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-Upon Thames and others [2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go.[56]It was also made clear in Hemdan that a mini trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merit hearing where evidence is heard and tested.[57]The Respondent pursues the application as an alternative to their strike out application. The test is therefore one of “little reasonable prospect of success” as opposed to “no reasonable prospect of success” for a strike out application.[58]Rule 40 allows a tribunal to use a deposit order as a less draconian alternative to strike-out where a claim or response (or part) is perceived to be weak but could not necessarily be described as having no reasonable prospect of success.[59]In Jansen van Rensberg v Royal London Borough of KingstonuponThames UKEAT/0096/07, the EAT observed: “…the test of little prospect of success … is plainly not as rigorous as the test that the claim has no reasonable prospect of success … It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.”[60]A deposit order application has a broader scope compared to a strike out application and gives the Tribunal a wide discretion not restricted to considering purely legal questions. The Tribunal can have regard to the likelihood of the party establishing the facts essential to their claim, not just the legal argument that would need to underpin it.[61]In a case where a Tribunal concludes that a claim or allegation has little reasonable prospect of success, it does not mean that a deposit order must be made. The Tribunal retains a discretion in the matter and the power to make such a deposit order must be exercised in accordance with the overriding objective and with having regard to all of the circumstances of the particular case. Victimisation[62]Section 27 of the Equality Act 2010 states:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. Time Limits[63]The time limit in relation to detriments is 3 months starting with date of (last) act or failure to act.[64]This is subject to an extension for early conciliation.[65]It is also necessary to consider whether the acts will amount to a continuing act for the purposes of s.123 Equality Act 2010 Submissions[66]The Respondent sets out the historical background of previous claim between the parties as follows:[67]“Claim Number 2501133/2021 was issued on 16 August 2021 was for indirect sex discrimination. Permission to amend the claim to include a claim for direct sex discrimination was refused at a Preliminary Hearing on 2 April 2022 and the claim for indirect discrimination was struck out due to limitation. An application for Reconsideration was refused on 2 May 2022”[68]“A second claim, Claim Number 2501187/2022 was brought against the Respondent on 20 August 2022 for constructive unfair dismissal, sex discrimination, pregnancy or maternity discrimination and holiday pay. This claim was struck out on 8 December 2023 when the Claimant failed to comply with case management orders. An application for Reconsideration was refused on 18 March 2024. The Claimant has appealed to the EAT; her application was refused on the sift and a Rule 3(10) hearing is listed for 5 March 2025.”[69]They submit that the matter should be struck out on a number of grounds They refer to Rule 38 of The Employment Tribunal Procedure Rules 2024 and list the following six grounds as justifying strike out.[70]Firstly, that detriment two could have been brought in the second ET claim by the Claimant applying to amend their ET1. They state that this is an abuse of process.[71]Secondly, that paragraph 8.2 of the ET1 should have a section deleted as referred to above as there have been no such findings in any previous claims and in effect this is an attempt to relitigate matters. They state that this is an abuse of process/Res Judicata.[72]Thirdly, there is an absence of causation.[73]Fourthly, there is no detriment.[74]Fifthly, the Respondent also briefly submits that detriments two and three, are on the face of it out of time, and that the Claimant will have little reasonable prospects of success in establishing that acts so far apart in time will amount to a continuing act for the purposes of s.123 Equality Act 2010.[75]Sixthly, that the claim as a whole and also the individual matters listed above, are scandalous or vexatious or have no reasonable prospect of success.[76]This submission also originally included the first matter in May 2022, particularised in detriment one, that was withdrawn by the Claimant at this hearing.[77]In the alternative, the Respondent applies for deposit orders in respect of each of the three alleged detriments now relied upon by the Claimant.[78]The Claimant submitted that the delay in providing references has caused her financial loss and that the respondent has applied a policy to her, in relation to the provision of references, knowing such a formal policy does not exist. The Respondent denies there is any policy that they have applied to her.[79]The Claimant asserts that they have been victimised in this way due to their previous complaints and claims.
Conclusions
[80]Firstly, I deal with the application in relation to whether detriment two could have been brought in the previous claim, applying the relevant tests, where the final hearing began on the 4th of December 2023, by the Claimant applying to amend their ET1 to include detriment two in that claim.[81]In relation to the abuse of process issue, in line with the authorities above, I must consider what were the claimant’s reasons for not pursuing the present claim earlier, taking account of the public and private interests involved and also the facts of the case. I must focus attention on the crucial question as to whether, in all the circumstances, the claimant has misused or abused the process of the Tribunal by seeking to raise, in the present claim, an issue which the Respondent says, could have been raised before. I must reach a broad, merits-based judgment on the issue.[82]The relevant facts are as follows:[83]The Claimant previously made a claim against the Respondent for constructive unfair dismissal, sex discrimination, pregnancy or maternity discrimination and holiday pay. The final hearing of this claim began on the 4th of December 2023.[84]Alleged detriment two pre-dates case management hearings in that claim and the commencement of the final hearing but post-dates the issue of the ET1 in that matter.[85]The Claimant sees the issue of references as a separate issue as compared to the previous claim and did not think to include this new matter in her earlier claim.[86]I am assisted by the following case, Franked Income Investment Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47 and in particular the following excerpt:[87]“it is clear that for the courts to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive.”[88]From the information provided regarding the earlier claim, it is clear that there is a lack of commonality between the factual and legal basis of the two claims.[89]The current claim is not a re-litigation of other matters between the Claimant and Respondent and has not been raised before by the Claimant in her previous two claims.[90]It would have been possible to include alleged detriment two in the second claim, however the Claimant is a litigant in person and did not think to include these allegations within the claim form at the time of issuing or by way of an amendment. In addition, she sees the new claims as separate matters to those raised previously.[91]Applying broad-based merits approach I conclude that it is not established that the current claim “should” have been raised in the previous claim and that therefore the present claim does not amount to an abuse of process and the claimant is properly entitled to pursue it.[92]The application in relation to abuse of process is therefore refused in relation to that aspect of the application.[93]I then moved on to the application for strike out/res judicata in relation to part of the Claimant’s ET1 at section 8.2, which says the following:[94]“Between 2019-2022 the respondent subjected me to pregnancy and maternity discrimination, direct sex discrimination, victimisation and harassment, and assault. In 2022, my employment was threatened and a short while later, I was constructively dismissed."[95]The Claimant submitted that this is merely background. The Respondent confirmed that a previous claim including constructive unfair dismissal, sex discrimination, pregnancy or maternity discrimination and holiday pay has been struck out for a failure to comply with case management orders but is subject to a Rule 3(10) hearing.[96]I have not had sight of any judgment or order for the previous case and the information I have was given by the Respondent as set out above.[97]It is clear from this information that there was no determination as to the merits of the previous claim. Additionally, when applying the principles of Res Judicata, it is clear that such matters raised within that previous claim cannot be re-litigated other than via an appeal.[98]When considering the evidence from the Claimant and the submissions from the Respondent, I accept that this is an attempt by a litigant in person to provide a background and not an attempt to re-litigate. This is supported by the fact that the Claimant has appealed the strike out of this previous case.[99]It is therefore not an abuse of process or subject to Res Judicata and I therefore refuse the application to strike out this part of the ET1.[100]I do make it clear that these are not new claims, and this order is not an invitation to the Claimant to relitigate matters.[101]I will now deal with the application to strike out under Rule 38. The Respondent accepts that the protected acts are the bringing of proceedings in the Employment Tribunal in August 2021 and August 2022.[102]I will deal firstly with the parts of the application in relation to time limits, no detriment and the absence of causation and whether the claimant has no reasonable prospects of success of proving their case due to these matters and whether as submitted by the Respondent that the claim is scandalous and vexatious.[103]I bore mind that a tribunal must first consider whether any of the grounds set out in rule 38(1) have been established; and then, if any ground is established, exercise discretion as to whether or not to order strike-out. The requirement for a two-stage approach was confirmed in Hasan v Tesco Stores Ltd EAT 0098/16.[104]I had regard to overriding objective of dealing with cases ‘fairly and justly’, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay.[105]I am also assisted by the cases set out above and in particular the following cases of: Mechkarov v Citibank NA [2016] ICR 1121.[106]This summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to " resolve core disputed facts."[107]It was said in, Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-UponThames and others [2007] UKEAT/0095/07, that a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan v Ishmail [2017] IRLR 228 that a mini trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merit hearing where evidence is heard and tested.[108]With regard to the unfair application of a policy in relation to providing the Claimant a reference and whether the application of such a policy and the delay caused in sending a reference caused a financial loss. Whilst the Claimant is likely to have difficulties establishing these matters, particularly given the Respondents assertion that no policy was applied to the Claimant and references were provided in good time, this is a factual dispute. Given that the Claimant does not believe the Respondent’s explanation, the facts need to be determined before a decision can be reached.[109]In relation to time limits pertaining to detriments two and three, this will mainly depend upon whether the Claimant can establish that acts so far apart in time will amount to a continuing act for the purposes of s.123 Equality Act 2010. This area again requires determination of facts before a decision can be reached.[110]With regard to the Claimant establishing causation, again this is a factual dispute that will need determining at a final hearing.[111]It is my judgment that the matters related to time limits, no detriment and the absence of causation, should be dealt with at a final hearing and that it is not appropriate to conduct a mini trial to resolve these core disputed facts. These are matters that need to be considered in the context of the overall facts after hearing witness evidence and left to be determined at a final hearing.[112]In relation to the part of the application asserting that the claim is scandalous or vexatious, when applying the test in Franked Income Investment Group Litigation v Revenue and Customs Commissioners [2020] UKSC 47, I am not satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is clear from the information provided to me that previous claims did not relate to the same subject matter as those that are included in this claim.[113]In view of the foregoing, I was not satisfied that the Claimant has no reasonable prospect of establishing her claim. The ‘test’ at rule 38(1)(a) not having been met, I did not need to consider exercising discretion to strike-out.[114]The Respondents application for strike out is therefore dismissed.[115]I now turn to the application in relation to a deposit order.[116]The test I need to apply is, does the Claimant have little reasonable prospect of success in relation to the specific individual allegations. There must be a proper basis for doubting the likelihood of the Claimant being able to establish facts essential to this claim.[117]The Claimants case is framed in general that a policy relating to provision of references has been applied to her unfairly and that the delay caused by this policy application, has caused her financial loss.[118]In relation to the application of such as policy I find and repeat what I said above, this is a factual dispute and given that the Claimant does not believe the Respondent’s explanation, the facts need to be determined at a final hearing before a decision can be reached.[119]Turning to the time taken to provide the references and whether the Claimant has little prospect reasonable prospect of success in proving that any delay caused her financial loss, I make the following findings.[120]In relation to detriments two and three, the reference has been provided in a relatively quick time, and I therefore consider that there is little prospect of success of these allegations in relation to the time taken to provide references. I have considered the information available to me in regard to means to pay and note the impact of making a deposit order. I have also considered whether in all the circumstances it is fair and just to order the Claimant to pay a deposit order. I have also taken into account the overriding objective. The Claimant is therefore ordered to pay a deposit of £50 in relation to detriments two and three, making a total of £100.[121]In relation to detriment Four. The provision of a reference took 14 days. The Respondent says they have good reason for the delay due to the absence of a staff member. Again, the Claimant does not believe the Respondent’s explanation. This area again requires determination of the facts before a decision can be reached.[122]This matter will involve consideration of witness and documentary evidence regarding the delay in provision of the reference and whether any delay was reasonable.[123]On the information before me, I cannot say at this stage there is little reasonable prospects of success in relation to detriment four. The application is refused in relation to a deposit order for this allegation.
Conclusions
[1]At a preliminary hearing held on 9 January 2025 the claimant was ordered to pay a deposit of £100.00 to pursue the above complaints. The Order was sent to the claimant on 13 March 2025.[2]The Order was subsequently varied to reduce the amount of the deposit required to be paid to £30 and to extend the time by which the deposit was required to be paid.[3]The deposit was required to be paid by 6 June 2025. The claimant has not paid the deposit.[4]Therefore, these complaints are required to be struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.