MS L BENNETT v (1) LONDON PROBATION SERVICE (2) NATIONAL ASSOCIATION OF PROBATION OFFICERS (3) MS BECKY SHEPHERD [2009] UKEAT 0194_09_1706

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0194_09_1706

Case No Appeal No. UKEAT/0194/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS L BENNETTAPPELLANT

(1) LONDON PROBATION SERVICE (2) NATIONAL ASSOCIATION OF PROBATION OFFICERS (3) MS BECKY SHEPHERDRESPONDENT

Before

Mr Justice Burton

Date 17 June 2009

[1]APPEARANCES For the Appellant MS L BENNETT (The Appellant in Person) For the First Respondent MS S BELGRAVE (of Counsel) Instructed by: Messrs Essex County Council Legal Services 60-68 New Bridge House New London Road Chelmsford CM2 0PD For the Second & Third Respondents MR R PIRANI (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW SUMMARY PRACTICE AND PROCEDURE: Striking-out/dismissal / Amendment / Withdrawal There was one appeal in relation to three decisions in two Employment Tribunal applications. In Employment Tribunal case 8815(i) The Appellant challenged the striking out of her claim. The Employment Tribunal was plainly entitled to conclude that there could not be a fair trial of the claims in the light of the continued refusal, still persisted in, by the Appellant to disclose the content of a medical report expressly referred to by her in her ET1, and whose content was held by the Employment Tribunal to be plainly material to the allegations made by the Appellant; there had effectively been an unless order as the matter had been before the Tribunal on two previous occasions and had been the subject of correspondence from the Tribunal, but in any event the Appellant made clear to the Tribunal that she would never disclose the report.

(ii) But for the striking out, the Appellant's application to the Employment Tribunal to amend the claim to add sex discrimination would have been remitted to the Employment Tribunal to consider whether some at least of her allegations were not barred by section 32. In Employment Tribunal case 9948

(iii) The Appellant appealed the Employment Tribunal's decision not to permit her to withdraw her earlier withdrawal of her claim against the First Respondent. The Employment Tribunal rightly dismissed the application in the light of Khan . THE HONOURABLE MR JUSTICE BURTON This has been the hearing of three appeals, two relating to one Tribunal application and one relating to another, brought by Ms Bennett in respect of claims by her in the London South Employment Tribunal.

[2]Ms Bennett was, indeed is, employed by a body variously called National Probation Service London, National London Probation Service, London Probation Service and I think most recently National Offenders Management Service. She was employed as a probation officer. She brought a claim in the Employment Tribunal (2328815/2008) ["8815"] alleging race discrimination by her employer whom I shall call, by reference to all those various titles, by the abbreviation LPS.

[3]She subsequently brought a second Employment Tribunal claim (2329948/2008) ["9948"] in which she joined, again, LPS and also her trade union representative, Ms Shepherd, who is employed by LPS, like the Appellant, but effectively is on full-time secondment to, and carries out work as a full-time union representative for, the National Association of Probation Officers (NAPO) in its Greater London Branch.

[4]The third of the three claims that she has brought before the Employment Tribunal is also only against LPS, as was the first, and that is 2330064/2008 ["0064"]. That third application is proceeding to a hearing in the Employment Tribunal, and is not the subject of any appeal before me.

[5]In 8815 the claim by the Appellant was struck out by Employment Judge Baron, after a hearing on 30 March 2009, by a judgment sent to the parties on 9 April 2009, and the appeal for which permission was granted by HHJ McMullen QC on the sift is brought against the strike out order. The second matter arising in respect of 8815 is only relevant if the appeal against the strike out is successful. At that hearing on 30 March before Employment Judge Baron, the Claimant sought permission to amend her claim in 8815 to add a claim of sex discrimination. That claim was refused not only on the basis that it was, as the learned Employment Judge put it (in paragraph 44 of the Judgment), "inappropriate to seek to add that claim so long after the events of which the claim was made", but primarily because "there was no evidence that the Claimant had presented a claim to LPS alleging any such discrimination." This is a reference to section 32 of the Employment Act 2002 ("the 2002 Act").

[6]The appeal in respect of that was not permitted initially on the sift by Judge McMullen but was permitted through by HHJ Clark, after a hearing under Rule 3(10), on 3 June 2009. It formed the basis of separate argument but, as I have said, it would not be material if, in fact, the claim remains struck out in its totality, subject to the appeal on ground 1, which I have described.

[7]So far as the 9948 case is concerned, including Ms Shepherd, the Claimant withdrew her complaint against LPS on 9 January 2009 before Judge Baron, and at the hearing before the same judge on 30 March she sought effectively to withdraw that withdrawal, namely to seek to restore LPS as a Respondent. She appeals the refusal of the application to withdraw the withdrawal. It is probably better seen as an appeal against the original withdrawal, in which case the appeal would be out of time, but it was let through, again after initial refusal by Judge McMullen, by Judge Clark on the Rule 3(10) application, and is now before me.

[8]There is a peculiarity about that case which is this: although the Appellant withdrew the case against LPS, she did not withdraw the claim against Ms Shepherd which continues to a hearing. She initially included in her application by way of amendment the National Association of Probation Officers (NAPO), but on 30 March she withdrew the claim against NAPO, and no appeal by her is made in respect of that withdrawal, nor has she made any application to withdraw the withdrawal. NAPO however, albeit no longer therefore party to these proceedings, has indicated, and so indicated before the Tribunal, that they would back Ms Shepherd, who carried out her duties, and consequently, if she was guilty of any acts of discrimination, committed those acts, as an agent of NAPO. NAPO has confirmed that it will stand by her and, indeed, as I understand continues to represent her, and, if there were any judgment against Ms Shepherd, would make sure that that sum was paid. So if, in fact, Ms Bennett is unsuccessful, as she has been, in restoring LPS to the proceedings, she will not in the event suffer any prejudice, because if Ms Shepherd is liable, NAPO will be responsible for any judgment. Nevertheless, with the benefit of the order of Judge Clark she pursues her application in respect of her attempt to withdraw the withdrawal by her of the claim against LPS.

[9]Those are the three matters with which I have had to deal today. I turn first to the question of the strike out. The basis for the strike out, as will appear, is her resolute refusal, continued today before me, to contemplate the disclosure by her of a medical report by a Dr Oxlade. The Employment Tribunal concluded, on more than one occasion, as will be seen, because the matter came before them more than once, and there was initially a stay and then eventually a strike out, that without the evidence of the report of Dr Oxlade there could not be a fair trial.

[10]The appeal as permitted by Judge McMullen appears to have been only on the basis of a reference to the recent decision of Abegaze v Shrewsbury College of Arts & Technology

[2009] EWCA Civ 96

, which emphasised that in a strike out situation it was normally appropriate for an unless order to be made because, to quote Elias LJ at page 49 the Court or Tribunal needs to be satisfied that " the position was irreversible" . There was no challenge in that Court of Appeal judgment to the principles as well established previously in Bolch v Chipman

[2004] IRLR 140

and Blockbuster Entertainment Ltd v James

[2006] IRLR 630

. A strike out will only be considered as a last result only where in this kind of situation - absent a contumelious default or a failure to comply with an order which is not this case - where as here found by the Tribunal, a fair trial was no longer possible, but even then only after considering the proportionality of the remedy, and other alternative courses such as the making of an unless order.

[11]It was by reference to that jurisprudence that this appeal was permitted to go forward. As I shall describe, it is quite apparent to me here that every possible alternative course has been considered by the Tribunal, that the remedy that the Tribunal concluded was a proportionate one, because only the first action (8815) and not the third action (0064) was struck out, but that in particular there had been effectively unless orders, and in any event that the Appellant had made clear to the Tribunal, as she has made clear to me, that she would never disclose the report. Consequently, the issue which, alone on the face of it, was to come before me, is really moot in the sense that any criticism of an absence of an unless order has no force whatever in those circumstances; but the real matter that Ms Bennett has sought to assert before me is that a fair trial would be possible without the medical report, and that the various conclusions of the Employment Tribunal to the contrary must be (although she did not use this expression) perverse.

[12]I permitted her to argue that, without prejudice to the question as to whether in fact that was properly before me on an appeal, and in any event it would be a difficult road for the Appellant to ride, given the control which Employment Tribunals are rightly expected to have over their own procedures, and given the much greater knowledge which Employment Tribunals have by reference to constant case management than any appellate body can bring to bear.

[13]The Appellant put in a grievance to her employers and, indeed, the bulk of her complaint against the employer is the failure adequately to deal with that grievance. The response of the employers was to ask for an occupational health review, and the reason for that will appear when I refer to the content of the Employment Tribunal's judgments by reference to the content of the ET1 before the Tribunal. A tranche of correspondence is included in the bundle between June 2008 and December 2008, beginning in June with the setting up of an appointment. In July there is a note that the Appellant did not attend the surgery and there was a follow up of that on 12 August noting that the Appellant had not contacted her GP urgently as requested, and at that stage asking for the report from Dr Oxlade, whom she had seen on 2 July to be released to LPS and understanding that she had been given 21 days to comment on the report.

[14]That was followed up with a chaser on the basis that Occupational Health were still awaiting a response from her, so that LPS could receive the report. A further chaser on 10 September. No reply to any of those letters. A letter of 17 September to the LPS head of Human Resources from Dr Allison, a consultant occupational physician, reported that they had still not received permission from the Appellant to provide LPS with a report, and recording that Dr Oxlade recommended that the Appellant contacted her general practitioner for specialist treatment and in the interim recommended that she should remain off work until reports of her treating specialist confirm that she is responding well to treatment:

"His view is that it will be entirely reasonable to medically suspend her at the moment if you feel you could not cope with her remaining at work in view of her current symptomatology."

[15]On 29 September, a further chaser from LPS was not replied to, and again on 8 October. On 16 October LPS wrote to Dr Allison, the consultant occupational physician, attempting to take things further, on the basis that the Appellant had failed to respond to a number of letters she had written to her. There is included in the bundle a letter of 24 October 2008 signed by Beulah Bennett, who is the Appellant's mother, although the Appellant does not accept that this is a true letter from her mother, setting out the family's concern, and then a follow up of 14 November, and then on 17 November an email from Dr Allison to LPS saying:

"I have asked Dr Oxlade whether he thought you could legitimately disregard Ms Bennett's allegations in view of her symptomatology and his assessment of her mental health. His view is that you could stop responding to her comments and can ignore the complaints that we were aware of when Dr Oxlade saw Ms Bennett in June. He feels you will need to keep a sense of proportion about this in future and make some enquiries if there seems to be anything in her allegations which could be grounded in reality. Dr Oxlade feels the complaints she made were related to her clinical condition and would recommend that you do not pursue them."

Finally, on 18 September another chaser; another request for a further occupational health referral and again request for consent to the disclosure of Dr Oxlade's report, and once again no response.

[16]It was against this background that the grievance procedure was stayed, and the first ET1 was put in. Included in the ET1 was the following, at the end of the document signed by the Appellant:

"The specialist psychiatrist stated in his report that I am suffering with a delusional disorder and I am in need of medication and treatment. This I totally disagree with."

So by this the Appellant herself made express reference in the pleadings to the report by Dr Oxlade, the specialist psychiatrist, which she was declining and failing to produce.

[17]There was a hearing of a case management discussion on 17 October 2008 before Employment Judge Zuke at the Employment Tribunal, and he decided to stay the proceedings until 7 November 2008 to allow the Appellant the opportunity to give her consent to the disclosure of a psychiatric report prepared by Dr Oxlade. His reasons are set out as follows, as recorded in paragraph 3 of the judgment of Employment Judge Baron at a subsequent pre-hearing review on 9 January 2009:

"1. The Claimant is employed by the Respondent. In her Claim Form presented to the Tribunal on 9 July 2008 she made a complaint of racial discrimination. In summary, it is the Claimant's case that she has been subjected to harassment on racial grounds by a number of her colleagues over a long period of time. She alleges that she has been harassed by members of her own family and by members of the public and that this harassment outside the work place is connected with the workplace. 2. The Claimant presented her detailed grievances to the Respondent. 3. The Respondent was concerned about the Claimant's state of mind and referred her to the Occupational Health Department who in turn recommended that the Claimant be examined by a psychiatrist."

Then he refers to the quotation from the ET1 by the Claimant herself referring to the specialist psychiatrist's report, which I have already recited:

"5. The Claimant has refused to give consent to Dr Oxlade disclosing his report to the Respondent. She maintained that refusal before me. In my view, Dr Oxlade's report is clearly an extremely important document in these proceedings. The Claimant's allegations that there is collusion between members of her own family, members of the public who are entirely unknown to her and her colleagues to harass her is an inherently unlikely proposition. The psychiatrist's report is likely to contain evidence about an alternative explanation as to why the Claimant holds the beliefs which form the basis of her complaint to the Tribunal. 6. Having regard to the Access to Medical Reports Act 1988, I decided that I do not have the power to order the Claimant to give her consent to the disclosure of Dr Oxlade's report to the Respondent. However, in my view, the proceedings cannot be taken any further unless the Claimant gives her consent. If she does not give her consent, Mrs Belgrave [that is Counsel for LPS] gave notice that the Respondent will make an application for the claim to be struck out. If the Claimant provides her consent, the future conduct of the proceedings will be considered in the light of the psychiatric report. The Claimant informed me that she is a member of the Trade Union and I suggested she obtain independent advice about the disclosure of the psychiatric report."

[18]On 21 November 2008 Employment Judge Zuke caused a letter to be sent to LPS, asking if the Appellant had consented to the disclosure of the report of Dr Oxlade and was informed in response that the Appellant had not given such consent, and so Judge Zuke decided that there should be a pre-hearing review for the purpose of considering whether the claims in both the first and the third applications should be struck out, on the grounds that the Appellant had conducted the proceedings unreasonably by declining to consent to the release of the psychiatric report referred to in the claim form in the first ET1.

[19]The submissions that were made by LPS for the hearing made claim that the case that they were asserting depended for its establishment on the materiality of the mental state of the Appellant, and the matter came before Judge Baron on 9 January 2009. This was the first time that Judge Baron had dealt with the case. He recorded the following at paragraphs 13 onwards in his judgment:

"13. Ms Odigie [who was then acting for LPS] submitted that the Claimant had conducted the proceedings unreasonably by declining to consent to the report of Dr Oxlade and should, therefore, be struck out. The majority of her comments on what had occurred related to the failure of the Claimant to correspond with the Respondent in connection with her complaints which the Respondent was to investigate, rather than conduct of the proceedings. Rule 18(7) allows a claim to be struck out where the conduct of the proceeding has been unreasonable. The only relevant conduct of the Claimant so far is not to accept the invitation of Judge Zuke to disclose the report of Dr Oxlade to the Respondent. That, in my judgment, does not at present justify an order striking out the claims made in case [8815]. 14. The Claimant is, of course, entitled to have her claims tried in this Tribunal. The Respondent is equally entitled to defend them. Any Tribunal which holds a hearing on the merits of the Claimant's claims is entitled to have all material evidence put before it to enable it to come to a just judgment. I am satisfied that there is sufficient evidence before the Tribunal for me to come to the conclusion that there is a strong probability that the contents of the report of Dr Oxlade will include reference to the Claimant's mental condition which may have a bearing on her credibility as a witness. It would not be doing justice to the Respondent unless that matter was determined before any trial. 15. I, like Judge Zuke, consider that the Tribunal does not have the power to order the disclosure from the court. If there were the power then it should be exercised only in rare circumstances. However, what the Tribunal can do is to prevent the claim being pursued unless that report is disclosed."

He said that there would be a continued stay until 28 March 2009 to enable the Claimant to provide the Tribunal with a complete copy of the report, making it plain that the Tribunal would not supply a copy of the report to the Respondent without the consent of the Claimant and continued:

"16. … However I repeat that the result in those circumstances may be that the claims cannot proceed. 17. If the Claimant does not voluntarily supply a copy of the report to the Tribunal by 20 March 2009 then it is my intention in those circumstances to give notice to the Claimant that I will consider making an order striking out the claims and give her an opportunity to give reasons why such an order should not be made."

[20]That recital, coupled with what had been said by Judge Zuke, made it utterly plain to the Appellant that if she did not produce the report she was at risk of a strike out, and gave her yet another opportunity, against the background of the submissions of LPS, to which I have referred, which concluded:

"The non-investigation of the Claimant's complaints is entirely due to her refusal to consent to the release of her medical information, therefore her claims against the Respondent for non-investigation of her grievance have no prospect of succeeding. The Respondent needs to be aware of the full facts of the Claimant's medical condition and what treatment she is receiving in order to make an informed decision on how best to deal with the Claimant's complaints."

[21]On 19 March 2009 a letter was sent by the Employment Tribunal notifying the parties that Employment Judge Baron would consider at the pre-hearing review on 30 March whether any one or more of the claims or any parts of them would(a) be struck out or

(b) be stayed by reason of the Claimant's refusal to disclose the report of Dr Oxlade.

[22]There was then very full consideration by Employment Judge Baron at the hearing of 30 March when not only was the history of refusal considered, but it was plain that there was very careful reconsideration of the content of the Claimant's allegations. The Judge said at paragraph 23:

"23. The provisions of the CPR would normally require that the report be disclosed as it is referred to in the claim form. Ms Belgrave accepted that the rule does not cover medical reports and that the Claimant is quite within her rights as a matter of law to refuse to disclose it. Ms Belgrave submitted that the allegations made by the Claimant were unrealistic and that as a result her credibility is an issue and that the report of Dr Oxlade is likely to be pertinent and relevant. The Claimant had had several months to agree to the disclosure but had failed to do so or to offer to have another medical report prepared. Ms Belgrave submitted that the non-disclosure of the report was a refusal to disclose relevant evidence and the Respondent would, therefore, be prejudiced in its defence of the claim. There would not be fairness as between the parties. 24. Although not representing a party to the claim, Mr White who appeared for Ms Shepherd and NAPO, added that the test that the Tribunal ought to apply in considering whether to strike out the claim is whether a fair trial of the issues was possible. 25. In reply the Claimant said that she accepted that her claims were unusual but said she was not ill. She referred the Tribunal to the bundle she had prepared for the hearing and to several reports she had written relating to individual offenders. I give one example. An offender, Dean, made a complaint about the Claimant and said to her that he was man enough to make the complaint in front of her. The Claimant told me that she interpreted that as a reference to her having complained about two trainees some years previously when she was also a trainee. The Claimant said that she concluded that a member of the Respondent's staff would have had to have coached Dean about procedures so as to put him in a better position to challenge, harass and harangue the Claimant. She also concluded that a member of the Respondent's staff would have had to tell Dean about the incident when the Claimant had complained because otherwise he would not have known to make the comment about complaining in front of her."

[23]He refers to Rule 18(7), to authorities that were referred to before him or brought to the attention of the parties by him, and he then continued at paragraph 30 as follows:

"30. The striking out of a claim and thereby preventing a Claimant from pursuing a claim at the Tribunal is as is often said a draconian measure. It is not to be undertaken lightly and it is only in relatively rare circumstances that such an order should be made. There is no suggestion here of the Claimant not complying with any orders of the Tribunal or being guilty of what I might call misconduct. The only matter is the fact that the Claimant has referred to a medical report and that she refuses to disclose it. The issue quite clearly is to determine whether a fair trial is possible and if that is the case whether I should exercise my discretion to strike out the claim. 31. I take into account three matters. The first matter is the allegations made by the Claimant. As already mentioned the complaints made by the Claimant are numerous. Judge Zuke describes some of them as being 'inherently unlikely'. I agree. It is necessary to read the whole of the complaints to come to an overall conclusion. One example will suffice. The Claimant alleges that in June 2007 she confronted an estate cleaner because he always made a telephone call as the Claimant walked past him and then later a group of bus drivers had started to wait for the Claimant, and either giggled or looked at her as she walked past. In my view, it is at least possible that the Claimant has deluded herself into believing that that is what occurred and further that any such incidents were in any way related to LPS. I emphasise that I am not making any judgment about the Claimant's health; I am not qualified to do so nor is it my function to do so."

Then he refers in paragraph 32 to the email of 17 November 2008 referring to the conversation with Dr Oxlade, and the third matter is the evidence which he had recited concerning the offender, Dean:

"The inferences which the Claimant seeks to draw about the Respondent having coached Dean appear to me to be unlikely to have any justification and again the Claimant could be deluding herself."

The Judge then turned to the balancing act:

"36. The striking out of the claim will prevent the Claimant from pursing it before a Tribunal. However, allowing the claim to proceed without any resolution of the medical issues which have been raised will in my judgment have the effect of the trial being unfair to the LPS. It will be defending claims to which there may be a good defence but which the Claimant is not willing to make available to LPS. There cannot be a fair trial without the Tribunal knowing that relevant evidence has been available to it. I am satisfied, therefore, that I have the jurisdiction to strike out the claim. 37. I must balance the right of privacy which the Claimant has and her right to present her claims to the Tribunal against the right of LPS to have a fair trial of the issues. It is a balancing exercise in which I must take all relevant factors into account. It is abundantly clear that the Claimant's mental health has been put in issue and, indeed, it was raised by the Claimant in the first place in the claim form. 38. Consideration of the Claimant's mental health requires in the first instance the disclosure of Dr Oxlade's report. It may well be there is nothing in the Claimant's medical condition which is of relevance to her claims. That cannot be known unless she is willing to provide the evidence. She has clearly evinced an intention not to do so."

[25]That is a reference not only to the way in which she had acted throughout the previous months and before him, but also to a letter which was before him, dated 27 February 2009, sent only relatively shortly before the hearing and addressed to the Regional Chairman, in which she stated as follows:

"I do not give consent for the report to be released and I will not give consent for the report ever to be released."

[26]He continues:

"38. … That is not fair to the Respondent. The consequence is that I make an order striking out all the claims made in these proceedings. 39. I do not consider it necessarily or appropriate to strike out the allegations of victimisation which have been made separately by the Claimant in a second claim to this Tribunal presented on 5 November 2008. I wish to make it clear that if to any extent there is a duplication of complaints, the victimisation between the first and second claims, then the victimisation complaint may proceed."

[27]In my judgment, the Tribunal was plainly entitled to come to the conclusion that a fair trial was not possible. My task is to review the Employment Tribunal Judge's conclusions, not to reconsider them ab initio , but in any event, in my judgment, both the views of Employment Judge Zuke and the conclusions of Employment Judge Baron are plainly right. It is and would have been an essential matter to consider the mental health of the Appellant by reference to the conclusions about it by Dr Oxlade, not only because she herself referred to that report, if only to disagree with it in her own document, but also because the nature of the substantial claims made about inferences to be drawn from the actions of third parties was at least consistent with a case of self-delusion, and LPS would be entitled to explore that case at the Tribunal. The very fact that a substantial complaint made by the Appellant is that the Respondent has not carried on properly with the grievance procedure is once again inextricably tied up with the availability of the medical report, as they themselves explained in their submissions.

[28]The Appellant, not surprisingly, both before the Tribunal and before me asserts that, as she is not ill, she cannot see why her complaints have not been investigated, and should not be pursued in front of the Tribunal, but that ignores the fact that these proceedings have two sides to them; that they are contentious proceedings, in which both sides are entitled to have the opportunity to put their case over and to have it examined, and she has, by her refusal to disclose the report, prevented the Respondents from exploring what might even be a determinative aspect of the case.

[29]In those circumstances, I have no doubt at all that the Tribunal was entitled to reach the conclusion it did. It did consider the proportionality of what it was doing, and with that in mind it did not dismiss, albeit the matter was before it, the second proceedings (0064) which are continuing. On numerous occasions, as I have quoted in the course of this judgment, both Judge Zuke in October and Judge Baron in January, and in a number of letters, made it plain that there was effectively an unless situation that unless she supplied the report, her claim would be struck out, and she persisted and still persists in her stance. In those circumstances there was no conceivable point in any yet further unless order, and the order that the Tribunal made was one it was plainly entitled to do, albeit that there was not express consideration of the three authorities to which I referred earlier in this judgment. In those circumstances, the appeal is dismissed.

[30]That means that the 8815 action remains dismissed, and any amendment of it is completely irrelevant, because there will not be a hearing of action 8815, amended or otherwise, but as the point has been put before me I should simply mention what my view would have been in relation to it, out of courtesy to the parties and in particular to the Appellant.

[31]What was put forward by her at the hearing in March, and quite straightforwardly, was an application for amendment. She said in the letter of 20 March to the Tribunal:

"I wish to add a claim for discrimination on the ground of my sex in addition to my current claim of discrimination on the grounds of ethnic origin and race."

She accepted thereby that there was no previous claim of sex discrimination brought in the Employment Tribunal proceedings. In paragraph 44 of the judgment, the Employment Judge said that which I have cited earlier, namely that there was no evidence that the Claimant had presented a complaint to LPS alleging any such discrimination. He did not in those circumstances fully consider the discretionary issues, by reference to such cases as Selkent Bus Co Ltd v Moore

[1996] IRLR 661

, because there was an absolute bar, in his judgment, to the bringing of any such claim by originating application or by amendment, since sex discrimination had not been included in the grievance procedure, contrary to section 32 of the 2002 Act.

[32]The Appellant has vigorously submitted that she did include some matters in her grievance which could be interpreted as a claim to be investigated by her employer of sex discrimination, but such is her experience now in relation to the law that she was able, while her opponents were not, to refer me to a decision of mine in this Appeal Tribunal in Shergold v Fieldway Medical Centre

[2006] IRLR 76

, in which I indicated that the statutory procedure ought to be carried out without reference to pernickety criticism of the formal content of the writing, but such that both parties should be able easily to understand the matter. She submitted that on a fair reading of her grievance procedure, there was at any rate some reference to matters which a responsible employer ought to have interpreted, even if they were not so intended, as complaints of sex discrimination, such as she now wished to allege by way of amendment.

[33]It is certainly the case that the four passages to which she referred are somewhat abstruse. Most of them involved allegedly or inferentially inappropriate conduct towards her by certain offenders. They do not, in the case of the specific references to conduct by the offenders, go on to say that those matters were referred by her to any superior and were not adequately investigated by them. There are two references, and only two, to statements made to her by fellow employees which she inferred as sexually discriminatory. They are not words which necessarily would carry such implication but she says that that implication was an inference she was entitled to draw.

[34]Ms Belgrave tells me that the Employment Judge had read through all the papers, and plainly was very familiar with them, but he did not in the course of the hearing sift through, or invite the Appellant to sift through, as I did, the 18 pages of grievance procedure in order to try to flesh out one or two incidents which might amount arguably to sex discrimination. It seems to me possible that if that had been done at least in relation to one or two of the incidents, to which I have referred, a case might have been drawn out of the grievance procedure which could have been said to have founded an argument for sex discrimination. There would then have needed to have been the consideration about discretionary amendment which the Employment Judge did not carry out because of the view that he came to. LPS would have argued, contrary to the submission of the Appellant, that it would have added to the content of the trial to have explored questions of sex discrimination by reference to such four incidents, and in any event it would not have brought in the entirety of the grievance document but only limited the investigation to the one, two, three or four incidents, if found, which could be said to constitute an arguable case on sex discrimination. None of that arose, and but for the fact that I have upheld the striking out of the claim, I would have sent the matter back to the Employment Judge to consider whether there was anything in the grievance procedure from which a case of sex discrimination could be spelt out, and then to go on to consider the question of amendment, but, as I have indicated, none of that arises, in the light of my firm view that 8815 should remain struck out.

[35]I turn finally to the third issue which has been raised which is a straightforward one, and one which, as I have earlier indicated, in the event ought not to cause any prejudice whatever to the Appellant, because of the decision taken by NAPO. The short history of the withdrawal, as it plainly was, by the Appellant of her claim against LPS in the second action (9948) can be told by reference to a small quantity of correspondence.

[36]By a letter of 31 October 2008, the Appellant wrote to the Secretary for the Tribunals as follows:

"Ms Becky Shepherd is an employee of the National London Probation Service. However, she was acting in the capacity of Union Representative when she was advising me. I believe the correct Respondent would be the National Association of Probation Officers (NAPO) and not the National London Probation Service."

The response by the Employment Tribunal of 5 November 2008 sought clarification:

"Are you applying to amend your claim to substitute the National Association of Probation Officers as the Respondent in place of the National Probation Service? If so, please provide their address for service."

A letter was sent on 7 November 2008 by Mr McClellan of NAPO making it plain that Ms Shepherd was not employed by NAPO:

"She is employed by London Probation Area, but she is a branch representative for NAPO Greater London Branch. It is in this capacity that she advised you."

That that is the case is made plain by the Claimant's own ET1 against Ms Shepherd which asserts:

"I currently have a claim of harassment against my employers, however I have just uncovered the significance of the advice I was given by my Union Representative and believe that I was victimised because of the complaint I made to my employers of harassment."

[37]The grievance that was made which was attached to the pleadings in the Employment Tribunal dated 2 October 2008 was "grievance against NAPO re complaint against Ms Becky Shepherd".

[38]On 19 November 2008, the Appellant wrote to the Secretary of the Tribunal:

"I would also … name the National Association of Probation Officers (NAPO) Greater London Branch as a Respondent and Ms Becky Shepherd as the second Respondent."

By a further letter of 10 December 2008, she says:

"I request that the Respondent to the claim numbered 232948 is amended to NAPO Greater London Branch."

[39]None of that was in those circumstances of any surprise, given the view that she took about why she wished to make a complaint against Ms Shepherd. What occurred is described by Judge Baron at the hearing on 30 March 2009, when her application to withdraw the withdrawal of 9 January is dealt with:

"12. In the claim form the Claimant named National Probation Service and Becky Shepherd as the two Respondents. There is no dispute that Becky Shepherd always has been and remains a Respondent to the claim. The substance of the claim is that Ms Shepherd acted in a racially discriminatory manner when advising the Claimant that she should accept the request of LPS to attend for occupational health and psychiatric reports to be prepared. 13. The Claimant is clearly intelligent and articulate but she is not a specialist employment lawyer. It is understandable there could be confusion in her mind about the correct corporate Respondent for want of a better adjective. The claim was presented to the Tribunal on 28 October 2008. On 31 October, the Claimant wrote to the Tribunal asking that NAPO be substituted for LPS as the correct Respondent. Unfortunately, that was never formally done … The Claimant wrote again to the Tribunal on 19 November and 10 December referring to NAPO as being the correct Respondent. 14. A response was presented by each at LPS and Ms Shepherd. As NAPO had never been added as a Respondent, the papers were never served on it and so no response has been presented. 15. At the pre-hearing review on 9 January 2009, the Claimant stated that the corporate Respondent to this claim should not be LPS but should be NAPO. Although the Claimant said at this hearing that she had not done so, my notes of the earlier pre-hearing review is quite clear as indeed is the judgment issued as a consequence. I was satisfied that I explained the position to the Claimant and that she could not have been under any illusion that what she was doing was abandoning her claim against LPS and substituting NAPO as the corporate Respondent. That is, indeed, what she had been requesting in her correspondence."

[40]Judge Clark ordered when he made his order under Rule 3(10) that the Employment Tribunal Judge be requested to produce his notes of evidence in respect of the pre-hearing review of 9 January as referred to at paragraph 15 of his Reasons dated 9 April. Those notes were produced and they read as follows:

"C [that is the Appellant] withdraws claim against National Probation Service as having been made in error and National Association of Probation Officers, 4 Chivalry Road SW11 1HT."

[41]Subsequently, in correspondence with which I do not need to deal, the Appellant changed her mind again and sought to restore the position back whereby she did not wish to pursue NAPO and wished after all to pursue the LPS. It appears to me that the only basis on which she is putting this forward is the fact that Ms Shepherd is, and she has been informed by NAPO that she is, employed by LPS and not by NAPO. On the other hand(1) she knew that, way back on 31 October, and said so herself,

(2) given that the complaint against Ms Shepherd is in her capacity as a trade unionist, NAPO is prepared to accept responsibility for her and she would not in all likelihood be likely to render her employers vicariously liable for any activity that she did, not as an employee of LPS but as a full-time union official. But whatever may be the position, the fact is that the Appellant did withdraw against LPS, as recorded by the Employment Tribunal, and she now seeks to withdraw that withdrawal for whatever reason: right, wrong, mistaken or not. Unfortunately for her, the Court of Appeal has made it plain that such withdrawal is not possible. In Khan v Heywood & Middleton Primary Care Trust

[2007] ICR 24

the Court of Appeal made it quite plain that where there has been a withdrawal of proceedings, an Employment Tribunal has no jurisdiction to allow the withdrawal to be withdrawn. In those circumstances, the Employment Tribunal was not only right, but inevitably right, in refusing on 30 March to allow such a withdrawal. If Judge Baron had no jurisdiction to allow the withdrawal of the withdrawal, the case against the LPS was dismissed on 9 January.

[42]With the assistance of Mr Pirani, Counsel on behalf of NAPO and Ms Shepherd, a point was raised which was that LPS has, as I referred at the outset of this judgment, been differently described at various stages in the different proceedings. It is quite apparent to me however that they are all one legal person or one body; that at all times the Appellant intended to sue, and is continuing to sue, her employer (0064) however described, and that, on 9 January, she intended to and did withdraw her claim in the second action (0064), but not in the first (8865) or third (9948), against her employer, howsoever described. In those circumstances, the appeal in respect of the withdrawal of the claim against LPS, the first Respondent, in case number 9948 is dismissed.