Johnson v Oldham Metropolitan Borough Council (Practice and Procedure : Striking-out/dismissal) [2013] UKEAT 0095_13_1704

EAT
Johnson v Oldham Metropolitan Borough Council (Practice and Procedure : Striking-out/dismissal)
[2013] UKEAT 0095_13_1704 · 2013-04-18
[1]This Judgment deals with two appeals arising out of the same matter: first an appeal of Oldham against a decision made by Employment Judge Feeney and secondly an appeal by the Claimant, Mrs Johnson, against a later decision of Employment Judge Ross, both in the Tribunal at Manchester. The Oldham Appeal[2]It is a critical aspect of fairness that a party knows the case it has to meet. It is also a central tenet of justice that disputes should be heard where a fair hearing is possible and cases should not lightly be ruled out on a procedural technicality without determination on the merits. These two principles may seen on occasion to be in conflict, as where a case is struck out for the failure of one party to state its case sufficiently to allow the other to answer it, but in truth they are capable of reconciliation by exercising case management powers to facilitate a hearing which is fair for both parties by ensuring that each knows sufficiently what case it has to meet.[3]Cases where one party defiantly refuses to accept a judicial view of what is needed to ensure a fair hearing, such that no fair hearing can be arranged, resulting in the dismissal of the case without a hearing on the merits, will be rare, particularly where case management powers have been exercised with a view to holding a just hearing. Nonetheless, it must recognised that they do exist where a claim or a response leads to uncertainty about what is being alleged so that the other party does not sufficiently know what they must grapple with. One way in which case management powers can be exercised in such a case is to order particulars of the claim or response to be given. If they are not given in response to such an order, whether through misunderstanding, mental illness, lack of awareness of that which the other party will need to meet the claim or response, or a deliberate refusal or failure to comply an Unless Order may be made. If such an order is not complied with within its terms by the date set out in the Order, the claim or response will stand struck out without the need for any further order. Thus in Marcan Shipping (London) Ltd v Kefalas & Another [2007] EWCA Civ 463 , also reported 3 All ER 365, at paragraph 34 Pill LJ said:
“In my view it should now be clearly recognised the sanction embodied an in Unless Order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.”
[4]That case was adopted in the Employment Appeal Tribunal in The Royal Bank of Scotland v Abraham a decision of a tribunal presided over by HHJ Ansell of 26 August 2009. This has been cited as authority that compliance with an unless order must be complete such that where there has been compliance in respect of one head of claim but not another the consequence is that both are struck out. This was the understanding of the Judge in the decision under appeal before us. At paragraph 4 she regarded Abraham as stating that:
“Where there is non-compliance the whole of the claim must be struck out even if the matters required by the unless order do not relate to that part of the claim and they are claims which are normally severable. It is not possible to sever the part not affected by the unless order. The whole of the claim must be struck out.”
[5]Although some of the argument in Abraham is in terms that suggest that as a matter of principle in such a situation there cannot be severance I have considerable difficulty in seeing that the principles actually expounded in that case extend as far as I have just stated or as the Judge considered they did. To accept that would, as the Judge herself here recognised, be at the extreme involve striking out claims which it was perfectly possible to litigate and in respect of which no further particulars were required. It would amount to taking a penal rather than a facilitative approach.[6]I accept that such an unyielding approach may be appropriate when considering one claim on its own. In the Abraham case however there were three claims under consideration: sex discrimination, disability discrimination and unfair dismissal. A consequence of a failure to provide material in respect of the first two had the consequence that all three were struck out. Where an ET1 raises two or more separate claims it must, in my view, be remembered that they are legally separate claims. They are separate causes of action, albeit closely factually connected. Any decision needs to be considered in that light. I accept the broad thrust of Ms Woodward’s submission for Oldham that Abraham is properly to be regarded as a case turning upon the wording and application of the particular order made in that case. I accept that, in any case where the consequences of non-compliance with an unless order fall for consideration, all is likely to be depend the precise terms of the order. For the assistance of Tribunal Judges, given the concern that Judge Feeney here expressed about her own position in respect of Abraham , I would simply note that because so much in my view turns upon the precise form of the unless order made and because the consequences of an unless order may be draconian, judges making such an order in the first place may wish to consider tailoring it with particular care. For instance, such an order might provide that any allegation not sufficiently particularised might be struck out. Such an order would leave it open to a subsequent Judge to conclude that there had been compliance in respect of some allegations, which would not therefore automatically be struck out, even though there had been non-compliance in respect of others which were.[7]The phrase used by Pill LJ in Marcan was, “..any material respect”: I would emphasise the word “material”. It follows that compliance with an order need not be precise and exact. It is agreed by counsel before me that Employment Judge Feeney in adopting a test of substantial compliance therefore adopted one in accordance with the law. I would make this comment however: “material” may be a better word than “substantial” in a case in which what is in issue is better particularisation of a claim or response. That is because it draws attention to the purpose for which compliance with the order is sought; that it is within a context. What is relevant, i.e. material, in such a case is whether the particulars given, if any are, enable the other party to know the case it has to meet or, it may be, enable the Employment Tribunal to understand what is being asserted. To use the word ‘substantial’ runs the risk that it may indicate that a quantitative approach should be taken: thus, where 11 matters must be clear to enable a party to deal fairly with a claim, of which 9 have been provided but not 2, which remain necessary, compliance has not materially been provided because the purpose of seeking compliance has not been achieved in the context; the other party still cannot obtain a fair trial. To adopt a quantitative approach may erroneously lead the Judge in such a case to conclude that there had been sufficient compliance (9 out of 11) even if the further particulars remained necessary before a fair trial could take place. Substantial compliance has thus in my view to be understood as equivalent to material compliance not in a quantitative but in a qualitative sense.[8]In the circumstances giving rise to the first appeal Employment Judge Feeney had to consider whether an unless order earlier made requiring further particulars to be given had been substantially complied with. That was a judgment to be exercised in accordance with the law set out above. The factual background[9]The background is this. The Claimant was employed by Oldham from September 2003 as a solicitor, first in the Family Group and then from September 2004 in the Environment Group. There she worked with another who went absent leaving just the Claimant carrying the load of the department for some two years, though she was assisted from time to time by locums and with help from legal assistants. She eventually fell off sick between 6 November 2008 and 24 March 2010 when she resigned from her employment. She complained that from a date in August 2009 she was disabled by reason of the mental condition suffered as a result of the way in which she had been treated. She complained that those with whom she had to work had, with some exceptions, been oppressive, hyper-critical, aggressive, extremely negative, that there had been a macho and over zealous culture, and that she had been over-scrutinized at work. She complained about the behaviour of others in the service of Oldham in pursuing prosecutions on behalf of the Council when it was not in the public interest to do so.[10]She raised grievances about those issues whilst in employment and considered that those grievances were neither properly nor timeously dealt with. Having resigned she brought an application to the Tribunal on 23 June 2010 alleging constructive dismissal, sex discrimination (that was later withdrawn), discrimination on the ground of disability, sub-divided into direct discrimination, a failure to make reasonable adjustments and victimisation, and a claim under the Public Interest Disclosure provisions in the Employment Rights Act 1996 which she described as a whistle-blowing claim.[11]The grounds of claim were exceptionally lengthy. They consisted of some 160 pages. All were however expressed with a very high level of generality; specifics were rarely identified. Accordingly on 1 November 2010 Employment Judge Porter ordered that a Scott Schedule should be prepared which would tabulate the claims so that the Council, Oldham, knew what it had to meet. Insufficient having resulted, Employment Judge Brain on 20 May 2011 at a Pre-Hearing Review ordered that unless specified information be provided by 3 June the claim should be struck out. On 13 September 2011 Judge Feeney heard an application by Oldham to strike out the claim for non-compliance with the unless order which Judge Brain had made. The Claimant lodged an immediate application for relief from sanction. That came before Judge Feeney in November 2011, and on 9 January 2011 she made a further unless order and granted relief from sanction. The order provided:
“The Claimant shall serve on the respondent a Scott Schedule by 4.00 pm on 20 January 2012 providing the particulars described in paragraph 5 of [the Brain Order] and this shall be provided in a short, manageable document. Unless the Claimant presents a Scott Schedule containing these particulars upon the Respondent by that time and date the Claimant’s complaints under the Disability Discrimination Act 1995 are detriment under section 47B of the Employment Rights Act 1996 and of constructive unfair dismissal under section 103A of the Employment Rights Act 1996 shall be dismissed without further order.”
[12]Some particulars were subsequently provided. The Respondent, Oldham, claimed that the case had automatically been struck out because those particulars were not compliant with the order. Accordingly, a hearing was listed before Judge Feeney in order to determine whether there had been substantial compliance with the order which she had made by reference to the earlier order of Judge Brain.[13]The parties were agreed that sufficient particulars had been given in respect of the claim for constructive unfair dismissal. A date for that claim to be heard has been set and despite all the proceedings which I have yet to describe has not been abandoned. That claim and any other claims which survive these hearings will be heard in September 2013.[14]The Claimant had provided a further Scott Schedule. It was that which Judge Feeney considered in asking whether there had been substantial compliance with the order. Her conclusion was that there had been; she reached that in three paragraphs, “Overall Conclusion”. On this appeal Oldham criticised those conclusions and the process of reasoning by which they were reached, as betraying errors of law.[15]She said:
“42. Considering the compliance and the non-compliance, the non-compliance relates mainly some aspects of the disability discrimination claim. In particular the less favourable treatment is still set out inadequately and likewise a part of the reasonable adjustments claim is inadequately articulated. Regarding the matter overall there is substantial compliance in my view, and I do not need to consider the Abrahams issue. 43. If I had applied the Abrahams issue I am satisfied that in the Order it was intended that the disability and the PIDA claims would be severable. However, they could not have been severable by virtue of Abrahams. Had they been I would have struck out the less favourable treatment disability claim, however, under the terms of the Order this falls to be considered in the round with the other disability claims and forming a small part thereof is insufficient to detract from the overall substantial compliance. 44. I now to propose to order the Claimant, within 21 days of the promulgation of this Judgment, to revise and clarify the Scott Schedule in the light of this Judgment and re-serve it on the Respondent …”
[16]Ms Woodward argues that those conclusions demonstrate that there could not have been substantial compliance with the order, since the Judge was there indicating, at least in respect of the claim of direct discrimination (less favourable treatment on the ground of disability) that there was insufficient compliance, and indeed demonstrated that by ordering further particulars to be provided thereby recognising that insufficient had been supplied thus far. The direct disability claim, she submitted, was plainly inadequately particularised, despite what the Judge said at paragraph 6 of her Judgment.[17]The allegation of direct discrimination had to be made in a manner sufficient to let Oldham know what claim it had to meet. The Act requires that an act of discrimination be identified, that such an act must constitute less favourable treatment of the Claimant by comparison with others to whom her protected characteristic does not apply, and be the reason for her treatment. The order read that what was to be provided was:
“In regard to any complaint of unlawful direct disability discrimination all facts and matters alleged to amount to unlawful direct disability discrimination against the claimant, setting out what happened, when and who was involved, the identity or characteristics of any comparator relied on and the grounds on which the Claimant contends such treatment was by reason of a disability.”
[18]The answer was that the alleged act was a “response to the Claimant’s grievance of 30 th March 2009”. This was “a letter from Mark Stenson dated 4 June 2009 which the claimant received on 9 th June 2009” The Judge observed, rightly this by itself is difficult to understand.[19]The less favourable treatment alleged was set out by the Claimant under five paragraphs. The Judge attempted to reformulate those matters in her second paragraph; observing at the start of paragraph 3 of her judgment:
“Unfortunately if this was the correct reformulation of the claims ( and the claimant would have to agree to this ) the next column which specifies who was responsible for the less favourable treatment names…” [and six names follow]. “The order says that ‘in regard to any complaint of unlawful disability discrimination the Claimant should set out what happened, when and who was involved’. It is impossible to tell from how this is set out who is responsible for what […] it is not clear to me […] what each person’s involvement is in relation to this particular complaint. The schedule purports to establish that this is the only complaint of direct discrimination, however, as I have put it I think there between three and, if subsections are included, five….”
She said, at paragraph 6, that the facts and the matters were set out in a confusing fashion “compounded with the failure to proper to properly identify who was responsible for what and when in relation to each matter.” Then she added this:
“However, it is in my opinion that it is overall understandable and therefore I find there is substantial compliance with the order.”
[20]That comment is inconsistent with what the Judge said about this claim at paragraph 43 where she indicated she would have struck it out, presumably as not being compliant. This is understandable, given that she identified a failure properly to identify the material which it would be necessary for the Oldham to know - it would need to know which of its employees was supposed to have done precisely what or, if it were the Claimant’s case, that they had collaborated. Therefore, says Ms Woodward, the judge was inconsistently looking both ways. Since she thought there had been no proper identification of the individuals concerned in accordance with the order, and a failure to provide the necessary particulars, the judge was simply not entitled to hold that there was here substantial compliance with the order.[21]She turned then to the claim in respect of a failure to make reasonable adjustments. A reasonable adjustment claim necessarily involves the identification of a PCP which is said to subject the Claimant to particular and substantial disadvantage. The disadvantage is that for the remedy of which an adjustment reasonably needs to be provided; see the matters set out in the case of The Environment Agency v Rowan [2008] ICR 218 .[22]What was described by the Judge as the particularisation of Allegation 2 did not fall for any adverse criticism by Ms Woodward.[23]However, as to the allegations which followed (3 – 10) she noted that the order of

Judge Brain required further details consisting of:

“As to any complaint of unlawful disability discrimination by way of failure to make reasonable adjustments, the nature of the provision, criterion or practice applied to her by the respondent. in what way or ways the alleged provision, criterion or practice subjected her to substantial disadvantage in comparison with non-disabled persons, what reasonable adjustments the claimant says should have been made in respect of her and when they should have been made and how they would have assisted her.”
[24]The allegation as further particularised was:
“At a meeting with Diane Thorpe and Alan Evans on […] the claimant raised the issue of the letter she had received from Mark Stenson dated 4 th June regarding an allegation of gross misconduct. The claimant made it clear to Diane Thorpe that this had a very damaging effect on her health and indeed its prospects of recovery.”
[25]The PCP said to be engaged was:
“The respondent was aware that the claimant was suffering from workplace related stress, anxiety and depression and following the submission of the respondent’s own occupational consultant, Dr Choudhry’s report on 18 th August 2009 that the Disability Discrimination Act was likely to apply to the claimant. Following the submission of this report the respondent made no attempt to alleviate the very damaging and adverse effects their actions were having on the claimant’s health.”
[26]The Judge rightly said that that failed to identify a PCP putting the Claimant at a substantial disadvantage relating to the allegation. The judge identified two possible meanings: it was not clear which was intended. The reasonable adjustment was not defined: it was simply said that no attempt was made to discuss one.[27]Despite that, in conclusion

the judge said:

“Although not clear, I would take the reasonable adjustments to be” and set out what she thought they might be, adding that that required “clarification”
. Ms Woodward complains, and I agree, that the Tribunal Judge was here making the case for the Claimant. It was not that she was setting out what the Claimant herself was saying, but instead venturing the view that it probably was a case of a particular nature.[28]It is always difficult when dealing with a litigant in person who has not clearly expressed herself so as to ensure that a fair trial is held. There can be no objection to a Judge clarifying the meaning of what is said in discussion with the litigant, but it remains axiomatic in an adversarial procedure that the case to be made is the case of the individual concerned. The autonomy of an individual who has competence to litigate must be respected: however difficult it may be to identify, it is her case, and not that of the Tribunal or any third party. Here, as it happens, the Claimant was represented and had herself been a solicitor involved in litigation, though not extensively, in the employment sphere.[29]Allegation 4 came in for similar criticism by Ms Woodward.[30]Although she did not comment adversely on Allegation 5 either, the judgment records the Judge observing in respect of the complaint which had been made by the Claimant, “I believe this means that …”.[31]She turned next to the particulars which had been supplied in respect of disability victimisation. Here Judge Brain had ordered, and therefore Judge Feeney had on 9 January 2012 repeated, that particulars were required as regards any allegation of unlawful disability victimisation:
“Identifying the protected act, full particulars of the treatment she alleges was accorded to her by reason of having done the protected act and the grounds on which she contends such treatment was accorded to her for such reason.”
[32]The Claimant complained as Allegation 6 of an act described as:
“Andy Wilson sent a letter on 11 th February 2010 to the Claimant stating he was not upholding any of her grievances. He invited her to an informal meeting to explore how the issues she had raised could be addressed more appropriately. The Claimant’s husband rang Mr Wilson with regard to the timing of such a meeting and Mr Wilson never responded.”
Less favourable treatment was alleged, stated to be that another person would have had a fair hearing.[33]The judge here had to ask what detrimental treatment was complained of in that paragraph. That was what had been required by Judge Brain’s order. At paragraph 26 she began her consideration of this with the words, “One presumes…”, thus indicating that the particulars lacked clarity. She noted that two names - Andy Wilson and Colin Brittain - were mentioned by the Claimant as having been responsible for her mistreatment:
“Therefore there must be some allegation regarding Colin Brittain, however that is not specified under the less favourable treatment or the allegation.”
[34]She noted that four dates had been mentioned:
“What should have been done here was that in relation to each date the less favourable treatment alleged should have been specified.”
That had not been done, and she did not know what was said to be the less favourable treatment alleged to have occurred on each date. She finally concluded:
“Therefore, this complaint only stands up in relation to Andy Wilson’s consideration of her grievance in relation to those dates cited….So, therefore, this is compliant as far as a complaint against Andy Wilson is concerned.”
Since she had earlier in the same paragraph noted that the she did not know whether what was referred to was a meeting with the Claimant, correspondence or actions on particular dates, it is very difficult to understand on what basis she thought there had been substantial compliance.[35]As to Allegation 7 the Judge concluded that the Claimant had completely failed to particularise her claims as required by the order.[36]As to Allegation 8 it “seemed” that the actual less favourable treatment was “Diane Thorpe not getting back to the Claimant”. There had been one other person identified in respect of the complaint in respect of whom it does not seem any further particulars were given.

The judge then said this:

“29 The fact that Mark Stenson was mentioned suggests that one of the less favourable treatments is the sending of the letter on 4 th June, although this is not specifically referred to under less favourable treatment. In respect of dates it simply says 9 th September, 16 th September and then ongoing until the claimant’s resignation. Again the claimant has specified one allegation in relation to Diane Thorpe and possibly in relation to Mark Stenson. But in relation to any other allegation she has completely failed to particularise the claim . The purpose of the order was so that each act of bullying and harassment could be identified. The claimants says there are simply too many to put into a Scott Schedule. Then she should have made an application regarding this to vary the Unless Order in some way in order that this could be dealt with. However, apart from the Mark Stenson point this allegation is particularised sufficiently for the respondent to respond. Further particulars need to be provided if the claimant alleges the decision to ‘charge her with general misconduct’ is a detriment she wishes to rely on.”
[37]She summarised what she had concluded, after dealing with Allegations 9 and 10 by finding that there had been substantial compliance with the Disability Discrimination Act victimisation requirements of the order. That, observed Ms Woodward, did not correspond to any detailed view of what she had in fact said as highlighted by the comments repeated above.[38]So far as the protected disclosure claims were concerned

Judge Brain had ordered, at paragraph 5(g) in his order of May 2011, that the Claimant give:

“Full particulars of all matters which the claimant contends to be protected disclosures, how she says such disclosures qualify for protection, to whom such disclosures were made and when and who was involved and the grounds on which she contends that she was constructively unfairly dismissed for having made a protected disclosure. Insofar as the claimant brings a claim that she has suffered a detriment for having made a protected disclosure, all facts and matters relied upon setting out what happened, when and who was involved are grounds upon which she contends that such treatment was by reason of having made a protected disclosure. The Claimant shall give like particulars in relation to each protected disclosure relied on.”
[39]The Judge dealt with nine allegations made in the Scott Schedule in respect of protected disclosures. She was satisfied that the first set out the relevant facts sufficiently, save that it was not clear what Andy Wilson had done or “strictly what” Emma Alexander had done save that she had commissioned Colin Brittain to investigate a complaint.[40]She thought that in respect of allegation number 2 that there were specific complaints of detriment and therefore substantial compliance: there was, she thought, sufficient in those allegations for the Respondent to respond and focus their witness statements.[41]Later allegations did not fair so well. Allegation number 6 raised the comment from the Judge that it was not clear how the Claimant said she raised any additional protected disclosures, and she assumed that she repeated her protected disclosures. Again this was an assumption by the Judge as to what was the case.[42]At allegation number 9 the concern of the Judge was that three employees were named, as well as the author of a letter in respect of which a complaint was made, but really only the author of the letter should have been named.[43]She concluded at paragraph 41 that the Claimant had substantially complied with the requirements of Judge Brain’s order in respect of the PIDA complaints “save that she cannot rely on unspecified bullying and harassment claims, only those that are specified”.[44]Ms Woodward argued that the answers to allegations three to nine did not set out the substance of the complaint which the Claimant had made and that it was impossible to understand precisely what she was complaining of by way of detriment.[45]In response to those arguments Mr Askey for the Claimant began by asserting that his client’s case was that Oldham wished to strike out the Claimant’s claims. It had conducted itself generally in such a way as to cause delay and expense in the conduct of litigation. It had diverted attention away from a resolution of the real claims at the heart of the case, it had justly merited the comment made by myself at the time of an earlier application to appeal the Judge’s grant of relief from sanction but I observed that it would be better if Oldham got on and grappled with the real issues in the case and one of HHJ Richardson in which independently he echoed those comments observing that it would be better to get on with the case. The previous failed application for appeal had not been drawn to the attention of the court as it was submitted it should have been.[46]He argued on paper and adopted orally that the Scott Schedules did meet the requirements of the order with clarity. Oldham had been served with a very lengthy and very detailed Scott Schedule in respect of the claim for constructive unfair dismissal which needed to be read with the Claimant’s lengthy and very detailed letter of resignation. That claim, that for constructive unfair dismissal, had not been the subject of any strike out application; Ms Woodward made it plain that that claim would proceed as the Tribunal has already ordered, but the facts of that claim were very much linked with the facts underlying the complaints of discrimination on the ground of disability and behaviour contrary to the Public Interest Disclosure Act . It was not necessary, he submitted, for an answer to an Unless Order to specify every jot and tittle of a claim. As to direct discrimination, he argued on paper that the acts of the individuals mentioned were collective, that the Respondent should have been able to understand the reasonable adjustments claim and that the victimisation claim was sufficiently and clearly pleaded.[47]He complained that Oldham was advancing an inappropriate test by seeking clarity as it did. Discussion[48]I have look at the totality of the answers which given in the light of the order which Judge Feeney made by reference to Judge Brain’s earlier order. It is not for me to make my own judgment but to ask whether the Judge was entitled to reach the decision she did. As to that I must consider her reasoning. Here I am persuaded by what Ms Woodward has said that the reasoning does indeed look both ways and does not indicate why, having demonstrated a number of areas in which the Judge herself thought and, in my view plainly had to conclude, that the particulars required by the order had not been supplied, she nonetheless concluded that there was substantial compliance. I am left with the feeling that by “substantial compliance” she was approaching the matter quantitatively and not qualitatively.[49]First, the inconsistency in respect of the direct discrimination claim is stark; accordingly I cannot conclude that the reasoning justifies the result to which the Judge came.[50]Secondly, having regard to the considerations which I set out at the start of this Judgment it is clear that in a number of respects Oldham would not be able to know precisely and sufficiently what case it had to meet.[51]This is therefore, as it seems to me, a case in which the Judge should have found that there had not been compliance with the order.[52]That said, it was accepted in argument before me that if the Judge had come to that conclusion, as in my view she should on the material before her, an application for relief from sanction would have followed before her. On such an application it is undoubtedly open to a Judge to be selective as to the matters which she considers are appropriately particularised.[53]The approach of Oldham is to anticipate that an application for relief from sanction will now be made; it does not seek to argue that one should not be considered, even although no such application has yet been made. The Claimant intends to make one. That application must be considered on its merits, but it must be remembered that even although it would be the second occasion on which the Claimant has sought relief from sanction she has gone a very considerable distance to providing particulars which meet many of the requirements of the Brian order, though she has not yet identified others with sufficient particularity to enable Oldham to know reasonably what it has to meet.[54]The areas where particularity is lacking are clearly enough identified in the Judgment of Judge Feeney and in this Judgment, but it would plainly be relevant to the exercise of any discretion as to relief from sanction which the Tribunal Judge may exercise whether between now and the date of that consideration the Claimant takes the steps necessary to put matters clearly and rightly. In respect of the claim for direct discrimination a judge might wish to see particulars given in respect of the matters which are required by the Act before granting relief. What happened, who did it, and when are the essential matters.[55]Similarly, the case in respect of reasonable adjustments is best approached by the Claimant looking at the requirements of the statute and by reminding herself of the way in which the Tribunal was encouraged in Environment Agency v Rowan to approach those matters. It is the order, of course, which ultimately has to be complied with - but further particulars of no great length might meet the difficulties which the Judge in her Judgment identified, all focused upon ensuring that Oldham is able to deal with the case made against it.[56]Similarly, in respect of the victimisation the best guide is that which Judge Brain set out, reflecting the requirements of the Act: so too the Public Interest Disclosure Act . I note that Judge Feeney appeared to regard those as relatively clearly identified. It would be of assistance, though I do not and cannot require it, for Oldham to identify crisply for the assistance of the Claimant those matters which it specifically feels it needs to know in order to deal with the claim. A failure to do that would no doubt be taken into account as well by the Employment Judge in considering relief from sanction.[57]My latter comments are not directions but are intended to assist the Tribunal in its task. It is agreed between the parties that I should not myself deal with the question of relief from sanction - I am in no position properly to do so - and they are agreed that the matter should, subject to the next appeal with which I deal, be considered by the Tribunal. It would be convenient to all if that consideration were in sufficient time before the hearing in September such that it may deal with such matters as the Tribunal considers can fairly be dealt with. It is agreed that the matter of relief from sanction should be dealt with by a Judge other than Judge Feeney, and I am content to adopt the parties’ respective positions on that since they agree. The second appeal[58]On 19 November 2012 Employment Judge Ross ordered that there be a stay of proceedings in the Tribunal until the resolution of the Claimant’s claim against Oldham in the High Court, and secondly that these proceedings should be stayed until the outcome of Oldham’s appeal which I have just determined.[59]The background to this is that the Claimant issued Particulars of Claim in the Leeds District Registry of the High Court; they had not been served at the time of Judge Ross’s order. She served the claim as it happens on 6 December 2012.[60]The Claimant argues that the Judge wrongly exercised her discretion to stay one of two claims when there were concurrent proceedings covering much the same basic factual circumstances.[61]It is well accepted that the scope of discretion given to a Tribunal Judge is very considerable. Provided that it is approached correctly in law then it cannot be impugned. It certainly is not open to an appeal court to say that it would, for its part, have taken a different view or given a different weight to any of the considerations which appealed to the Judge in exercising her discretion subject only to the order being perverse; perversity cannot be alleged here.[62]Mr Askey recognises these difficulties in the way of his appeal. He argues however that a wrong approach was taken in law. It is axiomatic that in exercising a discretion a Judge must act judicially and take into account those factors which the law requires him to take into account and not take into account matters which are irrelevant nor leave out of account matters which he must have regard to.[63]The Judge delivered a judgment to which I pay general tribute, carefully directing herself in respect of the underlying powers and the relevant authorities. She directed herself by reference to the overriding objective which was entirely appropriate and took into account all the factors which were identified by HHJ McMullen QC in this Tribunal in the case of Mindimaxnox [2011] All ER (D) 146. As the Court of Appeal in the case of Halstead v Paymentshield Group Holdings Ltd [2012] EWCA Civ 524 ; [2012] IRLR 586 observed the factors identified by HHJ McMullen QC would have force where there were concurrent proceedings, though they were not determinative in the absence of concurrent proceedings. Halstead itself was a case in which concurrent proceedings had been threatened but had not been brought. Accordingly the factors identified by HHJ McMullen have the endorsement of the Court of Appeal in circumstances such as the present, where there are two sets of proceedings.[64]Mr Askey attacks the decision centrally by arguing that the Judge failed to take into account matters which she should have had regard to. In the Notice of Appeal it is said that she failed entirely to give any weight whatsoever to and ignored the Appellant’s personal circumstances - she had been unable to work since 28 November and had no income because of her ill health. She had legal expenses insurance to provide legal representation for the Employment Tribunal proceedings but no ability to fund a High Court claim. He argued orally that the claim was a “purely protective” one: it was brought because the Claimant understandably saw Oldham as manoeuvring to put itself in a position in which it could strike out those claims likely to give her the greatest financial benefit if successful, namely those for disability discrimination in its various forms, and under the Public Interest Disclosure Act .[65]If Oldham succeeded in its appeal to this Tribunal, as it just has, she foresaw that a consequence might be that the Tribunal would refuse relief from sanction and she would be left with a constructive unfair dismissal claim alone. In those circumstances she needed the protection of knowing that she could fall back on a High Court claim which she would not otherwise have intended to pursue at all. Thus, in paragraph 9 of the Grounds of Appeal it is said that the Judge erred by failing entirely to give any weight or take into account the circumstances of the Appellant’s case and the Respondents persistent satellite litigation.[66]The Claimant also argues that the Judge failed to give weight to the fact that Oldham’s application for a stay was based upon its wish to shift the financial burden away from itself and place it entirely upon its insurers, since it had cover for High Court proceedings against it but not those in the Employment Tribunal.[67]Essentially then the factors which it is argued should have been considered but were not were the Claimant’s personal circumstances and lack of finance to fund a claim. The argument as it is put in the skeleton before me urges that the Claimant had issued the proceedings only on a protective basis.[68]I reject this argument. I do so for two reasons. First, the Judge did not limit herself specifically to the matters which had been identified Mindimaxnox . She also considered the Claimant’s contention that the claim had been issued for protective purposes only. She observed at paragraph 34:
“However there is no undertaking that she will not pursue these High Court proceedings if the respondent’s appeal to the EAT fails. It may be that if the Employment Tribunal claim ultimately fails or the statutory cap is applied the claimant will wish to pursue her claim in the High Court.”
[69]The claimed inability to fund a High Court claim is on the face of it inconsistent with having brought one.[70]The Judge’s observations at paragraph 34 were argued by Mr Askey to require too much of the Claimant. In Halstead v Paymentshield [2012] EWCA Civ 524 Pill LJ said at paragraph 28:
“I do not consider that the Appellant should be required, as a condition of proceeding in the Employment Tribunal, to give undertakings as to the way in which any future High Court claim may be conducted. That should not be a condition of seeking a remedy in the Tribunal.”
[71]Those remarks must not be taken out of context. The context there was that there had been an undertaking not to pursue any High Court claim if a stay were lifted; see paragraph 4. The remarks may also relate to that which Sir Mark Waller said at paragraph 34 in which he noted that he had at one time during the hearing felt that the Appellant should be put on terms that he would claim in later High Court proceedings rescission of the contract on which he based his claim before the Employment Tribunal. Accordingly it is likely to be in the context of those arguments, and discussions in that hearing, that the observation was made by Pill LJ at paragraph 28 as it was. Be that as it may, there was the Judge here made no requirement that the Claimant give any undertaking as to how proceedings would be conducted.[72]Second, it was plainly relevant in considering an argument that the claim was purely protective to consider whether there was any material which supported or denied that fact. Since the Claimant herself was relying upon the protective nature of the claim it seems to me entirely open to the Judge in evaluating that submission to note that, despite saying that, there had been no clear undertaking by the Claimant not to pursue the claim if she was able to pursue all the matters before the EAT. This was not to require such an undertaking as a precondition to proceeding: it was to evaluate whether the Claimant’s conduct belied the reason she gave. Accordingly, it was entirely appropriate for the Judge to take the approach she did.[73]The arguments otherwise addressed in respect of the exercise of discretion were that it was wrong to consider that the decision in the Tribunal had the potential to embarrass the High Court if the Tribunal claim were heard first. Mr Askey argued, rightly, that Mindimaxnox was a different case factually from that with which we are concerned here. But essentially the issue is one of judgment and assessment in exercising a discretion: there is no doubt that the claims overlap, even though not entirely coincident, and a real danger is that the findings of fact in one jurisdiction may act as an issue estoppel in the other. Since that was a real risk in this case, the Judge was not in error in considering that factor in coming to the conclusion that she did.[74]Finally I should deal with the argument advanced in the Notice of Appeal and reflected in the overall submissions that the application for a stay was an abuse of process. Reference is made by the Claimant in her written documentation to the principle in Henderson v Henderson (1843) 3 Hare 100 and the decision of the House of Lords in Johnson v Gore Wood & Co [2002] AC 1 . Finality in litigation is an important principle. Here it is suggested that Oldham were seeking to employ the resources of both parties (and exhaust those of one) in litigation which was collateral to and not determinative of the central claims.[75]I can deal with that argument shortly.[76]The Claimant here issued the High Court proceedings. That was her act, not that of Oldham. In doing so she created a situation in which there were two separate sets of proceedings covering much the same factual territory. It was almost inevitable that one or the other sets of proceedings would be stayed. She cannot in my view properly complain that it was an abuse of process for the party against whom the claims were made to initiate proceedings in order to argue that it should be one rather than the other. Accordingly, I do not see here on these particular facts any abuse of process.[77]A second aspect of the decision was that the Judge stayed the Tribunal proceedings pending not only the resolution of the high court claim but also the outcome of the appeal against the decision of Employment Judge Feeney. That appeal has now been determined, and therefore that stay no longer applies. However, the stay applies insofar as the Judge held that the High Court proceedings should in effect go first. Oldham argued that, as I have already indicated, that that should not prevent the Employment Tribunal hearing and determining any application or relief from sanction in relation to the Tribunal proceedings. In my view that is entirely appropriate. The stay will be lifted to the extent necessary for that hearing and all matters ancillary to it to be conducted upon the footing that a hearing will take place in September 2013. It will last until the conclusion of any application for relief from sanction, provided that such an application is promptly made.[78]Once the stay is re-imposed, as it will be after a decision has been made as to relief from sanction, the Claimant should then be in a position to know on an informed basis what her claim before the Employment Tribunal will cover and therefore whether in the light of that she wishes to continue with her High Court claim. It may well be that she will wish to address the Employment Tribunal as to the continuation of any stay if Oldham should indicate any intention in advance of the hearing in September to strike out aspects of her claim on the basis of time, or upon the basis that there is no reasonable prospect of success on the face of the papers in respect of the discrimination claims. That I have to leave to her and to the Tribunal but I mention it for completeness given the history between these parties. Conclusions[79]The appeal of Oldham is allowed. The Claimant’s claims in respect of discrimination on the grounds of disability in its various forms and in respect of detriment on the basis of public interest disclosure are struck out for non-compliance with the order of Judge Feeney of 9 January 2012. However, it is anticipated that there will be an application by her on her behalf for relief from sanction, which will be considered by a Tribunal not chaired by Employment Judge Feeney.[80]The Claimant’s appeal fails except to this extent: that the stay is lifted to allow an application for relief from sanction to be made, provided it is made with reasonable expedition.[81]I express the hope that any applications can be heard and determined so as to enable a hearing of the real issues at stake at the beginning of September 2013.

Cited in 1 later judgment