Ochieng v Stantonbury Campus (Practice and Procedure: Striking-out/dismissal) [2016] UKEAT 0304_15_0902

EAT
Ochieng v Stantonbury Campus (Practice and Procedure: Striking-out/dismissal)
[2016] UKEAT 0304_15_0902 · 2016-02-09
[1]This is an appeal against a Judgment at a Preliminary Hearing made by Employment Judge Adamson sitting at Bedford on 31 July 2015, the Judgment and Case Management Order having been sent to the parties on 4 August 2015. This decision was made at a time when a 10 day hearing in September 2015 was anticipated; in the event it did not take place (as I understand it because no Judge was available) but the matters, which were allowed to proceed through to a Full Hearing by Employment Judge Adamson are due to be heard in late February 2016. Consequently when the appeal came before me on 16 December 2015 it was already urgent. Unhappily it was not possible to complete the hearing that day and so it had to be adjourned part heard until the New Year because it was not possible to resume the hearing before the Christmas break. The hearing continued on 4 January 2016, the first available day for the completion of the hearing.[2]Even then the appeal could not be concluded. This was because rather late in that day, and more or less simultaneously, both Ms Gordon-Walker, counsel appearing for the Respondent, and I recognised that in one respect paragraph 4 of the Order made by EJ Adamson appeared inconsistent with his reasoning as expressed in paragraphs 3.1 to 3.6 of his Judgment. Paragraph 62j of the Particulars supplied in the ET1 form in Case Number 3400887/2015 (“the fourth claim”) referred to a decision made about the certification issue relating to the Appellant’s visa application in January 2014 as well as to one made in respect of a similar application in January 2015. As explained below the disability discrimination claim relating to the 2014 certification issue, which had been raised in Claim Number 3401365/2014 (“the third claim”) had been dismissed on withdrawal and it might be thought that might attract cause of action estoppel. Despite submissions addressed to me by Ms Gordon-Walker that the answer must lie in an error of expression and/or drafting by EJ Adamson I felt it inappropriate to make any such assumption without asking the learned Judge for his input pursuant to the Burns/Barke procedure. Consequently I reserved judgment and adjourned for that information to be supplied.[3]EJ Adamson has supplied that information very promptly, answering my query by a letter dated 7 January 2016. I am grateful for his prompt reply and can only apologise that pressure of other work has made it impossible to complete this Judgment until now. In his letter EJ Adamson has made clear that it was not his intention to strike out that allegation. His communication has been sent to the parties.[4]The Appellant has made observations in a letter received on 15 January 2016, which reached me on 18 January 2016. She argues that the fact the 2014 certification issue has not been struck out, although favourable to her, serves to emphasise the error made by EJ Adamson in striking out paragraphs 10-19, 22, 23-25, 27, 32, 34-39, 40-44, 47, 48, 50-59, 62b, 62e, 62i and 62k of the Particulars of complaint in the fourth claim. I understand that Respondent does not wish to make further observations.[5]I have not sought to debate the matter further with parties at an oral hearing because of the urgent need to finalise this Judgment (the substantive hearing is imminent and the time available to prepare for it is dwindling) and because, although, evidentially the 2014 certification issue is a discrete issue, it bears a very distinct family resemblance to the 2015 certification issue. Consequently, it will not involve a great deal of additional work to deal with it and it will not, at least as best as I can estimate, greatly add to the length of the forthcoming hearing. Nor does the fact that the learned Judge has not struck out this matter prevent the question as to whether the allegation has been made in time being raised in respect of it at the forthcoming hearing. Whether, notwithstanding the clarification of his Judgment by EJ Adamson, the 2014 certification issue cannot be relied because of cause of action estoppel, which, as explained below, might be regarded as more or less an absolute bar to its revival in the fourth claim, would be a more difficult question which I think I must leave to the Employment Tribunal hearing the case.[6]On 31 July 2015 EJ Adamson had four separate claims to case manage and in respect of the latest in time, the fourth claim, an application was made to strike it out. The Appellant, the Claimant below, had complained of race and disability discrimination, harassment and victimisation in the relevant ET1 form (see page 175 of the appeal bundle). The Particulars of her complaint comprise some 64 paragraphs (see pages 185 to 190 of the appeal bundle). The application to strike out related to the whole of the claim (see the skeleton argument submitted to EJ Adamson on behalf of the Respondent by Ms Gordon-Walker - pages 23 to 26 of the supplementary appeal bundle). Obviously a great deal of work had gone into the appendices to that skeleton (see pages 27 to 31 of the supplementary appeal bundle) and I mean no disrespect to that industry when I say that at first glance, by which I mean by just looking at the skeleton argument and that part of the Judgment dealing with the strike out, and without a good deal of further reading and cross-referencing, it is not easy to follow exactly what was at issue.[7]But having done that cross-referencing it seems to me the skeleton argument sets out the following propositions in relation to strike out (see page 24):(a) the claim was vexatious because it had the aim of subjecting the Respondent to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to her; paragraph 19 of the Judgment of Lord Bingham LCJ, as he then was, in Attorney General v Barker [2000] 1 FLR 759 was referred to;(b) the “ vast majority ” of the claim repeated earlier complaints;(c) the “ vast majority ” of the claim was founded upon causes of action in relation to which the Employment Tribunal had no jurisdiction because the complaints had been made out of time;(d) although the allegations of a failure to make reasonable adjustments in relation to the renewal of the Appellant’s visa in January 2015 cannot have been made in earlier claims they were: (i) out of time because the limitation period must have started to run on 28 January 2015 - see Kingston upon Hull City Council v Matuszowicz [2009] EWCA Civ 22 , [2009] ICR 1170 , [2009] IRLR 288 ; (ii) misconceived because the alleged PCP and the proposed adjustment were exactly the same so that the argument was circular;(e) every other allegation was out of time because the Appellant cannot rely upon these isolated acts as constituting “conduct extending over a period” pursuant to section 123(3)(a) of the Equality Act 2010 (the skeleton refers to the ERA but that is a typographical error) - see Matuszowicz ;(f) every other allegation amounted to an abuse of process because they all repeat allegations made in a disability discrimination claim which the Appellant had withdrawn and had not been permitted to reinstate and accordingly were an abuse of process and vexatious (see Acrow (Engineers) Ltd v Hathaway [1981] ICR 510 and Mulvaney v London Transport Executive [1980] ICR 351;(g) in any event every other allegation could have been made in the earlier proceedings and Henderson v Henderson [1843] 3 Hare 100 , 67 ER 313 applied to prevent them being relied on now.[8]These points were sufficiently impressive, no doubt as a result of the supporting oral argument of Ms Gordon-Walker, for the Employment Tribunal to accept them and to strike out all of the fourth claim, except the allegations of disability discrimination by failure to make reasonable adjustments made at paragraph 60j and paragraph 62j and such parts of the generality of paragraph 61, 63 and 64 as would apply to that allegation, as an abuse of process and vexatious. EJ Adamson gave as his reasons the following:(a) the matters complained of were largely contained within the previous three complaints (see paragraph 3.2 of his Judgment);(b) in so far as they were not repetitive and they were new “ they would appear to be hopelessly out of time ” (see also paragraph 3.2 of the Judgment);(c) “ in any event the Claimant had knowledge of the matters ” (see also paragraph 3.2 of the Judgment);(d) the disability discrimination complaints had been contained in the disability discrimination claim which had been dismissed on withdrawal and a previous application to reinstate had been refused; consequently the claim had come to an end pursuant to Rule 51 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”) (see also paragraph 3.2 of the Judgment);(e) in addition to being an abuse of process and vexatious, those disability discrimination complaints gave rise to “ a cause of action estoppel ” and EJ Adamson referred to Henderson v Henderson [1843] 3 Hare 100 as having given him guidance in relation to abuse of process (see paragraph 3.3 of the Judgment);(f) he also accepted, whilst drawing no conclusion as to whether such was the Appellant’s intention, that the effect of the fourth claim would be “ to subject [the Respondent] to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the Claimant ” and involved “ an abuse of the process of [the Tribunal’s] meaning by the use of [the Tribunal’s] process for a purpose or in a way which is significantly different from the ordinary proper use of [the Tribunal’s] process ” with the result that the claim was vexatious as defined by Lord Bingham LCJ at paragraph 19 of his Judgment in Attorney General v Barker (see paragraph 3.4 of the Judgment);(g) to allow the fourth claim to continue would result, “ notwithstanding the overlap ” with existing claims, in further preparation work by the Respondent in terms of witness statements for the forthcoming hearing (see paragraph 3.5 of the Judgment).[9]The reference by EJ Adamson to “ cause of action estoppel ” (see above at paragraph 7e) could be taken to be a reference to the Judgment of the Court of Appeal in Staffordshire County Council v Barber [1996] ICR 379, although it is not referred to in his Judgment and it does not seem to have been amongst the authorities cited to him. Barber decided that where an action has been dismissed on withdrawal, that is an absolute bar to the resurrection of the withdrawn claim. The disability discrimination aspect of the third claim had been dismissed on withdrawal (see the Judgment of Employment Judge Bloom on 18 December 2014 at pages 210 to 215). The failure of the subsequent application for that claim to reinstated (see pages 1 and 2 of the supplementary bundle) is probably actually irrelevant and paragraph 3 of the decision given by Employment Judge Burn on 30 April 2015, insofar as it appears to be based on consideration as to whether it might have been in the interests of justice to reinstate the proceedings, does not appear to have considered the extent to which resurrecting the claim faced the obstacle of cause of action estoppel.[10]On the other hand, at the time of EJ Burn’s Judgment (and, for that matter, at the time of EJ Adamson’s Judgment) there had recently been a re-statement of the principles relating to cause of action estoppel and abuse of process. For a number of years after Lord Bingham’s speech in Johnson v Gore Wood [2000] UKHL 65 , [2002] 2 AC 1 (see in particular paragraph 31) it had been thought that there was a clear distinction to be made between cause of action estoppel, properly so called, and the kind of abuse of process exemplified by Henderson v Henderson , namely that the former represented an absolute bar to any resurrection of proceedings whereas the latter, whilst amounting to a formidable obstacle to later proceedings based on causes of action, which should have been brought forward in earlier proceedings, might not be an absolute bar in certain, probably unusual, circumstances. This proposition was argued and rejected by the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] 1 AC 160 in a dense and learned analysis headed “ Res judicata: general principles ” undertaken by Lord Sumption at paragraphs 17 to 26. The following principles emerge:(i) the argument derived from paragraph 31 of Lord Bingham’s speech in Johnson v Gore Wood that Henderson v Henderson is not about res judicata estoppel at all but about abuse of process , to which different considerations apply, is misconceived (see paragraphs 23 to 25);(ii) res judicata and abuse of process are “ juridically very different ” because the former is a matter of substantive law and the latter is a matter of procedure but they share “ the common underlying purpose of limiting abusive and duplicative litigation ” (see paragraph 25);(iii) the bar to re-litigation or further litigation will be absolute when an attempt is made to raise points in subsequent proceedings, “ which had to be and were decided [in the earlier proceedings] in order to establish the existence or non-existence of a cause of action ”, approving, as representing correct legal principle, the speech of Lord Keith in Arnold v National Westminster Bank [1991] 2 AC 93 at 104D-E and 105B (see paragraphs 20, 21 and 22 of Lord Sumptions’ Judgment);(iv) re-litigation or further litigation will be also be barred when an attempt is made to raise points in subsequent proceedings which are “ essential to the existence or non-existence of a cause of action ” even where those points were not decided in earlier proceedings based on the same cause of action because they had not been raised then if “ they could with reasonable diligence and should in all the circumstances have been raised ” (see paragraph 22);(v) what has been known as issue estoppel prevents “ the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised unsuccessfully ” but with an exception of “ special circumstances where this would cause injustice ”; but where the point “ was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised ” (see paragraph 22).[11]The extent to which any of this was under consideration either by EJ Burn or EJ Adamson must be doubtful. EJ Adamson refers to Henderson v Henderson but does not mention either Johnson v Gore Wood or Virgin Atlantic and EJ Burn simply refers to the “interests of justice”, a phrase which is certainly apposite to issues of estoppel and abuse of process but which, in his case, may equally have been a reference to the statutory parameter for reconsideration. I certainly cannot start attributing blame for this because it is only due to the case going part heard and thus presenting me with the opportunity to do some further research that I came across the Virgin Atlantic case. Once we had the principles clear, however, the oral argument on this appeal concentrated upon two matters: firstly, whether the usual consequences of the action having been dismissed on withdrawal (i.e. an absolute bar to the resurrection of those disability discrimination claims) could be avoided, and secondly, to what extent should the allegations being made in the fourth claim have been made at an earlier stage.[12]At the strike out hearing the Appellant was represented by her husband Mr Onyango, who also appeared on her behalf on this appeal. At the oral hearing before EJ Adamson, Mr Onyango had made an application to amend the claim by making it clear that what was alleged was continuing disability discrimination. Paragraph 3.7 rejected that in these terms:
“3.7. The types of complaint in respect of the matters described in the application to amend are unclear with further details appearing to be largely a description of continuing events after the fourth claim was presented. I considered the normal time limit so [sic] relevant, but also the balance of hardship between the parties. If the application to amend is allowed, there will inevitably need to be further witness statements and disclosure and other matters which [will] involve cost and delay. That is not to say that the Claimant does not have the entitlement to bring proceedings in respect of those matters, she clearly does, but she can do so by presenting if she considers it appropriate a further claim.”
No such further claim has been submitted.[13]EJ Adamson was thus exercising his powers pursuant to Rule 37 of the ET Rules . Of the grounds stipulated there it seems most likely that Employment Judge Adamson’s strike out was based on Rule 37(1)(a) “ … scandalous or vexatious or has no reasonable prospect of success ” and, perhaps, Rule 37(1)(b) “ … the manner in which the proceedings have been conducted … has been scandalous, unreasonable or vexatious ”, might also have been in play but EJ Adamson says nothing in the Judgment to indicate the strike out was on that basis and so I have proceeded on the basis that it was confined to the former.[14]I am bound to say that, although it is clear that Ms Gordon-Walker succeeded in persuading EJ Adamson to accept a large part of her submissions I find the reasoning underpinning some of the decision rather difficult to understand. If the matter were not so urgent one option might have been to ask, pursuant to the Burns/Barke procedure, a series of further questions of the Employment Judge about the generality of his Reasons. Alternatively it occurred to me during the course of argument that a possible disposal of this appeal would be to say that the Judgment is inadequately reasoned but, once again, that is scarcely a practical disposal of the matter in the urgent circumstances and in any event it seems to me that the following points are clear from the terms of paragraphs 3.2, 3.3 and 3.4 of the Reasons:(a) most of the fourth claim has been struck out either because it amounted to an abuse of process or because it gives rise to cause of action estoppel or both;(b) some of it might have been struck out because it is otiose and repetitive, simply being a repetition of what appears in earlier claims, and, therefore, an abuse of process; of course, that does not prevent the Appellant from relying on the narrative set out in the earlier claims and from including those matters in a witness statement (or further witness statements) and in argument;(c) EJ Adamson plainly regarded some of the allegations as being “hopelessly” out of time.[15]As to the latter, whether a claim or part of it is in time or out of time is a discrete issue that goes to jurisdiction and I understand EJ Adamson’s Judgment at paragraph 3.7 to be a refusal of the proposed amendment and not a definitive decision about jurisdiction. Indeed, even if part of his reasoning on striking out may have been that the alleged discrimination was out of time, I would regard a strike out on that basis as seldom an appropriate decision to make; to my mind it would require some factual investigation and there can be none on a strike out. But there is no appeal against the refusal of the proposed amendment and, therefore, I am not being asked to decide anything about that. Nevertheless, I should say this about the issue of what the Appellant refers to as a “continuing act”. Section 123(3)(a) of the Equality Act refers to conduct extending over a period being “ treated as done at the end of the period ” but I do not regard EJ Adamson’s Reasons as having given any definitive decision as to that. Whether or not that has any significance for the future conduct of the case I will deal with in the section of this Judgment discussing the competing submissions and my conclusions from them, to which I now turn. Discussion and Conclusions[16]None of what follows will make sense unless I start by both analysing the Particulars of the fourth claim and also comparing and contrasting those with the Particulars of the third claim. I will look first at the latter, which are at pages 113 to 126 of the bundle. These, of course, have not been struck out although that part containing the disability discrimination claim has been dismissed on withdrawal. Paragraphs 6 (the Particulars start at paragraph 6, which I take to be a typographical or word processing anomaly) to 54 - which contain a historical narrative as well as allegations of sex and race discrimination, victimisation and harassment - are to be considered at the forthcoming hearing.[17]It seems to me, however, that paragraphs 54 and 55 raised allegations of disability discrimination. Paragraph 55 sets out the facts relating to certification renewal in January 2014 and asserts that this amounts to “ discrimination on account of my continuing depression-driven disability as a result of stress and anxiety disorder ”. Paragraph 56 alleges that this also constituted victimisation and repeats the allegation of discrimination in these terms:
“… I consider this as discrimination on account of my ongoing disability, and/or sex and/or race, national and/or ethnic origin, physical characteristics contrary to the [Equality Act 2010]. Comparator is hypothetical.”
To my mind it is very difficult to see this as an allegation of a breach of the duty to make adjustments pursuant to section 20 of the Equality Act ; the nature of the alleged “Prohibited Conduct” (supporting only a 12-month renewal as opposed to three-year renewal), as well as the reference to a comparator strongly suggest either direct discrimination or discrimination arising from disability (i.e. sections 13 and 15 of the Equality Act ).[18]Whatever the nature of this allegation, I have no doubt it was dismissed on withdrawal as being part of the disability discrimination component of the third claim. That it has been reinstated by paragraph 62j of the fourth claim and not struck out by EJ Adamson has already been dealt with above. One possible explanation for not striking it out might be EJ Adamson recognised some possibility of a linkage between the 2014 certification issue and the 2015 certification issue so as to render them “ conduct extending over a period ”. If so that remains to be explored at the forthcoming hearing and it is better that I say nothing more about it.[19]What other disability discrimination component of the third claim was there? In my judgment paragraphs 57 to 61 would have to be read very broadly before I could distil a disability discrimination claim from them. In any event paragraphs 62, 63 and 64 seem to distil race discrimination, harassment and victimisation from the previous narrative rather than any further allegation of disability discrimination. Accordingly, it seems to me that paragraphs 57 to 61 can be discounted as being a component of a disability discrimination claim.[20]Paragraph 66 seeks to define “ provisions, criteria or practices ”. It seems to do so however by reference to “ substantial disadvantage and detriment in comparison with persons who are of British Origin ” and the Particulars given in the subparagraphs are to my mind clearly directed towards race discrimination. This suggests to me an allegation of indirect race discrimination contrary to section 19 of the Equality Act .[21]Paragraph 67 is, however, in broader terms. It reads:
“It was the duty of the Campus to take such steps as it was and is reasonable in all circumstances for it to have taken in order to prevent these matters from placing me at a disadvantage. The Campus did not take any steps and even appeared to encourage the negative comments and behaviour through its chief executive and has accordingly discriminated against me directly and indirectly on account of my sex, race, national origin, ethnic origin, colour and/or my physical characteristics contrary to the Equality Act 2010.”
Ms Gordon-Walker submitted that this was to be understood as a broad allegation comprising all kinds of discrimination, including disability discrimination. The submission is based on the use of the phrase “ my physical characteristics ”, rubric which had been used in very similar terms at paragraph 56 (see above) but in that context had been coupled with the words “ my … ongoing disability ”. In my judgment this is a very ambitious reading of paragraph 67. On balance, it seems to me that the only allegation of disability discrimination which can reasonably be said to have been raised by the third claim related to the certification issue in January 2014 raised by paragraphs 55 and 56. It should be noted, however, that the third claim illustrates an awareness on the part of the Appellant of the concept of disability discrimination and, in turn, the third claim needs to be set in the context of the first and second claims, which I need not go into in detail. Both overlap with the third claim and set out a narrative and a series of complaints ranging over the whole history of the relationship between the Appellant and the Respondent from 2012 onwards.[22]The fourth claim also overlaps with the other three claims because it repeats a good deal of the historical narrative, which is also set out in them. It is to be found at pages 185 to 190 of the appeal bundle in a single spaced small font format. There are the following references to “ reasonable adjustments ”:(i) at paragraph 19, in the context of events in late 2012, it is said “ No one considered or thought of meeting with me to review if any reasonable adjustments could be made to alleviate my suffering ”;(ii) at paragraph 27, in the context of events in September 2013, “ Despite having been diagnosed with anxiety disorder and depression, the campus failed to consider if I was suffering a disability and if it was necessary to make reasonable adjustments to enable me to resume work ”;(iii) at paragraph 28, in the context of the Appellant no longer being paid whilst absent through illness with effect from 1 October 2013, “ Mrs Carole Wolfe, stopped my salary without any explanation and without seeking to establish if I was suffering a disability and if any reasonable adjustments could be made to my working conditions to enable me [to] resume work ”;(iv) at paragraphs 29 to 32 there are a series of allegations, in the context of events during 2013, which, albeit with a very elastic interpretation as to what amounts to narrative leading to the reasonable adjustment allegation at paragraph 34 (see below) and what is, of itself, an allegation of discrimination, might be open to the interpretation that it is a separate allegation of failure to make a reasonable adjustment;(v) at paragraph 34, apparently in the context of events in 2013, “ Notwithstanding, the Campus is fully aware of my condition as I have kept Campus informed of my health condition on a regular basis through doctors sick notes and letters. I believe that I have been unlawfully discriminated against by the Campus because of its ongoing failure to make and/or propose reasonable adjustments to accommodate my condition to enable me to attend work and meet the responsibilities of my job ”;(vi) at paragraph 35, apparently in the same context, “ All Campus has continued to ask for is a meeting yet I have availed myself during the grievance process and sent numerous letters asking to be provided with a conducive working environment. Campus has not provided any proposal that could resolve the issues causing me stress, anxiety and depression. I do not believe that additional meetings could avail better avenues of Campus to resolve issues causing me stress and/or enable Campus to propose any reasonable adjustment as all these could have been done before the grievance or as part of the grievance resolution. ” I accept that each of these is, in terms, an allegation of disability discrimination contrary to section 20 of the Equality Act but in my view it is worth noting that none of these allegations appear to postdate the third claim, which was received at the Employment Tribunal on 31 October 2014 (see page 99 of the appeal bundle).[23]Also there are other allegations of disability discrimination in the Particulars to the fourth claim. These seem to me also relate to the issues of certificate renewal and reasonable adjustments. They are as follows:(i) at paragraph 51 there is an allegation that “ … the above acts … constitute a continuing course of disability discrimination because of my inability to resume work due to anxiety disorder and depression” ; the acts referred to relate to the Respondent’s alleged conduct in relation to lifting a stay on the proceedings in September 2014 and some of part of it seems to relate sponsorship renewal;(ii) paragraph 60 overlaps in some of its sub-paragraphs with paragraph 66 of the third claim, but unlike paragraph 66 its preamble clearly raises disability discrimination; it reads “ The campus has applied the following provisions, criteria and practices that have placed me at a substantial disadvantage as a disabled person suffering from stress, anxiety disorder and depression ”; with the exception of the certification issue arising in January 2015, in so far as it introduces factual allegations not mentioned in paragraph 66 of the third claim, it seems to me clear that all the other matters must have occurred before or been current at the time of the third claim. As mentioned above I wonder whether the certificate renewal issue in January 2015 falls to be characterised as a reasonable adjustments issue but given that it has not been struck out, that is not a matter for me to consider on this appeal and I must leave it for further debate at the forthcoming hearing.[24]The Appellant submits (see paragraph 1 of the grounds of appeal in the Notice of Appeal at page 16 of the main appeal bundle) that paragraphs 1, 2, 3, 4, 5 and 9 of the Particulars to the fourth claim should not have been struck out because they are important to the background relating to her claims of race discrimination, harassment and victimisation. The Respondent’s response was that paragraphs 1, 2, 3, 4, 5 and 9 of the Particulars of the fourth claim essentially repeat Particulars in the third claim and that EJ Adamson was correct to strike them out, essentially because they are unnecessary repetition. I accept Ms Gordon-Walker’s submissions. The Appellant is not deprived of relying on this narrative by EJ Adamson striking out these paragraphs. This factual matrix is largely, if not entirely, covered by the pleadings in the other claims and, in any event, this material can be incorporated into the Appellant’s witness statement. The Appeal cannot succeed on paragraph 1.[25]The Appellant submits that paragraphs 6, 7, 8, 10 to 19, 22 to 27, 32, 34 to 39 and 60 to 64 of the Particulars to the fourth claim should not be struck out because they provide relevant background and relate to the argument that there was “a continuing act”. There have been several similar but not identical iterations of the list of paragraphs, which the Appellant alleges should not have been struck. I think the differences between them are not of any significance and I do not intend to take up time in this Judgment attempting to reconcile them, an exercise, which I think would be of no benefit.[26]The Appellant also submitted that paragraphs 40 to 44, 47, 48, 50 to 59, 62b, 62e, 62i and 62k are all “in time” and should not have been struck out. That submission depends on the correctness of Mr Onyango’s analysis of all of these matters as being essentially one long and continuing act. In response Ms Gordon-Walker submitted that paragraphs 6, 7, 8, 10 to 19, 22 to 27, 32, 34 to 39 and 60 to 64 of the Particulars of the fourth claim either repeat complaints already made or appear to relate to no cause of action whatsoever or attempt to resurrect the withdrawn disability discrimination claim. Likewise, she submitted that paragraphs 40 to 44, 47, 48, 50 to 59, 62b, 62e, 62i and 62k of the Particulars of the fourth claim either repeat complaints already made or attempt to resurrect the withdrawn disability discrimination claim or make new allegations that are obviously out of time. These submissions are helpfully summarised in the appendix to the Respondent’s skeleton argument. The Respondent also submits that there can be no question of a continuing act in relation to a reasonable adjustments claim.[27]If, and insofar as, EJ Adamson concluded that the fourth claim could not succeed he did not say so in terms in his Judgment. The Appellant placed reliance in this context on Qdos Consulting Ltd and others v Swanson UKEAT/0495/11/RN, where it was said at paragraph 49 that strike outs of this kind should only occur “ … in the most obvious and plain cases in which there is no factual dispute and in which the applicant can clearly cross the high threshold of showing that there are no reasonable prospects of success. ” In the instant case, submitted Mr Onyango, there were factual disputes at every turn and no part of the fourth claim should have been struck out.[28]By paragraph 2 of the grounds in the Notice of Appeal the Appellant does not accept that any of the pleaded case was out of time. The failure to make a reasonable adjustment is a continuing omission and at the date of the commencement of proceedings that omission was still continuing. She relies upon the decision of the Court of Appeal in Matuszowicz in support of her proposition that this was continuing as at 11 May 2015, which was the date she said the Respondent had first refused to consider reasonable adjustment disability discrimination and she could not be criticised for not having pleaded such discrimination at any time earlier than the date of that refusal.[29]Paragraph 3 of the grounds in the Notice of Appeal disputes the proposition that there was a single incident on 28 January 2015 and asserts that, notwithstanding the withdrawal of the previous disability discrimination claim, all acts before 18 December 2014 can be considered because there has never been any adjudication about reasonable adjustments. At ground 5 the Appellant relies upon the Judgment of this tribunal in Mulvaney v London Transport Executive and submits the case is authority for the proposition that if there is a good reason for withdrawing a first application then a second application can go ahead. The reason for withdrawal was cost. Withdrawal had been suggested by Employment Judge Bloom but he failed to explain to the Appellant that a failure to reserve the right to reinstate would amount to a bar to any attempt to revive the claim. In his oral submissions at the resumed hearing of the appeal and in his written submissions relating to the letter from EJ Adamson, Mr Onyango relied upon what was said by a division of this Tribunal presided over by His Honour Judge Richardson at paragraph 37 of the Judgment in British Association for Shooting and Conservation v Cokayne [2008] ICR 185 . But, as Ms Gordon-Walker pointed out that was not said about Rules 51 and 52 of the ET Rules for the very obvious reason that wording came into force over five years later and was markedly different to that being discussed as a trap for the unwary by HHJ Richardson. The Rule current at the time of EJ Bloom’s dismissal on withdrawal reads as follows:
“ 51. End of claim Where a claimant informs the Tribunal, either in writing or in the course of the hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order. 52. Dismissal following withdrawal Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raging the same, or substantially the same, complain) unless - (a) the claimant has expressed the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or (b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.”
[30]Ms Gordon-Walker submitted that this more recent form of the Rules not only gives statutory effect to the Court of Appeal’s decision in Barber but also specifically eliminates any previous lack of clarity as to the consequences of withdrawal and establishes a form of what might be described in the civil jurisdiction as “discontinuance” in the Employment Tribunal. Given that the consequences of withdrawal and the means of avoiding then are now clear beyond doubt, no criticism can be made of EJ Bloom for not adopting what had been suggested by HHJ Richardson’s division of this Tribunal in paragraph 37 of the Judgment in Cokayne .[31]Mr Onyango’s answer was that the Appellant had been misled by EJ Bloom, who had sought to persuade her that it was in her interests to withdraw the claim without explaining what the consequences of that might be. Thus, she had been oblivious to the fact that by doing so she would not be able to reinstate it. The most extreme form of Mr Onyango’s submissions on this point suggested that it was incumbent upon EJ Bloom to explain the significance of Rule 52 and point out to the Appellant that she had the right to reserve her position.[32]I accept that, irrespective of the relatively recent changes to the Rules, it still might be best practice for Employment Judges to remind parties who seek to withdraw claims that the consequence will be that the claims cannot be revived. Even so, given the clear terms of Rule 52, which is there for all to read, I cannot accept that, if Mr Onyango’s account of what happened is correct, EJ Bloom made any error of law. In any event, and much more importantly, this is not an appeal against the Judgment of EJ Bloom and it seems to me that the time is long past when that Judgment could be subject to challenge, least of all by EJ Adamson. He was entitled and, indeed, obliged, to accept that the dismissal on withdrawal operated as an absolute bar to the reinstatement of the claim dismissed on withdrawal. This is what he obviously did at paragraph 3.2 of his Reasons and I have heard nothing in this appeal that would come anywhere near justifying an exception to the general rule. Accordingly, I reject the contention raised by the Appellant that EJ Adamson was wrong to have relied on the dismissal on withdrawal as amounting to a bar to the resurrection of the discontinued disability discrimination proceedings.[33]The next question is what does that exclude? Putting it another way, what did the disability discrimination raised by the third claim comprise? Paragraph of 1 of the Preliminary Hearing Judgment of EJ Bloom made on 18 December 2014 gives no clue because it simply reads that the “claims of disability discrimination are dismissed on withdrawal” (see page 210 of the appeal bundle).[34]Most obviously it would exclude the certification issue arising in January 2014. But that has not been struck out by EJ Adamson and, repeating what I have already said above by way of emphasis, it is not at issue on this appeal. Nor do I accept the submission of Ms Gordon-Walker that paragraph 67 of the third claim raised the whole gamut of other possible disability discrimination claims. In short it does not seem to me that EJ Adamson’s basis for striking out of the vast majority of the Particulars of the fourth claim was that the disability discrimination claim had been dismissed on withdrawal by EJ Bloom. But it plainly relied also on abuse of process and Henderson v Henderson , now identified by Lord Sumption as essentially the same species is cause of action estoppel. Although he does not articulate it in any detail, it seems to me that EJ Adamson took the view to allow matters to be relied upon as disability discrimination in the fourth claim when they had occurred before the third claim was filed but had not been pleaded in that claim did amount to an abuse of process and for that reason he struck them out of the fourth claim.[35]I can see no error in him having done so, always providing that recognition at the forthcoming hearing is given to the following factors. Firstly, although these matters cannot be relied upon, of themselves, as giving rise to breaches of sections 13, 15 or 20 of the Equality Act that does not preclude them from being considered evidentially. They may be background to the allegations of disability discrimination, which EJ Adamson has not struck out of the fourth claim. The touchstone of all admissibility of evidence is, of course, relevance and the Appellant may still have to justify the relevance of some of these matters. Providing that can be done I see no reason why these matters do not form the background to an enquiry into why actions were taken in January 2014 and January 2015. Secondly, insofar as the allegations that have not been struck out may need to be considered in terms of continuous discriminatory conduct, it seems to me and not only open to the Employment Tribunal to look into these matters but more or less essential towards deciding whether there has been a continuous discriminatory policy extending over a period of time.[36]I am also troubled by EJ Adamson’s apparent exclusion from consideration of the stance taken by the Respondent in its approach to the grievance raised by the Appellant about disability discrimination and the refusal to consider it at the grievance meeting on 11 May 2015. I do not see how that was any part of the third claim and, since it arose after the third claim was filed, in my judgment it cannot have been an abuse of process not have raised it in the earlier proceedings.[37]I think the approach taken by EJ Adamson can be rationalised as being that he must have thought that paragraphs 53 to 58 of the Particulars did not, in themselves, raise any allegation of disability discrimination. If so I would agree with that. But EJ Adamson was not prepared to allow any further amendment. In fact the narrative in the proposed amended Particulars (see pages 10 to 15 of the supplementary appeal bundle) includes facts or allegations about the subsequent internal appeal process but it provides little further focus as to whether this new factual material might amount to breaches of sections 13 and 15 and 20 of the Equality Act (although it clearly asserted victimisation contrary to section 27 of the Equality Act ). I entirely understand EJ Adamson’s anxiety that the imminent hearing in September 2015 might have to be vacated if the amendment were to be allowed and, as I have already made clear, his refusal of the amendment is not the subject of this appeal. Equally it is true that the Appellant could always have started further proceedings. She appears to have chosen not to do so but there may be many reasons for this. Nevertheless I would have thought that evidence relating to these matters might well be admissible, not least on issues as to whether the surviving allegations of disability discrimination were part of a continuing extending over a period. In the result, although I will dismiss the appeal I do so on the basis that it will be open to argument at the forthcoming hearing that much of the factual material set out in the struck out parts of the fourth claim may well still have relevance to the issues, which remain live.