SUMMARY
PRACTICE AND PROCEDURE
(1) Striking out – test of substantial compliance; (2) stay.
Two appeals arising out of the
same Tribunal proceedings were considered. The first was an appeal by
the Respondent against a judge’s refusal to accept that the Claimant had not
complied with an unless order requiring her to give sufficient particulars of
her claim so that (in effect) the respondent could know what case it had to
prepare to meet. Her finding that there had been substantial compliance was
reversed: she appeared to have adopted the wrong test in treating the
touchstone of “substantial compliance” quantitatively rather than
qualitatively, her reasoning was inconsistent, and the particulars supplied in
purported compliance with the order were plainly inadequate. The claim
therefore stood struck out, but an application for relief from sanction was to
be anticipated, to aid which various observations were made.
By the second appeal the
appellant sought to lift a stay which had been imposed on her ET claim
following her commencement of a High Court claim covering much the same factual
territory. She argued that the discretion to stay had been wrongly exercised by
failing to take into account that the issue of proceedings was “purely
protective”, and that in reality the Claimant could not afford to pursue them.
Her appeal was rejected.
The Appeal Tribunal expressed the desire
that the real issues should be heard and determined, and to that end
anticipated that an application for relief from sanction would follow against
the strike-out. To facilitate that, and enable the Claimant to make an
informed choice whether she wished to persevere with her High Court claim
(which she had said was “protective” only), the Appeal Tribunal lifted the stay
until the conclusion of any application for relief from sanction had been
determined, provided that that application was made within a reasonable time.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
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 30th March 2009”. This was “a letter from Mark Stenson
dated 4 June 2009 which the claimant received on 9th 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 4th 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 18th
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 11th 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 4th June, although this is not specifically referred to
under less favourable treatment. In respect of dates it simply says 9th
September, 16th 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.
