Employment Tribunals

E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 4105711/2016 Held in Aberdeen on 14 November 2018 Employment Judge: Mr J Hendry (sitting alone) 10 A Claimant In Person: 15 20 B Respondents Represented by: Ms.A.Stobbart– Counsel 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Tribunal having considered the respondents’ application to strike out the claims 30 refuses same for the reasons given. REASONS 35 1. In December 2016 the claimant, A raised proceedings against her former employers, the respondents seeking a finding that she had been unfairly S/4105711/16 Page 2 dismissed from her post as a Speciality Doctor in Elderly Rehabilitation and that she had also been the victim of sex and religious discrimination. The claimant had been dismissed from her position on the 17 August 2016. Initially the case did not proceed quickly as there were internal appeals to conclude. 5 2. The claims were opposed with the respondents arguing that the dismissal was fair and that no discrimination of any description had occurred. The respondents were represented by Mr Gunn, a solicitor, who, at the time of the claimant’s dismissal, was advising them in relation to the disciplinary 10 action taken against her. 3. The claimant was initially represented by solicitors when the ET1 was lodged although she later dismissed them and, apart from a period where she had the assistance of a Paralegal, Ms Paige, has represented herself. 15 Just prior to the hearing the claimant advised the Tribunal that she had instructed solicitors to act for her in these proceedings but they were unable at short notice to appear when the Tribunal refused a request for postponement. She subsequently indicated that she intended to continue to represent herself. 20 4. The claimant has argued that her original solicitors had failed to set down in her ET1 all the facts on which she relied. From the outset the respondents have sought clarification of various aspects of the claims. The management of the case has been made difficult as the claimant regards her former 25 employers and their solicitor with suspicion and distrust. The claimant’s jaundiced view of the respondents has led to her making numerous allegations against the respondents’ staff and their solicitor in correspondence. The consequences of such an attitude has also been reflected in the unusually high number of requests made by the claimant for 30 documents and other information from the respondents and her divergence from issues properly within the jurisdiction of the Tribunal. This does not in itself form part of the reasons advanced for Strike Out. It is the context in S/4105711/16 Page 3 which the claimant’s prolific correspondence both with the respondents and the Tribunal has taken place. 5. The Strike Out Application hearing took place on the 14 November 2018. The respondents sought strike out of the claims on the basis that the 5 claimant’s behaviour has been scandalous, vexatious and unreasonable. 6. The respondents helpfully lodged an Inventory of Documents containing copies of correspondence on which they relied. I also had regard to the Tribunal file and to the Witness Statement from ‘SS’ a potential witness. 10 Following a discussion with parties it was agreed that Mr Gunn would give evidence about three matters. The first was the circumstances surrounding the taking of the Witness Statement by him, secondly his understanding of the witnesses’ attitude and reaction to giving evidence and finally the impact the terms of the claimant’s correspondence has had on him. 15 7. I have anonymised names. Issues 8. The principal issue for the Tribunal was whether the claims should be 20 struck out in terms of Rule 37 given the claimant’s actings. Findings in Fact Background 25 9. The Claimant is Indian. She is a qualified Doctor who worked for the respondents for over eight years. She is a Hindu and takes her faith seriously. She asserts that she is required to act and behave modestly and that her relationship with her husband is sacrosanct and private. 30 10. The Claimant had a sexual relationship with a senior male colleague (Dr X). She states that she regarded him as a father figure. The relationship S/4105711/16 Page 4 appears to have had abusive and controlling aspects. She regards herself as being married to him in the eyes of her religion and has stated repeatedly that she had to treat him ‘as a God’ and obey his every wishes. She has during these proceedings adopted his name. She came to suspect that he was having a relationship with another more junior colleague ‘SS’ although 5 both denied this. Dr X initially denied that he had a relationship with the claimant. The claimant asserts that the respondents refused to believe she had such a relationship and referred her to a Psychiatrist in relation to a possible delusional relationship. The claimant at some point produced emails from Dr X to her which demonstrated that a relationship had existed. 10 Dr X later admitted the relationship but denied one with SS. 11. The Claimant was dismissed purportedly for disciplinary reasons including an alleged assault on ‘SS’. Criminal proceedings were taken and the claimant found not guilty after trial. One of the background issues in the 15 disciplinary process was that the claimant asserted that she should be regarded as the wife of Dr X through the practices of her religion. Conduct of Tribunal Proceedings 12. The first Preliminary hearing took place by telephone conference call on the 20 27 July 2017. The claimant was assisted by Ms Paige, a Paralegal, who was knowledgeable in employment law. The claimant had lodged a detailed Agenda document which indicated that she was making claims for Direct and Indirect Discrimination on the grounds of Religious Belief (including harassment) and Direct and Indirect Sex Discrimination (including 25 harassment). The claimant made reference to calling thirteen witnesses. This figure has steadily escalated over the ensuing months. 13. A Note of the hearing was prepared and issued on the 31 July. It was recorded by the Tribunal that the background was sensitive and personal 30 to the claimant and there was discussion about a Restricted Reporting Order being appropriate. No order was made at that stage. The claimant S/4105711/16 Page 5 was asked to consider the List of Issues prepared by the respondents, disclosure of information was discussed and the claimant was given 21 days to produce Better and Further Particulars of her claim. 14. On 18 September 2017 the claimant emailed SS: “I am the legal 5 representative investigating this case and the court will be investigating you in the court in Public. The following documents must be submitted by 9am on 19th September 2017 to my email address … 9. Where were you based since 2014. where is your office which had been given to you. 10 10. Did you continue to stay in my Dr X’s research office on the first floor in the Aberdeen Royal Infirmary where you have sex with him almost daily both in the office and…. ………. 15. Does the SENATOR team members know you had sex …. during all 15 the …. meetings and in Aberdeen Royal Infirmary. ………. 31. STATEMENT From You Regarding your evidence on 3rd May 2017 in NHS Grampian process where you said I had a relationship with my man …. is DIRTY ILLICIT and you continued to scream and shout saying that 20 my Dr S has nothing to do with me. WHAT DO YOU MEAN BY ILLICIT AND DIRTY describe in details of that what do you mean by that. YOU HAVE BULLIED, HARASSED, ABUSED, THREATENED,STALKED, ASSAULTED ME AND MADE DEFAMATORY REMARKS …...’’ 25 15. On the 25 September 2017 the claimant emailed SS, Dr X and others: ‘‘This is my REMINDER 364. I had written to you last year in September 2017 and you still did not send 30 me any information and you continuing to have sex with my husband Dr X ……. in the offices of NHS Grampian and in various hotels around the world All that is the Public money, the money for your salary, stipend, hotel rooms, your food, your travel, your sleeping in various hotels with various men around UK and outside of UK, the millions of pounds spent on 35 Criminal court. This is not your inherited family property, it is taxpayers money. Did you take permission from Taxpayers before you used them, you are looting Public money in the name of Research and misusing the funds. Do REPLY ASAP. Do you understand or not? Normally shameless people and a fraudster like you should keep their head down and mouth 40 shut not shout and scream in Public, it will only cause harm to you as you will be exposing yourself in Public of all your crimes that you had committed since 2014. You are definitely not clever and you are totally dumb and lack insight”. 45 S/4105711/16 Page 6 16. A second Preliminary Hearing took place before Judge Gall on 18 October 2018. The hearing was attended by the claimant and Mr Gunn. Ms Paige took part by telephone. Mr Gunn raised the issue of time bar. The disclosure of documents and witnesses were discussed. Mr Gunn raised the terms of the claimant’s email to SS. Following the hearing Judge Gall 5 issued a Note. He recorded (at paragraph 14) that the pleadings were the ‘touchstone’ in assessing which witnesses were relevant. At paragraphs 21 and 22 he raised with the claimant her approach to the witness and the language she had used which he described as being ‘not appropriate’. He went on to explain the process of asking a witness to attend and obtaining 10 an order if they would not do so voluntarily. He noted that the approach had been made by her in ‘‘very emotive language’’. In response to this matter being discussed at the hearing Ms Paige agreed to discuss any correspondence with the claimant before it was sent. 15 17. On the 1 November 2017 the claimant wrote to Judge Gall saying that she was disappointed that he had not had time to read the entire file and that this, she alleged, had put her at a disadvantage. She believed he had formed a view about some matters. She made reference to an audio recording and emails which she claimed would disclose: ‘‘the sexual and 20 abusive nature and inappropriate language used against me by this student, Daniel Gunn and all the management in NHS Grampian who are listed on the witness list…’’ 18. On the 1 November 2017 the claimant wrote to Mr Gunn asking him to 25 confirm that he had read an email at the disciplinary appeal which contained explicit sexual content relating to her relationship with Dr X, which the claimant found distressing, and whether he had been instructed to do this. 19. On the 13 February 2018 (R p1,2) the claimant emailed Mr Gunn (copied 30 to the Employment Tribunal): “The President Shona Simon did not react at all until now when I had been telling the court since more than a year about attempted manslaughter of the 44 patients, killing of patients by Dr S/4105711/16 Page 7 C, Dr CB and JN, forgery and patient abuse by AM, abuse by this student SS towards me and this student having sex in the offices of Aberdeen Royal Infirmary but Shona Simon tried to cover up everything including covering up of Judge Gall…’ The claimant continued that the President failed to take any action and that it was ‘‘very clear that Daniel Gunn has a family member 5 who is senior in the Legal profession and people are trying hard to cover up his crimes including sexual harassment. Is there no Code of Conduct in the employment law for the lawyers who are engaged in crimes and sexual harassment when the case is the court and do the Judges not have any responsibility to deal with such criminals and sexual harassers’’. 10 20. The claimant emailed Mr Gunn on the 11 September 2018 (R p8): “You all had repeatedly sexually harassed me, humiliated intimated Bullied threatened and forced me to tell you all the dates of loosing Virginity what does it mean to loose a sort of Virginity and what does it 15 mean to be seen naked by my husband Dr X, forcing me to tell when I had sex with my husband and tell you all my bedroom details with my husband Dr X. This Sexual harassment and abuse was during the internal process in NHS Grampian which was authorised by Dr F You and all the management had said throughout that you all had followed 20 Employment Laws and Policies in NHS Grampian which allowed you to sexually harass abuse and intimidate and threaten me. ….I want the reply this evening .I will make sure the Prime Minister and the Westminster Government conducts a formal investigation’’. 25 21. On the 25 September 2018 the claimant emailed SS (R p8-10): “This is REMINDER 364. I had written to you last year in September 2017. You still did not send the information and you are continuing to have sex with my husband …”. The email accused the witness of taking public money under false pretences and using public funds to book hotel rooms 30 ‘for sexual pleasure’. She alleged that the witness was not entitled to her S/4105711/16 Page 8 PhD and that she was ‘dangerous to society’. The claimant warned her that lying under oath was a crime punishable by imprisonment. 22. On the 27 September 2018 (Rp11-14) the claimant emailed the Employment Tribunal: 5 “I am a victim of Sexual harassment, Sexual assault, Abuse, Bullying harassment, Stalking. Patients had been manslaughtered and covered up and I had raised concerns about those crimes for which I had been suspended and dismissed and made to undergo a false/fake case in the Criminal court which was made by Police and Fiscal and General Medical 10 council. I am a victim of abuse and I refuse any further harassment by the Respondent and their Representative and I want Justice now. I want PH to be held in October 2018. I do not accept or agree for PH in November or December. I want this case started as soon as possible. 15 It is 1215 (1215 days) now and Respondent and their Representative have failed to provide me with the Reasons for Suspension, minutes from the day of Suspension, failed to provide the documents and policies that had been referred to and requested and it is also not clear as to why they are asking for Restrictive reporting order saying that Dr X had sexually 20 assaulted me and why Dr X was not investigated and why I was investigated if he had assaulted me. It is also not clear that if they want a restrictive reporting order for Dr X sexually assaulting me, they failed to reason it as to why Dr X was not suspended or investigated or reported to the police and was not dismissed by NHS Grampian. They also failed to 25 say or reason as to why SS having sex in NHS Grampian office is not a Gross misconduct and how come if she had sex in NHS Grampian offices is classed a misconduct by me and you also failed to reason as to why SS is allowed to kill and murder the staff and patients and it will still not be classified as a crime. This is terrorism.” 30 23. The claimant emailed SS on the 27 September 2018 (Rp11-14): “This is REMINDER 405 to provide the requested information for the public inquiry against you for fraud and cheating and abusing and assaulting and threatening me and giving false witness statements since 35 2015 in the courts and in NHS Grampian”. The claimant went on to insist that SS had sexual relations with Dr X and continued to do so. She said she was calling for a public enquiry. 24. In an email of the 5 of October 2018 (Rp19-22) the claimant emailed the 40 Tribunal: S/4105711/16 Page 9 “By giving more time to the respondents only allowing them to commit more crimes, encouraging to justify terrorism and more threats and more harm to me and to the public which is not accepted under any circumstances … I am a Hindu and I am taught by my Hindu gods to raise voice against any injustice done by anyone in the world even if it 5 was the ruler of a nation or the world whoever they are. Everyone is equal in the eyes of law and no-one is above the law and even the monarch is subject to law as per Magna Carta which is written in this country. I am only telling the truth”. By email of the 8th of October the claimant wrote to the Employment Tribunal “I have received an email 10 from a staff member called Rebecca which was unhelpful and discriminatory towards me. I had received similar interaction ?? last week. I had met them for the first time last week in 2 years and both of them have been very biased and Discriminatory which they would not do to the other party Legal representative as the other party was 15 given my details. Both these staff have behaved in a very Discriminatory manner and said they do not know for everything including if you were working a particular day. I phoned last week and they said they do not know and when I asked how come they do not know then they confirmed you were not on leave. They are not telling 20 me even if you were at work or on leave. This is racial discrimination as the white legal representatives are given all the information from me and these 2 staff are not treating them the same as they are treating me. It is very strange that when a member of the public or anyone phones and tells them that they will phone again for an update they 25 class it as a threat, and if that was the case then the criminal courts would be full all day with cases of threat not giving information when requested including if the judge is at work or on leave and answering one single phone call and classifying as a threat is in my view a threat towards me”. 30 25. On the 26 of October the claimant emailed the secretaries at NHS Grampian asking them to forward correspondence to a Dr B: “This case will also be against all the staff including yourself as I had 35 informed you about the sexual harassment and sexual assault by my husband Dr X and had also informed you about that the PhD student SS had been having sex with my husband Dr X in his offices in Aberdeen Royal Infirmary in the Geriatric Department and also in the business educational meetings. You failed to inform the management of all these 40 misconducts and criminal offences and instead you threatened me to stop contacting my own husband by interfering in my personal life with my husband including your racial discrimination towards me. You had contacted me only in professional capacity and failed to act on the misconducts and the criminal offences and instead caused me harm”. 45 S/4105711/16 Page 10 26. On the 29 October the claimant emailed 3 medical secretaries asking then to pass correspondence to a Doctor who in turn she asked to pass the correspondence to her father another Doctor involved in the disciplinary process. The email once more rehearsed the allegation that Dr X was having sex with SS. The email stated: 5 “I will make sure the whole world will know how dangerous you and human resources are including …” 27. On 2 November 2018 the claimant emailed Daniel Gunn (Rp36,37) addressing the email to the ‘SEXUAL HARASSER AND BULLY AND 10 STALKER’. The email continued: “You are involved in sexually harassing me on multiple occasions both directly and indirectly including Bullying, harassment, Threatening (including in this email) Stalking Abuse treating Indians 15 and Hindus as slaves and treating Indians in the degrading manner. You are involved in Torture and the violent behaviour towards me including Breach and assault of my human rights. You have encouraged and supported and said all these crimes where more than 80 members involved is legal and lawful. 20 STOP WRITING RUBBISH TO ME YOU SEXUAL ABUSER, STOP WRITING DISGUSTING EMAILS TO ME YOU ABUSE AND SEXUAL HARASSER. You DISGUSTING PERSON STOP WRITING APPALLING AND DISGUSTING INFORMATION TO ME. DO YOU UNDERSTAND OR DO YOU WANT ME TO START THE 25 MARCHING AND PROTESTS IMMEDIATELY IN PUBLIC IN FRONT OF YOUR HOUSE, YOU SEXUAL HARASSER AND BULLY AND SHAMELESS MAN”. 28. The email continued: “I am writing to you as the legal representative in the 30 case against you in the Tribunal. I understand that you are not the legal representative of NHS Grampian and they have a Counsel who will S/4105711/16 Page 11 represent them. You must not contact me under no circumstances for that reason as you are not the representative. I must receive a letter from your Counsel informing me (who is representing NHS Grampian) as to why you are writing to me if she is NHS Grampian’s legal representative. If you are working as an assistant and working in the background behind the scenes 5 and not represented legally then I must receive a formal letter from your legal representative (Counsel) to myself as to why you are writing to me and what is your role. You are involved in the biggest Fraud and Cheating in the history of NHS in this country …” 10 29. On the 2 November 2018 (R39,40) the claimant emailed three NHS staff copying the email to others: “I had listed you all as my witnesses in the case against NHS Grampian. 15 This is because you all had abused and harmed me in all possible ways and means and also because you have told SS to continue to have sex with my husband Dr X in his office and Wilson’s room opposite his office and accompany him on study leave to the Educational Conference of British Geriatric Society and Senator Education Meetings in this country and in 20 various countries around the world and you are all involved in Fraud and cheating by using millions of pounds of taxpayers money to make a fake since 2015 and also misusing and looting research money …” 30. On 2 November the claimant emailed Mr Gunn once more referring to him 25 as a sexual harasser, bully and stalker. This email was in response to an email from Mr Gunn on the 1 November asking her not to contact employees in NHS Grampian. The email had stated: “My clients inform me you are sending emails to their employees looking to 30 obtain the availability of numerous employees and former employees of NHS Grampian. I understand that, in addition to emailing some individuals S/4105711/16 Page 12 directly, you are also sending emails to Medical Secretaries and asking to forward the emails on. In addition, rather than just asking the witnesses to provide their availability you are including scandalous allegations against them in your emails. I have seen for example an email you sent to Dr X in which you accuse her amongst other things of having sex with Dr X at ARI 5 “every single day””. The email asked the claimant to desist sending emails immediately and if she wanted a witness who was an employee of NHS Grampian to contact the HR Department. 31. On 5 November the claimant wrote to Mr Gunn asking for no further contact 10 with him describing him as a sexual harasser. 32. On the 5 November 2018 the claimant wrote to the Tribunal: “Could you please pass these emails to Judge Hendry. I had sent this 15 email to a man called Daniel Gunn who had sexually harassed and abused me both directly and indirectly since 2015.” 33. The Tribunal responded by email dated 6 November: ‘‘Employment Judge Hendry has asked me to write to respond to your email 20 dated 5 November. He is very concerned at its terms. There is no indication that in the file that Mr Gunn’s firm has ceased to act for the Health Board and accordingly he is entitled to write to you about the case. There appears to be nothing in the correspondence to justify the terms of your response. Solicitors acting for clients are not able to fully defend themselves from such 25 allegations as they have to bear in mind the best interests of their clients. They are entitled to go about their professional duties without being abused in correspondence. The Judge is conscious that you are conducting this case yourself and has asked me to strongly suggest that it might be in your best interests to 30 consider taking legal advice on your position or to consult a senior S/4105711/16 Page 13 professional colleague, friend or family member particularly about the terms in which you write your correspondence.’’ The email reminded the claimant about the terms of Rule 37(1)(b). Submissions 5 34. The respondent’s Counsel moved for strike out of the claim. She asked the Tribunal to consider the whole circumstances and to conclude that the claimant’s actions had been scandalous, vexatious and unreasonable. Her position was that it was no longer possible to have a fair trial given her conduct. She accepted that strike out was a ‘draconian’ measure and one 10 seldom granted but that the circumstances here warranted such an action. For completeness she also indicated that the claimant’s proposed amendment was opposed. Ms Stobbart took the Tribunal through the relevant background as she saw it starting with the comments made by Judge Gall at the second Preliminary Hearing about the tone of the 15 correspondence. She referred to the many bizarre allegations made by the claimant in correspondence including of terrorism, manslaughter and sexual abuse. She directed the Tribunal’s attention to the email correspondence quoting passages from that correspondence. There were two main targets namely Mr Gunn and the witness SS. The 20 correspondence was ‘peppered’ with serious and unfounded allegations including complaints against Judge Gall and Judge Hosie. Because of the serious nature of the allegations the respondents had to be in correspondence with the Scottish Government to allay concerns. 25 35. The claimant had written in explicit terms not just to potential witnesses but to Medical Secretaries seeking email addresses. This was designed to cause upset and be intimidating in her submission. The claimant could approach either the respondent, their solicitor or indeed the Tribunal for such information. The way in which the claimant communicated caused 30 upset and distress particularly to SS who was now very reluctant to give evidence. The claimant’s behaviour was designed to cause the maximum S/4105711/16 Page 14 distress and embarrassment. Counsel referred to the Witness Statement of SS which had been lodged. That witness has suffered anxiety and depression. The claimant is an intelligent and resourceful person and these actions were not innocent or mistakenly insensitive but it could be inferred that they were deliberate and done with disregard of the consequences. 5 36. Counsel addressed the Tribunal in relation to the applicable current law and referred to the recent case of Basa v Buckingham County Council 2012 EWCA Civ 1910. This was an appeal from the Employment Appeal Tribunal by Mr Basa which in turn related to the dismissal of an appeal 10 from the Employment Tribunal decision to strike out the claimant’s case. The background was that the claimant had brought a claim for detriment arising from a public interest disclosure, discrimination on the grounds of her race and disability. These claims were struck out. The basis for the striking out of the claims was a series of emails which the claimant wrote 15 to Miss Blake her Manager and Dismissing Officer in which she referred to her as “a liar” and making various allegations, comments and veiled threats. The police took action in this case and the claimant was prosecuted successfully. There were in Ms Stobbart’s view clear parallels to the present case. 20 37. Counsel continued that in the original Judgment the Employment Tribunal Judge described the email correspondence as a “hate campaign” and she concluded that a fair trial was not possible as it would not be possible to focus on what the issues in the claimant’s case was if she could not get 25 past her dislike of the Disciplining Officer. She concluded it was unreasonable behaviour within the meaning of the then Employment Tribunal Procedure Regulations. At appeal the case turned more on the process used by the Employment Appeal Tribunal which heard evidence. Reference was made to the case of Force One Utilities Ltd v Hatfield 30 2009 IRLR 45 and Bolch v Chipman 2004 IRLR page 140. The issues in this case was that Miss Blake would have been an important witness in S/4105711/16 Page 15 any hearing. The nub of the Judgment was she submitted summarised at paragraph 14 where Lord Justice Pill writes: “In my judgment, there was nothing perverse about the decision of the employment tribunal. Letters to a potentially vital witness of this kind are 5 unacceptable and inevitably lead to a sense of intimidation, which may affect the entire conduct of the proceedings. I agree with the conclusions of the Employment Tribunal, of the Employment Appeal Tribunal, and Elias LJ, all of whom have carefully considered the circumstances in this case. I am content to approach the matter on the basis of whether a fair trial is 10 possible. I would leave open for further consideration, if the point should arise, whether strike out is justified as an affront to the court and to the administration of justice, upon conduct such as that which the applicant practised namely seriously intimidating letters to a potentially important witness. The decision was under the CPR, where somewhat different 15 considerations may apply, but it is acknowledged for example in Asiansky Television Plc and anor v Bayer-Rosin (2001) EWCA Civ 1792 that there may be cases where flagrant abuse by a party may itself justify a court striking out. I leave open the question whether such an argument could be raised under the Employment Regulations which govern these 20 proceedings. Having made that reservation I take it no further but decide the application on the basis of the test stated by Burton J in the case of Bolch.’’ 38. In response to a question posed by me Counsel accepted that SS could 25 not be said to be an essential witness although the respondents had intended calling her, if she agreed, to speak to the continuing conduct of the claimant which would impact on remedy. 39. The claimant responded by taking the Tribunal to the background of her 30 claim and the detail of who did what and when. She had been traumatised by the whole matter and had to discuss intimate sexual matters in the disciplinary to prove that she had a relationship with Dr X. He had initially S/4105711/16 Page 16 denied that relationship until emails were produced. The respondents had failed to understand her religion or put any weight on the fact that she regarded herself as married to him in the eyes of her faith. She denied harassing SS or causing her any distress and questioned where the evidence was for such suggestions. She explained the circumstances 5 around the alleged assault and the subsequent trial. She repeatedly queried the probity of SS’s actions. The claimant was asked to focus on the issues currently before the Tribunal and the legal test for strike out. She explained that she had been upset and frustrated when writing them. She was not a lawyer. She had been referred to a Psychiatrist by the 10 respondents who thought that her relationship with Dr X was a fantasy. She could produce the Report. She doubted that SS was telling the truth in her Statement and she had obtained funding under false pretences. She had been referred by the respondents to the GMC in November and had to deal with that matter over the past few months and this had been 15 stressful. She had suffered from anxiety and had written things when she was ‘upset’. She believes that the disciplinary panel had been laughing at her. SS and the respondents had, she said, destroyed her reputation and her career and she would not stop until she saw justice done. 20 Discussion and Decision The Law 40. The Tribunal has the power to strike out claims. This is contained in Rule 37(1)(b) and (d) of the Employment Tribunals (Rules of Procedure) 2013 which provides as follows: 25 “Striking out 37.(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) …. 30 (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) ….. (d)…… 35 S/4105711/16 Page 17 (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).” 41. The power of strike out can be exercised at any stage of the proceedings. 5 It is power that should be used carefully and sparingly as it’s effect is to deprive a litigant of their entitlement to pursue their statutory employment rights. The respondents argue that two sections of the Rule are engaged namely 37(1)b and 37(1)e. They accept that the test for strike out is nevertheless the same for both namely that a fair trial is no longer possible. 10 42. I considered the authorities that had been referred to. In the case of Blockbuster Entertainment Limited v James 2006 IRLR 630 CA the Court of Appeal found that for a Tribunal to strike out a claim based on unreasonable conduct (Rule 37(1) b), it has to be satisfied that the conduct 15 involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; in either case striking out must be a proportionate response. At paragraph 21 Lord Justice Sedley giving the leading Judgment records: 20 “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact – if it is a fact – that the Tribunal is ready to try claims; or – as the case may be – there is still time in which orderly preparation can be made. It must not, of course, ignore either the 25 duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist’’. 43. The issue of proportionality was considered by Sedley LJ in the case of 30 Bennett v Southwark LBC 2002 ICR 881 when he wrote: “But proportionality must be borne carefully in mind in deciding these applications, for it is not evidence of misuse of the judicial process, albeit properly falls within the descriptions scandalous, frivolous or vexatious 35 which will be sufficient to justify the premature termination of a claim or the S/4105711/16 Page 18 defence to it. Here, as elsewhere, firm case management may well afford a better solution”. 44. I also had regard to the case of Bennett v Southwark London Borough Council 2002 ICR 881, CA in which the actions of a claimant’s lay 5 representative were examined which I believe has some application here particularly the comments of Lord Justice Sedley at paragraphs 33 and 34 in relation to the proportionality of using strike out: ‘‘ 33.There is a further hurdle to be surmounted in any strike-out 10 application, as both counsel before us agree. It is that if the conduct of a party's case is shown to have been scandalous, it must also be such that striking out is a proportionate response to it. This seems to me, as it seemed to counsel, to be a commonsense axiom requiring no resort to the article 6 of the European Convention on Human 15 Rights. But – evidently because it was not argued – this requirement was not addressed at all by either the Warren tribunal or the EAT. In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry's conduct of the proceedings because for other reasons the decision to strike out 20 cannot stand. But proportionality must be borne carefully in mind in deciding these applications, for it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defence to it. Here, as 25 elsewhere, firm case management may well afford a better solution…’’ 45. It must be said that the lay representatives action in that case took place at a hearing before the Tribunal causing it to recuse itself or in Scottish terms decline jurisdiction. The claimant’s behaviour here is not directed 30 against the Tribunal but against her former employers and their chosen representative. We have not yet reached the stage of a final hearing. I would note that the various comments made by the lay representative in the Bennett case (scandalous though they were held to be alleging bias by the Tribunal) pale somewhat when contrasted against the comments 35 made by the claimant here. 46. In the present case I consider that it has been clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the S/4105711/16 Page 19 part of the claimant. The content of her communications, containing personal slurs, threats and intemperate language is ample evidence of this. The issues that remain are whether a fair trial is possible and whether strike out in the whole circumstances is a justified and proportionate response to her behaviour. 5 47. This is an unusual case and there are a number of factors that should properly be borne in mind. In considering these I do not condone the way in which the claimant has conducted herself or the allegations that she has made but they are in a sense mitigatory. The claimant was clearly very 10 upset at the events surrounding her dismissal and the way in which the investigation developed. She was apparently put on Sick Leave and the respondents suggested that her relationship was a delusion. She was apparently questioned about intimate details of that relationship. The failure of Dr X (to whom she regarded herself as married) to acknowledge 15 their sexual relationship or to continue it was devastating to her. She clearly perceives that there has been a number of injustices perpetrated against her by the respondents, a failure by them to recognise this background, acknowledge her religious views and their impact on the relationship and by ultimately dismissing her. It seems that for some time 20 her protestations that there was a relationship were disbelieved until she provided email evidence for it. 48. The claimant is a party litigant and although an intelligent person has become frustrated at the slow pace of the proceedings. This has caused 25 her to react badly both towards the respondents and their solicitor who she blames (wrongly as it happens to be) for delays. She is also a Hindu and Indian by upbringing. On a number of occasions, she has said that as part of her culture and religion she has to act modestly and keep intimate details of her relationship with her husband private and having to expose and 30 prove the relationship was humiliating to her as indeed it might be to anyone without these additional sensitivities. In summary, I accept that against this background she will have found the disclosure of her S/4105711/16 Page 20 relationship and associated sexual conduct deeply distressing, embarrassing and humiliating. 49. Tribunals require to take great care when considering strike out applications especially in cases involving allegations of discrimination. I 5 also bore in mind the comments made by Lord Hope in Anyanwu and Ano v South Bank Student’s Union and Ano 2001 ICR HL: ‘‘I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case 10 should as a general rule be decided only after hearing the evidence’’. That does not mean that such claims can never be struck out and that parties advancing such claims can act as they choose relying on this principle. 15 50. Counsel for the respondents quite properly drew my attention to the fact that when the claimant was responding to the witness statement lodged by SS her response was to wholly discount the possibility that SS had been affected by these events. She wanted evidence of her panic attacks, and 20 had no insight into the likely effect of her actions on SS who she seemed to blame for the breakdown in the relationship she had with Dr X. I posed the question to the claimant at the end of the proceedings whether or not in hindsight she would write in the same terms again and it was only at that point did she indicate that she had been upset, frustrated by the delays 25 and distressed when framing the emails and other correspondence. Despite her comments I have considerable doubts as to whether the claimant has, or wants to have, any insight into the possible effects of her actions on others. She is very bound up in the rights and wrongs of the events surrounding her dismissal. 30 51. I heard evidence from Mr Gunn about the way in which the statement from SS was obtained and his first-hand impression was of her reluctance to S/4105711/16 Page 21 either give a statement or be further involved in these proceedings. I have no doubt Mr Gunn truthfully relayed these impressions and that SS has been deeply affected by these events and the claimant’s behaviour. I also fully accept that Mr Gunn despite, having as he put it, a thick skin has found the way in which he has been regularly described by the claimant in 5 correspondence as very wearisome and upsetting and that he had genuine concerns that she might act on her threat to protest outside his house. A concern that I have is that solicitors in his position are in a particularly difficult position when defending themselves against such allegations given that their overriding duty is to their client’s interests. 10 52. Counsel asked me look at the whole situation when considering whether a fair trial is possible. I agree that this must be the approach. I have no doubt that the behaviour of the claimant has left the witness SS upset and traumatised and deeply reluctant to be involved in the Tribunal process. 15 She did, however, with some persuasion provide a Witness Statement. The difficulty I have is that she is clearly not an essential witness, as Counsel properly conceded. No evidence was led that other potential witnesses have been affected or influenced by the claimant’s bizarre behaviour although the fact that so many intemperate emails have been 20 sent to so many people might allow, in different circumstances, such an inference to be drawn except that these don’t appear to have been sent to the decision makers in the disciplinary process apart from the indirect approach made to Dr R who dealt with the appeal (Rp34-35). 25 53. I also considered the effect of this behaviour on Mr Gunn who stoically continues as agent despite the invective directed against him. There is no suggestion that he will not continue to represent the respondents. There was no indication that he might be a witness to fact himself despite his close involvement with the process. Looking at all the facts before me and 30 focusing on whether a fair trial is possible I am not quite convinced that it is not but I agree that it may be in considerable jeopardy if the claimant’s behaviour continues. S/4105711/16 Page 22 54. The answer if there is one I believe lies in more robust case management. It must be clear to the claimant that no further behaviour of this sort will be tolerated. At an earlier stage it perhaps should have been made clear to the claimant that her approach was completely wrong and that the Tribunal expects parties to act with courtesy, not to use inflammatory language and 5 to confine themselves to the issues a Tribunal has the power to deal with namely unfair dismissal and discrimination and not wild allegations of medical negligence and terrorism. This could have been buttressed by formal orders made either at the Tribunal’s initiative or at the behest of the respondents. If there had then been serious lapses in required standards 10 then the Tribunal could be asked to strike out the proceedings and the claimant would have had ample warning. I therefore, with some misgivings, refuse the strike out request. 55. Accordingly, I will make the following orders: 15 1. The claimant shall immediately desist from repeating the allegations previously made by her in email correspondence against SS, Dr X and Mr Gunn, whether in future correspondence or otherwise, except where it is necessary and relevant to advance 20 the issues in her claims for unfair dismissal and discrimination and she had beforehand obtained the express permission of the Tribunal to do so. 2. The claimant shall correspond professionally and politely with Mr Gunn or any other representative of the respondents. 25 3. The claimant shall not except with the sanction of the Tribunal contact or attempt to contact any witnesses until a Witness List is agreed. S/4105711/16 Page 23 56. I would record that the claimant’s behaviour in this case has been quite extraordinary and I have experienced nothing like this in my lengthy experience as an Employment Judge. If I had the power to strike out the proceedings on the basis that the claimant’s behaviour was an affront to justice then I would have seriously considered that this would have been 5 the sort of unusual case where such a power might be properly exercised. I do not and am bound by the Rules I have discussed and I must act accordingly. 10 15 20 Employment Judge: James Hendry Date of Judgment: 07 December 2018 Entered in Register: 10 December 2019 And Copied to Parties 25 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) 5 Case No: 4105711/16 Held in Aberdeen on 12 February 2019 Employment Judge: Mr N M Hosie 10 A Claimant In Person B Respondent 15 Represented by: Ms A Stobart - Counsel 20 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Judgment of the Tribunal is that: - 25 (1) the application for an “Anonymity Order” is granted; (2) the claimant will be identified as “A”, the respondent as “B” and the applicant for the Order as “C”; 30 (3) the Order will be permanent; and (4) the claim is struck out in terms of Rules 37(1)(b), (c) and (e) in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. 35 S/4105711/16 Page 2 REASONS Introduction 1. This case has a history. The claim form was submitted by the claimant’s then 5 solicitor on 15 December 2016. The claim comprised complaints that the claimant had been unfairly dismissed from her post as a Speciality Doctor in Elderly Rehabilitation on 17 August 2016 and that she had been the victim of sex and religious discrimination. It was averred in the claim form that, “the claimant is a devout Hindu of South Indian origin. The claimant was placed 10 on suspension on 27 May 2015 until her dismissal on 17 August 2016”. 2. The claim is denied in its entirety by the respondent. It admits the dismissal but claims that the reason was conduct, gross misconduct, and that it was fair. In the alternative, the respondent’s position is that, the claimant was 15 dismissed for the potentially fair reason of some other substantial reason, on the basis that the working relationship between the claimant and C (the second respondent at one time), “was such that they could not continue to be employed by the same employer”. 20 3. There were numerous procedures after the claim was raised, including a number of Preliminary Hearings for case management purposes with the respondent’s solicitor seeking clarification of the claim and the claimant making many requests for additional information, documents and raising matters not within the Tribunal’s jurisdiction. 25 4. Matters then came to a head when a Preliminary Hearing was held on 14 November 2018 to consider an application by the respondent’s solicitor to strike-out the claim in terms of Rule 37 of the Rules of Procedure, on account of the manner in which the claimant had been conducting the proceedings. 30 5. EJ Hendry refused to strike-out the claim. His Judgment and Reasons (“the Judgment”) is referred to for its terms. It was registered and copied to the S/4105711/16 Page 3 respondent’s solicitor on 10 December 2018. It was also copied, on the same day, to the solicitor in London who had been instructed by the claimant. This was an error on the part of the Tribunal as on 21 November 2018 the solicitor concerned had intimated to the Tribunal that he was no longer acting for the claimant and, as it transpired, a copy was not sent to the claimant by the 5 Tribunal until 21 January 2019. The claimant advised that she received it on 23 January and by implication had no knowledge of the exact terms of the Orders until that date. 6. In the meantime, EJ Hendry had directed that a Preliminary Hearing be fixed 10 to finalise the pleadings, fix dates for a Final Hearing and to address any other outstanding matters. This included an application by the claimant to amend her pleadings. Her application, which runs to 88 pages, is referred to for its terms. It was lodged in August 2018 but EJ Hendry had decided that it would be best addressed after he had determined the strike-out application. 15 Further strike-out application 7. On 16 January 2019, the respondent’s solicitor, Mr Gunn, wrote to the Tribunal to apply again for an Order striking-out the claim. His e-mail was 20 copied to the claimant and was in the following terms: - “Application for order striking out the claim We now wish to apply for an Order under Rule 37 striking out the claim on the following grounds: 25 (i) that the manner in which the proceedings been (sic) conducted by the Claimant have continued to be scandalous, unreasonable and vexatious and that the Claimant’s conduct amounts to a deliberate disregard of the required procedural steps; and/or 30 (ii) that the Claimant has failed to comply with an Order of the Tribunal. The relevant background and specific grounds for this application are as follows: 35 In our previous application for the claim to be struck out, made prior to the Preliminary Hearing in November 2018, we highlighted the Claimant’s S/4105711/16 Page 4 unreasonable conduct in attempting to contact witnesses by sending requests to members of staff of the Respondent and asking them to forward requests on, or provide contact details for other witnesses. The issue of the Claimant contacting potential witnesses and the impact this was having on his witnesses was discussed during the Preliminary Hearing. 5 The Tribunal issued a Judgment on 10 December 2018 following the Preliminary Hearing which took place on 14 November 2018. Referring to the Claimant’s unreasonable behaviour, including the contact with witnesses, the Judgment states at paragraph 54: “It must be clear to the Claimant that 10 no further behaviour of this sort will be tolerated”. The Judge then goes on at paragraph 55 to make three Orders relating to how the Claimant must conduct the proceedings. The Orders are highlighted by using bold font. The third of these Orders states: 15 “3. The Claimant shall not except with the sanction of the Tribunal contact or attempt to contact any witnesses until a Witness List is agreed.” Further contact with witnesses 20 The Claimant has previously produced a list of the witnesses she considers relevant to the proceedings but no list of witnesses has been agreed to date. The Claimant’s list of more than 150 individuals includes C. The Claimant considers she is married to C and is in a continuing relationship with him. C 25 does not consider that he is married to the Claimant and does not consider himself to be in a relationship with her. C is legally married to a Katherine C. We have been advised by C that the Claimant contacted him by e-mail twice over the weekend. Copies of these e-mails are attached. The first e-mail 30 advises C that the claim is going to be heard in public and advising that the Claimant will be writing to him again at some point for documents. The second e-mail, sent the next day, advises C that the Claimant had added his wife to her list of witnesses and asking C to let him wife know this. This e-mail continues that Mrs C should contact the Claimant directly as “this is a 35 legal trial”. The Claimant then states that he will let C know if she decides to call C’s sister and/or mother as a witness too. C has informed us that while the e-mails are superficially polite he considers them, specifically the e-mail asking him to inform his wife that the Claimant 40 intends to call her as a witness and the threat to call his sister and mother too, as a thinly veiled attempt at intimidation and a further example of the Claimant continuing to harass him. It is also noted that these e-mails continue the pattern of conduct by the 45 Claimant whereby she contacts an individual to pass on information that a further individual is to be called as a witness. As was submitted at the previous Preliminary Hearing, such conduct is knowingly done to maximise the embarrassment and intimidation of the witnesses involved. 50 S/4105711/16 Page 5 Breach of Tribunal Orders It is submitted that the Claimant has contacted a witness. It is also submitted that a Witness List has not been agreed. Accordingly, unless the Tribunal has sanctioned the Claimant to repeatedly contact C both to advise him of 5 the Tribunal’s Judgment following the Preliminary Hearing and requiring him to pass messages on to his wife for the Claimant, the Claimant is in breach of Order 3 of the Orders issued at paragraph 55 of the Note of the last Preliminary Hearing. 10 It is not known to the Respondent whether the Tribunal has sanctioned any contact by the Claimant with C but even if such sanction has been given then it is submitted that the manner in which the Claimant has corresponded with this witness is designed to intimidate and threaten. Accordingly, it is yet another example of scandalous, unreasonable and vexatious conduct on the 15 part of the Claimant. As has been noted repeatedly before, the Claimant is a highly intelligent Senior Doctor. It is submitted that her conduct does not relate to confusion over a complex point of law or procedures. Instead, she has continued to try 20 and intimidate the witnesses by contacting them in breach of the Tribunal’s Orders. Again, in light of the most recent Preliminary Hearing and the Tribunal’s subsequent Judgment, it is not credible for her to claim that she does not understand or appreciate the impact of her actions. Instead, it is submitted that her conduct amounts to a continuing, deliberate and persistent 25 disregard for the appropriate manner to conduct this litigation and the Tribunal’s authority. It is further noted that the Tribunal has already twice found the Claimant to have acted unreasonably in relation to the manner in which she is conducting the proceedings and as a result, the Claimant’s claim should be struck out. 30 This request for a striking out order is in furtherance of the overriding objective. In the circumstances outlined above, the order requested deals with the case fairly and justly, it is proportionate to the complexity and importance of the issues and will save the expense. 35 In accordance with Rules 30(2) and 92, we have sent a copy of this application to the Claimant and hereby notify her that any objections to the application should be sent to the Tribunal (with a copy to us) as soon as possible.” 40 8. The strike-out application was opposed by the claimant. EJ Hendry directed that it should also be dealt with at the Preliminary Hearing, which was fixed for 12 February 2019. 45 S/4105711/16 Page 6 Rule 50 application 9. In the meantime, C had taken his own legal advice and on 25 January 2019 his solicitor sent an e-mail to the Tribunal in the following terms: - “We write in relation to the above case which is due to be called for a 5 Preliminary Hearing on Tuesday 12 February. We have been instructed on behalf of C, who is not a party to the action albeit he was previously identified as the second Respondent. Our client is also not be confused with the claimant as designed above. He remains however a material witness with significant interest in the proceedings. 10 We write to notify our interest in this matter and to formally request the permission of the Tribunal to appear on behalf of our client at the Preliminary Hearing which is set down for 12 February 2019. We are seeking to attend on behalf of our client to seek an order from the Tribunal under Rule 50 of the 15 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) in respect of privacy and restrictions on disclosure. It is submitted that, unlike the previous version of the Rules, the right to make an application under Rule 50 is not limited to the parties and that any person 20 with an interest in the proceedings may make an application. It is submitted that given the nature and the content of the claim and its potential impact on him both personally and professionally our client clearly has a significant interest in the proceedings which give rise to the right to make an application on his behalf under Rule 50. 25 We would confirm that we have discussed our proposed involvement with the representative of the Respondent, Mr Gunn, whom we understand has no objection to our appearing on behalf of C in circumstances where he is instructed to act only on behalf of the Respondent and not our client. Mr 30 Gunn has also kindly provided us with copies of relevant papers including a copy of an e-mail to the Tribunal from the claimant dated 23 January 2019 which pertains specifically to the issue of the proper identification of the parties and our client in particular and which includes assertions (which are strongly objected to by our client, that the claimant is entitled to identify herself 35 and be identified in the proceedings as “Dr C”. For the avoidance of doubt our client’s position is that the Claimant is not entitled to be so identified in circumstances where she is not legally married to our client. While, if required by the Tribunal, we would be happy to provide specification 40 of the order sought under Rule 50 and provide written representations in support we would be grateful if the Tribunal might confirm, in the first instance, whether it is minded to permit us to attend the Preliminary Hearing on behalf of our client. 45 We look forward to hearing from the Tribunal as soon as practicable. We confirm we have copied this letter to both the Respondent’s representative S/4105711/16 Page 7 and to the Claimant for their information and in order that they may provide any comments.” 10. I decided that this issue should also be dealt with at the Preliminary Hearing 5 and that C’s solicitor would be permitted to appear. 11. C’s solicitor then asked that his application be dealt with at the start of the Hearing, primarily to save expense, which he submitted was in accordance with the “overriding objective” in the Rules of Procedure. The respondent’s 10 solicitor did not object. However, in a 7-page e-mail dated 8 February 2019 at 11:22 the claimant did object to C’s solicitor being heard first. The following is an excerpt: - “I find the correspondence from Mr Daniel Gunn distressing. 15 My husband C is involved in committing Sexual offences towards me which B and their legal representatives who conducted the process had repeatedly said both in writing and in the audio recordings that it is not B’s business. Mr Gunn had said to the Tribunal that the audio recording evidence had been destroyed. Mr Gunn himself and the management are involved in Sexual 20 harassment. I had paid unimaginable amount of money to my representatives since 2015 because of Mr Daniel Gunn’s employment advice and his work on this case for B to conduct this whole process against me since 2015. Mr Gunn is 25 worried about C’s expenses just for a few hours of work to pay for Mr Gilligan (C’s solicitor). I had been paying money to my representatives since 2015 because of B and their legal representative’s advice which resulted in this process. 30 I would want my ET1 claim, my request for Judgement document amendments to be considered first in the Preliminary hearing as they are a Priority especially since the Judgement document had not been given to me for 42 days despite several requests and it is nearly 2 months as per the Judge’s signature on the Judgement document. 35 It will be completely unfair and biased to allow Mr Eric Gilligan’s application on 12/01/2019 which is not a priority as I had been waiting for a Judge to hear my ET1 Claim since the last 2 years after I was made to write it again as per Judge’s instructions and Respondent’s wishes. 40 It would be fair and just to postpone Mr Gilligan’s application to the next hearing to the end of the process and that would help the case aswell as we S/4105711/16 Page 8 would have heard the case by then and discussed the documents and if Mr Gilligan would come at the end of this process we will have a chance to request him any information and documents which is not clear and he would be able to provide any information and documents that require for the final hearing as he is C’s legal representative…….” 5 12. I decided to refuse the claimant’s request to hear the Rule 50 application at the Preliminary Hearing after the other issues had been considered. On 8 February, the Tribunal sent an e-mail to the claimant, on my instructions, 10 copied to the respondent’s solicitor and C’s solicitor, to advise that, in all the circumstances, and having regard to the “overriding objective” in the Rules of Procedure, the application for a so-called “Anonymity Order” would be considered first. 15 13. In the lead up to the Preliminary Hearing, the claimant asked that “C” be required to give evidence as she wished to “examine him under oath”. However, I advised that no evidence would be heard at the Preliminary Hearing, as I would consider the issues on the basis of submissions only. 20 Postponement application 14. The Preliminary Hearing was scheduled to start at 10am on 12 February 2019. On 11 February 2019 the claimant sent an e-mail to the Tribunal at 25 12:04 in the following terms: - “I apologise, I would not be able to attend the Preliminary Hearing tomorrow as I am very unwell with, Fever, Tonsillitis and severe Sore Throat. I apologise for the inconvenience.” 15. Subsequently, the claimant confirmed that this was a postponement request. 30 The postponement was opposed by both the respondent’s solicitor and C’s solicitor. S/4105711/16 Page 9 16. I decided to refuse the application. On 11 February at 16:46pm the Tribunal sent an e-mail to the claimant in the following terms: - “I acknowledge receipt of your e-mail of today sent at 15:58 which I referred to Employment Judge Hosie. 5 He notes that you have applied for a postponement of tomorrow’s hearing. However, the respondent’s Counsel and solicitor are travelling from afar and are already on their way to Aberdeen. While you are unwell, unable to attend and have no prior experience of Tribunal proceedings in all the circumstances in view of the lateness of your application, Employment Judge Hosie is not 10 prepared to postpone the hearing at least at this stage. He will convene the Hearing as scheduled and consider whether he can address and determine fairly any of the issues, in your absence, having regard to the “overriding objective” in the Rules of Procedure. 15 Accordingly, your postponement request is refused, at this time. In the meantime, in accordance with “Presidential Guidance”, you will be required to submit to the Tribunal a “soul and conscience” letter/certificate 20 from a Doctor confirming (i) the nature of your health condition and (ii) that the Doctor considers that in his or her professional opinion you are unfit to attend the Hearing and the basis for this conclusion. The medical evidence should also indicate when it is expected that you will be fit to attend.” 25 17. The claimant responded by e-mail at 19:26pm as follows: - “I do understand that the application for postponement was applied late as I had informed earlier being a Doctor I am used to NHS system of working. 30 I had taken advice in this matter and had been advised to attend the PH if it was not postponed, therefore I will attend the scheduled hearing tomorrow morning.” 35 Preliminary Hearing The case came before, therefore, me by way of a Preliminary Hearing on 12 February 2019 to consider three issues: - (i) the “anonymisation application” by C’s solicitor; 40 (ii) the respondent’s application to strike-out the claim; and (iii) the claimant’s application to amend. S/4105711/16 Page 10 18. The claimant was in attendance. She was not represented. The respondent was represented by Counsel, Ms A Stobart, instructed by Mr D Gunn, Solicitor. Mr E Gilligan, Solicitor also appeared on behalf of C. Anonymisation application 5 19. As directed, I heard submissions first from C’s solicitor. He spoke to “Written Outline Submissions” which are referred to for their terms. 20. Rule 50, in Schedule 1 of the Employment Tribunals (Constitution and Rules 10 of Procedure) Regulations 2013 (“the Rules”), is in the following terms: - “50 Privacy and restrictions on disclosure (1) A Tribunal may at any stage of the proceedings, on its own initiative or on 15 application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings as far as it considers necessary in the interests of justice or in order to protect the Convention Rights of any person or in the circumstances identified in Section 10A of the Employment Tribunals Act. 20 (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression. 25 (3) Such orders may include – (a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private; 30 (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; 35 (c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public; (d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act. 40 S/4105711/16 Page 11 (4) Any party, or other person with a legitimate interest who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing. 5 (5) Where an order is made under paragraph (3)(d) above – (a) it shall specify the person whose identity is protected; and may specify particular matters of which publications prohibited as likely to 10 lead to that person’s identification; (b) it shall specify the duration of the order; (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking 15 place before the Tribunal, and on the door of the room which the proceedings affected by the order are taking place; and (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing. 20 (6) “Convention Rights” has the meaning given to it in section 1 of the Human Rights Act 1998.” 21. I was satisfied that C had a “legitimate interest” and that I could consider his application for anonymity. That was not disputed. 25 22. The respondent’s Counsel did not oppose the application. 23. Although I had understood the claimant intended to oppose the application, 30 when I invited her to respond to the submissions by the respondent’s solicitor, she advised that she did not oppose anonymisation, although she did object to the Order being permanent on the basis that that would, “not be in the public interest”. I am bound to say that this came as something of a surprise to me, as in her e-mail of 30 January 2019 at 12:00 she said, “I have a right 35 to remain anonymous for life”. 24. In any event, I was satisfied that the submissions by C’s solicitor were well-founded. I was satisfied that it was “in the interests of justice” to issue an Anonymity Order. I was of the view that, despite the claimant’s objection, in 40 S/4105711/16 Page 12 all the circumstances it was in the interests of justice that the Order be made permanent. An Employment Tribunal has the power to order that the identity of individuals raised in proceedings be permanently anonymised in any Judgment. This power has been expressly embodied in Rule 50(3)(b). 5 25. In arriving at my decision, I had regard to the relevant case law referred to by the respondent’s solicitor: EF v. AB [2015] IRLR 619 Vicent del Campo v. Spain (Application No. 25527/13) 2018 ECHR 909, ECtHR. 10 26. I also had regard to F v. G [2012] ICR 246 in which Mr Justice Underhill set out a suggested procedure in cases where Restricted Reporting Orders or Anonymity Orders are sought and BBC v. Roden UKEAT/0385/14/DA. 15 27. The claim in this case involves serious allegations of sexual and professional misconduct on the part of C. I carried out the so-called “balancing exercise”, bearing in mind the principle of open justice. I decided that anonymisation was required, to protect the Article 8 rights to a private and family life under the European Convention on Human Rights. In arriving at that view, I 20 balanced the various competing interests that arise, in particular Article 6: civil rights to be determined at a fair and public hearing; and the Article 10 right of freedom of expression, as I was required to do. Anonymisation Order 25 28. Accordingly, I order that: - (1) the identities of the claimant, the respondent and the applicant for anonymity should not be disclosed to the public and that they should be 30 referred to as “A”, “B” and “C” respectively; and (2) the Order will be permanent. S/4105711/16 Page 13 Respondent’s application to strike-out the claim Respondent’s submissions 29. The respondent’s Counsel referred to the striking-out provisions in Rule 37 of 5 the Rules of Procedure and submitted that the claim should be struck-out under sub-sections (b) and (e). 30. Counsel also referred to the Orders which EJ Hendry had issued at para. 55 of his Judgment and Reasons which was registered on 10 December 2018 10 (“the Orders”): - “1. The claimant shall immediately desist from repeating the allegations previously made by her in her e-mail correspondence against SS, C and Mr Gunn, whether in future correspondence or otherwise, except where it is necessary and relevant to advance the issues in her claims for 15 unfair dismissal and discrimination and she had beforehand obtained the express permission of the Tribunal to do so. 2. The claimant shall correspond professionally and politely with Mr Gunn or any other representative of the respondents. 20 3. The claimant shall not except with the sanction of the Tribunal contact or attempt to contact any witnesses until a Witness List is agreed.” 25 31. Counsel submitted that the claimant had failed to comply with these Orders and that the claim should also be struck out under sub-section (c). 32. She referred me to an e-mail which the claimant had sent to C on 13 January 30 2019 at 16:29, in the following terms: - “Dear C, how are you. I have added Kathy (C’s wife) as a witness in this case. Please let her know. I request to please not to write on her behalf. I would appreciate if she writes to me directly as this is a Legal trial. I will let you know if I will add your sister and your mother as well as you had referred 35 all of them throughout the process in B. Kind Regards.” S/4105711/16 Page 14 33. Counsel explained that C is a, “key witness”, but his wife is not a witness. It was submitted that the purpose of this e-mail was, “intimidation”. She submitted that this was, “a clear threat to break-up C’s marriage”. 34. The claimant had also sent an e-mail to C the day before, on 12 January at 5 23:35 in the following terms: - “How are you. Just wanted to let you know that the Preliminary hearing against B is scheduled for 12 February 2019 at 10am in the Employment Tribunal, Aberdeen. The Judge had advised that the witnesses could attend the hearing. 10 The final trial dates which were set earlier will not be the same as before as there had been some delay due to the delaying tactics by NHS Grampian management. On 14 November 2018 there was a preliminary hearing to set the dates for final trial but the Counsel representing NHS Grampian made an 15 application to struck off (sic) my case from the court and made arguments that my case must be struck off from the court. NHS Grampian’s Counsel had been Unsuccessful and the case is going ahead. Not only that the Judge decided that the Preliminary Hearing must be held in Public against NHS Grampian’s request for private hearings. 20 I will write to you soon as I want documents from you. The Judge had advised me that all the documents that I wished to produce in the form of disclosure documents must be made in few copies and submit (sic) to the Tribunal on the day of the Preliminary Hearing. I will write to you the list of all the 25 documents/e-mails which I will need from you for the Preliminary Hearing to allow a fair legal trial. Good Night C 30 Kind Regards.” 35. While Counsel advised that she was not in a position to challenge the claimant’s contention that she did not receive a copy of EJ Hendry’s 35 Judgment until after this, on 23 January, she submitted that these e-mails in themselves, constituted an, “abuse of process”. 36. Counsel submitted that due to the claimant’s conduct it was not possible now to have a fair trial, primarily because of the intimidation of C, an essential 40 witness for the respondent and the claimant threatening to involve his wife. S/4105711/16 Page 15 As a consequence, C had now instructed his own solicitor, advised the respondent that he was not prepared to give evidence at any Hearing, and had refused to provide the respondent’s solicitor with his availability for a Final Hearing. 5 37. Also, SS who would be required to give evidence at any Final Hearing, in respect of remedy at the very least, had provided a written statement for the previous Preliminary Hearing, and had also advised that she does not want to appear as a witness at any Hearing due to the claimant’s intimidation which has caused her stress. 10 38. Counsel also maintained that previously the claimant had gone to Gibraltar to “doorstep” C’s mother and sister. 15 39. So far as EJ Hendry’s Order that: - “The claimant shall correspond professionally and politely with Mr Gunn or any other representatives of the respondents”, was concerned, Counsel drew to my attention that, prior to the previous Preliminary Hearing, the claimant sent an e-mail on 2 November 2018 at 12.23 to the respondent’s solicitor in which she said this, amongst 20 other things: - “To the SEXUAL HARASSER AND BULLY AND STALKER, I am writing to you here as a victim of abuse by you. 25 You are involved in sexually harassing me on multiple occasions both directly and indirectly including Bullying, harassment, Threatening (including in this e-mail), Stalking, Abuse, treating Indians and Hindus as slaves and treating Indians in the degrading manner. You are involved in Torture and violent behaviour towards me including Breach and assault of my human rights. You 30 have encouraged and supported and said all these crimes by more than 80 members involved is legal and lawful. STOP WRITING RUBBISH TO ME YOU SEXUAL ABUSER. STOP WRITING DISGUSTING E-MAILS TO ME YOU ABUSE AND SEXUAL HARASSER. You DISGUSTING PERSON STOP WRITING APPALLING AND DISGUSTING INFORMATION TO ME. 35 DO YOU UNDERSTAND OR DO YOU WANT ME TO START THE MARCHING AND PROTESTS IMMEDIATELY IN PUBLIC IN FRONT OF S/4105711/16 Page 16 YOUR HOUSE, YOU SEXUAL HARASSER AND BULLY AND SHAMELESS MAN……..” 40. Counsel then referred me to an e-mail which the claimant sent to the Tribunal, 5 copied to Mr Gunn, on 28 January 2019 at 09:52, at a time when she was aware of the Order. It was in the following terms: - “Dear Sirs, This is Bullying, harassment, Intimidation and coercive behaviour by Mr 10 Daniel Gunn, Counsel Stobart and Respondent. Respondent’s legal representative had been writing repeated correspondence to me for no reason and had been forcing me to take their orders and instructions and are forcing me to follow their orders for to do their work (sic) which Mr Gunn and counsel and the Respondent think are correct. This had happened in twice 15 (sic) on Friday 25th January 2019. This is an unwanted behaviour of Mr Gunn, Counsel Stobart and the Respondent which amounts to Bullying, harassment, Intimidation and Coercive behaviour, this is belittling me. Last Friday Mr Gunn wrote an e-mail to the Tribunal administrative staff and 20 was instructing me through them to do his work and take instructions from him and from the Respondent and do their work and follow their instructions. He did the same again in the evening on Friday despite writing a response. This bullying, belittling, humiliation, intimidation, coercive behaviour had been 25 going on since 2 weeks, please see their e-mails where they are making fun of me and belittling and humiliating me. I already wrote a formal response to the Judge in response to their request. I do not wish to receive any unwanted e-mails from Mr Gunn, Counsel and 30 Respondent in relation to matters which are not my business.” 41. Counsel submitted that this was exactly the type of correspondence which EJ Hendry had ordered should not happen. 35 42. Further, on 30 January 2019 at 12:00 the claimant sent another e-mail to the Aberdeen Tribunal, copied to the Respondent’s solicitor in the following terms: - “Subject: Application seeking damages for Defamation, Application to 40 request Court Orders to Mr Daniel Gunn not to contact me unnecessarily for matters which are not my business at all. S/4105711/16 Page 17 This is a formal complaint against Counsel Alice Stobart and Mr Daniel Gunn for Bullying, harassment, Intimidation, Coercive behaviour and giving me instructions to do their work, writing unwanted e-mails without no reason to me instead of writing to the appropriate staff, making false accusations against me regarding the Judgement document and when the complete fault 5 is of the Tribunal staff and repeatedly harassing me to do things and their jobs and forcing me to take their instructions and do their jobs. This is an application against the Respondent seeking damages for Defamation. 10 Preliminary hearing scheduled for 12th February 2019 includes addressing this new Application to Strike out my name to be anonymous under Rule 49 and 50 as confirmed in the Preliminary hearing in January 2018 sending me the Judgement document on 10th December 2018 and sending it only to the 15 Respondent despite writing several requests starting from 16th January 2019, the Tribunal staff did not send me the document until 42 days which I received on 23rd January 2019. All this is a part of the first part of the Preliminary hearing which is a part of my request for amendments as I have 42 days time from 23rd January 2019 (date of receiving the Judgment 20 document). Judge Hendry had said in January 2018 during the Preliminary hearing that As per Rule 49 and 50 my name must be anonymous as I am a victim of Sexual harassment and Sexual assault. Judge Hendry opened a Textbook 25 on Employment law and said both these rules apply to this case and to me. Judgment document had breached such anonymity which is also part of the matter to be addressed on 12th February 2019. I have never waived my anonymity and I have never given any kind of consent to anyone until now either to the Criminal court, Tribunal or the Civil court or to anyone to make 30 my name public as being a victim of sexual harassment and sexual assault. I have a right to remain anonymous for life. As you are aware I had I (sic) already written to the Judge requesting to issue a formal letter to the previous solicitor to provide a formal letter to the Tribunal 35 no (sic) if they have received the Judgment document and the evidence of receiving that document and the evidence of returning the document back or if they had kept the document with themselves and the evidence of contacting either Tribunal or claimant or respondent to alert in the form of voice messages or an e-mail. 40 It is the Tribunal staff who had alleged that they had sent it to Mr Tim Johnson and I have not witnessed that either so I do not know if they had sent it or not to Tim Johnson and they might have to provide that evidence as well to the Respondent as they are requesting the evidence. It is definitely not my job 45 to chase where the Tribunal staff have sent the documents. I have already requested a formal statement from Mrs Rebecca Kinnaird and also the member of the staff who has allegedly sent the Judgment document to Tim Johnson and not to me, as a part of the investigation during the 50 S/4105711/16 Page 18 Preliminary hearing to assist in this investigation when we addressed the application to Strike out, and their statements are extremely important to the Respondent as they are repeatedly writing to provide evidence that it is very important to me as well as I am extremely concerned about the Tribunal staff in handling such sensitive and confidential information and not sending me 5 any Documents despite several requests and not providing the Judge with the crucial documents when requested. This is Defamation and I request the Judge to consider this as an application against the Respondent and request to seek damages for Defamation and 10 forms part of the response to the Respondent’s request for Court order, making an Application of Strike out but making false accusations that defaming me and also for Mr Daniel Gunn contacting me for no reason at all despite writing requests to him not to contact him. 15 I request the Judge to issue Court orders to Mr Daniel Gunn that he must not contact me at all under any circumstances for reasons which are not my business except which are related to this case as following up the work of the Tribunal staff is not of my business. 20 Please find the evidence of emails below to support my Application for Defamation and request to issue Court orders to Mr Daniel Gunn not to contact me for matters which are not my business.” 43. Counsel submitted that EJ Hendry had ordered the claimant not to continue 25 with this sort of conduct. She had done, and Counsel could see no prospect of it ceasing. She submitted that the claimant had continued to conduct herself in direct contravention of the Orders. 44. There is also the additional concern for the respondent that the case is 30 proving to be very expensive and the costs are disproportionate. 45. Counsel also submitted that at the previous Preliminary Hearing the claimant had described the respondent as “terrorists” and made comments such as: “I will not leave this until everyone goes to jail”; that SS’s PHD was “a fake” and 35 should not have been awarded; that she had sent her allegations to the press; and that she would “definitely not stop until society is safe”. She also alleged she had sent e-mails to the Prime Minister and the Scottish Government. 46. Counsel submitted that the claimant was engaged in a campaign against 40 various people and that her conduct amounted to an “abuse of process”. S/4105711/16 Page 19 47. Finally, Counsel submitted that, in isolation, breach of the Orders might be considered trivial, “were it not for the broader picture”. She submitted that the claimant feels that she is “immune” and that, “every time she has been given another chance by every Judge”. 5 48. For all these reasons, therefore, Counsel submitted that the claim should be struck out. Claimant’s Submissions 10 49. The claimant drew to my attention again, that she had not received a copy of EJ Hendry’s Judgment until 23 January 2019 and the strike-out application was made by the respondent’s solicitor before that, on 16 January. 50. She maintained that she had telephoned the Tribunal and called at the 15 Tribunal office concerning the issuing of the Judgment as she was concerned that she had lost her right of Appeal. She claimed that she felt “bullied” by the Tribunal staff. 51. She denied that she had intimidated witnesses and opposed the claim being 20 struck out on that basis. She drew to my attention that in the strike-out application Mr Gunn had accepted that the e-mail she had sent to C was, “very polite”. 52. I drew to her attention the terms of her e-mail of 8 February 2019 at 11:22 25 (referred to above), sent some time after she had received EJ Hendry’s Judgment containing his Orders, in which she said this, amongst other things:- “I find the correspondence from Mr Daniel Gunn distressing. 30 My husband C is involved in committing Sexual offences to me which B and the legal representatives who conducted the process had repeatedly said both in writing and in the audio recordings that it is not B’s business. Mr Gunn S/4105711/16 Page 20 had said to the Tribunal that the audio recording evidence had been destroyed. Mr Gunn himself and the management are involved in Sexual harassment. I had paid unimaginable amount of money to my representatives since 2015 5 because of Mr Daniel Gunn’s employment advice and his work on this case for B to conduct this whole process against me since 2015. Mr Gunn is worried about C’s expenses just for a few hours of work to pay for Mr Gilligan. I had been paying money to my representative since 2015 because of B and their legal representative’s advice which resulted in this process……” 10 53. She maintained that there was a difference between calling someone a “sexual harasser”, as opposed to maintaining that someone had been “involved in sexual harassment”. 15 54. She confirmed that her allegation of sexual harassment by Mr Gunn related to the way in which he had questioned her at the Appeal Hearing. She produced a transcript of the Hearing and referred to pages 65-84. She also maintained that the members of the panel at the Hearing were guilty of sexual 20 harassment. 55. She said, “I wouldn’t breach Court Orders to harm my case. That was not my intention at all. It’s just circumstances that made me anxious and I panicked.” She maintained that the format of the e-mails which she sent was, “her way 25 of working at the NHS” and that she would always write, “a summary first”. 30 35 S/4105711/16 Page 21 Discussion and Decision Relevant Rule of Procedure 56. Rule 37, in Schedule 1 of the Employment Tribunals (Constitution and Rules 5 of Procedure) Regulations is in the following terms: - “37. Striking-Out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or 10 response on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings are being conducted by or 15 on behalf of the claimant or the respondent, (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of the Rules or with an Order of the Tribunal; (d) that it has not been actively pursued; 20 (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question 25 has been given a reasonable opportunity to make representations, either in writing or, if requested by the parties at a hearing. (3) Where a response has been struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.” 30 Application for strike-out: Rules 37 (1) (b) and (e) 57. I was requested by the respondent’s Counsel to strike-out the claim in terms 35 of Rules 37 (1) (b) and (e), as EJ Hendry had been at the previous Preliminary Hearing. His Judgment, the Reasons for it and the Orders, were pivotal in my decision. As he recorded, the test for strike out is the same for both sub-sections (b) and (e), namely that a fair trial is no longer possible. 40 S/4105711/16 Page 22 58. I also associate myself with EJ Hendry’s observations on the relevant case law to which he referred. He said this in the Reasons for his Judgment (“the Reasons”):- “42. In the case of Blockbuster Entertainment Ltd v. James [2006] IRLR 630 CA the Court of Appeal found that for a Tribunal to strike out a claim 5 based on unreasonable conduct (Rule 37(1)(b)) it has to be satisfied that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; in either case striking out must be a proportionate response. At paragraph 21 Lord Justice Sedley giving the leading Judgment records: 10 “The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike out power exists. The answer has to take into account the fact – if it is a fact – that the Tribunal is ready to 15 try claims; or – as the case may be – there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so 20 keep in mind the purpose for which it and its procedures exists.” ………………………………………………………………………………. 25 44. I also had regard to the case of Bennett v. Southwark London Borough Council [2002] ICR 881 CA in which the actions of a claimant’s lay representative were examined which I believe has some application here particularly the comments of Lord Justice Sedley at paragraphs 33 and 34 in relation to the proportionality of using strike-out. 30 “33. There is a further hurdle to be surmounted in any strike-out application, as both Counsel before us agree. It is that if the conduct of a party’s case is shown to have been scandalous, it must also be such that striking out is a proportionate 35 response to it. This seems to me, as it seemed to Counsel, to be a commonsense axiom requiring no resort to Article 6 of the European Convention on Human Rights. But – evidently because it was not argued – this requirement was not addressed at all by either the Warren Tribunal or the EAT. 40 In the present circumstances there is no need to decide the proportionality of striking out as a response to Mr Harry’s conduct of the proceedings because for other reasons the decision to strike out cannot stand. But proportionality must 45 be borne carefully in mind in deciding these applications, for S/4105711/16 Page 23 it is not every instance of misuse of the judicial process, albeit it properly falls within the description scandalous, frivolous or vexatious, which will be sufficient to justify the premature termination of a claim or of the defense to it. Here as elsewhere, firm case management may well afford a better 5 solution…….” 45. It must be said that the lay representative’s action in that case took place at a Hearing before the Tribunal causing it to recuse itself or in the Scottish terms decline jurisdiction. The claimant’s behaviour here is not 10 directed against the Tribunal but against her former employers and her chosen representatives. We have not yet reached the stage of a final hearing. I would note that the various comments made by the lay representative in the Bennett case (scandalous though they were held to be alleging bias by the Tribunal) pales somewhat when contrasted against the comments made by 15 the claimant here. 46. In the present case I consider it has being clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the part of the claimant. The content of her communications, containing personal 20 slurs, threats and intemperate language is ample evidence of this. The issues that remain are whether a fair trial is possible and whether strike out in the whole circumstances is a justified and proportionate response to her behaviour.” 25 59. I was also mindful of the following passage in the Reasons: - “49. Tribunals require to take great care when considering strike out applications especially in cases involving allegations of discrimination. I also bore in mind the comments made by Lord Hope in Anyanwu Ano v. Southbank Students Union & Ano [2001] ICR HL: 30 “I would have been reluctant to strike out these claims, on the view that discrimination issues of a kind which have been raised in this case should as a general rule be decided only after hearing the evidence.” 35 60. Although EJ Hendry decided not to strike out the claim, it is clear that he only did so with considerable hesitation, as he said this in the Reasons:- “54. The answer if there is one I believe lies in more robust case management. It must be clear to the claimant that no further behaviour of 40 this sort will be tolerated. At an earlier stage it perhaps should have been made clear to the claimant that her approach was completely wrong and the Tribunal expects parties to act with courtesy, not to use inflammatory language and confine themselves to the issues a Tribunal has the power to deal with namely unfair dismissal and discrimination and not wild allegations 45 of medical negligence and terrorism. This could have been buttressed by S/4105711/16 Page 24 formal orders made either at the Tribunal’s initiative or at the behest of the respondents. If there had been serious lapses in required standards then the Tribunal could be asked to strike out the proceedings and the claimant would have had ample warning. I therefore, with some misgivings, refuse the strike out request.” 5 61. He then went on to make the Orders, which I have detailed above, and finally he said this:- “56. I would record that the claimant’s behaviour in this case has been quite extraordinary and I have experienced nothing like this in my lengthy 10 experience as an Employment Judge. If I had the power to strike out the proceedings on the basis that the claimant’s behaviour was an affront to justice then I would have seriously considered that this would have been the sort of unusual case where such a power might be properly exercised. I do not and I am bound by the Rules I have discussed and I must act accordingly.” 15 62. It was in light of these observations, therefore, that I considered carefully, the claimant’s conduct since the previous Preliminary Hearing which EJ Hendry conducted on 14 November 2018. In doing so, I had regard to the 20 submissions which I heard from the respondent’s Counsel and from the claimant herself and also the extensive correspondence, mostly in the form of e-mails and mostly initiated by the claimant, in the Tribunal file. EJ Hendry’s Judgment 25 63. It was, of course, the claimant’s position that she did not receive a copy of the Judgment until 23 January 2019, when the Tribunal sent her a copy by post. 64. The Tribunal had sent a copy of the Judgment on 10 December 2018 to the 30 claimant’s previous solicitors in London. This was a mistake, as the solicitors had advised the Tribunal on 22 November that they were no longer acting on behalf of the claimant. When the matter came to light, the Tribunal assumed, wrongly it would appear, that the solicitors would have sent a copy to the claimant. 35 S/4105711/16 Page 25 65. A copy was sent to the claimant by the Tribunal on 21 January by first class post. The claimant called at the Tribunal Office later that day when she was advised that a copy had been sent to her and an apology was given for the Tribunal’s error. However, the claimant did not appear to accept that there had been a genuine error and further lengthy correspondence ensued about 5 the matter. 66. The respondent’s solicitor, Mr Gunn, was also surprised that the claimant’s former solicitors had not sent her a copy of the Judgment and suggested that the claimant ask them to confirm that they had received a copy and they had 10 not forwarded it to her. She was not prepared to do so. She took issue with the suggestion which she alleged was further evidence of “bullying and harassment” by Mr Gunn. 67. On 6 February 2019 at 14:18, the Tribunal sent the following e-mail to the 15 claimant:- “Employment Judge Hendry has asked me to respond to your e-mail dated 2 February 2019. He notes your position appears to be that you only received the Judgment late when it was sent to you by the ET staff. You need to be candid about the matter and there is no reference by you as to whether your 20 solicitors alerted you to the existence of the Judgment or sent you a copy of it. You should clarify this as soon as possible and it would be prudent to seek confirmation from them about what action, if any, they took on receipt of the Judgment. 25 The Judge notes that you want to have the Judgment reconsidered particularly in relation to the naming of C. That matter may have to be dealt with separately as Judge Hendry may not be available for the Hearing. In any event there will be an application for anonymisation of the papers which impacts on this matter. 30 The Judge observes that you are perfectly correct that the amendment lodged by you in August 2018 has not been allowed. You may during the Hearing make reference to that document but if a claim is not in the original ET1 then any additional claims made require amendment and this can be opposed by 35 the respondent. The Judge suggests that it may be easier to look at the ET1 and ask what changes you want to make to it (not by way of detail) but by way of additional claims to focus on what the subject matter of any amendment could be. The amendment cannot be allowed in its present state. He observes that you had been told that many of the claims in the document 40 are outwith the jurisdiction of the Tribunal to deal with. For example items vi S/4105711/16 Page 26 (invasion of personal life) to x (encouraging and supporting misconduct) xii (psychological torture) to xviii (perversion of justice). You need to think about what incidents amounted to harassment, or victimisation or whatever having regard to the appropriate statutory test. The Judge expects that the first matter that is likely to be discussed will be C’s representative’s application, 5 although the order in which matters are addressed will ultimately be a matter for whoever deals with the Hearing. The next issue will probably be the application for strike out if it is still live and then we can turn to the pleadings and finally to the witnesses and other matters.” 10 68. The claimant responded that day by e-mail at 16:17, with a number of attachments. She alleged that the suggestion by the respondent’s solicitor that she seek confirmation from her former solicitors was, “repeated bullying and harassment forcing the claimant to take his (her solicitor’s) instructions….”. 15 69. She sent further e-mails to the Tribunal later that day at 23:17 and 23:24 continuing to complain about the copy Judgment being sent to her former solicitors and reiterating that C, “is involved in sexual harassment and sexual assault towards me and the management and Mr Daniel Gunn (the 20 respondent’s solicitor) who are involved in Sexual harassment towards me……”. 70. This issue of when the claimant received a copy of the Judgment was further complicated by the terms of the e-mail which the claimant sent to C on 12 25 January 2019 at 23:35, which was referred to by the respondent’s Counsel in her submission. In that e-mail she states that the application for strike-out, “had been unsuccessful and the case is going ahead”, which suggested that she was aware of EJ Hendry’s Judgment before 23 January, when she claimed she received a copy for the first time. 30 71. In any event, for the purpose of the issues with which I was concerned at the Preliminary Hearing, I accepted that the claimant had not received a copy of EJ Hendry’s Judgment until 23 January 2019. She was not aware of his Orders, therefore, when she sent the e-mail on 12 January at 23:35 to C in 35 the following terms:- S/4105711/16 Page 27 “How are you. I just wanted to let you know that the Preliminary hearing against NHS Grampian is scheduled for 12 February 2019 at 10am in the Employment Tribunal, Aberdeen. The Judge had advised that the witnesses could attend the hearing. 5 The final trial dates which were set earlier will not be the same as before as there had been some delay due to the delaying tactics by NHS Grampian management. On 14 November 2018 there was a Preliminary hearing to set the dates for final trial but the Counsel representing NHS Grampian made an application to struck off (sic) my case from the court and made arguments 10 that my case must be struck off from the court. NHS Grampian’s Counsel had been Unsuccessful and the case is going ahead. Not only that the Judge had decided that the Preliminary hearing must be held in Public against NHS Grampian’s request for private hearings. 15 I will write to you as soon as I want documents from you. The Judge had advised me that all the documents that I wish to produce in the form of disclosure documents must be made in few copies and submit (sic) to the Tribunal on the day of the Preliminary hearing. I will write to you the list of all the documents/e-mails which I would need from you for the Preliminary 20 hearing to allow a fair legal trial. Good night C Kind Regards 25 A.” 72. Nor was she aware of the Orders when she sent an e-mail to C on 13 January 2019 at 16:29 with the subject matter C’s wife “as a witness”. The e-mail was 30 in the following terms:- “How are you. I’ve added Kathy (C’s wife) as a witness in this case. Please let her know. I request to please not to write on her behalf and would appreciate if she writes to me directly as this is a Legal trial. I will let you know if I will add your sister and your mother as well as you had referred all 35 of them throughout the process NHS Grampian. Kind Regards, A.” 40 73. Although the claimant was unaware of the Orders when she sent these e-mails, she was aware that the respondent’s Counsel had expressed concern about her communicating with the respondent’s witnesses at the previous Preliminary Hearing and alleged that, “this was designed to cause upset and 45 S/4105711/16 Page 28 intimidate”; and she was aware that C is an essential witness for the respondent in this case. His wife is not a witness and cannot give relevant evidence. Despite the letter being couched, on the face of it in polite terms, I accepted the submission by the respondent’s Counsel that the letter was designed to be intimidatory. In her submissions, the claimant referred me to 5 the e-mail of 16 January 2019 from the claimant’s solicitor in which he applied for strike out. She pointed out that he had described her e-mails of 12 and 13 January to C as “polite”, conveniently ignoring the fact that he had actually described them as “superficially polite” and had gone on to allege that they were, “a thinly veiled threat at intimidation and a further example of the 10 Claimant continuing to harass him”. 74. The claimant had written to an essential witness direct, knowing that the respondent had legal representation and advised him that she intended involving his wife and other members of the family at any Hearing as 15 witnesses and requested that his wife deal with her direct. 75. C had previously written to the Tribunal by e-mail on 18 December 2018 to express his concerns that he was “easily identifiable” in EJ Hendry’s Judgment which by then was a public document, and to request that the 20 claimant desist from referring to herself as his wife having made it clear previously that, “she is not my wife and should not be using my name”. He then went on in his e-mail to say this: “The complainant has made repeated attempts to harass and intimidate me and I regard her mendacious adoption of my name to be further evidence of her harassment of me. Thank you in 25 advance for considering this, especially in light of the Judge’s comments about the behaviour of the complainant towards witnesses.” 76. The claimant continued to use C’s surname and claim that she was his wife, 30 despite C being married, and to correspond in the same unreasonable and intemperate manner, making very serious allegations indeed, as she had S/4105711/16 Page 29 always done, despite EJ Hendry’s warnings. As I recorded above, I was advised by the respondent’s Counsel that, as a direct consequence of this continuing “intimidation”, demonstrated by the e-mail which the claimant sent to C on 13 January, that C had now instructed his own solicitor, was refusing to engage with the respondent’s solicitor, as an essential witness would be 5 required to do, and was not prepared to provide details of dates when he would be available to give evidence at any Final Hearing. 77. In my view, the correspondence clearly demonstrates that the claimant has 10 intimidated C, an essential witness for the respondent, and significantly there is no indication whatsoever that she has taken heed of EJ Hendry’s warnings and that she will desist or moderate her conduct in any way. 78. I also had sight of the written statement from SS dated 12 November 2017. 15 While, unlike C, she is not an essential witness, I was advised that she is a potential witness for the respondent in respect of at least the issue of remedy. SS states that she also does not want to appear at any future Hearing as a witness due to “harassment and intimidation” by the claimant and a fear that it “will continue as long as I am involved in the process”. 20 79. In the Reasons at Para 46, EJ Hendry said this: - “I consider that it has been clearly demonstrated that there has been scandalous, vexatious and unreasonable conduct on the part of the claimant. The content of her communications, containing personal slurs, threats and intemperate 25 language is ample evidence of this”. 80. That type of conduct has continued after the previous Preliminary Hearing. Nor did the claimant need to be aware of the Orders to know that she had to desist. EJ Hendry said this at Para 54 in the Reasons: - “ It must be clear to 30 the claimant that no further behaviour of this sort will be tolerated”. 81. The “scandalous, vexatious and unreasonable conduct” has continued unabated since the previous Preliminary Hearing and witnesses have been S/4105711/16 Page 30 “intimidated and harassed”. This renders a fair trial impossible. I have decided, therefore, to strike-out the claim, in terms of sub-sections 37 (1) (b) and (e). In arriving at this decision, I was mindful that the claimant was unrepresented and had no experience of Employment Tribunal proceedings; and that the power to strike-out must be exercised, as EJ Hendry put it, 5 “carefully and sparingly as its effect is to deprive a litigant of their entitlement to pursue their statutory employment rights”. Nevertheless, I was satisfied that such a course of action fell within the strike-out Rules, that it was in accordance with the “overriding objective” in the Rules; and that it was a justified and proportionate response, in all the circumstances, to her conduct. 10 82. It is also relevant, in my view, albeit to a lesser extent, that the claimant continues to level the very serious allegation of bullying and sexual harassment against the respondent’s solicitor and berate him ad nauseam. This allegation, I understand, relates primarily to the manner of his cross-15 examination of the claimant during the disciplinary proceedings. The claimant produced the transcript of the Appeal Hearing, having written across the front page, “Sexual harassment by NHSG staff and Mr Daniel Gunn….Document is evidence of Bullying, harassment, Sexual harassment, Racial Discrimination, Religious Discrimination, victimisation, Defamation, 20 Character Assassination”. She referred me to pages 65-84. Having read the entire transcript, I am of the view that this allegation is wholly unfounded. Mr Gunn was simply “doing his job” and testing the claimant’s evidence as he was entitled to do. In any event, the claimant was represented at the Hearing and there was a panel of four. No one took issue with Mr Gunn’s line or 25 manner of questioning and yet the claimant continues with her allegations. When I referred her to her e-mail of 8 February 2019 at 11:22 at the Preliminary Hearing and in particular the second paragraph where she alleged that, “Mr Gunn himself and the management are involved in sexual harassment”, she maintained that this was different from an allegation that he 30 was guilty of sexual harassment. In my view, there is no distinction. S/4105711/16 Page 31 83. In her email of 8 February at 11:22, the claimant also accused the Tribunal staff of bias and discrimination. On my instructions, the Tribunal responded by e-mail the same day at 14:37 to advise that the allegation was unfounded and was denied, “in the strongest possible terms” and to warn the claimant, once again about her conduct: “ The implications of this continuing course of 5 conduct, will require to be considered by the Tribunal. Meantime, EJ Hosie directs you to desist from making such unfounded allegations. You also complain of delay, but in very large part that is due to the volume of your correspondence, its often accusatory and confrontational nature and the multitude of complaints you have levelled, which in EJ Hosie’s experience is 10 unprecedented. As previously advised, you should reflect carefully on the manner in which you are conducting this case”. 84. Such allegations must be distressing to the Tribunal staff who naturally would be intimidated by such allegations. They must now be wary when engaging 15 with the claimant as their duties require. The staff are an essential part of the Tribunal process. 85. The respondent’s solicitor also has an essential part to play in the Tribunal process, representing his client’s interests. These are additional factors 20 which make a fair trial impossible. 86. For all these reasons, therefore, I arrived at the view that the submissions by the respondent’s Counsel were well-founded. I confirm, therefore, that the claim is struck out in terms of Rules 37(1)(b): “that the manner in which the 25 proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; and 37(1)(e): that the Tribunal considers that it is no longer possible to have a fair Hearing in respect of the claim or response (or the part to be struck out).” 30 S/4105711/16 Page 32 Application for strike out: Rule 37 (1) (c) Failure to comply with Orders of the Tribunal 87. Counsel also submitted that the claim should be struck out on the ground that 5 the claimant had failed to comply with an Order of the Tribunal under Rule 37(1)(c):- “37 Striking Out (1) At any stage of the proceedings, either on its own initiative or in the 10 application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds – ………………………………………………………………………………….. (c) for non-compliance where any of these Rules or with an order of the 15 Tribunal.” 88. As I recorded above, in the Reasons EJ Hendry made the following Orders at Para 55:- 20 “1. The claimant shall immediately desist from repeating the allegations previously made by her in e-mail correspondence against SS, C and Mr Gunn, whether in future correspondence or otherwise, except where it is necessary and relevant to advance the issue in her claims for unfair dismissal and discrimination and she had beforehand obtained the 25 express permission of the Tribunal to do so. 2. The claimant shall correspond professionally and politely with Mr Gunn or any other representative of the respondents. 30 3. The claimant shall not except with the sanction of the Tribunal contact or attempt to contact any witnesses until a Witness List is agreed.” 35 89. I accepted, of course, that the claimant did not receive the Judgment until 23 January 2019. She could not have been aware of these Orders, therefore, until that date. I only considered, therefore, whether there had been non-compliance after that date. S/4105711/16 Page 33 90. Despite the clear terms of these Orders and EJ Hendry’s observations on the claimant’s conduct and the warnings he gave about her future conduct, the claimant continued to conduct herself in the same intemperate, confrontational and challenging manner. She continued to repeat the allegations against C, SS and the respondent’s solicitor, Mr Gunn; she 5 appeared unwilling to accept that the Tribunal had made a genuine mistake when sending a copy of the Judgment to her former solicitors; she complained about this repeatedly, despite EJ Hendry advising her should she wish to apply for a reconsideration of the Judgment or appeal, account would be taken of the late receipt of the Judgment by her and reassuring her 10 that she would not be prejudiced by an admitted mistake by the Tribunal; she accused the tribunal staff of bias and discrimination. 91. As Counsel drew to my attention, in response to a suggestion by the respondent’s solicitor, Mr Gunn, that she could contact her former solicitors 15 to clarify what actions they took on receipt of the copy Judgment she responded to the Tribunal, copied to the respondent’s solicitor, by e-mail on 28 January 2019 at 09:52 as follows:- “This is Bullying, harassment, Intimidation and coercive behaviour by Mr Daniel Gunn, Counsel Stobart and Respondents. The Respondent’s legal 20 representatives had been writing repeated correspondence to me for no reason and had been forcing me to take their orders and instructions and are forcing me to follow their orders for to do their work which Mr Gunn and counsel and the Respondent think are correct. This had happened in twice (sic) on Friday 25 January 2019. This is an unwanted behavior of Mr Gunn, 25 Counsel Stobart and the Respondent which amounts to Bullying, harassment, Intimidation and Coercive behaviour, this is belittling me. Last Friday Mr Gunn wrote an e-mail to the Tribunal administrative staff and was instructing me through them to do his work and take instructions from 30 him and from the Respondent and do their work and follow their instructions. He did the same again in the evening of Friday despite writing a response. This bullying, belittling, humiliation, intimidation, coercive behaviour had been going on since 2 weeks. Please see their e-mails where they are making fun 35 of me and belittling and humiliating me. I already wrote a formal response to the Judge in response to the request. I do not wish to receive any unwanted e-mails from Mr Gunn, Counsel and Respondent in relation to matters which are not my business.” 40 S/4105711/16 Page 34 92. In my view, the request by Mr Gunn was a perfectly reasonable one. Her response was unwarranted. It was a complete overreaction. Despite the Orders, it was “impolite” and “unprofessional”. It was in the same vein, using the same sort of intemperate language and making wild accusations, as she had done before the previous Preliminary Hearing. 5 93. In response to the application by C’s solicitor for anonymity and to be heard first at the Preliminary Hearing, to save expense, once again a perfectly reasonable request, the claimant submitted a 9-page letter of objection which she attached to her e-mail of 29 January at 15:12. In her letter she repeated 10 her allegations of, “sexual harassment and sexual assault by C”; made allegations that the respondent had been guilty of “manslaughter” and “encouraged and supported the sexual misconducts of C and his student SS”; and alleged that the respondent and C’s solicitor were colluding and that the application by C’s solicitor was, “a delaying tactic by the respondent to avoid 15 first hand witness statement and first hand information from C and had been set up to jeopardise this case.” 94. On 30 January at 12:00, the claimant sent an e-mail to the Tribunal, copied to the respondent’s solicitor. The subject of the e-mail was: “Application 20 seeking damages for Defamation, Application to request Court Orders to Mr Daniel Gunn not to contact me unnecessarily for matters which are not my business at all”. 95. The first paragraph of her e-mail was in the following terms:- 25 “This is a formal complaint against Counsel Alice Stobart and Mr Daniel Gunn for Bullying, harassment, Intimidation, Coercive behaviour and giving me instructions to do their work, writing unwanted e-mails without no reason to me instead of writing to the appropriate staff, making false accusations against me regarding the Judgment document and when the complete fault 30 is of the Tribunal staff and repeatedly harassing me to do things and their jobs and forcing me to take their instructions and do their jobs. This is an application against the Respondent seeking damages for Defamation.” 35 S/4105711/16 Page 35 96. She then went on in her e-mail to raise yet again the matter of her receiving a copy of the Judgment late and requested a “formal statement” from the Tribunal member of staff “who has allegedly sent the Judgment document to (her solicitor) and not to me…..”. There is a copy of a letter dated 10 December 2018 on file sending a copy of the Judgment to the claimant’s 5 former solicitors in London and a copy letter in identical terms, on the same date, to the respondent’s solicitor. 97. The Tribunal responded by e-mail on 1 February at 15:29. The following is an excerpt:- 10 “Judge (Hendry) has seen your e-mail dated 30 January 2019 to Mr Gunn. The Employment Tribunal does not deal with defamation and cannot prevent Mr Gunn writing to you as a solicitor acting for the respondent and there is nothing in any of the correspondence that is untoward or improper that the Judge has seen. If something has escaped the Judge’s attention please 15 highlight it to him and he will look at it carefully. The Judge notes the application made by the respondent for production of any correspondence from your former solicitors about the Judgment. You may be aware that correspondence between a client’s solicitor is generally 20 privileged. That is it cannot usually be referred to or its production required. However, they are your former solicitors and it seems appropriate for you to disclose when they wrote to you about the Judgment and if they included a copy as it bears on your state of knowledge of its terms. Are you prepared to disclose this voluntarily to Mr Gunn?” 25 98. The claimant responded by e-mail on 2 February, but her position remained unclear and that was why on 6 February the Tribunal sent a further e-mail to the claimant at 14:18. The following is an excerpt:- “Employment Judge Hendry has asked me to respond to your e-mail dated 2 30 February 2019. He notes that your position appears to be that you only received the Judgment late when it was sent to you by the ET staff. You need to be candid about the matter and there is no reference by you as to whether your solicitors alerted you to the existence of the Judgment or sent you a copy of it. You should clarify this as soon as possible and it would be prudent to 35 seek confirmation from them about what action, if any, they took on receipt of the Judgment…..” S/4105711/16 Page 36 99. The claimant responded by e-mail on 6 February at 16:17. She referred to the e-mail of 3 February in which she narrated the circumstances once again but failed to state categorically whether she had received a copy of the Judgment from her solicitors. 5 100. As I recorded above, on 8 February at 11:22, some weeks after she had received a copy of the Judgment and was aware of the Orders therefore, the claimant sent an e-mail to the Tribunal, copied to C’s solicitor and the respondent’s solicitor and also “Ashok Puligari”, who I understand is one of the claimant’s relatives. 10 101. In that-mail she made the following allegations:- “My husband C is involved in committing Sexual offences towards me which B and their legal representatives who conducted the process had repeatedly said both in 15 writing and in the audio recordings that it is not B’s business. Mr Gunn had said to the Tribunal that the audio recording evidence had been destroyed. Mr Gunn himself and the management are involved in Sexual harassment.” 102. The e-mail was meant to be a response to the application by C’s solicitor for 20 anonymisation and to be heard first at the Preliminary Hearing. 103. As I recorded above, she attached to her e-mail a letter dated 28 February in which she alleged that B was guilty of “fraud and cheating” and of “attempted manslaughter”. She also alleged again that B had, “used C as a scapegoat 25 and made him complain against me despite knowing that he had sexually harassed and sexually assaulted me and that he was having sex with his student SS in his office and in SENATOR business meetings.” She also alleged collusion on the part of the respondent’s solicitor and C’s solicitor and that they were using, “delaying tactics”. 30 S/4105711/16 Page 37 104. The terms of the Orders issued by EJ Hendry are in clear, unambiguous terms. Not only that, the Reasons could not have been clearer in warning the claimant that her behaviour was wholly unacceptable and, “that no further behaviour of this sort will be tolerated.” Despite this, the claimant has not desisted or even moderated her conduct as she was ordered to do. 5 Significantly, there is no indication whatsoever that she would do so in the future should I allow the claim to proceed. In my view, what EJ Hendry said in the Reasons and the Orders were an attempt at, “robust case management” but, regrettably it had no effect. 10 105. The claimant could not have been left in any doubt about what she was being ordered to do, and that she was being warned to moderate her future conduct. She chose to ignore these warnings. She did not, “desist from repeating the allegations previously made by her in e-mail correspondence”. She repeated the allegations against C, Mr Gunn and SS and also made further allegations 15 of discrimination against the Tribunal staff. 106. She also failed to “correspond professionally and politely with Mr Gunn”. 107. I had no difficulty arriving at the view, therefore, that she had failed to comply 20 with Orders 1 and 2. 108. Accordingly, the claim is also struck out in terms of Rule 37(1)(e) for non-compliance with Orders of the Tribunal. 25 Application to amend 109. As the claim has been struck out, it is not necessary for me to determine this issue. Suffice to say, that in general terms, I was satisfied that the submissions by the respondent’s Counsel were well-founded. The 88-page 30 amendment includes many complaints which had not been advanced to date despite the fact that the claim form was prepared and submitted by a solicitor S/4105711/16 Page 38 instructed by the claimant at the time (who the claimant blames) and there are also a number of “complaints” not within the Tribunal’s jurisdiction. Employment Judge: NM Hosie Date of Judgment: 05 March 2019 5 Entered in register: 06 March 2019 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4105711/2016 Claimant: A Respondent: B CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s)or omissions(s) in the Judgment sent to the parties on 7 March 2019: 1. At paragraph 5 of the Reasons 3 lines from the top of page 3, delete: “21” and substitute therefor: “22”. 2. On page 29 of the Reasons in the first line of paragraph 78 delete: “2017” and substitute therefore: “2018”. An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you. Employment Judge: Nicol Hosie Date of Judgment: 02 April 2019 Entered in the Register: 04 April 2019 And Copied to Parties