Ms S Messi v User Testing Ltd and others: 8000219/2024 and others

ETZ4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH 5 Judgment of the Employment Tribunal in Application for Interim Relief in Case No: 8000219/2024, Following Interim Relief Hearing Held at Edinburgh on the 19th of March 2024 10 Employment Judge J G d’Inverno Ms Sandra Messi Claimant 15 In Person User Testing Limited Respondent 20 Represented by: Mr Salter of Counsel instructed by Mr James England, Solicitor 25 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Judgment of the Employment Tribunal is that the claimant’s Application for Interim Relief is refused. 30 ______________________ Employment Judge 28 March 2024 ______________________ 35 Date of Judgment Date sent to parties ______________________ 40 I confirm that this is my Judgment in the case of Messi v User Testing Limited and that I have signed the Judgment by electronic signature. J d'Inverno 800 0219/2024 Page 2 REASONS 1. This case called for Interim Relief Hearing on the Cloud Based Video Platform at 10 am on the 19th of March 2024. The Hearing, which had initially 5 been set down to proceed In Person at Edinburgh, was converted to a remote CVP Hearing on the Application of the claimant. 2. The claimant appeared on her own behalf. The Respondent Company was represented by Mr Salter of Counsel. 10 3. Parties had each lodged with the Tribunal and mutually exchange a skeleton submission and a list of case authorities, to be referred to at the Hearing. In addition, the Tribunal had before it; the claimant’s ET1, a skeleton Grounds of Resistance on behalf of the respondent (the ET3 was not yet due for filing), a 15 Hearing bundle prepared by the respondent and a number of miscellaneous documents lodged by the claimant in a series of emails sent to the Tribunal and copied to the respondents in the days prior to the Hearing. Preliminary Matters 20 4. At the outset of the Hearing the Tribunal heard parties on two preliminary matters; (a) An Application at the instance of the claimant for an “Unless 25 Order”. The Application was one made by the claimant in the week prior to the Interim Relief Hearing and related to a document which she asserted the respondent should have provided her with but had not, being a document which vouched, that is to say provided evidence of, her alleged poor 30 performance which, in terms of the letter of dismissal on 29th February 2024, the respondents assert was the principal reason for their termination of the claimant’s probationary contract (pages 181 and 182 of the Bundle). 800 0219/2024 Page 3 (b) The potential use, in the course of the Interim Relief Hearing of recordings and self prepared transcripts of recordings made by the claimant of conversations between herself and certain of the respondent’s Managers. 5 5. The purpose of an Unless Order is to compel compliance by a party with an Order of the Tribunal through the contingency of a sanction triggered by non compliance. As at the date of the Interim Relief Hearing no such Order in respect of which there had occurred non compliance, was in place. 10 6. The document which was sought is said to be sought for the purposes of demonstrating that the respondent did not act fairly or acted without sufficiency of grounds in dismissing the claimant for the purported reason of poor performance. The claimant’s aspiration, in making the Application was 15 to have had the document sought, produced via the compulsion of the Unless Order prior to or at today’s Hearing, in the hope that it would demonstrate a lack of sufficiency of evidence justifying the decision to dismiss her on the purported ground of non performance. 20 7. The sufficiency of the evidence upon which the respondents dismissed the claimant for the purported reason of non performance is not, per se, the issue which the Tribunal requires to determine at today’s Interim Relief Hearing. It is premature to consider such an Application at this juncture in proceedings and the Tribunal declines to do so. Separately, let it be assumed that any 25 document which the respondent were to produce and upon which it relied in part as vouching the level of the claimant’s performance during her probationary period was to be regarded as insufficient to justify their decision to so dismiss her, that lack of sufficiency would not serve to demonstrate that the claimant was likely to succeed at a full evidential Hearing in establishing 30 that the principal reason for her dismissal was because she had made one or other or both of the alleged qualifying and protected disclosures which, at paragraph 8.2 of her initiating Application ET1 she gives notice of founding upon for the purposes of her complaint of automatic unfair dismissal in terms of section 103A of the Employment Rights Act 1996 (“ERA”); and further, for 800 0219/2024 Page 4 the purposes of Application for Interim Relief in terms of section 128 of the ERA, that last being the issue with which the Tribunal is concerned at today’s Hearing. 5 8. The recordings and other transcripts to which the claimant seeks to make reference at today’s Hearing are said to demonstrate dishonesty on the part of the respondent in relation to their operation of their probationary process and their assessment of the claimant during her probationary period including, in particular, an alleged failure to tell the claimant orally in her one 10 to one assessments that she was not performing well on the one hand whereas, on the other hand, that was the reason, in the respondent’s assessment and in terms of the letter of 29th February 2024, for which they dismissed the claimant. 15 9. Let it be assumed that the recordings and transcripts to which the claimant wishes to make reference do demonstrate what is described above, that does not in its turn go to demonstrate that the claimant is likely to establish at an evidential Hearing that the principal reason for her dismissal was the fact that she had made the alleged qualifying and protected disclosures relied upon by 20 her. 10. In terms of Rule 95 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 Schedule 1, a Tribunal will not hear oral evidence at a Hearing on an Application for Interim Relief but will seek to be 25 addressed by both the claimant and the respondent or their representatives on the Interim Relief issues, in terms of section 128 of the ERA and not the merits of the full claim. That process proceeds by each party or their representative, making their submission during which they each set out their legal arguments in support of or in opposition to the Interim Relief Application. 30 Parties may rely on relevant documentary evidence which goes to show that the claimant is likely, or is not likely, to establish at an evidential Hearing on the Merits that the principal reason for her dismissal was that of having made the alleged protected disclosures on which she gives notice of founding. 800 0219/2024 Page 5 11. The general prohibition against the hearing of oral evidence which is contained in Rule 95 is for the long established reason that the Tribunal at such an Interim Hearing must avoid making findings in fact which have the effect of binding or restricting the scope of inquiry which is to be undertaken 5 at a full evidential Merits Hearing. For the above reasons the Tribunal determined that neither the tape recordings nor the transcripts made of them by the claimant will form part of today’s Hearing. 12. In relation to the desired reliance upon recordings the claimant referred the 10 Tribunal to the Judgment of Employment Judge McManus issued in the Employment Tribunal (Scotland) at Glasgow on the 6th of February, that being a case in which Judge McManus allowed the showing and viewing of videos at an Interim Relief Hearing. 15 13. Having had the opportunity of reading the Learned Judge’s Judgment and Reasons I distinguish that Judgment on its facts. At paragraph 12 of her Judgment Judge McManus states “It was the claimant’s position that the video showed some of the alleged health and safety breaches he set out in the note relied on as being a protected disclosure. I considered that the 20 videos may be relevant to the likelihood of the claimant establishing at the Final Hearing that he had believed what was set out in his note in respect of health and safety concerns and that that belief was reasonable. That was significant with regard to the likelihood of the claimant proving at the Final Hearing that he had made a protected disclosure in terms of section 103A 25 and section 43B of the ERA. I allowed the videos to be shown, on the basis that no findings in fact would be made at this Hearing and therefore I would not be making any findings of any health and safety breach by the respondent. On that basis Ms Jenkins” [the respondent’s representative in that case] “had no objection to the videos being viewed at the Hearing”. 30 14. In the instant case the respondent’s representative opposed the playing of the tapes or reference to the transcripts of them made by the claimant, on the grounds that they were irrelevant to the issue before the Tribunal at the Hearing on the Interim Relief Application. As already set out above, based 800 0219/2024 Page 6 on the claimant’s description of what the recordings contain and unlike the Tribunal in Case Number 8000032/2023, the Tribunal in the instant case did not consider that that went to show the likelihood of the claimant proving at Final Hearing that she had either made the protected disclosures relied upon 5 or that the principal reason for her dismissal was that she had made those alleged disclosures. The Issue before the Tribunal for Determination 10 15. The issues which the Tribunal required to determine were (a) Whether Interim Relief should be granted to the claimant, in terms of sections 128 and 129 of the ERA, pending a final determination of her complaint, directed against the 15 respondent, that she was automatically unfairly dismissed in terms of section 103A of the Employment Rights Act 1996, that is for the principal reason that the claimant had made a protected disclosure, and 20 (b) In the event that Interim Relief is to be granted whether the Tribunal should order that the claimant be reinstated on particular terms and or make an Order for the continuation of the claimant’s Contract of Employment. 25 16. The claimant and the respondent’s representative each spoke to their respective written submissions which, having been mutually exchanged and submitted before the Tribunal, are not reiterated here. The claimant addressed the Tribunal first, the respondent’s representative responded and the claimant exercised a limited right of reply. With the exception of the 30 decision of Employment Judge McManus in Case Number 8000032/2023 upon which the claimant relied and which the respondent’s representative urged the Tribunal to distinguish, parties were otherwise agreed as to the relevant applicable law each iterating the Applicable Law as summarised citing and relying upon 800 0219/2024 Page 7 (a) the terms of sections 103A, 128 and 129 of the ERA and of the leading case authorities including:- 5 (1) Taplin v Shippam Limited [1978] IRLR 450, EAT (2) Ministry of Justice v Sarfraz [2011] IRLR 562, EAT (3) His Highness Sheikh Khalid Bin Saqr Al Qasimi v Robinson, UKEAT/0283/17/JOJ, Judgment, paragraph 59 10 (4) Wollenburg v Global Gaming Ventures (Leeds) Limited, EAT/0052/18 per Richardson J (penultimate paragraph) (5) London City Airport v Chacko [2013] IRLR 610 at page 23 per Mr Recorder Luba QC 15 (6) Parsons v Air Plus, UKEAT/0023/16/JOJ 4 March 2016 at paragraph [8] (7) Dandpat v University of Bath UKEAT/0408/09 10 November 2009 unreported (b) sections 48A and 43C to 43H and section 43B(1) of the ERA, in 20 relation to public interest disclosure and the authorities referred to by the respondent’s representative in that regard including; (8) Kilraine v London Borough of Wandsworth [2018] ICR 185 25 (9) Babula v Waltham Forest College [2007] ICR 1026 (10) Chesterton Global Limited v Nurmohamed [2018] ICR 731 (11) Salisbury NHS Foundation Trust v Wyeth, EAT/0061/15 30 The Applicable Law 17. Rule 95 of the ETR provides that for procedure on an Application for an Interim Relief that the Hearing should be conducted as a Preliminary Hearing 800 0219/2024 Page 8 within Rules 53 to 56. The leading authorities combine in giving guidance indicating that the Judge hearing the Application should make a brisk summary assessment based on the relevant material available. 5 18. Such Hearings are intended to be short with broad assessments made by the Employment Judge who cannot be expected to grapple with vast quantities of material (see Wollenburg – No (4) on the List). 19. The circumstances in which an Application for Interim Relief can be made are 10 set out in section 128 of the ERA; viz:- “(1) An employee who presents a complaint to an Employment Tribunal that he has been unfairly dismissed and – 15 (a) That the reason (or if more than one the principal reason) for the dismissal is one of those specified in – (i) section … 103A, … may apply to the Tribunal for interim relief” 20 20. Such an Application may be brought within 7 days of the date of dismissal as it is accepted by the respondents it has been in the instant case. 21. In order to succeed in an Application for Interim Relief a claimant must 25 demonstrate that it is likely that in determining his or her claim a Tribunal will find that the reason or if more than one the principal reason for the dismissal was the one prescribed by section 103A of the ERA, namely that the claimant had made a protected disclosure. 30 22. The leading authority is Taplin (No (1) on the List) where the Employment Appeal Tribunal further defined “likely” as meaning “a pretty good chance of success”. The test is that the claimant has “a pretty good chance of success” in establishing that the reason he/she was dismissed was that he had made a protected disclosure. In Taplin the EAT expressly ruled out alternative tests. 800 0219/2024 Page 9 According to the EAT the burden of proof in an Interim Relief Application was intended to be greater than at a full Hearing, where the Tribunal need only be satisfied on the “balance of probabilities” that the claimant had made out his case. 5 23. In Ministry of Justice v Sarfraz (No 2 on the List) Mr Justice Underhill, then President of the EAT, commented that the test of a “pretty good chance of success” does not mean simply “more likely than not” but connotes a significantly higher degree of likelihood, i.e. “something nearer to certainty 10 than mere probability”. “A “good arguable case” is not enough” – see Parsons v Air Plus (No 6 on the List) at paragraph 18. 24. The threshold for succeeding in an Interim Relief Application is accordingly a high threshold complementing what is “an exceptional form of relief” (see 15 Taplin at paragraph 19). 25. In Dandpat v University of Bath UKEAT/0408/09 (10 November 2009 unreported) (No 7 on the List) the EAT stated at paragraph 20:- 20 “20 … we do in fact see good reasons of policy for setting the test comparatively high, in the way in which this Tribunal did, in the case of applications for interim relief. If relief is granted the respondent is irretrievably prejudiced because he is obliged to treat the contract as continuing, and pay the claimant, until the conclusion of the 25 proceedings: that is not [a] consequence that should be imposed likely”. 26. A Tribunal is not to be criticised for concluding that matters are not sufficiently clear cut at the interim relief stage for it to have sufficient confidence in the 30 eventual outcome such as to grant interim relief (see Parsons No (6) on the List at paragraph 18). 800 0219/2024 Page 10 27. In approaching the task:- “The application falls to be considered on a summary basis. The Employment Judge must do the best he can with such” [relevant] 5 “material as the parties are able to deploy by way of documents and argument in support of their respective cases … what this requires is an expeditious summary assessment by the first instance Employment Judge as to how the matters look to him on the material that he has. The statutory regime thus places emphasis on how the 10 matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at a full Hearing of the claim.” (see London City Airport – No (5) above at paragraph 23). 15 28. In Parsons v Air Plus – (No (6) on the List) the EAT offered the following guidance as to approach:- “On hearing an application under section 128 the Employment Judge 20 is required to make a summary assessment on the basis of the material then before her of whether the claimant has a pretty good chance of succeeding on the relevant claim. The Judge is not required (and would be wrong to attempt) to make a summary determination of the claim itself. In giving reasons for her decision, it 25 is sufficient for the Judge to indicate the essential gist of her reasoning”: this is because the Judge is not making a final Judgment and her decision will inevitably be based to an extent on impression and therefore not susceptible to detailed reasoning; because, as far as possible, it is better not to say anything which might prejudge the 30 final determination on the merits.” 800 0219/2024 Page 11 29. In Al Qasimi v Robinson (No (3) on the List) at paragraph 59 the EAT said the following regarding approach:- “noting that the Tribunal is only to make a summary assessment of 5 the strengths of the case the EAT said, that it was:- “very much an impressionistic one: to form a view as to how the matter looked, as to whether the claimant had a pretty good chance and was likely to make out his case, and to 10 explain the conclusion reached on that basis; not in an overformulistic way but giving the essential gist of his reasoning sufficient to let the parties know why the application has succeeded or failed giving the issues raised and the test to be applied.” 15 30. The burden of proof sits with the claimant throughout who must succeed in each element of the claim. As Underhill P expressed the position in Ministry of Justice v Sarfraz (No (2) on the List):- 20 “In order to make an Order under section 128 and 129 the Judge had to have decided that it was likely that the Tribunal, at the Final Hearing, would find 5 things: (1) That the claimant had made a disclosure to his 25 employer; (2) That he believed that the disclosure tended to show one or more of the things itemised at paragraphs (a) to (f) under section 43B; 30 (3) That that belief was reasonable; (4) That the disclosure was made in good faith; and 800 0219/2024 Page 12 (5) That the disclosure was the principal reason for his dismissal 31. Since the decision in Sarfraz the good faith test is one which is now only 5 relevant to Remedy. It has been replaced with the test of whether the applicant reasonably believed the disclosure to be in the public interest. 32. It is a requirement that the disclosure is of information and not simply the making of an allegation or statement of opinion, albeit that the distinction is 10 not always an easy one to draw and a disclosure of information may be made alongside the making of an allegation. 33. It is a requirement that the claimant reasonably believes the disclosure to be made in the public interest albeit that this does not have to be his or her 15 predominant motive for making it. 34. Under section 48A of the ERA a “protected disclosure” is defined as a “qualifying disclosure” which is disclosed in accordance with sections 43C to 43H of the Act. Section 43B(1) of the ERA defines a qualifying disclosure as 20 follows:- “43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of 25 information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— (a) that a criminal offence has been committed, is being 30 committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, 800 0219/2024 Page 13 (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or 5 (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.” 35. Disclosure of information should be given its ordinary meaning, which 10 revolves around conveying facts. It is possible an allegation may contain information whether expressly or impliedly. In Kilraine v London Borough of Wandsworth [2018] ICR 185 (No (8) on the List), the English Court of Appeal said that in order for a statement or disclosure to be a qualifying disclosure, it had to have sufficient factual content and specificity such as is 15 capable of tending to show one of the matters listed in sub section (1) – (of section 43B). There is no rigid distinction between allegations and disclosures of information. Discussion and Determination 20 36. In terms of Ministry of Justice v Sarfraz, the first question to be subjected to the test incorporated in sections 128 and 129 of the ERA as further defined in the case authority is:- 25 (1) That the claimant had made a disclosure to his employer. 37. It was a matter of concession on the part of the respondent that in the event that the Tribunal were to hold that the claimant had made a qualifying disclosure it would fall to be regarded as a protected disclosure. 30 38. In the course of the Hearing some confusion arose as to what were the alleged disclosures upon which the claimant gave notice of founding as protected disclosures for the purposes of her complaints. In her initiating Application ET1 at page 7, section 8.2 the claimant gives unequivocal notice 800 0219/2024 Page 14 of founding upon two disclosures for the purposes of her claim being disclosures respectively made on the 27th and 28th of February 2024 to the Information Commissioner’s Office (and the second possibly also to the Solicitors Regulatory Authority of England and Wales). In the same section 5 of her ET1 the claimant also made reference to having “raised concerns to the ICO, the Health and Safety Executive (HSE) and the Equality and Human Rights Commission (EHRC) “since 13th of February 2024”. The claimant also made such additional reference in the course of her primary submission. 10 39. At section 8.2 at page 7 of her initiating Application ET1 the claimant makes reference variously to communications with the Information Commissioner’s Office (“ICO”) on 27 February 2024 and the SRA (the Solicitors Regulatory Authority) undated but subsequently identified and produced by her as on the 28th of February 2024, “for not complying with Code and not adhering to AP 15 processes and falsifying documents ... I raised concerns to the ICO, HSE (Health and Safety Executive), EHRC (Equality and Human Rights Commission) since 13 2 2024”. What is in total a 10 line paragraph concludes in the last 3 lines with “I am applying for interim relief application under section 103A Employment Rights Act (“ERA”) the principal reason of 20 my dismissal is because of making protected disclosures in good faith with relevant evidence to government bodies and I followed company procedure and was retaliated against.” In her submissions before the Tribunal the claimant also made reference to having been given notice/summoned to what she described as a disciplinary meeting on the 14th of February 2024 on the 25 day after she raised concerns of discrimination in the work place “amongst other concerns to the CEO of the respondents Andy M”. 40. However, the claimant removed the earlier arising ambiguity by stating and emphasising that whereas she had made mention of raising concerns on or 30 around the 13th of February 2024 the only alleged disclosures which she gave notice of founding upon for the purposes of her complaint of automatic unfair dismissal and for the purposes of her Application for Interim Relief were:- 800 0219/2024 Page 15 (1) That said to be constituted by her email communication of the 27th of February 2024 timed at 3.58 pm sent to the Information Commissioner’s Office and copied to the respondents which is produced by the claimant amongst her miscellaneous documents 5 sent to the Tribunal, and is in the following terms:- “Good afternoon ICO As outlined in my email of the 16 2 2024, see evidence that User Testing and various employees are not complying with 10 data protection laws and have breached confidentiality and GDPR. I have come across a lot of confidentiality documents that are not redacted and held in a public forum for everyone to see and which contains sensitive information of employees. I am reporting ethical violation of User Testing Code of 15 Conduct and Employee UK Guidebook and reporting this as per whistleblowing policy and their own policy in which HR and CEO documented that people should speak up in case of these breaches and without fearing of retaliation. S" 20 And, Second, that said to be constituted by her email communication to the Solicitors Regulatory Authority in England and Wales and timed at 14:20 on the 28th of February and copied to the respondents and which is produced by the 25 claimant amongst the miscellaneous documents sent by her to the Tribunal and is in the following terms:- “Employees still worked despite expired contract – raising these concerns in the public interest and in good 30 faith –“ 41. The claimant confirmed that that indeed was her position, namely that she did not found or seek to found upon any disclosures other than those of the 27th and 28th February for the purposes of her claim when asked by the Tribunal, 800 0219/2024 Page 16 to confirm its understanding of what she had said. It is accordingly the identified and confirmed alleged disclosures of 27th February to the ICO and 28th February to the SRA that require to be considered for the purposes of today’s Hearing. While, as is recognised in the authorities, there is no clear 5 dividing line between allegations which do not amount to disclosures for the purposes of qualifying for protection in terms of the statutory regime, on the one hand, and the disclosure of information which in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the matters itemised in section 43B(1) of the ERA, in the 10 instant case that a person has failed, or is failing or is likely to fail to comply with any legal obligation to which he is subject, on the other, the position is insufficiently clear cut at this Interim Relief stage, upon the material presented for the Tribunal to form the view on the summary assessment which it makes, that the claimant is likely to establish at a full Hearing; firstly that she made 15 disclosures which were both disclosures and qualifying disclosures for the purposes of section 42A of the ERA and separately, let it be assumed that she did, that she will succeed in establishing, at a Final Hearing, that the principal reason for her dismissal was that she made one, or other, or both of the alleged disclosures on which she confirms she relies such as to allow the 20 Tribunal to have sufficient confidence in the eventual outcome to grant relief. 42. In exercising her limited right of reply the claimant also emphasised that the respondents had already taken the decision to dismiss her before the meeting scheduled for 14th of February 2024, which did not proceed because 25 it was postponed at her request so that she could arrange for the attendance of her Trade Union representative, But for that postponement, she submitted she would have been sacked on the 14th of February 2024 had the meeting proceeded. The claimant was adamant that she was in no doubt that the decision to dismiss her had already been taken by the 14th of February and it 30 was delayed until the 28th of February only because the probationary review meeting was delayed/postponed until that date. 800 0219/2024 Page 17 43. Separately, the Minutes of the Probation Review Hearing, produced at pages 168 to 180 of the Bundle, record that the respondent’s Dismissing Officer Ms Hilo took the decision to dismiss the claimant shortly after the meeting, which commenced at 11 am, on the 28th February 2024 and adjourned at 5 12:05 with the intention to reconvene once a decision had been made as to next steps. Having taken the decision to dismiss the claimant, the respondent sought to reconvene the meeting in the course of the working day on 28th February, to inform the claimant of the decision but was informed by the claimant’s Trade Union representative that she was unavailable. The 10 decision to dismiss was accordingly communicated to the claimant by letter dated 29th February 24 which is produced at pages 181 to 182 of the Bundle. The alleged protected disclosure, to the Information Commissioner’s Office, of 28th February, upon which the claimant founds and which is produced at pages 228 and 229 of the Bundle does not bear to have been sent by the 15 claimant, and copied to the respondents (on 2 occasions) until 18:24 and 19:01 that evening respectively; that is, at times after the decision to dismiss the claimant was taken by the respondent’s Dismissing Officer. 44. I am unable to form a view, in those apparent circumstances and on the 20 material available, that the claimant is likely to establish at a full Hearing that the principal reason for her dismissal was an alleged disclosure contained in the communication sent by her to the ICO at 18:24 and again at 19:01 on the 28th of February 2024. 25 45. The first of the alleged disclosures founded upon, that of the 27th of February, apparently sent twice to the ICO and or to the SRA at 15:59 and 16:03 on the 27th of February and produced at pages 219 and 223 of the Bundle are communications sent before the date and time on and at which the respondent took the decision to dismiss. There is nothing in the material 30 presented, however, which goes to suggest that either of those communications had been brought to the notice of the decision taker Miss Hilo prior to her decision to dismiss the claimant. The notes (Minute) of the probationary review meeting of 28th February (pages 168 to 180 of the Bundle) do not contain reference by any of those participating, including both 800 0219/2024 Page 18 the claimant and her Trade Union representative, to the alleged disclosure of 27th February 2024. Other than the fact that the alleged disclosure of 27th February was made in the afternoon of the preceding day there is nothing in the material presented which goes to suggest or from which 5 inference might be drawn that the principal reason for the claimant’s dismissal was the fact of her having made that disclosure. The claimant’s own positions in submission, that she was certain that the decision to dismiss her had been taken on the 14th of February prior to the probationary review meeting originally set down for that date and, but for the rescheduling of the 10 meeting at her request, that the decision to dismiss her would have been communicated to her then, if anything, would tend to suggest or give the impression that the making by the claimant of the alleged disclosure of 27th February 24 was not the reason, let it be assumed that the communication was to be found to meet the requirements firstly, of a 15 disclosure and secondly, a qualifying disclosure for the purposes of the statutory provisions. 46. It may be that at a Final Hearing the claimant may succeed in establishing that the alleged disclosure of 27th February indeed met the requirements of a 20 disclosure and of qualification for protection and further that the fact of her having made that disclosure was known to the Dismissing Officer and further that it was the principal reason for her dismissal rather than those enumerated in the written reasons for dismissal provided to her on the 29th of February 24. Matters are not sufficiently clear cut at this Interim Relief stage, 25 however, for the Tribunal to have sufficient confidence in the eventual outcome such as to grant Interim Relief. On the material and apparent circumstances presented. I am unable to form the view that the claimant is likely, that is to say has a pretty good chance (Taplin v C Shippam Limited) being something nearer to certainty than mere probability (Ministry of 30 Justice v Sarfraz) of successfully establishing those matters, to say nothing of the other requirements that she believed that it tended to show one or more of the matters itemised in section 43B(1), that her belief in that was reasonable and that the disclosure was made in the public interest. 800 0219/2024 Page 19 47. Separately, in relation to the question of causation the material presented does not appear to go to suggesting that either of the two disclosures, confirmed by the claimant as those founded upon, or for that matter any of the “other concerns” raised to which the claimant makes reference at section 5 8.2 of her ET1 but which she expressly stated in the course of her submissions that she did not rely upon for the purposes of her claim or Application for Interim Relief, are likely to be established as the principal reason for her dismissal. The documentary material presented, excluding the witness statement of Miss Hilo appears to support a view that the reason for 10 dismissal is that advanced by the respondent. 48. In exercising her right of reply the claimant expressed concern at the reliance which the respondent’s representative sought to place upon the witness statement of Miss Hilo which was included in the respondent’s Hearing 15 bundle. She made the point that at a Hearing which, in terms of Rule 95 oral evidence is not to be given, reliance by the respondents upon a witness statement was both unfair and resulted in her not being placed, as a party litigant, on an equal footing with the respondents. She separately urged the Tribunal to disregard the witness statement on the grounds that it was 20 untruthful. 49. The claimant is accurate in her description of the effect of Rule 95, namely “… Rules 53 to 56 apply to the Hearing and the Tribunal shall not hear oral evidence unless it directs otherwise”. The Tribunal had not directed that 25 evidence in chief of witnesses might be received by way of witness statement. The explanation for the presence in the Bundle of a witness statement may lie in the fact that in England and Wales the taking of evidence in chief by witness statement is a default setting in civil proceedings whereas in Scotland, including in the Employment Tribunal, there is still 30 adherence to the best evidence rule. 50. By way of reassuring the claimant that she was not disadvantaged by the presence or reference by the respondent’s representative to the witness statement the Tribunal makes clear that in determining the Application for 800 0219/2024 Page 20 Interim Relief, it has placed no reliance upon the witness statement beyond taking account of the fact that there is nothing in it, perhaps unsurprisingly, which goes to support the claimant’s contention that the principal reason for her dismissal was the making of a protected disclosure. As has been set out 5 above, the onus of proof on an Interim Relief Application does not sit with the respondent to establish that the principal reason for dismissal was that which the respondent asserts. Rather, the onus sits with the claimant to show that it is likely that she will succeed in establishing all of the elements itemised and confirmed by the EAT in Al Qasimi v Robinson and Ministry of Justice v 10 Sarfraz. On the materials presented, and setting aside entirely the contents of the witness statement of Miss Hilo, and on the submissions made, the Tribunal has been unable to form the view that the claimant has discharged that onus and accordingly the Application for Interim Relief is refused. 15 ______________________ Employment Judge 28 March 2024 20 ______________________ Date of Judgment Date sent to parties ______________________ 25 I confirm that this is my Judgment in the case of Messi v User Testing Limited and that I have signed the Judgment by electronic signature. J d'Inverno 1 IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) 5 Judgment of the Employment Tribunal Issued Following Adjourned Open Preliminary Hearing Heard at Edinburgh on the Cloud Based Video Platform on 23rd and 24th July 2024, in Cases Combined for that restricted purpose 10 Numbers: 8000136/2024 (the First Claim), 4103947/2024 (the Second Claim), 8000219/2024 (the Third Claim), 4103962/2024 (the Fourth Claim), and 8000426/2024 (the Fifth Claim) with Deliberation on 26 July, 16 September and 14 October 2024 15 Employment Judge J G d’Inverno Ms Sandra Messi Claimant 20 Represented by: Mr John Robertson, Lay Representative 25 In the First Claim No 8000136/2024 User Testing Limited First Named Respondent in Claims First to Fourth inclusive of the Five Combined Cases. 30 Represented by: Mr S Lewinski of Counsel (also instructed on behalf of all named respondents) by James England, Solicitor 35 Emily Hilo (Second Named Respondent in Case Number 8000136/2024) Represented by: 40 Mr Lewinski of Counsel Instructed by James England, Solicitor 2 Shaniqua West (Third Named Respondent in Case Number 8000136/2024) Represented by: 5 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 10 In the Second Claim in No 4103947/2024 User Testing Limited (First Named Respondent in Case Number 4103947/2024) 15 Represented by: Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James 20 England, Solicitor Beth Charles (Second Named Respondent in Case Number 4103947/2024) 25 Represented by: Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James 30 England, Solicitor In the Third Claim No 8000219/2024 User Testing Limited (First Named Respondent in Case Number 8000219/2024 Represented by: Mr Lewinski of Counsel (also instructed on behalf of all named respondents) 40 Instructed by James England, Solicitor In the Fourth Claim in No 103962/2024 User Testing Limited (First Named Respondent 45 in Case Number 4103962/2024) Represented by: Mr Lewinski of Counsel 3 (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 5 Hal O’Donnell (Second Named Respondent in Case Number 4103962/2024) Represented by: 10 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 15 Andy MacMillan (Third Named Respondent in Case Number 4103962/2024) Represented by: 20 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 25 Kenny Chan (Fourth Named Respondent in Case Number 4103962/2024) Represented by: 30 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 35 In the Fifth Claim No 8000426/2024 Eve Williamson (First Named Respondent in Case Number 8000426/2024) 40 Represented by: Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James 45 England, Solicitor 4 Michael Byrne (Second Named Respondent in Case Number 8000426/2024) Represented by: 5 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 10 Roy Fox (Third Named Respondent in Case Number 8000426/2024) Represented by: 15 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 20 Gabriel Minino (Fourth Named Respondent in Case Number 8000426/2024) Represented by: 25 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 30 Jamie Booth (Fifth Named Respondent in Case Number 8000426/2024) Represented by: 35 Mr Lewinski of Counsel (also instructed on behalf of all named respondents) Instructed by James England, Solicitor 40 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Judgment of the Employment 45 Tribunal is 5 (First) That the Tribunal Records the following concessions made by the claimant’s representative, for and on behalf of the claimant, in the course of the second day of Hearing 24th July 2024 at 1320 and expressly reconfirmed by the claimant’s representative at the request of the Tribunal:- 5 (a) that the second claim number 4103947/2024, the fourth claim number 4103962/2024 and the fifth claim number 8000426/2024, were claims without merit which should not have been raised by the claimant, were, as at the time of making of 10 the concession, withdrawn in terms of Rule 51, and fell to be dismissed (b) that across the five claims combined for the purposes of Open Preliminary Hearing, the claimant accepts:- 15 (i) that the correct potential respondent was “User Testing Limited” (ii) that none of the five claims should have been 20 directed against individual/additional individual named respondents (c) that all claims, in so far as directed against individual named respondents, that is respondents other than “User Testing 25 Limited”, as at the time of making of the concession, were withdrawn by the claimant in terms of Rule 51 and fell to be dismissed (d) that the claimant continues to insist only upon the breach of 30 duty to make adjustments element of the first claim number 6 8000136/2024 (see para xx of the claimant’s representative’s oral submission) and the Automatic Unfair Dismissal because of whistleblowing (making of an alleged protected disclosure) element and the claim for interim relief [already disposed of]), of the third claim number 8000219/2024, (see 5 paragraph xx(b) of the claimant’s representative’s oral submission (Second) On the claimant’s representative’s Application, made at the bar at 1230 on 24 July 2024, the respondent’s representative not objecting, allows 10 the claimant to withdraw, in terms of Rule 31 and without reservation; the second claim number 4103947/2024, the fourth claim number 4103962/2024 and the fifth claim 8000426/2024. (Third) On the respondent’s representative’s Application, made at the bar, 15 the claimant’s representative consenting, dismisses the second claim No 4103947/24, the fourth claim No 4103962/24, and the fifth claim No 8000426/24, in terms of Rule 52, following their withdrawal without reservation, by (on behalf of) the claimant. 20 (Fourth) On the claimant’s representative’s Application, made at the bar on 24 July 2024 at 1320, the respondent’s representative not objecting, allows the claimant to withdraw, in terms of Rule 51, the first claim No 8000136/24 and the third claim No 8000219/2024, in so far as directed against named respondents other than User Testing Limited. 25 (Fifth) On the respondent’s representative’s Application, made at the bar, the claimant’s representative consenting, dismisses, in terms of Rule 52, the first claim number 8000136/24 and the third claim, number 8000219/2024, in so far as directed against named respondents other than User Testing 7 Limited, following the claimant’s representative’s withdrawal, of those cases in so far as so directed. (Sixth) That the manner in which proceedings, in Cases Nos; 4103947/2024 (the Second Claim), 4103962/24 (the Fourth 5 Claim), and, 8000426/24 (the Fifth Claim), have been conducted by or on behalf of the claimant has been unreasonable for the purposes; of Rule 37(1)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rule”); separately, that the said claims were claims which 10 enjoyed no reasonable prospect of success for the purposes of Rule 37(1)(a), and that the Tribunal’s discretion to strike out those claims, on each of those grounds, is awakened. (Seventh) That, but for their withdrawal, on the claimant’s behalf by her 15 representative in the course of Hearing, and their subsequent dismissal following withdrawal, the Tribunal, in exercise of its awakened discretion would have struck out Combined Claims; 4103947/24, 4103962/24 and 8000426/24 on the respondent’s opposed Application, in terms of Rule 37(1)(b); and separately, of its own initiative, in terms of Rule 37(1)(a). 20 (Eighth) That the manner in which proceedings in Case Number 8000219/2024 (the Third Claim) have been conducted by or on behalf of the claimant has been unreasonable for the purposes of Rule 37(1)(b), separately that the claim is a claim which enjoyed no reasonable prospect of 25 success in terms of Rule 37(1)(a); and that the Tribunal’s discretion to strike out Claim 8000219/2024, on each of those grounds, is awakened. 8 (Ninth) On the respondent’s Opposed Application, strikes out Claim No 8000219/24 (the Third Claim) in terms of Rule 37(1)(b); and separately strikes out the claim, of its own initiative, in terms of Rule 37(1)(a). (Tenth) That in Case Number 8000136/2024 5 (the First Claim): (a) the manner in which proceedings have been conducted by the claimant has been unreasonable for the purposes of Rule 37(1)(b) and that the Tribunal’s discretion to strike out the claim 10 on that ground is awakened, (b) in so far as founding, for the purposes of any complaint of having suffered detriment in terms of section 47B of the ERA, and or of Victimisation in terms of section 27 of the EqA, upon 15 the making of alleged disclosures, or the doing of protected acts, said to be constituted by an email communication of 27th of February 2024 timed at 3.58 pm and or on the 27th of February 2024 to the Solicitors Regulatory Authority for England and Wales (“SRA”), sent first at 15:59 and again at 16:03, the first 20 claim number, 8000136/2024 is a claim which enjoys no reasonable prospect of success in terms of Rule 37(1)(a); and that the Tribunal’s discretion to strike out the claim on that ground is awakened, 25 (c) on the respondent’s opposed Application, and separately those complaints not being insisted upon and having been departed from in the course of hearing (paragraph xx of claimant’s representative’s oral submission), strikes out, in terms of Rule 37(1)(b), the; complaints contained in section 8.2 of the ET1 in 9 claim No 8000136/2024 first presented on 14 02 2024 and described as claims of; “Harassment – Race, Victimisation, Sex Discrimination, Whistleblowing – protected disclosure”, denial of statutory rights, and getting paid less than comparator Gabriel Minino Aybar”, and, “the claim for other 5 payments”; and separately, on its own initiative, strikes out those claims in terms of Rule 37(1)(a), together with the averments appearing at section 8.1 of the ET1 at lines 3 to 13 inclusive, viz, “I was harassed by …….. sex discrimination” and lines 18 and 19 “also 10 made … 14 02 24”, as redundant and irrelevant (d) in the exercise of its discretion, declines to strike out, at this juncture in proceedings, the residual complaint contained in Claim No. 8000136/2024 and described as one of “Disability 15 Discrimination – failure to make reasonable adjustments”; (Eleventh) Records the claimant’s representative Mr John Robertson’s confirmation, made in the course of the Hearing, and let it be assumed that the residual first claim, number 8000136/24 and or the third claim, number 20 8000219/24 are not struck out in their entireties, that going forward:- (a) he is instructed to and will continue to represent the claimant in the future conduct of proceedings in those cases 25 (b) that both the claimant’s representative and the claimant understood and acknowledged that, in those circumstances, the Tribunal, in accordance with normal procedure, would correspond only with and respond to communications received only from, the claimant’s representative and, while the 10 claimant’s representative remained on record, would not simultaneously receive or respond to communication from the claimant. (Twelfth) Upon hearing parties’ submissions, the claimant’s 5 representative insisting upon the Applications notwithstanding concessions made by him and his withdrawal of the claims, Refuses, as both incompetent and being without merit, the claimant’s opposed Applications for Strike Out of the respondents’ responses in the second claim 4103947/2024, the fourth claim 10 4103962/24 and the fifth claim 8000426/2024. (Thirteenth) Upon hearing parties’ submissions, the claimant’s representative insisting upon the Applications notwithstanding the partial withdrawal of the claims and the concessions made by him on the 15 claimant’s behalf, earlier in the course of the hearing, Refuses, as being without merit, the claimant’s opposed Applications for Strike Out of the respondents’ responses in the first claim No 8000136/2024 and the third claim No 8000219/2024. 20 (Fourteenth) Records, that; (a) but for the personal undertakings given by the claimant’s representative, Mr John Robertson, as to his continuing to remain on record as acting, and to act as the claimant’s 25 representative, in the future conduct of such proceedings as may subsist beyond the Determination of the Applications for Strike Out, and, 11 (b) but for the nature and content of those undertakings given by Mr Roberson, both on behalf of the claimant and on his own behalf, as to the manner in which any continuing proceedings will be conducted, both by and on behalf of the claimant, and which are recorded at paragraph (Eleventh) 5 of this Judgment and at inset paragraphs (26) and (27) at page 53 of the Note of Reasons attached to it, the Tribunal, in exercise of its awakened discretion, would have struck out Claim Number 8000136/2024 in its entirety in terms of Rule 37(1)(b); 10 (c) in reliance upon the undertakings given, the Tribunal in exercise of its discretion declines to strike out Case Number 8000136/2024 on that ground, at this juncture in proceedings. 15 (Fifteenth) That the allegations of Disability Discrimination by reason of alleged failure in a duty to make reasonable adjustments (Failure to Make Risk Assessments and Failure to Refer to Occupational Health), are allegations which, absent any offer to prove primary facts from which, in the absence of any other explanation the Tribunal could decide that the 20 respondent had contravened the provisions of section 20 of the Equality Act 2010, have little reasonable prospect of success, and that the Tribunal’s discretion to make an Order requiring the claimant to pay a deposit in terms of Rule 39 is awakened. 25 (Sixteenth) That the claimant, respectively, in terms of Rule 39(1) and 39(2), shall pay a deposit in an amount to be afterwards fixed, as a condition of continuing, in Case Number 8000136/2024 (the First Claim), to advance each of the two allegations of Disability Discrimination by reason of alleged failure in a duty, said to arise in terms of section 20 of the EqA to 30 make adjustments and said to be evidenced by;- 12 (a) “No Risk Assessments” (b) “No OH referral” Case 5 Management Orders (Seventeenth) In terms of Rule 39(2) Orders the claimant’s representative, in so far as the claimant may wish the Tribunal to have regard to her ability to pay when deciding on the amount in which the deposits are to be 10 ordered, to send to the Tribunal, with a copy to the respondents’ representative, full details of the claimant’s weekly/monthly income from all sources, along with, in addition, the income of any person with whom she lives as a social unit, and of her full weekly/monthly outlays, together with relevant documentary vouching of both income and outlays and copies of 15 bank statements in respect of all bank accounts which are in her sole name or joint names with others, and covering the 3 month period immediately preceding the date of the sending to these Orders to the parties, to enable the Tribunal to have regard to such information in determining the amount in which the Deposit Orders are to be made. 20 (Eighteenth) Parties are reminded that the Tribunal can only take account of “full financial information” for the purposes of Rule 39(2). The disclosure of information which is incomplete, or of partial information and or information for which vouching is not provided, will result in it not being 25 taken account of by the Tribunal. 13 (Nineteenth) Records the Applications, at the instance of the respondent, made at the bar and at the conclusion of submissions, for the making of three Orders for Expenses in the proceedings, as follows:- (a) In terms of Rule 76(1)(c), in respect of 5 the 2 wasted days of Hearing of 27th and 28th June 2024, those Hearing dates having been adjourned following Application for Postponement at the instance of the claimant made on the morning of the first day (i.e. less than 7 days prior to the 10 Hearing) (b) In terms of Rule 76(1)(a) and Rule 76(1)(b), in respect of the expenses of dealing with the fourth claim number 4103962/24 and the fifth claim number 8000426/2024 15 those claims having been dismissed upon withdrawal by the claimant; and (c) In terms of Rule 76(1)(a), for the costs of the Interim Relief Hearing of 28th March 2024 in the first claim, number 20 8000219/2024 (d) Records the claimant’s representative’s intimation that he would require time to confirm the claimant’s instructions in the face of the Applications, and that pending his doing so 25 the Applications were not consented to (Twentieth) Records here the terms of its Orders in relation to the Applications for Expenses, made orally in the presence of parties on 24th July 2024, as follows; 30 14 (a) Continues consideration of the three Applications for Expenses to a Chambers Hearing of 1 day’s duration, at which attendance/representation by parties is not required and at which, on the confirmed Joint Motion of parties, the Applications will be determined on paper, the same to 5 proceed before the sitting Judge at 11 am on the 23rd of August 2024; and Directs that the case be so listed. (b) Orders parties to each lodge with the Tribunal and to exchange, 10 written submissions in support of and in opposition to the three Applications for Awards of Expenses, in accordance with the following timetable:- (i) by 4 pm on the 31st of July 2024 the 15 respondent’s representative to lodge and intimate to the claimant’s representative written submissions (ii) within a further 7 days thereafter, that is by 4 pm 20 on the 7th of August 2024, the claimant’s representative to lodge and intimate to the respondent’s representative, written submissions in opposition, if the Applications are/continue to be opposed, in whole or in part 25 (iii) by 4 pm on the 21st of August 2024 the parties to exchange and lodge with the Tribunal any supplementary replies. 15 (c) Vacates the Closed Preliminary Hearing which was set down to proceed on the Cloud Based Video Platform on 15th August 2024 as a first omnibus Closed Preliminary Hearing Case Management Discussion in the previously combined 5 cases. 5 REASONS 1. These 5 cases, combined for the restricted purpose of determining the respondents’ Applications for Strike Out, of all 5 claims, and the claimant’s 10 counter Applications for Strike Out of the Grounds of Resistance, in all 5 cases, called for a previously adjourned and subsequently relisted Open Preliminary Hearing, at Edinburgh on the 23rd and 24th July 2024. 2. The claimant in all 5 combined cases was represented by Mr John 15 Robertson, lay representative. All of the respondents, across all 5 combined cases, were represented by Mr Lewinski, of Counsel, instructed by Mr England, Solicitor. 3. The claimant did not attend to give evidence in relation to any matter but 20 relied upon the written arguments, exchanged by parties in advance of the Hearing in compliance with the Tribunal’s Orders, and upon the oral submissions made on her behalf by her representative at the Hearing. 4. The Tribunal’s consideration of matters proceeded upon certain relevant and 25 material facts arising directly from the Tribunal’s record of the proceedings across the 5 cases and not placed in dispute by either party, and upon other relevant and material facts not in dispute between the parties and not disputed by either in the course of the Hearing. 30 16 The Issues before the Tribunal for Determination at Hearing 5. The Issues before the Tribunal at Hearing were:- (a) Whether all or each of the 5 claims combined 5 for the restricted purpose of Open Preliminary Hearing, fell to be struck out, in whole or in part, on the respondent’s opposed Application in terms of Rule of Procedure 37(1)(b) (the manner in which proceedings have been conducted by or on behalf of the 10 claimant), or otherwise by the Tribunal, of its own initiative, in terms of Rule 37(1)(a) (enjoys no reasonable prospect of success);, (b) Whether the respondent’s responses across the 5 cases 15 combined for the restricted purpose of Open Preliminary Hearing, fell to be struck out, in whole or in part, on the claimant’s opposed Application, in terms of Rule 37(1)(b) and or 37(1)(a). 20 (c) Whether and if so in what amounts, should the claimant’s or any of the respondents’ claims be made the subject of Deposit Orders, in the alternative to Strike Out. 6. No oral evidence was presented at the Hearing, parties relying wholly upon 25 the written and oral submissions made by them and upon the documentary evidence placed before the Tribunal and contained in the Hearing bundle prepared by the respondent and extending to some 2,512 pages and to some of which reference was made by both parties’ representatives in the course of submissions. Some reference was also made to certain miscellaneous 30 documents sent to the Tribunal, by the claimant, not as part of the bundle but variously on a number of occasions prior to the originally postponed Hearing dates and referred to by her collectively as “My Evidence” in some elements 17 of her email correspondence and which included, in particular the Fit Note/Notes belatedly sent by her to the Tribunal in tendered non-compliance with the Tribunal’s Orders, and previously relied upon by her in support of her unsuccessful Applications for Postponement. 5 Concessions made in the course of Hearing 7. At 1320 on the second day of Hearing, 24th July 2024 the claimant’s representative made the concessions and withdrew and partially withdrew 10 and departed from claims, all as recorded and set out in paragraph (First) sub-paragraphs (a), (b), (c) and (d) of the Tribunal’s Judgment. Reference is made to those paragraphs of the Judgment, the terms of which are held incorporated by reference here, within this Note of Reasons, for the purposes of brevity. 15 8. The effect of the concessions and withdrawals made was:- (a) That the second claim (No 4103947/2024), the fourth claim (No 4103962/2024) and the fifth claim (No 8000426/2024) were 20 withdrawn in their entirety and without reservation, in terms of Rule 51, on the application of the claimant’s representative made on the grounds that the claimant now recognised that they “were claims without merit which should not have been raised by the claimant”; and were dismissed by the Tribunal, 25 following upon their withdrawal, in terms of Rule 52. (b) That across all 5 combined claims, that is to say including the first claim (No 8000136/2024) and the third claim (No 8000219/2024) all claims were withdrawn, in terms of Rule 51, 30 by the claimant’s representative on the claimant’s behalf, in so far as directed against all of the individually named respondents, that is to say in so far as directed against all 18 respondents other than “User Testing Limited”; and the Tribunal dismissed those claims in so far as so directed, in terms of Rule 52, following their withdrawal. (c) That the claimant continued to insist only 5 upon the breach of duty to make adjustments element of the first claim (No 8000136/2024), and of the alleged Automatic Unfair Dismissal because of whistleblowing element of the third claim (No 8000219/2024), the claim for Interim Relief in that case having 10 been dismissed by the Tribunal in terms of its earlier Judgment of 28 March 2024. (d) That in the first claim (No 8000136/2024) the complaints, described in section 2 of the ET1 first presented on the 14th of 15 February 2024 as complaints of; “Harassment – Race, Victimisation, Sex Discrimination, Whistleblowing – protected disclosure, denial of statutory rights”, and of “getting paid less than a comparator Gabriel Minino Aybar” and the unspecified claim for “Other Payments” all having been departed from and 20 not insisted upon in the course of the Hearing fell to be dismissed/struck out as not insisted upon. The Respondents’ Subsisting Applications for Strike Out 25 9. The residual complaints which, following the concessions and withdrawals made by the claimant’s representative on the claimant’s behalf in the course of the second day of Hearing, and in respect of which the respondent’s Applications for Strike Out continue to require to be determined were:- 30 (a) The complaint of alleged Breach of Duty to make Adjustments contained within the first claim No 8000136/2024; and, 19 (b) The complaint of Automatic Unfair Dismissal because of alleged whistleblowing (making of an alleged protected disclosure) contained within the third claim (No 8000219/2024). The Claimant’s Subsisting Counter Applications 5 for Strike Out 10. Although invited, by the respondents’ representative to withdraw all or some of the same following the concessions made on the claimant’s behalf, the claimant’s representative confirmed that he (the claimant) continued to insist 10 upon the claimant’s Application for Strike Out of the respondents’ responses and Grounds of Resistance presented on behalf of each of the respondents in all 5 of the combined claims, in terms both of Rule 37(1)(b) and 37(1)(a). Procedural Background and Facts not in dispute before the Tribunal at the 15 Hearing of 23rd and 24th July 2024 11. As at 23rd/24th July 2024 the claimant had raised 5 claims (combined for the purposes of Open Preliminary Hearing) as follows:- 20 Page references appearing below are to the Hearing Bundle of documents and are marked by square brackets. First Claim a claim first presented on 14th February 2024 with Case Number 8000136/2024 against; User Testing Limited, Emily Hilo and 25 Shaniqua West [page 33 of the Bundle, Particulars at 39]. Second Claim first presented on 26th February 2024 with Case Number 4103947/2024 and directed against Beth Charles [52, Particulars at 58]. 30 20 Third Claim first presented on 28th February 2024 with Case Number 8000219/2024 and directed against User Testing Limited [95, Particulars at 101] Fourth Claim first presented on 1st March 2024 5 with Case Number 4103962/2024 and directed against; User Testing Limited, Hal O’Donnell, Andy MacMillan and Kenny Chan [160, Particulars at 166] Fifth Claim first presented on 25 04/24 with Case Number 10 8000426/2024 directed against; Eve Williamson, Michael Byrne, Roy Fox, Gabriel Minino, Jamie Booth [200, Particulars at 206] and in which, at section 8.2, the claimant seeks to add 5 further respondents: Emily Betz, Duncan Shingleton, Justin Stratton, James England (Eversheds), the respondents’ Instructing Solicitor, and 15 Michael Slater (42BR, Barristers), Counsel who has previously appeared on behalf of the respondents. 12. The claims as first presented, and as at the date of Open Preliminary Hearing, are variously lacking in specification such as to fail to give fair notice 20 to the various respondents of the basis in fact and in law of the cases which they respectively require to meet, such that they could not sensibly be responded to other than by denial and a call for specification; and separately, such as to fail to give notice variously, in whole or in part, of relevant and competent complaints in respect of which the Tribunal can be satisfied as to 25 its jurisdiction to consider them:- 13. The first claim [33 – the Particulars at [39] (a) Fails to specify or otherwise identify in what manner failure in an 30 alleged duty to make a reasonable adjustment has occurred (b) Does not identify relevant disability 21 (c) Does not provide details of the alleged harassment (d) Does not explain why the respondents calling the claimant into a probation review meeting was discriminatory 5 or otherwise wrong (e) Fails to provide details of the baldly asserted race discrimination 10 (f) Fails to give notice of how the asserted racial harassment had occurred (g) Fails, in respect of the asserted victimisation, to identify the protected act or actions in response 15 (h) Fails to provide any detail supporting or identifying the allegations of sex discrimination (i) Fails to identify Particulars of the alleged disability 20 discrimination (j) Fails to provide notice or specification of the alleged failure to make reasonable adjustments 25 (k) Fails to explain the relevance of the alleged disclosures to the ICO and or to the EHRC which are referred to 14. The second claim [52, Particulars at 58] 30 (a) The claim comprises entirely of a List of Heads of Claim. 22 (b) Fails to specify or give notice of any relevant Particulars of Claim. (c) It provides no explanation of the basis in fact or in law upon which it is said that the claim is directed 5 against the named respondent Beth Charles. 15. The third claim [95, Particulars at 101]. As first presented, the claim appears on its face to give notice of a complaint of Automatic Unfair 10 Dismissal in terms of section 103A of the Employment Rights Act 1996 dismissed for the principal reason that the claimant made a protected disclosure, and seeking an Order for Interim Relief. (a) In the course of both evidence and submission at the Hearing 15 on the Application for Interim Relief (which proceeded on 19th March 2024), however, the claimant confirmed that the disclosures upon which she relied in respect of the third claim post dated the decision to dismiss her and thus that the complaint of section 103A ERA dismissal was unfounded both 20 in fact and in law. Reference is made to the Judgment on Interim Relief at paragraphs 42 [133] and paragraph 45 [134] (b) Notwithstanding the same, the third claim was not withdrawn and continued to be insisted upon at the Hearing of 23rd and 25 24th July 2024. (c) The principal reason for dismissal which is asserted in the third claim and absent the assertion of which the claim is irrelevant, is fundamentally incompatible with the principal reason for the 30 same dismissal which is asserted by the claimant in the fourth claim which she first presented on 1st of March 2024, 18 days prior to the Hearing on Interim Relief in the third claim. 23 (d) As between and across claim third and fourth, the claimant offers to prove that the principal reason for the same dismissal is either one reason, or another reason, not pled as alternative. To so offer to prove either one state of fact or another 5 is to offer to prove nothing at all. 16. The fourth claim [160, Particulars at 166] is one in which the claimant: 10 (a) Alleges Disability Discrimination but fails to provide Particulars of the same (b) Asserts and offers to prove the principal reason for her dismissal which is fundamentally incompatible with that which 15 she asserts in and is essential to the potential relevance of the third claim i.e. “disability … being the principal reason why I was dismissed” (c) Lists various Heads of Claim without providing any Particulars 20 of the same and being variously complaints of failure to make reasonable adjustments; Harassment related to Disability and Victimisation; Direct Disability Discrimination; Unfair Dismissal without compliance with the ACAS Code of Practice and unspecified alleged breaches of the ACAS Code of Practice; 25 and, (d) Fails to give notice of the basis in fact and in law upon which the claimant asserts that she has Title to Direct the complaint against the 3 named individual respondents; Hal O’Donnell, 30 Andy MacMillan and Kenny Chan 24 17. The fifth claim [200, Particulars at 206] – is a claim in which the claimant: (a) Merely lists various bald Heads of Claim without identifying any relevant Particulars. 5 (b) Fails to provide notice of the basis in fact and in law against which the claimant asserts she has Title to Direct it against the 5 named individual respondents; Eve Williamson, Michael Byrne, Roy Fox, Gabriel Minino, Jamie Booth while, 10 (c) also seeking to have the Tribunal sist (convene to the Hearing as additional respondents 5 further individuals; Emily Betz, Duncan Shingleton, Justin Stratton, James England (Eversheds), Michael Slater (42BR Barristers) and who include 15 both the respondents’ Solicitor and a Barrister who earlier appeared on the respondents’ behalf in the case, again without the provision of any basis in fact and in law upon which the claimant asserts she had Title to Direct the various, wholly unspecified complaints, against any of those individuals. 20 18. Multiple claims have been raised by the claimant, in the Employment Tribunal (Scotland) variously against her former employers User Testing Limited and a large number of named individuals employed by or associated with her former employer, in the two month period from mid February to mid April 25 2024. All are said to arise out of the same 3.5 month period of probationary employment and are either wholly, or in large part, devoid of comprehensible detail such as to give the respondents against whom they are directed fair notice of the claims that they require to respond to or to give notice of a relevant and competent basis in fact and in law upon which the claims are 30 directed against those individuals. The effect is to put the various respondents at risk of Judgments being entered against them and to compel them to incur the cost of and to put them to the expenditure of time and other 25 resource in entering appearance, attempting to respond without fair notice, and of resisting the claims. They are further put to the expense of appearing, and of being represented, to resist both the claims themselves and the subsequently made Applications for Strike Out of their Grounds of Resistance. Objectively viewed the claims appear unreasonably 5 brought on their faces and oppressive in nature. Conduct of proceedings in such a manner can properly be characterised as “scandalous, unreasonable and or vexatious” for the purposes of Rule 37(1)(b). The claims separately fall to be regarded as claims enjoying no reasonable prospect of success which failing 10 little reasonable prospects of success in terms of Rule 37(1)(a) and for the purposes of Rule 39. Applications made at the instance of the Claimant 15 19. In the course of the combined proceedings the claimant has made a number of Applications. 20. The Application for Interim Relief brought in the third claim was one which on the claimant’s own case as clarified, confirmed and emphasised by her at the 20 Hearing on that Application, sought to rely upon alleged protected disclosures one of which, in the respondents’ contention was made after, and both of which, in the claimant’s contention were made after, the date upon which the decision to dismiss her was taken [Judgment of 28th March 2024 at 119]. 25 21. As is noted in the Judgment that lack of causal connection did not result from some error or misperception on the claimant’s part rather, she was at pains to emphasise when making her submissions at the Interim Relief Hearing that her assertion and case, which she offered to prove, was the decision to dismiss her was taken some time prior to the probationary review meeting 30 which she was asked to attend and which was set for a date occurring several days in advance of either of the alleged disclosures. 26 22. On the claimant’s case as presented and insisted upon, the section 103A complaint of Automatic Unfair Dismissal had no prospect of success but was nevertheless insisted upon by the claimant at a Hearing to which the respondents were convened and continued to be insisted 5 upon at the Open Preliminary Hearing of 23rd/24th July 2024. 23. By email dated 3rd April 2024 (252) the claimant applied for a Deposit Order/Orders in respect of the Grounds of Resistance entered by all 10 respondents, across all 5 claims, seeking that all respondents be ordered to pay a deposit of £1,000 for each of the Grounds of Resistance on the basis that each of the Grounds of Resistance enjoyed little reasonable prospect of success. 15 24. The only Grounds given notice of and upon which those Applications were advanced and those Deposit Orders sought, was that the respondents had denied the claimant’s complaints of Discrimination and Automatic Unfair Dismissal. 20 25. By email dated the 3rd of April 2024 the claimant made Applications for all of the respondents’ ‘defences’ (Grounds of Resistance), across all five combined cases, to be struck out upon the asserted Grounds that “their response is malicious, deceptive, unreasonable and vexatious and they continue to fabricate false statements and allegations despite clear evidence 25 of their torts and continue to omit (sic) evidence to prevent justice.” 26. The claimant’s Applications for Strike Out of the Responses were unsupported by any further specification or explanation, and were insisted upon by the claimant’s representative both at the outset of the Hearing of 30 23rd/24th July and throughout the Hearing, notwithstanding his withdrawal on the claimant’s behalf, in the course of the Hearing, of claims second, fourth 27 and fifth, without reservation, and of all of the claims, including claims first and third, in so far as directed against the various named individuals, as respectively being claims without merit which should not have been raised by the claimant and claims which separately claims including claims First, and Third, should not have been directed against any of the 5 named individual respondents. 27. The effect of the Applications and of the claimant’s continued insistence upon them was to put the respondents, including each of the named individual 10 respondents against whom the proceedings were subsequently all withdrawn, to the cost and worry of resisting the Applications. 28. The respondents’ Grounds of Resistance entered across the 5 claims are at pages [84 (claims 1 and 2), 147 and 186]. The Grounds of Resistance set 15 out substantive defences which appear credible on their face and are immediately comprehensible disclosing fair notice of the Grounds upon which the various complaints advanced by the claimant are resisted. 29. Applying to their terms the normal rules of construction and, according to the 20 words used their normal English language meaning, the Grounds of Resistance advanced by and on behalf of each of the respondents in the face of the 5 claims cannot be described as having little reasonable prospects of success in terms of and for the purposes of Rule 38, nor as having “no reasonable prospect of success” for the purposes of and in terms of Rule 25 37(1)(a), nor again can it be said that there being advanced in the terms on which are evidence of or establish or tend to show that, “the manner in which the proceedings have been conducted by or on behalf of the respondent (sic) has been scandalous, unreasonable or vexatious” in terms of Rule 31(1)(b). 30 30. The Applications at page [252], for the making of Deposit Orders of £1,000 against each of the respondents in respect of each of the Grounds of 28 Resistance in each of the claims, and at [254] for Strike Out of the Grounds of Resistance, are Applications which are without merit, falling, on the Grounds upon which they are advanced, wholly outwith the terms of Rules 37(1)(a) and or 1(b) and Rule 39 respectively. 5 31. The effect of their making and of their being insisted upon notwithstanding the withdrawal of the claims to which they are a response in whole or in part, had and continued to have the effect of putting the respondents to further time and expense without any justifiable basis and, in the circumstances constitute 10 and amount to the conduct of proceedings by and on behalf of the claimant in a manner which has been scandalous, unreasonable and or vexatious. The Claimant’s Correspondence 15 32. As at 23rd/24th July 2024 (the date of the Open Preliminary Hearing), in the course of the 6 months that had elapsed since the raising of the first claim on 14th February 2024, the claimant sent to the respondents’ representatives and to the Tribunal, (across the 5 combined cases), a voluminous plethora of correspondence extending to in excess of 1,350 pages [355-1730]. A 20 summary of the content, character and tone of some 35 individual pieces of that correspondence is set out at paragraphs 3.1 to 3.2.35 inclusive of the Hearing Bundle at [262-266]. Those summaries, which upon consideration of the documentary evidence (written copies of the whole correspondence before the Tribunal and to which it was referred) the Tribunal is satisfied are 25 illustrative of the whole when viewed objectively, are referred to for their terms which are held incorporated and reiterated here, by reference for reasons of brevity. 33. On an Application of the normal rules of construction to their terms, and by 30 reference to the dates and times of their sending, frequent and needless duplication and frequency of occurrence, and according to the language used its normal English language meaning, the correspondence at pages [355- 29 1730] of the Hearing Bundle constituted a super abundant and continuous stream, or barrage, of correspondence far in excess of that required for the proper conduct of proceedings in accordance with the Overriding Objective. 34. The large volume of the correspondence, by illustration 5 of the 35 pieces summarised and referred to above, falls variously to be regarded wholly or in large part either as:-  Irrelevant to the issues/potential issues of which notice was given 10 in the correlative Forms ET1  Containing threats and allegations, for which no factual basis was presented, directed against; both the corporate (first named) respondents and individually named respondents, their witnesses, 15 and their legal representatives, both solicitors and Counsel  Being in terms of its content, tenor and character inappropriate for inclusion in and of a type which has no place amongst correspondence relating to the conduct of proceedings before the 20 Employment Tribunal (Scotland)  Being variously excessive, and unpleasant  As being in their effect, oppressive, and unjustifiably the cause of 25 worry and concern to the respondents, including the individually named respondents, and to their legal representatives and witnesses  Were demanding of a disproportionate amount of clerical and 30 judicial time in respect of their processing, and giving of directions in response. 30 35. The claimant although now represented in the 5 combined cases was, until 22nd July 2024 a litigant in person responsible for the conduct of her proceedings in the 5 cases. The claimant was and remains a very experienced litigant in person who, in the 5 year period 5 from 18th January 2018 up to and including 29th April 2024, has raised and pursued before the Employment Tribunals in excess of 30 claims, many of them similar to those given notice of in the 5 combined cases, directed against various former employers and named individual respondents, see [1731-1973]. 10 36. Viewed objectively, the engaging by the claimant in and the sending of correspondence of the above types, character, volume and frequency, falls to be viewed as constituting the conduct of proceedings by or on behalf of the claimant in a manner that may properly be characterised as scandalous, 15 unreasonable and or vexatious in terms of and for the purposes of Rule 37(1)(b). The Claimant’s Conduct of Other Proceedings before the Employment Tribunals 20 37. There is produced before the Tribunal, in written evidence at [1731-1973 of the Bundle, some 30 Judgments and Determinations of the Employment Tribunal (England and Wales) of previous claims, raised at the instance of the claimant, and directed against various previous employers and several 25 individually named respondents, in the 6 year period from 18th January 2018 up to and including the 29th of April 2024. 38. Several of those claims were in terms similar to, or the same as, those given notice of in the 5 combined claims before the Tribunal for consideration at 30 Open Preliminary Hearing. The lion’s share of the Judgments, dispose of the claims on the basis of their being unmeritorious or once raised not pursued. Those Judgments are referred to for their terms. The content of the claims 31 and of the Judgments and Orders disposing of them are summarised in the written table extending to 15 pages prepared, lodged with the Tribunal and intimated to the claimant/her representative, and relied upon by the respondents and headed “Previous ET Decisions (Respondents’ Table)”. The table is referred to for its terms and its contents are 5 held incorporated and reiterated here, by reference for reasons of brevity. The Conduct of Proceedings by and on behalf of the Claimant in relation to the ultimately adjourned Open Preliminary Hearing of 27th and 28th June and 10 3rd and 18th July 2024 39. Parties are referred to:- (a) The Tribunal’s Judgment in Case Number 8000219/2024 on the 15 Application for Interim Relief (b) The Tribunal’s Orders of 28th June, and 3rd and 18th of July 2024, and, to the relative Notes of Reasons attached to each, 20 (c) the terms of all of which are held repeated and incorporated here by reference, for reasons of brevity 40. The incorporated Notes set out a number of material and relevant facts which, were not in dispute between the parties, nor put in dispute between 25 the parties at the previously adjourned and relisted Open Preliminary Hearing of 23rd and 24th July 2024, and which the Tribunal considered relevant to the Determination of the Applications before it; viz, and in summary; 41. The 5 cases were combined and appointed to Open Preliminary Hearing, at 30 which parties were to be heard anent the respondents’ Applications for Strike Out across the 4 (subsequently 5) claims in terms of Rule 37(1)(b) and Rule 39, and anent the claimant’s Opposed Counter Applications for Strike Out of 32 the Grounds of Resistance in all 5 cases, in terms of Rule 37(1)(a) No Reasonable Prospect of Success and 37(1)(b) Scandalous, Vexatious or Unreasonable Conduct of Proceedings, which failing, for Deposit Orders in terms of Rule 39; all in terms of the Tribunal’s Orders (Fourth), (Fifth) and (Sixth) 5 of 3rd May 2024. 42. The dates of the Open Preliminary Hearing, 27th and 28th June 2024 were fixed in consultation, and with the agreement of parties, at a Closed Preliminary (Case Management Discussion) on 3rd May, a Hearing at which 10 the claimant was present and represented herself. 27th of June 2024 43. On the morning of the 27th June (the first day of the Open Preliminary 15 Hearing) the claimant wrote to the Tribunal seeking a postponement of the Hearing on the grounds “I just woke up with a terrible tension headache, chest pains, bleeding, panic attack and hot sweats …”. That email was referred to the Employment Judge at 09:27, 30 minutes before the start of the Hearing. At 10:05 the respondents’ representative, to whom the claimant had 20 intimated her correspondence, lodged objections, all as is fully set out in the Notes attached to the Tribunal’s Orders of 28th June and 3rd July, the terms of which are incorporated here by reference. 44. The Tribunal, having heard parties in support of and in opposition to the 25 Application at the outset of the Hearing then adjourned proceedings on 3 occasions in the course of the following 2 days to enable the claimant to attend at her doctor and obtain medical certification confirming her medical and fitness to participate in the Hearing, in the context of what was an opposed Application for Postponement made on those grounds. In doing so, 30 the Tribunal gave the claimant unequivocal oral and written guidance as to the required content of the medical vouching that was to be obtained and directed that a copy of that guidance be provided to the medically qualified 33 practitioner who was to produce the professional certification of the claimant’s medical unfitness. 45. In the course of the following 48 hours the claimant variously undertook to do so and relayed to the Tribunal that she had done so but, in 5 the event did not, the medical “certificate” which the claimant sent to the Tribunal at 13:01 on the 28th of June being a letter from a clinical practitioner (not a qualified medical doctor), which was in no way compliant with the direction given by the Tribunal and which, in particular, nowhere contained a statement that the 10 claimant was medically unfit to attend at or participate in the Hearing. 46. The brief letter did no more than narrate the claimant’s description of how she was feeling. Nor did it at any point include confirmation that the author had had sight of the Tribunal’s direction as to required content. Although the 15 Hearing, which was being conducted remotely had not been postponed but had merely been adjourned, on the last occasion until 1 pm on the second day, to enable the claimant to submit the directed medical vouching and for both parties to thereafter address the Tribunal further on the Application for Postponement if the same was to be insisted upon, and further as to the date 20 of any postponed Hearing in the event that the Application were to be granted, the claimant, having sent the tendered medical document to the Tribunal, did not attend at the appointed time. 47. On the Tribunal’s direction the clerk made telephone contact with the 25 claimant, relayed to her the Tribunal’s direction that the certificate tendered was not compliant with the Tribunal’s direction and the Tribunal’s request that she join the remote Hearing to address the Tribunal further on her Application, if it was still to be insisted upon, and to respond to the submissions of the respondent. Although available to conduct a telephone 30 conversation with the clerk, the claimant informed the clerk that she declined to attend asserting contrary to the facts, that she obtained and had submitted 34 medical certification in the terms which the Tribunal had directed and she therefore considered that she was not obliged to attend, regardless of the earlier Direction, and the Judge’s contemporaneously communicated request that she do so. 5 48. In the circumstances the Tribunal was constrained by the claimant’s conduct, including that of absenting herself from the Hearing on the 28th of June notwithstanding the Tribunal’s Directions, to adjourn the proceedings, to the prejudice of the respondents across the 5 claims who had prepared for the 10 Hearing and who together with their representatives were in attendance across the 2 days, all in compliance with the Tribunal’s Direction, the claimant bore to achieve that outcome on the asserted grounds of medical unfitness, but in circumstances where despite multiple opportunities and clear direction, the vouching which she knowingly chose to submit and rely upon was 15 inadequate to establish the grounds and was not compliant with the Tribunal’s Direction. 49. In terms of its Order (Second)(c) of 28th June the Tribunal recorded:- 20 “(c) That the documents sent by the claimant to the Tribunal at 13:01 hours on the 28th of June 2024 is not compliant with the directed guidance. In the document the medical practitioner does not professionally certify that the claimant is medically unfit to participate on the 27th and or 28th of June 2024 in the Hearing. The document contains no 25 indication of a date by which, in the medical practitioner’s professional opinion, the claimant will be medically fit to participate in a Hearing.” 50. The respondents’ representative although having no choice but to accept the 30 position in which the Tribunal was left as a result of the claimant’s actings, reserved the respondents’ rights to make Application for an Order for 35 Expenses, in terms of Rule 76(1)(c) but advised that any decision to do so would be materially informed by confirmation, albeit retrospectively, of whether the claimant in fact was or was not medically unfit to attend or participate in the proceedings of 27th and 28th June 24. 5 51. At paragraph (Third) of its Orders of 28th June the Tribunal ordered the claimant to send to the Tribunal, with a copy to the respondents’ representative, within 7 days of the date upon which its Orders were sent to the parties, that was by 4 pm on the 15th of July 2024, a document in which 10 her doctor professionally certified that she had been medically unfit, on the 27th and 28th June 2024, to participate in the Preliminary Hearing set down to proceed on those dates and further, to do so in terms set out at Order (Second)(b) above, the same being a reference to the detailed written guidance provided by the Tribunal to the claimant on 27th June 2024. 15 52. The claimant having absented herself from the proceedings knowingly without Leave of the Tribunal and contrary to its express directions, and having also failed to provide any information as to potential availability for a continued Hearing, and the Tribunal having been constrained to adjourn the 20 proceedings in her absence but in consideration of the possibility that notwithstanding her failure to comply with the Tribunal’s Orders she might in fact be/have been medically unfit to attend, appointed the adjourned Hearing to the first available dates after 14 days, upon which the respondents confirmed they had availability, those dates being the 23rd and 24th July 2024; 25 and directed that Notice of Hearing in respect of the continued dates of the now adjourned Hearing be issued to parties forthwith. 53. The claimant did not comply with the Tribunal’s Order (Third) of 28th June in terms of which she was directed to obtain and submit an appropriate medical 30 certificate retrospectively vouching her medical unfitness in respect of the 27th and 28th June 2024. 36 54. On 2nd July the claimant made an Application for Postponement of the now fixed dates for the adjourned Hearing of 23rd and 24th July 2024. The Application was made on the grounds of her “health” but was unsupported by any medical vouching. Rather, in the Application 5 the claimant made reference to a Fit Note that was due to expire at the end of August and that her GP had advised her not to attend any Hearings on her own to avoid chest pains, anxiety or panic attacks. 10 55. The claimant advanced the Application on 2 additional grounds, namely (a) “I am also not available end of July due to personal reasons and other commitments that was planned. (The Judge should of communicated with me and or parties before listing to ensure 15 availability)” and, (b) Thirdly, I am also in the process of getting legal representation in which I have contacted my MP so under the circumstances the Hearing should be “listed from September 2024 i.e. not 20 before September 2024. 56. The Application for Postponement was opposed by the respondents. 57. In so far as the Application was said to proceed upon the grounds of ill health, 25 the Fit Note to which reference was made by the claimant was already among the documents lodged with the Tribunal. It certified that the claimant was, (as at the date of its issue which predated the dates of the adjourned Hearing) and would continue to be fit to work in the period up to its expiry namely the 30th of August 2024. Contrary to the claimant’s assertion it did 30 not disclose advice by her doctor that the claimant ought not to attend any Hearings on her own to avoid any chest pains, anxiety or panic attacks. 37 58. The grounds upon which the Application was opposed included the claimant’s failure to provide any specification of what she described as “other commitments that was planned”. 5 59. Affording the claimant the benefit of the doubt in her capacity as a litigant in person, and in order to provide her with further opportunity to vouch the grounds upon which she advanced her Application, in the face of the respondents’ objections, the Tribunal extended the time for compliance with 10 its previously issued Order (Third) of 28th June and the scope of that Order to include a professional certification that the claimant was also not medically fit to attend or participate in the adjourned Hearing of 23rd and or 24th July 2024, and reiterated that the certification should also include a prognosis for recovery, that is to say, it should specify the date by which in the professional 15 opinion of the doctor the claimant would be medically fit to participate in a relisted Hearing. 60. By Order dated 5th July the Tribunal extended the time by which the medical certification was to be provided to the Tribunal and the respondents’ 20 representatives to 15th July. 61. The Tribunal further directed the claimant to provide specification of the “other commitments” in so far as she sought to rely upon these as a ground for postponement and to confirm the stage to which she had advanced her 25 intentions to instruct legal representation, in order that these matters might inform the Tribunal’s consideration of the Application. 62. The Tribunal continued consideration of the claimant’s Opposed Application for Postponement until 18th July to afford the claimant the opportunity of 30 complying with its Directions. 38 63. On the 15th of July 2024 the claimant lodged with the Tribunal a letter bearing the signing block of her General Practitioner Doctor Aziagba which she tendered in compliance with the Tribunal’s reiterated Order (Fourth) of 28th June, reiterated in terms of its Order (Fourth) 5 of 3rd July. 64. In terms of that Order the Tribunal had directed that there be exhibited by the claimant to the medical practitioner who was asked to provide the certification the Tribunal’s earlier Direction as to its required content including, in 10 particular, that the medical practitioner professionally certify that the claimant respectively had been and was medically unfit to attend and participate in the Hearings respectively set down for 27th and 28th June and 23rd and 24th July 2024. 15 65. The letter extending to 3½ lines issued by the claimant’s General Practitioner and lodged by her in support of her Application demonstratively contained no such professional certification by the medical practitioner. Rather the letter did no more than recount the claimant’s own opinion in the matter. Neither did it identify any date by which in the doctor’s professional opinion the 20 claimant would be medically fit to participate in a postponed Hearing, let it be assumed that her Application was granted. 66. Neither did the claimant, within the time period allowed, provide any further specification regarding her “commitments” or as to the steps taken by her in 25 relation to the appointment of legal advisors or any potential date for the same to be in place. 67. Upon a resumption of consideration of the claimant’s second Application for Postponement, together with the Grounds of Resistance, the Tribunal was 30 not satisfied that the Grounds relied upon had been made out or that 39 otherwise Grounds justifying postponement of the already once adjourned Open Preliminary Hearing were before it. 68. Accordingly, on 18th of July 2024 the Tribunal refused the Application for Postponement and confirmed that the Closed Preliminary 5 Hearing would proceed, as listed at 11 am on the 23rd and 24th of July 2024. Reference is made to the Tribunal’s Determination dated 18th July 2024 of the Opposed Application for Postponement and to the Note of Reasons attached thereto which are referred to for their terms held incorporated and reiterated here by 10 reference, for reasons of brevity. 69. The adjourned Hearing on the Applications and counter Applications for Strike Out and in the alternative for the fixing of Deposit Orders accordingly proceeded on the dates set down, namely 23rd and 24th July 2024. 15 70. As recorded, the claimant opted not to attend and therefore placed no evidence before the Tribunal as to her conduct or any explanations for it, relying instead upon submissions, ex parte statements made, and undertakings given, on her behalf by her lay representative, Mr John 20 Robertson. 71. The concessions made on the claimant’s behalf by her representative in the course of the Hearing and the withdrawals, in terms of Rule 51, and the departure from claims, in whole or in part, made by the claimant’s 25 representative in the course of the Hearing together with the Tribunal’s disposal of those claims in consequence, are recorded at paragraphs (First) to (Fifth) inclusive of the Tribunal’s Judgment. 72. The claimant’s persisting failure to comply with the Tribunal’s Orders 30 regarding the production of directed medical certification in circumstances in 40 which; the Applications which she advanced were advanced on the grounds of her medical unfitness, and in respect of which she was afforded unequivocal oral and written guidance by the Tribunal and afforded multiple opportunities for compliance, resulted in; the disruption of proceedings, the waste of judicial time, and occasioned avoidable 5 public expense and avoidable inconvenience and cost to the respondents. 73. The above conduct gives rise to an inference of contumelious disregard for the authority of the Tribunal and for the causative impact of such non 10 compliance upon the other parties to proceedings. It amounts, in the circumstances, to the unreasonable conduct of proceedings in terms of and for the purposes of Rule 37(1)(b). Applicable Law 15 74. The mutual Applications, respectively at the instance of the respondents and of the claimant for Strike Out of the claims, on the one hand, and of the Grounds of Resistance, on the other, proceed in terms of Rules 37(1)(b) and 37(1)(a); and the Applications, in the alternative, for the making of Deposit 20 Orders in terms of Rule 39 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. 75. Those Rules are in the following terms: 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) that it is scandalous or vexatious or has no reasonable prospect of 30 success; 41 (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) for non-compliance with any of these Rules or with an order of the 5 Tribunal; (d) that it has not been actively pursued; (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). 10 (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been 15 presented, as set out in rule 21 above.” “Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable 20 prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to 25 pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the 30 order. 42 (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. 5 (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in 10 pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. 15 (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.” 20 76. The term “scandalous” in the context of both Rules 37(1)(a) and 37(1)(b) means irrelevant and abusive of the other side. It is not to be given its colloquial meaning of signifying something that is ‘shocking’ – Bennett v Southwark London Borough Council 2002 ICR 881, CA. 25 77. In Jones v Wallop Industries Limited ET Case No 17182/81 the claimant claimed that he had been unfairly selected for redundancy and, to back up his claim, alleged fraud, mismanagement, misrepresentation, criminal conspiracy, intimidation and ‘other torts’ (delicts) against the employer. The 30 Tribunal found that the claimant’s acting in causing the respondent company and a number of individuals named in the proceedings, as much inconvenience, distress, embarrassment and expense as possible constituted 43 acting in the conduct of proceedings in a largely scandalous or vexatious manner and struck out the claim on that basis. 78. A vexatious claim or defence has been described as one that is not pursued with the expectation of success but to harass the other side 5 or out of some improper motive – ET Marler Limited v Robertson 1974 ICR 72 NIRC the term is also used more widely to include anything that is an abusive process. In Attorney General v Barker 2000 1 FLR 759, QBD (Civ Div), Lord Chief Justice Bingham described ‘vexatious’ as a ‘familiar term in legal practice’. 10 He said that the hallmark of a vexatious proceeding is that it has ‘little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of process of the 15 court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’. 79. Conduct of proceedings are unreasonable in the context of Rule 37(1)(b). It 20 is found to be outside the ‘ordinary and reasonable conduct of proceedings’; Cabo Concepts Limited v MGA Entertainment (UK) Limited and another [2022] EWHC 2024 (Pat). 80. The Determination of Applications for Strike Out involves a two stage test or 25 process:- (a) firstly consideration of whether any of the grounds set out in Rules 37(1)(a) to (e) have been established (the first stage); and 30 44 (b) having identified any established ground(s), the Tribunal must then decide whether to exercise its discretion to strike out, given the permissive nature of the Rule (second stage) – Hansan v Tesco Stores Limited UKEAT/0098/16. 5 (c) Consideration of the extent to which a “fair trial” would remain possible will generally also be relevant. 81. However, the mere fact one of the parties has previously been involved in 10 litigation in which the issues were substantially the same issues, will not generally, without more, justify striking out a further claim as an abuse of process. 82. A Tribunal is entitled to strike out a claim or response because of the 15 scandalous, vexatious or unreasonable conduct of the proceedings by either party or their representative. Generally the Tribunal will require to be satisfied that the conduct in question constitutes or amounts to “conduct of the proceedings” themselves, which will not necessarily cover all objectionable conduct by one party towards another, and further that it 20 amounted to unreasonable conduct of the proceedings in terms of Rule 37(1)(b). 83. It is helpful to view the sanction of strike out, not as a punishment, other than in exceptional circumstances, but rather as the appropriate response to the 25 manner in which proceedings have been/are being conducted in Sud v London Borough of Hounslow UKEAT/0156/14, the EAT upheld an Employment Tribunal’s decision to strike out a claim on discovering that the claimant had tampered with medical evidence; and had separately tried to mislead the Tribunal when applying for a postponement. In the 30 circumstances, the Tribunal was entitled to decide that it had lost trust in the claimant’s veracity and that there could no longer be a fair trial.” 45 84. In Itulu v London Fire Commissioner UKEAT/0298/18, the issue of medical evidence was also considered by the EAT. The claimant repeatedly and unreasonably refused to be seen by joint medical experts ordered by an Employment Judge in respect of her disability discrimination 5 claims. The EAT held that the Employment Judge was entitled to find the claimant’s unreasonable conduct made a fair trial impossible and to strike out her disability discrimination claims. An Unless Order was inappropriate in circumstances given her reputed refusals and the further unnecessary delay 10 and expense such an Order would cause. The Tribunal is satisfied, in that case, that the claimant’s conduct in this regard was unreasonable conduct of a serious nature which showed her to be willing to mislead the Tribunal in a material matter in the context of which a fair Hearing would not be possible ….” 15 - “…. the claimant’s persisting inability or unwillingness to comply with the Tribunal’s Orders amounted to conduct which had the effect of frustrating the doing of justice”. 20 85. In this context ‘scandalous’ is not synonymous with ‘shocking’; it is the misuse of legal process to vilify others, or gratuitously insult the Tribunal in the course of proceedings. 86. Scandalous, unreasonable or vexatious conduct is conduct that tends to 25 subvert the process of justice and has the potential to impair the fairness of the trial.:- so issues for consideration are: (a) whether the conduct in question was scandalous, vexatious or unreasonable; 30 (b) whether a fair trial was still possible; and, 46 (c) whether Strike Out was a proportionate sanction Parties Submissions 87. Parties representatives had mutually exchanged and each 5 lodged with the Tribunal, prior to the commencement of the Hearing, skeleton submissions to which they spoke in oral submission. Those skeleton arguments are referred to for their terms which, for reasons of brevity, are held incorporated here by reference and their terms not rehearsed at length. 10 88. With a view to doing justice to comprehensive oral submission of the claimant’s representative, its terms are set out in full below, together with the respondent’s representative’s oral response thereto. 15 Oral Submission for the Claimant “1. I wish to take issue with the relevancy of the submissions made by the respondent’s representative and say that the Tribunal should ignore the claimant’s other litigation history. It should focus on the claims. 20 2. I have found the claimant, on my short acquaintance, to be someone able to have a laugh and a joke and her conduct should be regarded rather as a combination of fear and frustration. It’s easy to say those things about her but in my opinion she struggles with anxiety and says 25 that she is intimidated by the idea of having a hearing. To use an analogy she can “taxi the claim onto the runway” but does not know how to “take off”. 3. From 2018 onwards there does seem to have been a number of claims. 30 Look at Pret a Manger against whom she brought a claim because she was refused employment. I think she was refused because she was 47 over qualified but because of “wokeness” Pret a Manger didn’t want to say that. 4. Regarding the criticism of her conduct in copying her correspondence and allegations to third parties [whether involved 5 in a particular litigation or otherwise], she has the right to communicate with any regulatory authority she likes. She has freedom of speech. The respondents could have applied for a Rule 50 Order [if they had concerns]. The fact that they have not done so means that they are not 10 bothered by it. Yes, she has been excessive but they have allowed her to do it. Looking at the claims, there is a lack of third party evidence. People think nothing of lying to courts even with certificates of truthfulness. Why should they be believed. The witness statements which I have seen from the respondents say that she was a poor 15 performer etc but they are only witness statements and nothing is lodged to substantiate them. It’s nonsense. In 20 years I have never seen an Employment Tribunal which was not down to bad management. She “[the claimant]” is very intelligent, fluent in French and pleasant to speak to. Fluent in French but never asked to do 20 anything in French beyond some initial training. She does not understand the Employment Tribunal process or its jurisdiction. I believe the claims can be trimmed down to 2 aspects; solicitors practising without certificates and a failure to make adjustments. 25 5. I want to read a statement from page 2125 of the bundle. It is a chat message sent on the respondent’s internal system at 1.10 pm from Emily Hilo to Neus Llao [commenting on the claimant’s potential suitability at final interview] “There is nothing in the chat which says that the claimant is ‘problematic’. The respondent should have done 30 due diligence on Ms Messi. The page comments positively on the claimant’s potential and experience. It also says she has ‘Coupa’” [system] “experience”, but it must be remembered that Coupa is often 48 tailored for particular customers therefore her experience may have been different. 6. Now yesterday we have” [in the respondent’s submissions] “the revelation that apparently the claimant has been working 5 2 jobs. That is absolute nonsense. Yes she had a second job which did not interfere with her main employment with the respondent. She needed 2 jobs. She should not be punished for that. 10 7. Page 414 of the supplementary bundle sets out User Testing’s policy on investigation – ‘We treat all reports seriously. --- we will conduct investigations promptly etc’. That is just an aspirational statement. The fact that we are at the Employment Tribunal makes it lies. It makes it a misrepresentation because if what is said on page 414 were 15 true and if the company adhered to it we would not be here today. The purpose of such a policy is to avoid external publicity. So what if an employee calls for help. What I can see from the bundle, these are cries for help. 20 8. The Economic Crimes and Transparency Act. Had the claimant’s complaints to the Solicitors Regulatory Authority been made after April 2024, they could have been investigated because that Act gives them the power to do so. Page 414 of the bundle gives the impression that the respondent conducts its business in a moral and ethical way. 25 The fact that we are in an Employment Tribunal suggests that they do not. 9. Page 459 of the bundle is the respondent’s Code of Business Conduct. In it they state that they ‘will comply with law’. It says that 30 employees ‘should consult with our General Council if you are unsure or have any questions or concerns related to your work.’ That statement suggests that their General Council is qualified to give 49 advice but in fact I say that any advice given by the respondent’s General Council would be illegal advice because I believe they did not hold a practising certificate. To not inform your customers that your General Council does not have a practising certificate is corruption. 5 10. Page 468 of the bundle is the respondent’s Code of Business Ethics where they talk about data privacy. In my experience I have only ever had 2 data subject access requests which have been honestly answered. For the respondents to say that it takes 4 months to provide a data 10 access request response is scandalous. When I look at the response to the claimant’s data access request, I am ‘looking for Jupiter but only see the moons, no Jupiter’. 11. The fact that their legal counsel does not have a practising certificate is 15 a serious matter. 12. Page 470 of the bundle is a continuation of the Code of Business Ethics. It recognises that she [the claimant] has the right to report to regulatory authorities. So when she does that it should not be regarded 20 as vexatious. 13. Page 2191 of the bundle is an email of 25th January 2024 from Emily Hilo to Sandra Messi extending her probationary period. It does not mention that there are any particular issues with the claimant. That 25 makes them User Testing, look shambolic. 14. The claimant does not know how to particularise her claim and her medical condition got the better of her when she had to come to court. 30 15. Page 2374 of the bundle is the respondent’s whistleblower policy. I say this is just aspirational. This is an issue for the whole of the business community not just the respondents. I could tear this policy 50 to shreds. The fact that this policy exists is a waste of everyone’s time. It says that there will be no retaliation in respect of reports made in good faith, so how can they describe her conduct of reporting ‘whistleblowing’ as vexatious. 5 16. Regarding the claimant’s excessive copying of her communications to other people I very much doubt that many of those to whom she copied her emails will have received them because they would be classed as spam. Regarding the claimant’s conduct in general, I say no 10 damage is caused by it. It is not defamation or slander. In English law there is no relief if the person believes what is said to be true. The claimant’s defence is ‘defence by truth’. 17. Now to the claimant’s skeleton argument. I don’t want to talk about 15 matters which fall outwith the Tribunal’s jurisdiction. I am comfortable that the parties who were added probably should not have been added [across all the 5 cases] all of the additionally named respondents should not have been and are withdrawn. I apologise on her [the claimant’s] behalf. But that is not an abuse of process because 20 of the claimant’s belief that these individuals had acted against her interests. I accept that there isn’t jurisdiction to pursue those matters in the Employment Tribunal but having them included in an Employment Tribunal Judgment could inform/lead to other civil action. 25 18. I submit that the claimant making such allegations should be viewed just as a cry for help. She needed a steer for help. Lots of people misunderstand the Employment Tribunal process but I am confident that she did make a protected disclosure. I am confident the company 30 has not made adjustments for her. 51 19. What’s needed is to have a common sense look at the claims and agree what should be struck out, so looking at the third claim number 8000219/2024, I believe it has merit and if the allegations are true it has a good chance of success, see paragraph 5 of the claimant’s skeleton argument 5 where I say:- (a) The third claim [95] regarding protected disclosures and interim relief was a genuine attempt by the C to assert her rights against unfair dismissal. Importantly, 10 the protected disclosures she made surrounded solicitors operating with no valid practising certificates, which meant that in effect, all work carried out by these solicitors during that time was illegal. Specifically, the C alleges that the solicitors 15 were in breach of: (b) section 1 of the Solicitors Act 1974, which requires solicitors to have a valid practising certificate in order to provide legal services to the public. 20 (c) 12.1 of the SRA standards and Regulations 2019, which state that a solicitor must not carry out reserved legal duties unless they have a valid practising certificate. 25 (d) Section 14 of the Legal Services Act 2007 which makes it a criminal offence for a person to carry out a reserved legal activity if they are not an authorised person.” 30 52 20. This is a matter of significant public interest that the C sought to raise through her claim due to the profile of the respondent’s clients who would not have been aware that work carried out would be invalid. 21. The spirit of the new Act, the Business Regulatory 5 Act, is that a company can carry out and make an offence either standard or aggravated. If aggravated the entire Board can be and should be prosecuted under the Economic Crime Transparency Act 2023. 10 22. Looking at the first claim number 8000136/2024 which is about failure to make adjustments the claimant stands on that claim. The respondents have tried to manipulate their position to make it look like the claimant was a bad employee. 15 23. On that basis it is accepted that the claims which should be struck out are the second claim number 4103947/2024, the fourth claim number 4103962/2024 and the fifth claim number 8000426/2024. It is conceded that they should be struck out having no merit. It is also accepted, conceded, that none of the claims should have been raised 20 against any of the named individual respondents and the named individual respondents, including those in the first case 8000136/2024 and the third case number 8000219/2024, should all be dismissed from the proceedings.” 25 [In response to a request by the Tribunal for clarification and confirmation of what in particular was being conceded the claimant’s representative’s continued confirming;] 24. “The second claim number 4103947/2024, the fourth claim number 30 4103962/2024 and the fifth claim number 8000426/2024 are each withdrawn by the claimant and their dismissal upon withdrawal consented to. 53 25. The first case number 8000136/2024 and the third case number 8000219/2024 continue to be insisted upon by the claimant but are withdrawn by the claimant, in so far as directed against all of the named individual respondents across each of the 2 5 cases, other than the respondent User Testing Limited, and dismissal upon withdrawal of those claims, in so far as directed against the named individual respondents, is consented to. 10 26. In relation to the two remaining claims, the respondent’s concerns can be eased by the fact that I will continue to act as the claimant’s representative in the future conduct of proceedings in those cases, which I will do so in a professional and courteous manner thus avoiding recurrence of the type of conduct which appears to have 15 given the respondents concerns.” 27. At the request of the Tribunal, the claimant’s representative confirmed his own understanding and acceptance as follows:- 20 “(a) If the remaining unwithdrawn cases, that is the first and third cases, were not to be struck out”, [a matter which is yet to be determined by the Tribunal] (i) “I” [the claimant’s representative 25 Mr Robertson] “will continue to act for the claimant in any future conduct of proceedings in those cases, (ii) that in such circumstances, the Tribunal 30 will correspond only with and consider correspondence received only from, the claimant’s representative and will not 54 simultaneously correspond with or consider correspondence received from the claimant while a representative remains on record. 5 28. The one authority that I wish to refer the Tribunal to is a summary, at page 134 of the bundle, of the case of Mrs R W-T v London Borough of Hammersmith and Fulham (1) Ms K Dero (2). This case involved the highest award of an Employment Tribunal. It is 10 pivotal in demonstrating corporate dishonesty and in it the witness statements were found to be false and in it the claimant was subjected to assertions of the type that are made here against the claimant in this case. It looks to me that this case [the instant case] “involves training and cultural issues. There is no sign the claimant” [Ms Messi] “has 15 been a bad employee. I say she is entitled to be a whistleblower and that does not make her a bad employee. The fact that we are here today suggests it is the company which is in default. 29. Regarding the performance of the opposing side’s solicitors, the fact 20 that we are messing about with bundles the day before this Hearing is ridiculous. 30. Now in relation to the respondent’s Grounds of Resistance, these are of no relevance to the case. The other people watching today 25 [observers at the Hearing] “are looking for some general pointers. There seems to be a trend to use the path of least resistance to get rid of claims rather than an intent to deal with the issues. The inference that the claimant is vexatious, scandalous and a serial litigant mean nothing. Rather, she is scared and is asking for help. I have an issue 30 with her being called vexatious when what she needed was help and support. I have apologised to those who have been brought into these proceedings as individual parties. 55 31. The respondents are, at best, using the claimant’s conduct as a smoke screen to cover up the possibility that the respondents may have breached various laws. Their defence should be struck out because of the inference. I say 5 the ICO did act. The Respondent’s Representative’s Oral Reply and Response to the Claimant’s Applications for Strike Out of the Grounds of Resistance 10 32. “I propose to reply thematically as there is 1 theme being advanced on behalf of the claimant, that being the suggestion that in making their Applications the respondents are seeking an easy route to get rid of the claims. That, with respect misses the point of these Applications 15 which are based upon the claimant’s conduct being manifestly, unreasonable, vexatious and, or, scandalous. 33. Thus the claimant is objecting to the existence of the Strike Out Rule itself. 20 34. We need to focus on the basis of the Applications. The claimant asserts that the Grounds of Resistance should be struck out because they are said to be vexatious but the fact that the respondent asserts that the claimant’s conduct of proceedings has been vexatious, 25 scandalous or otherwise unreasonable, does not provide a reason to strike out the defence nor does the respondents referring to nor their description of the claimant’s conduct for what it is. 35. The claimant’s representative’s focus appears to be on how the 30 claimant was treated while employed. He asserts that if the Code of Conduct had been followed there would be no Employment Tribunal Hearing, we would not be here. That is not stateable argument and has 56 nothing to do with these claims or with these Applications. The claimant cannot begin to assert that the response is vexatious, unreasonable or scandalous because it amounts to a denial of the claimant’s allegations. 5 36. The claimant’s representative has not taken the Tribunal to any examples of the respondent’s conduct of these proceedings which might come close to meeting the bar required to be regarded as vexatious, scandalous or otherwise unreasonable. Notwithstanding 10 what has now been the withdrawal of three of the claims and the assertion that the remaining two focus important issues which require investigation, the claimant’s representative is still proceeding with Applications for Strike Out of the responses. That is a matter which still gives rise to concern. 15 37. Replying now to the claimant’s representative’s main submission, he says that the Tribunal should ignore all aspects of the claimant’s conduct and just consider the merits of the cases. To do so would fail to properly consider the particular ground upon which the Applications 20 are advanced namely the vexatious, scandalous and or otherwise unreasonable conduct of proceedings by the claimant. He has said that (based on his brief acquaintance) that the claimant seems to him to be pleasant. In so expressing a view he is giving evidence but, even if she gets on well with him that does no more than aggravate the grounds 25 because it shows that the claimant is capable of reasonable conduct but does not conduct herself reasonably vis a vis the respondents. Nothing was said which explains why she chooses to do so. 38. Objection is taken to any characterisation of scandalous conduct in 30 relation to the claimant’s failure to attend at a Hearing. That however is a simple question of fact. 57 39. It was said by the claimant’s representative that the claimant was entitled to communicate with third parties, that she enjoyed freedom of expression and was entitled to defend herself and while all of that is no doubt the case, in the context of litigation it must be done so reasonably. The claimant is not allowed to conduct 5 proceedings as she does since the proper administration of justice requires that parties act reasonably. While it is recognised that the claimant is a litigant in person, the fact that a party is a litigant in person does not excuse unreasonable conduct of proceedings particularly in the case of a 10 litigant in person who is as experienced in the conduct of litigation as the claimant. Other litigants in person are required to and do conduct themselves reasonably and the claimant should be held to the same requirement as standard. 15 40. The claimant’s representative has made various submissions about the claimant’s conduct in the course of her employment. The respondent does not say that the claim should be struck out because of anything which the claimant says or does in the course of her employment but only because of her conduct of these proceedings which can be seen in 20 the context as being part of a much wider pattern of conduct on her behalf in relation to other proceedings. That objectionable conduct, being conduct which supports the Grounds of Application, is also evidenced by the claimant’s joining of multiple individual parties to the proceedings for no proper reason. That point is made out by the 25 admissions and concessions which have now been made and the withdrawal of the claims, across all 5 cases, in so far as directed at those named individual respondents. The fact that the claims as so directed are now withdrawn however does not excuse the claimant’s conduct in joining those parties to the proceedings without proper 30 reason in the first place. 58 41. It is submitted that the inadequacy of the pleaded cases in the second, fourth and fifth claims is also made out by admission and their withdrawal in the course of this Hearing when viewed in the context of the other litigations in which the claimant has been involved. It cannot be asserted that in those other cases where there has been withdrawal, strike out and or dismissal 5 the conduct of the claimant was justifiable so the withdrawal of some of the claims here is not enough to stop these cases or the remaining cases which are insisted upon from being struck out. 10 42. The grounds upon which the claimant’s representative asserts that claims 1 and 3 remain actionable is firstly that crimes/frauds may have been committed. That however fails to address the ground upon which these Applications for Strike Out are advanced which is because of the manner in which the claimant has conducted the proceedings. 15 43. Separately and in any event the claimant having conceded in Hearing that the decision to dismiss her was one taken before the alleged protected disclosure upon which she seeks to found it follows that the making of any such disclosure cannot give rise to a valid claim of having suffered detriment (by 20 dismissal) because of the disclosure and therefore, in relation to the first claim what is said by the claimant’s representative is that it focuses issues of failure to make adjustments but that is not the case pleaded in claim number 8000136/2024 and if that is the basis upon which the Application for Strike Out is resisted that claim also falls to be struck out. 25 44. Now regarding the question of dual employment the claimant’s representative has submitted that it amounts to scandalous conduct on the part of the respondent’s representative to suggest that there is anything unusual about the fact that it has emerged that the claimant was concurrently working for 30 another employer while engaged with the respondent in this case. The claimant’s written Particulars of Employment are at page 2132 of the bundle. At paragraph 7.1 “hours of work” provides – “This is a full time position. The 59 employee’s normal working hours shall be 9 am to 5.30 pm on Mondays to Fridays ….. however, you may be required to work additional hours, without extra remuneration, as may be necessary to support the global nature of the company’s business, the nature of the employee’s role, business requirements and or other time differences due to the international nature 5 of the company’s business and/or company working locations and these hours are variable. And paragraph 4.4.6 of the terms provides that the employee shall (i) devote the employee’s whole working time, energy, attention and abilities to the carrying out of the duties under this Agreement and spend such hours as may be 10 necessary to perform the duties beyond the hours of work without additional salary; and (ii) shall not at any time while employed by the company, without the prior consent of the company (such consent not to be unreasonably withheld or delayed), be involved, directly or indirectly, in any other business other than the business carried on by the company and/or any group company. 15 If the employee, with the prior written consent of the company, accepts any other appointment they must keep the company accurately informed of the amount of time they spend working under that appointment and any conflict or potential conflict of interest with the company and/or any group company.” 20 45. Today however is not about the merits of the proceedings but rather about the conduct of the proceedings. While it is noted that Mr Robertson says that the respondents can be confident as to how proceedings will be conducted in the future, his unjustified criticisms of the respondent’s solicitors, made in the course of these submissions, but which fail to identify improper conduct on 25 their part, results in it not being possible to have confidence that such conduct will not occur in the future. Separately and in any event the claimant’s conduct of proceedings up until this point has been contumelious and an assurance about future conduct, even if it could be relied upon, is not enough to avoid strike out. The claimant has “had her chance” and she has abused it 30 and the claim should be struck out.” 60 Discussion and Decision 89. The Tribunal sets out at paragraphs (First) to (Fifth) of the Tribunal’s Judgment, and records in its Note of Reasons, the concessions and withdrawals, in terms of Rule 51, of claims, variously in 5 whole or in part, which were made by the claimant’s representative in the course of the second day of Hearing and the Tribunal’s subsequent dismissal of the same, in terms of Rule 52, following their withdrawal. 10 90. Claims No 4103947/2024 (the second claim), No 4103962/2024 (the fourth claim), and 8000426/2024 (the fifth claim), were withdrawn in their entirety and without reservation, in terms of Rule 51, and were dismissed by the Tribunal, in terms of Rule 52, following their withdrawal. 15 91. Of the remaining claims No 8000136/2024 (the first claim), and No 8000219/2024 (the third claim), these were likewise withdrawn, in terms of Rule 51 by the claimant’s representative, in so far as directed against named individual respondents, that is to say as against all of the named respondents other than “User Testing Limited”, and were dismissed by the Tribunal, in 20 terms of Rule 52, following their withdrawal. 92. In consequence, the requirement for the Tribunal to determine the respondent’s Applications for Strike Out of the second, the fourth, and the fifth claim and of the first and third claims, in so far as directed against named 25 individual respondents, falls away. 93. The subsisting Applications for Strike Out before the Tribunal and requiring determination at Hearing were; the complaints contained within the first Case Number 8000136/24 and the third Case Number 8000219/2024, in so far as 30 directed against the first named respondent User Testing Limited and in so far as not departed from and confirmed as insisted upon by the claimant’s representative in the course of Hearing. 61 94. In consequence of the above the only live matters remaining and requiring Determination at the Open Preliminary Hearing were:- (a) the claimant’s opposed counter Applications for 5 Strike Out of the Grounds of Resistance pled on behalf of all of the defendants across all of the 5 combined cases, the claimant’s representative having declined the respondents’ representative’s invitation to withdraw the same and confirmed that the claimant insisted upon them 10 notwithstanding the prior concessions and withdrawals made by him on her behalf; and (b) the respondents’ Applications for Strike Out of the residual elements of the first Claim Number 8000136/2024 and of the third Claim 15 Number 8000219/2024, these being the only elements of the 5 combined claims which the claimant’s representative did not withdraw or depart from in the course of the Hearing and which, as at 13:20 on the second day of Hearing 24th July 2024, he confirmed the claimant continued to insist upon. 20 95. In respect of the claimant’s counter Applications for Strike out the Tribunal has recorded, both in terms of its Judgment and the Note of Reasons its finding that the Applications were wholly without merit and on and in the face of the Grounds of Resistance were self evidently Applications which enjoyed 25 no reasonable prospect of success. The tribunal considered that the fact that that was the case, together with the onerous consequences and costs with which the respondents would be visited in having to oppose them were matters of which the claimant was aware, or ought reasonably to have been aware of, the time at which she made the Applications, namely 3rd April 2024. 30 The Tribunal further considered that in so making the Applications in those circumstances and in so continuing to insist upon them such as to require the 62 respondents to oppose them at a Hearing, the claimant acted in the conduct of proceedings, in a manner which was both vexatious and unreasonable. It constituted a misuse of the privilege of the legal process in order to vilify others etc ….” (See Bennett v London Borough of Southwark [2002] IRLR 5 407, CA). 96. The Applications for the making of Deposit Orders in respect of and for Strike Out of the Grounds of Resistance entered by and on behalf of the respondents in all 5 cases were without merit, were misconceived in so far as 10 on their faces clearly falling outwith the Rules in terms of which they were advanced, and were manifestly unreasonable. Viewed objectively they were Applications in terms of which the claimant is reasonably viewed as seeking to do nothing other than put the respondents to further time and expense. The advancing of those Applications by the claimant and the continued 15 insistence upon them on her behalf notwithstanding the whole or partial withdrawal of the claims against which they were directed, falls to be regarded, in the circumstances, as constituting and establishing that the manner in which proceedings have been conducted by and or on behalf of the claimant has been scandalous, unreasonable and or vexatious. 20 97. The insistence upon those Applications at the hearing;  across all 5 cases and in respect of all Grounds of Resistance (that is in respect of the Grounds of Resistance advanced on 25 behalf of all of the respondents, after, and,  notwithstanding the withdrawal of the claims, with the exception of two aspects, on the conceded grounds that; 30  they were claims without merit which should not have been raised and in particular, 63  should not have been directed against any of the named individuals and thus,  putting the respondents to the continuing necessity of opposing 5 them, was to conduct proceedings in a manifestly unreasonable manner and, there being no legitimate purpose in doing so, is to do so also in a manner which is vexatious and scandalous. Its discretion so to do having been 10 awakened, in the exercise of that discretion in the circumstances, the Tribunal sustained the respondents’ Grounds of Objection and dismissed those Applications in terms of Rule 37(1)(b) and separately, at its own initiative, in terms of Rule 37(1)(a). 15 98. In relation to the subsisting and insisted upon element of the third claim, that is, the complaint of Automatic Unfair Dismissal in terms of section 103A of the Employment Rights Act 1996 by reason of the principal reason for dismissal being that the claimant had made a qualifying and protected disclosure in terms of sections 43A, B and C, of that Act, reference is made to paragraphs 20 36 to 45 inclusive of the Note of Reasons attached to the Tribunal’s Judgment, issued on 28th March 2024, which determined the claimant’s Application for Interim Relief in that case. For reasons of brevity the terms of those paragraphs are held incorporated here and should be read in conjunction with this Note of Reasons. The position, as set out in those 25 incorporated paragraphs, as to absence of causal connection between either of the alleged disclosures relied upon on the one hand and the decision to dismiss the claimant on the other was not challenged or put in dispute between the parties at the Hearing on the Applications for Strike Out. 30 99. Notwithstanding the position recorded in the Note of Reasons attached to the 28th March 2024 Judgment and the claimant’s adherence to that position including her particular assertion that the decision to dismiss her was taken 64 prior to 13th February 2024, some two weeks earlier than either of the alleged disclosures relied upon; and, notwithstanding the disposal of appeal proceedings in relation to that Judgment, the claimant continued to insist upon prosecuting that complaint of Automatic Unfair Dismissal by reason of whistleblowing against all respondents, until the second 5 day of Hearing 24th July, and beyond that date and still as against the first respondents. In persisting in so doing, the claimant has acted, in the conduct of proceedings, in a manner which is both unreasonable, because the claim was irrelevant in the terms in which it was advanced, and which has had the effect of causing 10 the respondent company and the named individuals against whom allegations are directed in the claim, and their professional representatives variously; inconvenience, distress, embarrassment and expense. The only explanation for such acting (i.e. insistence upon the complaint notwithstanding the absence of essential causal connection) is to be found 15 at:- Paragraph 15 of the claimant’s representative’s oral submission:- “Page 2374 of the Bundle is the respondent’s whistleblower 20 policy. I say this is just aspirational. This is an issue for the whole of the business community not just the respondent’s. I could tear this policy to shreds. The fact that this policy exists is a waste of everyone’s time. It says there will be no retaliation in respect of reports made in good faith, so how can 25 they describe her conduct of reporting ‘whistleblowing’ as vexatious. And at paragraph 17 of the Note of the claimant’s representative’s oral submissions in the first and second lines:- 30 65 “I don’t want to talk about matters which fall outwith the Tribunal’s jurisdiction. … but that is not an abuse of process because of the claimant’s belief that these individuals had acted against her interests. I accept that there isn’t jurisdiction to pursue those matters in the Employment 5 Tribunal but having them included in an Employment Tribunal Judgment could inform/lead to other civil action.” 100. The Tribunal considers that raising, pursuing and insisting upon proceedings 10 for such ancillary purposes amounts to pursuing a claim that is not pursued with the expectation of success but to harass the other side or to further some other agenda not falling within the jurisdiction of the Tribunal. The Tribunal considers such acting in the conduct of proceedings to be vexatious and to constitute an abuse of process and thus, amount to unreasonable 15 conduct of proceedings for the purposes of the Rules. 101. The third claim No. 8000219/24 falls to be struck out under Rule 37(1)(b). As per the claimant’s confirmed position in the course of the Interim Relief Hearing on 19th March 2024, the claimant concedes that the only two alleged 20 disclosures upon which she relies were made by her respectively, after the time at which in her assertion and belief of the decision to dismiss her was taken. The first of these, was sent to the Solicitors Regulatory Authority at 18:24 and again at 19:01 on the 28th of February whereas, the decision to dismiss her was on the respondent’s assertion taken shortly after the meeting 25 of the 28th adjourned at 12:05 and, on the claimant’s assertion, was taken in advance of the date for which the meeting was first scheduled, namely 13th February 2024. In respect of the second alleged disclosure relied upon, that is an email sent to the Information Commissioner’s Office (“ICO”) at 15:59 and or 16:03 on the 27th of February, the claimant does not offer to 30 prove, and has confirmed she has no basis upon which to offer to prove, that the fact that she had made such disclosures had been brought to the notice 66 of the decision taker, Miss Hilo, at any time prior to her deciding to dismiss the claimant. See paragraphs 41, 42, 43, 44 and 45 of the Note of Reasons attached to the refusal of the Application for Interim Relief of 19th March 2024. 102. The Notes (Minute) of the Probationary Review Meeting 5 of 28th February, pages [168 to 180] of the Interim Relief Bundle, do not contain reference by any of those participating, including both the claimant and her Trade Union Representative to the alleged disclosure/disclosures of 27th February 2024. 10 103. Other than the fact that the alleged disclosure relied upon was made on the afternoon of the 27th of February and the decision to dismiss the claimant was taken by the decision maker on the 28th of February, the claimant does not offer to prove any primary fact which shows or from which, if established, the Tribunal in the absence of another explanation, might draw an inference, for 15 the purposes of section 136 of the EqA 2010, that the principal reason for the claimant’s dismissal was the fact of her having made that alleged disclosure. 104. Separately, as is recorded in the Interim Relief Judgment Note of Reasons (at the same paragraphs) the claimant did not and does not believe nor does she 20 assert that the decision to dismiss her was taken on the 28th of February but rather that it was taken prior to the 13th of February, a position which is fundamentally incompatible with the possibility that the reason for that decision was the making of a disclosure some two weeks later. 25 105. To insist upon third claim No. 8008219/24 post the position adopted by her at the Interim Relief hearing and post the Judgment of 28th March 2024, and, thereby putting the respondents to the expenses of; continuing to defend the action, of seeking its strike out and in continuing to oppose at a hearing the Application for Strike Out of their response, in circumstances where; 30  the claim which she advances was, on the basis of the claimant’s own submissions made at the Interim Relief Hearing and upon an 67 objective consideration of the undisputed dates, is an unstable claim, constitutes unreasonable conduct of proceedings for the purposes of Rule 37(1)(b).  Separately, for those same reasons, the 5 claim is one which enjoys no reasonable prospect of success. 106. Separately and further, to have insisted upon directing such a complaint against additional named defendants, thus subjecting those individuals to the 10 distress associated with resisting the claims in such circumstances, and in circumstances where subsequently in the course of the Open Preliminary Hearing the concession was made on her behalf that none of the claims, including Claim Number 8000219/2024 should have been raised against those named individuals, separately constitutes unreasonable conduct of 15 proceedings for the purposes of the Rules. 107. In relation to the subsisting elements of the claims insisted upon by the claimant, on the written evidence presented and upon the relevant facts not in dispute, the Tribunal has found and has recorded at paragraphs (Eighth) and 20 (Tenth) of its Judgment that the manner in which proceedings in both Case Numbers 8000219/2024 (the third claim) and Case Number 8000136/2024 (the first claim) have been conducted, was unreasonable for the purposes of and in terms of Rule 37(1)(b). 25 108. In the case of the third claim the Tribunal has separately found, for the reasons narrated above, being the temporal impossibility of causal connection on the claimant’s own case, that the residual, insisted upon complaint, that of section 103A ERA Automatic Unfair Dismissal for reason of whistleblowing, is one which enjoys no reasonable prospect of success in 30 terms and for the purposes of Rule 37(1)(a). Its discretion to do so thus awakened, in the exercise of that discretion, there being no alternative sanction which is appropriate and the conduct of a fair Hearing in respect of 68 the Automatic Unfair Dismissal claim not being possible and of its own initiative the Tribunal strikes out the claim in terms of Rule 37(1)(a). Being satisfied that to insist upon such a claim following upon the submissions and factual concessions made by the claimant at the Hearing on Interim Relief in March of 2024 was acting in the conduct of proceedings, 5 unreasonably, separately and on the respondent’s opposed Application the Tribunal strikes out the residual element of the Third Claim No 8000219/2024 in terms of Rule 37(1)(b). 10 109. In relation to the residual element of the First Claim No 8000136/2024 the Tribunal, has found and has recorded at paragraph (Tenth)(a) of its Judgment that the manner in which proceedings had been conducted by the claimant in respect of that claim has been unreasonable for the purposes of Rule 37(1)(b) and that its discretion to strike out the claim on that ground is 15 awakened. For the same reasons of temporal causal impossibility, on the claimant’s own case, the Tribunal has found and records at paragraph (Tenth)(b) of its Judgment that the residual complaint of section 27 EqA Victimisation contained within the First Claim No 8000136/2024 is a claim which enjoys no reasonable prospect of success in terms and for the 20 purposes of Rule 37(1)(a) and that its discretion to strike out the claim at its own initiative, on that separate ground, is awakened. 110. In exercise of its awakened discretion and upon the respondents’ Opposed Application and considering that the conduct of a fair Hearing on the same is 25 not possible and separately those complaints not being insisted upon and having been departed from in the course of the Hearing, and further considering that the imposition of the strike out sanction is proportionate in the circumstances, the Tribunal on the respondents’ opposed Application strikes out the complaints contained in section 8.2 of the ET1 Claim Number 30 8000136/2024 and baldly described therein as complaints of; “Harassment – Race, Victimisation, Sex Discrimination, Whistleblowing – Protected Disclosure, denial of statutory rights and getting paid less than comparator 69 Gabriel Minino Aybar together with the “claim for other payments” in terms of Rule 37(1)(b); and separately at its own initiative in terms of Rule 37(1)(a) together with the averments appearing at section 8.1 of the ET1 at lines 3 to 13 inclusive viz, “I was harassed by … sex discrimination” and lines 18 and 19 “Also made … 14 02 24”, as being redundant 5 and irrelevant. 111. In relation to the one remaining residual complaint contained in Claim Number 8000136/2024, being a complaint which is described as one of “disability discrimination – failure to make reasonable adjustments” the 10 Tribunal, in the exercise of its awakened discretion declines, at this juncture in proceedings, to strike out that residual complaint. 112. At paragraph (Tenth) of its Judgment the Tribunal records that it has found that the manner in which proceedings have been conducted in Claim Number 15 8000136/2024 has been unreasonable for the purposes and in terms of Rule 37(1)(b) and that its discretion to strike out that claim including the residual element being the complaint of failure in a duty to make adjustments is awakened. 20 113. At paragraph (Tenth)(b) and (c) of its Judgment the Tribunal records that but for the nature and terms of the undertakings given by the claimant’s representative, Mr John Robertson, as to the future conduct of proceedings including as to the manner in which they were to be conducted, the Tribunal would have sustained the respondents’ Application to Strike Out the residual 25 element of the First Claim in terms of Rule 37(1)(b). As recorded at paragraph (Tenth)(d) of its Judgment in reliance upon the assurances and undertakings given by the claimant’s representative, the Tribunal has declined to do so at this juncture. Considering, as recorded at paragraph (Thirteenth) of its Judgment, that the allegations of disability discrimination by 30 reason of alleged failure in a duty to make adjustments and as assertedly evidenced by “failure to make risk assessments and failure to refer to Occupational Health” are allegations which, on their face have the potential to 70 engage in the provisions of section 136 of the EqA (burden of proof), and further considering that it would be premature to conclude that the conduct of a fair Hearing in respect of that allegation is not possible and further in the circumstances that the imposition of the sanction of strike out, at this juncture in proceedings, would not be proportionate, the Tribunal declines 5 to strike out that residual claim on the current Application of the respondents. 114. In so declining to strike out, the Tribunal makes clear that it does so on reliance upon the undertakings given before the Tribunal by the claimant’s 10 representative. The Tribunal accepts that there is merit in the respondents’ representative’s submission that the mere change in the manner in which proceedings are conducted, let it be assumed that the claimant’s representative (and through him the claimant) are to be taken at their word as to their future intentions, is not something which of itself is exculpatory of the 15 prior conduct of proceedings in a manner which has been vexatious, scandalous or otherwise unreasonable. The Tribunal considers that the recurrence of such conduct in the future course of proceedings may provide grounds for a renewed Application for Strike Out in terms of which the respondents would be entitled to rely, not only upon any such future conduct, 20 but also upon the findings as to scandalous, vexatious or unreasonable conduct which are the subject of the Judgment to which this Note of Reasons is attached. 115. The respondents’ representative relied additionally upon the table of other 25 claims and the 30 or so Judgments/Orders disposing of them, which are produced at [173-1973] of the Hearing Bundle. These being claims raised by the claimant in the course of the last 6 years and directed against various former employers and additionally against a number of named individual respondents. In the respondents’ representative’s submission these showed 30 the claimant to be a serial litigator of unmeritorious or nuisance claims. He invited the Tribunal to hold, on a consideration of those claims and of the Judgments disposing of them, that a clear pattern of conduct can be 71 discerned which matches the conduct, said to be demonstrated in these proceedings, of unreasonably bringing unmeritorious proceedings and failing properly to prosecute them. In his submission this undermined the claimant’s representative’s description of the claimant as a litigant in person who was struggling to present her claims and who required guidance 5 from the Tribunal, and rather, showed her to be an individual who, by her actions in the current proceedings, was doing what she had done on very many previous occasions, that is to say, deliberately bringing oppressive proceedings devoid of discernible merit. He relied upon (Bolch v Chipman [2004] IRLR 140) 10 [AB18 at AB23 (paragraph 55)] which was authority for the proposition that potentially scandalous conduct of proceedings is not confined to matters taking place within the Tribunal proceedings themselves, but can extend to matters outside the instant proceedings, such as making threats as to negative consequences if proceedings are not abandoned and or the conduct 15 of other similar proceedings. Under reference to Bolch v Chipman he submitted, and invited the Tribunal to also find on that separate written evidence of other proceedings, that the claimant’s similar and collateral conduct in the instant proceedings fell to be regarded as that of a vexatious, and unreasonable litigant who abuses the process of the Employment 20 Tribunal and thus to hold established, on that additional separate ground, that the manner in which proceedings had been conducted by or on behalf of the claimant in the instant combined cases, was vexatious, scandalous and or unreasonable for the purposes of section 37(1)(b). 25 116. The Tribunal recognises that there was considerable force in the respondents’ representative’s submission and further that the proposition that the history of the Judgments which are placed before it in written evidence shows/gives rise to an inference of serial raising of unmeritorious proceedings followed by a failure to prosecute them, is a stateable 30 proposition. The Tribunal makes clear, however, that in determining the Applications before it it has not found it necessary to make findings regarding the conduct of those other proceedings, being satisfied that grounds justifying 72 its disposal of the Applications are to be found in the conduct of the instant combined cases. 117. While the Tribunal has declined to strike out the remaining residual element of the First Claim No 8000136/2024, at this juncture in proceedings, 5 it has recorded in paragraph (Thirteenth) of its Judgment that the complaints are complaints which enjoy little reasonable prospect of success and that its discretion to make an Order requiring the claimant to pay a deposit in terms of Rule 39 is awakened. 10 118. The Tribunal has further determined, in the exercise of its discretion in all the circumstances presented, that the claimant, respectively in terms of Rule 39(1) and Rule 39(2), shall pay a deposit in an amount to be afterwards fixed, as a condition of continuing, in Case No 8000136/2024 (the First Claim), to 15 advance each of the two allegations of Disability Discrimination by reason of alleged failure in a duty, said to arise in terms of section 20 of the EqA, to make adjustments, and which is further said to be evidenced by: (a) “No risk assessments” 20 (b) “No OH referral” 119. The Tribunal has appended to its Judgment Case Management Orders giving Direction, in terms of Rule 39(2), in respect of the provision by the claimant of relevant financial information informing the assessment of her ability to pay 25 an amount so ordered. 120. Following the conclusion of submissions the respondent’s representative sought a brief adjournment to take instructions, the making of Applications for Expenses Orders in respect of which he had reserved the respondent’s 30 position on the previous Hearing days of 27th and 28th June 2024. 73 121. Following adjournment the respondent’s representative made 3 applications for Expenses Orders:- (a) In terms of Rule 76(1)(c), in respect of the 5 costs of the two wasted days of 27th and 28th June 2024, the application for postponement having been made on those occasions on the morning of the first day of Hearing (i.e. les than 7 days prior to the Hearing) 10 (b) In terms of Rule 76(1)(a) and 76(1)(b), in respect of the expenses of dealing with the; second, fourth and fifth Employment Tribunal claims which have now been dismissed following their withdrawal by the claimant, 15 (c) in respect of the costs of the Interim Relief Hearing in terms of Rule 76(1)(a). 122. Having heard the claimant’s representative who confirmed that he would 20 require to take instructions in relation to both the applications for Expenses Orders themselves but also the circumstances giving rise to them upon which he had not yet been appraised by the claimant, the Tribunal, upon confirming that parties’ representatives were each content that the determination of those applications should proportionately be dealt with and determined on the 25 basis of written submissions without the requirement for an oral hearing, and being likewise satisfied, the sitting Judge gave oral directions regarding the same which are replicated in the Tribunal’s written copy Orders of which are appended to this Judgment in this case, for the exchange and submission of written submissions, and the continued consideration of the applications; 30 the same to be determined at a Chambers hearing, at which attendance by 74 parties is not required, on a date to be afterwards fixed in accordance with the sitting Judge’s availability. 5 10 15 I confirm that this is my Judgment in the case of Messi v User Testing Limited and others and that I have signed the Judgment by electronic signature. Employment Judge: J G d'Inverno Date of Judgment: 4 November 2024 Entered in register: 4 November 2024 and copied to parties

Employment Tribunals

Ms S Messi v User Testing Ltd and others: 8000219/2024 and others

Official Documents

Change History

Full Decision Text

Related Parties