← Back to searchEmployment Tribunal
- Case Number
- 1601627/2022
- Claimant
- Dr C Yates
- Respondent
- Richard Newton Consulting Ltd
- Venue
- England and Wales
- Hearing Date
- 13 January 2025
- Judge
- Employment Judge W Brady
- Claimant Representative
- Dr Cinzia Yates
- Respondent Representative
- Ms A Pitt
- Judgment Type
- preliminary hearing before
- Compensation
- £850,000
- Jurisdiction
- Breach of ContractDisability DiscriminationUnfair DismissalandUnlawful Deduction from Wages
Reasons
March 2017
EMPLOYMENT TRIBUNALS
Claimant:
Dr Cinzia Yates
Respondent: Richard Newton Consulting Limited
Heard at:
Cardiff by video
On:
20th March 2024
Before:
Employment Judge W Brady
Representation
Claimant:
Mr W Cowley
Respondent:
Ms A Pitt
JUDGMENT having been sent to the parties on 25th March 2024 and written
reasons having been requested in accordance with Rule 62(3) of the Employment
Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
1. The Claimant was employed by the Respondent as a research and
consultation manager from 12 July 2021 until 25 August 2022. Early
Conciliation started on 6th October 2022 and ended on 10 November 2022.
The claim was presented on 9 December 2022.
2. The Claimant is making the following complaints
1. Direct disability discrimination (including a discriminatory dismissal)
2. Discrimination arising from disability
3. Failure to make reasonable adjustments
4. Disability related harassment
5. Victimisation
6. Wrongful dismissal (this is admitted)
7. Unauthorised deduction from wages.
3. The case was listed today to hear the Respondent’s application for the
Tribunal to strike out all of the above claims on the grounds that the manner in
which the proceedings have been conducted by or on behalf of the claimant
or the respondent has been scandalous unreasonable or vexatious and that
Case No: 1601627/2022
10.8 Reasons – rule 62(3)
March 2017
the Tribunal considers it is no longer possible to have a fair hearing in respect
of the claim or the response.
4. I have read the extremely thorough and helpful skeleton argument prepared
by Ms Pitt for the Respondent and I heard her oral representations today. I
also heard from Mr Cowley from the Citizen’s Advice Bureau who represents
the Claimant.
5. When considering this case I have taken into account the overriding objective
to deal with cases fairly and justly and Rule 2 of the Employment Tribunal
Rules of Procedure.
6. Rule 37 of the Employment Tribunal Rules of Procedure states that at any
stage of the proceedings either by its own initiative or on an application of a
party, A Tribunal may strike out all or part of a claim in response on any of the
following grounds:
a. That it is scandalous vexatious or has no reasonable prospect of
success
b. The manner in which the proceedings have been conducted by or on
behalf of the claimant or the respondent has been scandalous
unreasonable or vexatious
c. For non-compliance with any Rules or with any order of the Tribunal
d. It has not been actively pursued
e. That the Tribunal considers it is no longer possible to have a fair
hearing in respect of the claim or the response.
7. The Respondent in this case is making the application under Rule 37(1) B, 37
(1) (c) and 37 1(d)
8. I was referred to the case of Bolch v Chipman 2004 ILIR 140 EAT which gave
guidance on the steps a Tribunal should take in determining a strike out
application under section 37(1)(b).
9. Firstly, an employment judge must find that a party or his or her
representative has behaved scandalously, unreasonably or vexatiously when
conducting the proceedings.
10. Secondly, if so the Judge must then consider whether a fair trial is still
possible. If a fair trial is still possible then the case should be permitted to
proceed.
11. Thirdly if a fair trial is not possible the tribunal will need to consider the
appropriate remedy in the circumstances. It may be appropriate to impose a
lesser penalty for example by making a costs or preparation order against the
party concerned rather than striking out his or her claim or response.
12. Ms Pitt submitted on behalf of the Respondent that the Claimant has accepted
the conduct of her representatives and has indicated her wish to continue to
instruct them to represent her and therefore any conduct of the Claimant or
her representatives can be taken into account.
Case No: 1601627/2022
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March 2017
13. The Respondent alleges that the general conduct of the Claimant’s
representative in not replying to emails, failure to comply with court orders,
lost evidence and lack of cooperation amounts to “scandalous, unreasonable
or vexatious behaviour”. The Respondent argues that the conduct is
deliberate and gave a number of examples of behaviour that could be inferred
as deliberate for example when asked for the medical evidence the claimant
raised the issue of confidentiality, terminating the ACAS telephone call
unexpectedly, not putting the Respondent on notice of Mr Cowley’s
unavailability for the final hearing at the same time as the Tribunal were
notified.
14. Mr Cowley on behalf of the Claimant explained that there had been a number
of staffing issues within his organisation which had resulted a reduction from 6
caseworkers to 2, leaving Mr Cowley and one other caseworker to carry the
entire workload. He explained that any failure to comply with orders was not
deliberate but due to sheer pressures of work, which unfortunately, he says
resulted in his own sickness leave prior to the final hearing which was listed
for January 2024. Mr Cowley reassured the Tribunal that he would in future
personally ensure that all timeframes were met.
15. Mr Cowley confirmed that he had no problems obtaining instructions from Dr
Yates.
16. Ms Pitt submitted that due to the delay in the proceedings and the fact that
this case has twice been listed for final hearings which have not been
effective that a fair trial would no longer be possible. She argued on behalf of
the Respondent that part of the Harassment claims and all of the Victimisation
claim relies solely on parties’ recollections. As the Claimant’s claims are
based on her lack of memory, then the effect of the delay in these
proceedings will affect her more than such a delay may affect other
claimants. (The Claimant had stated that the issue of memory will not be a
problem as much of the case is based on documents).
17. In response, Mr Cowley accepted that the case had been delayed, but pointed
out that in other areas in the country, Tribunal cases are routinely heard a
considerable time after the ET1 has been filed and that this length of time is
not extraordinary and does not mean that a fair trial cannot proceed.
Proportionality
18. Ms Pitt argued that striking out the claims in these circumstances would be
proportionate particularly in view of the detrimental effect that it is having on
the Respondent’s business. He is unable to apply for some government
contracts while he has ongoing discrimination cases in the Tribunal. He is also
concerned about the loss of reputation to his business.
19. I have to balance his loss and hardship against that of the claimant who would
have no redress for her claims if they were struck out.
Case No: 1601627/2022
10.8 Reasons – rule 62(3)
March 2017
20. Ms Pitt also argued that the claims should be struck out due to wholesale
noncompliance with the Orders of the Tribunal and that the representative has
also failed in their duty under the overriding objective. The Respondent
provided a list of orders that had not been complied with. Again, the Tribunal
will have to consider the issue of proportionality and fair trial.
21. Finally, the respondent asked for the claims to be struck out under rule
37(1)(e) that a fair trial is not possible due to the delay as was relied upon
above.
Decision.
22. Having considered all of the submissions, I am concerned about the delay in
these proceedings. I note that there have been a number of occasions where
delay has been caused by the conduct of the Claimant and her
representatives. There have also been occasions when emails have not been
answered.
23. However I do accept what Mr Cowley says in relation to the very difficult
circumstances that his organisation found itself in last year. I also note that
the claimant’s GP medical records have now been obtained by the Claimant
and can be forwarded to Mr Cowley and to the Respondent very shortly.
24. I am concerned that there appears to be a lack of communication between
both parties and that some of the correspondence between both parties has
not always been courteous or professional. I accept that some orders have
been breached and that there has sometimes been difficulty progressing the
case due to the lack of communication between the parties. That said, I do not
find that the behaviour of the Claimant amounts to scandalous, unreasonable
or vexatious behaviour.
25. I have also considered the arguments in relation to a fair trial. I note that the
Respondent has raised concerns about the Claimant’s memory problems
which may form part of her disability claim, and the difficulties that she may
have recalling the events in question. However, it is not unusual for final
hearings in many jurisdictions to be heard a number of months or years after
the events in question. While I hear the Respondent’s argument that in view of
this particular claimant’s specific reported memory problems the effect may be
greater, these matters can be put to the Claimant in cross-examination at the
final hearing and may undermine her credibility, but do not prevent a fair trial.
26. As I do not find the claimant’s actions to be deliberately scandalous,
unreasonable or vexatious, and I do not find that there to be difficulty with the
issue of a fair trial, I do not strike out under Rule 37 1(b) or 37 1(e).
27. I do note that a number of orders have not been complied with, or have been
adhered to after the directed time. I have considered whether it would be
proportionate to strike out the claims due to this. In view of the explanations
given and taking into account the overriding objective, I do not consider that it
would be proportionate to strike out the claims under rule 37 (1)(c) but this
may be the subject of a costs application after the final hearing.
Case No: 1601627/2022
10.8 Reasons – rule 62(3)
March 2017
28. The claims listed above are not struck out and all claims remain listed for final
hearing.
Employment Judge Brady
Date 15th April 2024
REASONS SENT TO THE PARTIES ON 16 April 2024
FOR THE TRIBUNAL OFFICE Mr N Roche
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Case Number: 1601627/2022
1
EMPLOYMENT TRIBUNALS
Claimant:
Dr Cinzia Yates
Respondent:
Richard Newton Consulting Limited
Heard at:
Cardiff
On: 10, 13, 14, 15, 16 and 17 (in
Chambers) January 2025
Before:
Employment Judge S Jenkins
Ms S Hurds
Ms J Kaye
Representation:
Claimant:
In person
Respondent:
Mr R Newton (Director)
RESERVED JUDGMENT
The Claimant’s complaints of; wrongful dismissal, direct disability discrimination,
discrimination arising from disability, failure to make reasonable adjustments,
harassment related to disability, victimisation, and unauthorised deductions from
wages; all fail and are dismissed.
REASONS
Background
1.
This hearing was to deal with the Claimant’s complaints of wrongful
dismissal, direct disability discrimination, discrimination arising from
disability, failure to make reasonable adjustments, harassment related to
disability, victimisation, and unauthorised deductions from wages, brought by
way of a Claim Form issued on 9 December 2022, following a period of early
conciliation with ACAS between 6 October 2022 and 10 November 2022.
Case Number: 1601627/2022
2
2.
We heard evidence from the Claimant on her own behalf, and from Richard
Newton, sole director and shareholder of the Respondent, on its behalf, in
both cases by way of written witness statements and oral answers to
questions. We also had regard to the written witness statements of four other
witnesses on behalf of the Respondent; Rachal Minchinton, formerly the
Respondent’s Deputy Director; Lisa Buckley, formerly the Respondent’s
Head of Philanthropy; Rachel O’Riordan, a friend of Mr Newton; and Ian
Ross, Chief Executive Officer of a former client of the Respondent.
3.
In relation to those witnesses, the Claimant, at a preliminary hearing before
- Approved By
- Employment Judge S Jenkins
- Date
- 13 February 2025