The Employment Appeal Tribunal (EAT) (Swift J) has handed down judgment in Kaul v Ministry of Justice [2023] EAT 41 upholding the decision of the employment judge below.
In 2019, the appellant – a circuit judge – had raised grievances alleging indirect discrimination, victimisation, failure to make reasonable adjustments, harassment and discrimination arising from disability, against three other judges as well as members of court staff arising from events that started in 2015.
In 2020, the judicial grievance was determined on its merits and dismissed on the basis that the grievances were not made out and that a significant number of the complaints were wholly without foundation. The staff grievance, however, was said to be “out of time under the policies” and therefore would not be investigated.
The appellant commenced proceedings before the Employment Tribunal. Her complaints concerned the way in which her grievances were handled and included: the failure to deal with the staff grievance within a reasonable time; the requirement that she provide a schedule listing her complaints; a request that she set out why the grievances were not out of time and the decision not to determine the staff grievance on its merits.
The respondents sought to strike out the claims under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Sch 1, para 37(1)(a) for having no reasonable prospect of success. While the employment judge declined to strike out the complaint regarding the decision not to determine the staff grievance on its merits, he struck out the remaining claims of victimisation, discrimination, failure to make reasonable adjustment and harassment.
The appellant appealed against that decision.
In the EAT, Swift J dismissed her appeal and found no error in the judge’s findings below. Among other things, Swift J found:
First, that the judge’s findings (a) that the ‘delay’ did not amount to a detriment or disadvantage for the purpose of the victimisation, discrimination and reasonable adjustment claims, and (b) that there was no prospect that a tribunal would find that there was a practice of delay, were reasonably open to him to make.
In this respect, Swift J observed that, while the scope for striking out a claim under para 37 on the ground that it had no reasonable prospects of success on one or more critical issues of fact was limited and required caution, that need for caution does not prohibit realistic assessment where the circumstances of the case so permit.
Secondly, while there had been a request for the appellant to provide a schedule, this was not properly characterised as an instruction, had not given rise to a detriment, and was entirely unexceptional.
Thirdly, the judge’s request that the appellant make representations on the ‘out of time’ issue, disclosed no error: it was not unusual and was aimed at giving the appellant the opportunity to be heard.
Mathew Purchase KC was instructed by Government Legal Department for the respondents.