Statutory framework: Affecting wider group of EU Citizens and disabled Claimants Badgering of a disabled witness, unrepresented Claimant Inequality of Arms HMCTS Statistics – 2% to 3% race discrimination success rate in a decade! There were 3599 race discrimination cases – Total number of receipts by jurisdiction, 1 April 2018 – 31st March2019. Further 3967Continue reading “In the Supreme Court – not allowed – ECHR”
Is Government in breach of the Equality Act s.29&149 by encouraging settlements in Employment Tribunal cases and ignoring Claimant’s calls for level playing field routinely recorded hearings, reports of exploitation, or by protecting businesses?
Part 3 of the Equality Act 2010 (the Act) : Services and Public Functions
S.29 (2)A service-provider (A) must not, in providing the service, discriminate/victimise against a person (B)–(a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment. (3) A service-provider must not, in relation to the provision of the service, harass– (a) a person requiring the service, or (b) a person to whom the service-provider provides the service.
(6)A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
S.31(4)& 150(5) EqA : “A public function is a function that is a function of a public nature for the purpose of the Human Rights Act 1998”
S.149 of the Equality Act 2010 – Public sector equality duty, clearly states: A public authority must, in the exercise of its functions, have due regard to the need to–eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act.
“An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; (…)to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct“Equality Act 2010
This has been reaffirmed in common law in Aderemi v London and South Eastern Railway Ltd (Disability Discrimination Disability)  UKEAT 0316_12_0612 (6 December 2012) :
“The purpose of the Equality Act is to remedy perceived discrimination where it exists and to remove the scourge and evil of discrimination because of a protected characteristic so far as may be done.”
Positive Action, under the Act, requires Government to take steps to eliminate disadvantages,
This Act, s.158 does not prohibit also from taking any action which is a proportionate means of achieving the aim of– (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity.
Other publications address problems encountered.
Oxford Public International Law, Max Planck Encyclopedia of Public International Law [MPEPIL] reads:” In 1929 the Harvard Law School drafted a private codification entitled RESPONSIBILITY OF STATE FOR DAMAGE DONE IN THEIR TERRITORY TO THE PERSON OR PROPERTY OF FOREIGNERS. Art.9 regarded as a denial of justice
1) the denial, unwarranted delay, or obstruction of access to courts
2) gross deficiency in the administration of judicial or remedial process
3) failure to provide those guarantees which are generally considered indispensable in the proper administration of justice“[here no HEARING RECORDING AND TRANSCRIPT]
4)”a manifestly unjust judgment, especially if it has been inspired by ill-will towards foreigners as such or citizens of a particular State.
This draft was resumed and detailed by the Harvard Law School (…) in the Art. 7 Draft Convention on Denial of a Fair Hearing.”
In 1989 Equal Opportunities Commission published ‘Trial by ordeal: a study of people who lost Equal Pay and Sex Discrimination Cases’, in it accounts of experiences:
“The Chairman …completely dominated both the others on the panel. He twisted and turned things to the company’s advantage.”
“I had a feeling that the members of the bench were on the employer’s side”
“I was led by all sources to believe that a Tribunal was conducted with informality and was more or less an open discussion. This isn’t so. We did not sit round the table. The witness is in a box, takes an oath and has questions fired at them with such a speed the brain numbs. The chairman who fired the questions at me did so like a machine gun.”
“I thought that the chairman’s behaviour was disgracefully biased right from the start.”
“My experience was that I was fighting both the defendants and the Tribunal.“
Similar experiences were reported to the Government in 2007 Report “The experience of claimants in race discrimination Employment Tribunal cases 2007”:
“Chair who would hear their case fairly as being ‘luck of the draw’, “Chair being quite hostile and sarcastic in his tone’ “Unfair process stacked against them from the beginning’ “decision reached seemed very different to how the claimants remembered the hearing to have gone’ “decision reached did not bear much resemblance to the hearing‘ “the Judgment was very different from what had happened in the Employment Tribunal’ “a suggestion of racism at the hearing itself’ “it turned out to be like a battle situation, they had 10 people at their table” “frustration at hearing to listen to the respondent lie in response questions and in statements. Disappointed in the Tribunal for not holding the respondent to account for this” “if you went to an ordinary court and told those lies you would be charged with perjury” “the ruling did not correlate with how they viewed the proceedings” “how the respondent’s statements had contradicted each other” “when he received the judgment in writing, it shocked him greatly.Judgment was of an entirely different tone to the way he had experienced hearing” “It looked like the judgment was written by the opposite party’s lawyer”
The system Claimants are placed in (unknowingly or unwillingly) to seek workplace discrimination justice is very adversarial in nature, therefore this cannot be then used against Claimants who are being pursued with various practices by stronger legal firm.
The Employment Tribunal was reformed on several occasions in 1)Gibbons(2007), 2)Beecroft(2011), Briggs-operational cost of running ET in 2015/16 £1,893mil vs Civil Courts £404mil, recommended joining ET to CC or 3)Taylor Reports(2017). Claimants’ experiences were however overlooked and downplayed:
1)”review the options for simplifying and improving all aspects of employment dispute resolution.(…)adapting the Regulations if it were agreed that they are not working as intended. If implemented, they should reduce the complexity of the current system and reduce costs to business and employees.
Employment tribunals-Too bureaucratic and complicated Employment tribunals are considered too costly and complex for all involved. The requirement to focus on procedure rather than merits is now excessive.
The Review heard that vulnerable employees can be deterred from accessing the tribunal system by the complexity of both the underlying law and tribunal process. In such cases the need to confront the employer directly before applying to a tribunal could act as a barrier to justice“
2)”Employers and employees share many of the same concerns about tribunals. The rules are very complicated and there is a feeling that the outcomes are inconsistent because different panels take different views of similar cases.“
“The burden of proof on the employer could be reduced, making it harder for the employee to claim to a tribunal that the process was flawed. Reducing the burden of proof would also address the problem of employees claiming that dismissal was for discriminatory reasons rather than performance reasons since if it is easier to prove that dismissal was for underperformance it is harder to say that it was for discriminatory reasons.“ “One of Mr Beecroft’s recommendations was a suggestion to bring in no-fault dismissal.”
“The third party harassment provisions of the Equality Act 2010 Law should be rescinded.”-succeeded
Gov response ““At a time when workers are proving to be flexible in difficult economic conditions it would almost certainly be counterproductive to increase fear of dismissal.”
3)”In terms of our recommendations we have focussed broadly on three challenges: • Tackling exploitation and the potential for exploitation at work; • Increasing clarity in the law and helping people know and exercise their rights; and • Over the longer term, aligning the incentives driving the nature of our labour market with our modern industrial strategy and broader national objectives.”
“Fairer enforcement. We identify a number of issues for examination: • Action is needed to ensure employment protections are enforced and that vulnerable people have confidence that they will get redress for exploitation; • Those seeking justice in the courts should be enabled to discover whether they are eligible for the rights they wish to pursue before incurring a fee; • The State should show its support for successful claimants by acting to ensure they get paid monies due.”
“Vulnerable individuals should be able to rely on the state to protect them, challenging unlawful practices and taking action to enforce rights. Only then can we ensure that unscrupulous businesses are not able to use exploitation as a technique to gain competitive advantage. The employment tribunal system is also not without its faults. From the decision to take action against your employer to winning or losing the case against them, the odds are often stacked against the worker.“
Government enforces some workers rights, but in the most complex like discrimination or dismissals Claimants are set to fail in own resources against large legal companies and in highly adversarial litigation for years on end.
“In 2016 the new statutory role of Director of Labour Market Enforcement was created. Professor Sir David Metcalf took up office at the beginning of this year and is tasked with producing an annual labour market enforcement strategy to set the strategic direction of the GLAA, EAS, and HMRC’s NMW/NLW team.”
Evidence to the WEC, 27 March 2019, Enforcing the Equality Act: The law and the role of the Equality and Human Rights Commission, HC 1470 stated:
“Q278 Eddie Hughes: Many of our witnesses have argued that employers and service providers are able to ignore the Equality Act 2010 without fear of challenge. Can lessons for enforcement of the Equality Act be drawn from your work on developing an effective model of labour market enforcement?
Professor Sir David Metcalf: Well, forgive me but although I know a little about the Equalities Act—not least because the wonderful secretariat managed to give a good briefing on it yesterday—I do not know very much about it.“
“We started this inquiry with a sense from our work over the past four years that for equalities legislation to be more effective the burden of enforcement needed to shift away from the individual facing discrimination. This inquiry has confirmed that not only is this burden too high, but that that the individual approach to enforcement of the Equality Act 2010, and its predecessors going back to the 1960s and 70s, is not fit for purpose.
We want to see a model that can act as a sustainable deterrent to achieve system-wide change that tackles institutional and systemic discrimination.” House of Commons, Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission, 17 Jul 2019
“Their (workers) experiences and perceptions shed valuable light on the operation of the ET system. Many claimants were left dissatisfied, in particular those whose cases did not make it to full hearing. The data identify a range of barriers to justice which impact on the ability of individuals to advance their claims and to enforce remedies.”
“We conclude by calling for the need to reclaim the concept of access to the civil justice system as a public good, capable of transcending private interests and providing fundamental protections against worker exploitation.”
“However, in considering the wider implications of our findings against the backdrop of the recent Taylor Review, we found that little account appears to have been taken of the experiences of claimants such as those in our study. In Taylor’s report, repeated reference is made to ‘the most vulnerable workers’ who, it is recommended, require enhanced protection in certain respects. However no definition is provided of the term ‘vulnerable’ in this context nor is there any indication of the common characteristics shared by ‘vulnerable workers’ although it is assumed that the type of claimants in the current research would be included.”
“This article concludes that, in classifying certain workers as ‘vulnerable’, the Review and the Government’s response to it could serve to entrench the status quo. Rather than identifying and addressing the causes of worker vulnerability, including systemic failures to protect against exploitation, this approach implicitly conceptualises it as personal weakness ascribing responsibility to the individual. This raises serious concerns regarding the operation of labour law’s public function through litigation in the ET”
“Ministerial foreword to the 2011 consultation on the introduction of fees placed emphasis on the promotion of growth and the need ‘to confront the structural barriers that impede competitiveness, employer confidence and the creation of jobs’ (Ministry of Justice, Charging fees in employment tribunals and Employment Appeal Tribunal, Ministry of Justice, December 2011, 3). The policy of charging fees was justified on the basis of the need ‘to relieve pressure on the taxpayer and encourage parties to think through whether disputes might be settled earlier and faster by other means’ (at 3). The policy went ahead despite the fact that, in its own impact assessment, the MoJ had concluded that ‘claimants would tend to be worse off while respondents, taxpayers and HM Courts and Tribunals Service would be better off’”
“she was advised that she lacked the necessary two years continuous employment to make an unfair dismissal claim and that her allegations of race discrimination would be extremely difficult to prove. Marta described the impossible battle in which the limits of the law meant that her employer would not be held accountable, You think you can fight with the wind…there’s nothing you can do if you start to fight the wind.”
As a result countless potential Claimants, usually non-English speakers, leave CABx without recourse and are not included in ET or any other statistics for discrimination.
Law Commission states in Remedies Public Bodies Scope:
“It is important to bear in mind the impact of the European Convention on Human Rights and the Human Rights Act 1998. The European Court of Human Rights has held that some of the Articles of the Convention impose positive duties on the state to protect citizens from certain harms. For example, the Court has held that Article 2 requires the police to take positive steps to protect individuals whom they know, or ought to know, are threatened with a real and immediate risk to their lives. Similarly, it has held that under Article 3 local authorities must take reasonable steps to take into care children whom they know, or ought to know, are being seriously harmed by their parents.Decisions of this nature impose duties on public bodies in circumstances where no duty might have been held to exist at common law, because, for example, the omissions rule (see above) might have precluded liability.”
[Osman v United Kingdom  29 EHRR 245. In Van Colle v Chief Constable of Hertfordshire Police  EWHC 360,  3 All ER 963
Z v United Kingdom (2001) 34 EHRR 97.]
And in “Smith v Littlewoods Organisation Ltd  AC 241, where the conduct could be described affirmatively as careless control of property or as an omission to take security measures.“
Lastly Inclusive Britain: government response to the Commission on Race and Ethnic Disparities, published 17 March 2022, states: “The panel found that racism does still exist in some areas and does still require action to overcome it”
“More than 120,000 workers from minority ethnic backgrounds have quit their jobs because of racism, suggests a landmark study that has found workplace discrimination is sapping the confidence of a large part of the UK workforce.”
Moreover according to the University of Manchester latest Report judiciary in UK has been found ‘institutionally racist’
“The judiciary in England and Wales is “institutionally racist”, with more than half of legal professionals surveyed claiming to have witnessed a judge acting in a racially biased way, according to a report.
52% had witnessed discrimination in judicial decision-making“
UofM Report “Thus, a judicially normalised air of racial bias has serious material consequences. It legitimates the Magistrates’ and Tribunal judges’ decisions to the detriment of racially minoritised people“
Countless Claimants and Whistleblowers fight, suffer and are entrapped in the system, that proved incomprehensible without Employment Tribunal hearing recording and transcript.
Race hate crimes are however on the rise.
The Lord Chief Justice, Lord Judge, first permitted the use of Twitter (mobile email, social media) in Court in December 2010.
“Under the new guidelines, members of the media and legal commentators are no longer required to make an application to use text-based devices to communicate from Court in proceedings that are open to the public and not subject to reporting restrictions“
” In relaxing the rules for the media, the Lord Chief Justice recognised that “A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle”.
Most Claimant’s however don’t have the luxury of media presence, interested in a case journalist or even a friend, who could tweet the updates or take notes! There is unfairness and disproportionality in that some Claimants at present time can arrange 100s of remote observers, journalists and live transcripts from both parties, when others have no open justice at all and are left without any of the above reassurances.
There is also no transparency whatsoever in regards to complaints received by ET, as they go directly to the ET President and Judges themselves. The receipts or any breakdown of reason or outcome JCIO publishes for all Courts, is excluded for Employment Tribunal in the same detail and never reached disciplinary statements for ET Judges and excluded from JCIO Annual Reporting. FOIA requested was also refused on basis that JCIO is not a public authority. This is being looked at by ICO.
HMCTS Form EX107OFC indicating prior permission request for audio recording ‘off Tribunal framework’ is not available from Gov.uk web page along other ET forms and guidelines to this day.
“we are constantly over-listed(…) the way we work it is that we expect at least 2/3 of cases that are listed for any one day will settle and indeed they do“15:40
“It is a significant burden in our system, that we are expected to provide written reasons for people, if they ask or if the hearing doesn’t finish in the allotted time. Sometimes there is no option but to do what we call a reserved decision and it is a SIGNIFICANT BURDEN on Employment Judges. Judges in County and Higher Courts don’t have that obligation – THEY HAVE TRANSCRIPTS AVAILABLE. We do not, we do not record our hearings, we do not have transcripts available, so the Judge has to sit down and CRAFT a written decision which can be very long and time consuming, so they need at least a day to come to their decision and get it into some kind of shape that it could be produced as a written document.”14:40
“The Employment Judge was also asked to comment on this. The judge stated that his notes were not as clear as he might have hoped.”
Ejvet v Genesis Education TrustEAT75
I am an unrepresented Claimant in Employment Tribunal proceedings lasting now nearly 6 years. I went through appeal process to the ET Manchester Judgment from Sep’19 to Apr’22. Appeal identified 6 errors in Judgment later reduced to 2 by Respondent’s Barrister, however no new evidence was presented and 3 EAT Judges considered my 55 pages Appeal Notice. I won one claim in Jul’19 for which I have not received any remedy.
ET Manchester Judgment was delivered 11 months from the final 3-day Hearing with 7 witnesses, and further ‘refresher’ Hearing was called on in Jul’19 for the Respondent witness to give her testimony again, but I wasn’t able to refresh my account.
It is my view, because Tribunal didn’t rely on Hearing recording and transcript, didn’t record the Hearing, the evidence was at best forgotten at worst omitted and the Judgment is severely swayed to benefit employer and Peninsula, who represents my employer, but because it is an insurance company potentially liable for any awards, therefore purse me with increased aggression with many Senior Lawyers set against me on papers and multiple in one Hearing. Even escalated to the Legal Director level – Mr Potts, who sits at Employment Tribunal table in National User Group meetings, which is clearly seen by me as preferential treatment, prejudice and strong appearance of bias, because he is actively involved in my case. The Hearing was very chaotic, Judge retired and there was not enough time with Respondent presenting 8 witnesses versus 4 declared at PH, when the Hearing length was scheduled some 6 months before- legally represented Respondent should have known better it will cause disruptions, or did they?
In the final hearing all Panel members took notes, one typed transcription on laptop.
There was no way for me to obtain those transcripts notes leading to my appeal, with significant memory gaps, and evidence from 2-3 years prior.
Respondent also cross-appealed to the EAT in regards to victimisation claim I won, but the appeal was unsuccessful. The Respondent was then allowed to put before up to 4 different EAT Judges their duplicated cross-appeal using my appeal process and bundles of paperwork. They were still unsuccessful, however ET Manchester used the claim won by me, as punishment, withholding an award from me to this day.
This is the collective of evidence gathered on requesting judges’ notes from Employment Tribunal and those are contradicting and confusing, when Senior Presidents claim those are an ‘official record’ of evidence.
“Whilst it is uncontroversial that the judiciary is not accountable to any other institution that does not mean that either individually or institutionally judges are unaccountable.
The first form of direct accountability comes through open justice. It is a bedrock of the common law described by Jeremy Bentham as the “keenest spur to exertion and the surest of all guards against improbity.” It is guaranteed by article 6 of the European Convention on Human Rights and, in part, by article 14 of the International Convention on Civil and Political Rights. It is subject only to limited exceptions and provides a powerful check against arbitrary behaviour. Open justice ensures that what goes on in courts and tribunals can be seen, reported on and discussed, including critically. (…)Greater openness of this sort will not only secure greater accountability but will help to support institutional independence by enhancing public understanding of what the courts do and how judicial decisions are made. A modern approach to open justice has included supporting the expansion of the lawfulness of broadcasting court proceedings, when to do so does not have an adverse impact on the administration of justice.“ Lionel Cohen Lecture 2022: Lord Chief Justice, 30 May 2022
UK House of Lords Select Committee on the Constitution, “COVID-19 and the Courts” Report 30 March 2021, reads: “78. Access to justice is fundamental to the rule of law. It requires that the protection of the law be accessible to all. Legal processes should also be open and transparent to allow for scrutiny of proceedings and enhance public confidence in the justice system. The media and members of the public must be able to observe court hearings for justice to be seen to be done. 87. Attending court can be a stressful and alienating experience. The outcome of a court case can be life-changing for the individuals involved. That is true of many family, employment and asylum cases where emotions run high and users’ perceptions of fairness are fragile.”
I will be referring to certain documents obtained and case law, as follows:
Letter Response OFFICE OF THE SENIOR PRESIDENT OF TRIBUNALS 08 Apr’22
Letter Response CEO HMCTS Nick Goodwin 27 May’22
EX107 Form Request for transcription of Court or Tribunal proceedings 29 Jul’20
Claimant’s LIP request for Judges Notes ET Manchester Response 31 Jul’20
EAT Request for Judges Notes from 1st Judgment (Sift) and before Rule 3(10)Hearing 27 Jul’20 NOT RESPONDED
EAT Order Requesting ET Judges Notes after Claimant provided verbatim hearing transcript and Respondent refusing to agree on ‘note of evidence’Judges notes handwritten and impossible to read, gaps of evidence.20 Apr.21
EAT Redistributed full ET Judges Notes 24 Apr’21
Authorities Case Law
Crossland v Information Commissioner and Leeds City Council  UKUT 260 (AAC) (ADMINISTRATIVE APPEALS CHAMBER)
“ Recordings and transcripts may be made in some circumstances as a reasonable adjustment. It is also possible to take a note of the proceedings, and a litigant in person may bring a friend or relative with them to the tribunal to act as a notetaker. The Employment Tribunals provide detailed written reasons explaining the factual and legal basis of their decisions. Any appeal is based on the judgment and supporting reasons, and the Employment Appeal Tribunal will not accept a transcript in place of written reasons. If at appeal the parties cannot agree what was said in evidence, the Employment Appeal Tribunal may ask the judge who heard the case to answer questions in writing about the evidence on a particular issue or issues. When that happens, both parties will be provided with the document the judge sends in response. In accordance with its Practice Direction, the Employment Appeal Tribunal may also, if it wishes, obtain the judge’s notes of evidence on any disputed matter, which will then feature in the appeal bundle.”
Employment Tribunal hearings may take up to 32 (see Mr A Teague v HM Revenue and Customs: 2600403/2017) consecutive weekdays in public, complex, sometimes chaotic, mostly hurtful, private revelations Hearing. It is borderline impossible to find someone to take verbatim notes for you in full time day by day capacity, or tweet live for you. Further still for this person’s notes to be later accepted as compelling evidence and agreed by the legally represented employer some years later.
In this Claimant’s 3-day hearing [2405428/2016] all Panel Members and a Judge took notes, one person transcribed constantly on his laptop throughout the hearing – those notes were not possible to obtain, but for EAT Order in late appeal proceedings (past first sift Judgment and a Hearing Rule 3(10) Judgment). ET Judge retired. Notes handwritten, impossible to decipher perhaps some legal jargon , gaps in evidence. Appeal hearing took place 3 years from ET hearing, 6 years after case launched 6 errors identified by EAT-2 returned to ET back to square one.
Appeal process is very daunting and traumatic for LIP and in my experience:
All ET forms and paperwork must be filed from scratch to strict requirement;
There are very strict time limits to appeal 42-day, whereas the previous stage of ET Judges’ Reconsideration (time limit 14 days) may not be decided in time of appeal;
Separate Bundle must be created to a very strict page count and relevant documents, as well as Authorities Bundle, Grounds and Skeleton Arguments must be produced;
The appeal takes 3 stages and is considered by 3 (different) EAT Judges, or even President, like in my case; if there are grounds for appeal:
Stage 1 is response on papers without Hearing – it is called sift decision;
Stage 2 may be, if requested, Rule 3(10) Hearing – it is a Hearing of Appellant with the EAT Judge – Respondent cannot participate;
Only then if grounds are identified for appeal – there is a Stage 3 – Final Hearing, with again plenty of preparation, Bundles and Skeleton Argument on grounds allowed and relevant authorities.
Case numbers allocated may be changed at different stages of appeal adding to confusion and stress.
There are no time limits for the EAT decisions responses.
Often a parallel cross-appeal maybe pursued by the Respondent, where LIP must provide responses and prepare separately.
Judge’s notes were only requested originally on some points of appeal and late before Final Hearing, if granted.
Those were not possible to read, or decipher, handwritten in often chaotic environment – in the end there is no reference to them in the Final Hearing transcript, as an apparent ‘official record’ of evidence, Appellant LIP was not attending.
“HMCTS’ Employment Jurisdictional Support team has confirmed that where recording equipment is available, tribunals are encouraged to use it. As Ms Paczkowska is aware, when someone wants to appeal an Employment Tribunal decision and there’s no recording available, claimants can ask for the judge’s notes. Ms Paczkowska will be interested to know HMCTS is currently considering the benefits of providing recording equipment in all court and tribunal rooms, against the cost to the taxpayer.”
Claimants, in particular Litigants in Person, will not be able to obtain Judge’s notes out of their own volition.
HMCTS Form EX107
“3 DAY HEARING ON 3 – 5 SEPTEMBER 2018
ALL 3 PANEL MEMBERS NOTED EVERY WORD THAT WAS SAID IN A HEARING.
JUDGMENT GIVEN 11 MONTHS AFTER THE HEARING.
APPEAL TO BE HEARD NEXT MONTH (TBC)
REQUIRE TRANSCRIPT FROM ALL 3 PANEL MEMBERS.
8 7 WITNESSES CROSS-EXAMINED.”
“I can confirm that I have passed your email to the team that’s deals with all SAR requests for them to action. Unfortunately we do not currently record our hearings so we will be unable to provide a transcript from the hearing.
Employment Tribunal | HMCTS | Manchester ET | M3 2JA
Coronavirus (COVID-19): courts and tribunals planning and preparation
Here is how HMCTS uses personal data about you”
Request was for any transcript. At least one Panel Member typed evidence on laptop throughout the hearing, as well as Judges Notes – denied.
“Please note that transcripts are not always available within the Employment Tribunal and tribunal hearings are not always recorded. Any notes made by the Employment Judge and Lay panel members, are notes for personal use, to assist them during the case. I have contacted Manchester Employment Tribunal and they have confirmed that they do not hold any transcripts for this hearing.
Regarding your request for copies of the notes, please be advised that the MoJ is not responsible for the data you have requested.
Your personal data contained within notes are the property of Employment Judge Mr JN Sherratt with Lay Members, Mr Q Colborn and Mrs CA Titherington . Judges are separate Data Controllers from the MoJ, which means that, in this case, it is for the above named to consider your request for your personal data contained within the judicial notes. This response has been prepared on behalf of Employment Judge Mr JN Sherratt and Lay Members, Mr Q Colborn and Mrs CA Titherington.
Your request has been refused.”
Judges/Panel Members Notes are unattainable for common Claimant.
“Your request was handled under the General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA). The request was refused relying on the exemption for judicial processing contained in the DPA.
As requested, I have investigated your complaint on behalf of the Judicial Data Protection Panel (the Panel). Your complaint is not upheld because the response provided was correct in law. The right of access provided for by Article 15 of the GDPR does not apply to notes produced by judges while acting in a judicial capacity. The taking of notes by judges during a hearing is something which is done while the judge is acting in a judicial capacity.”
Judges’ notes made during the course of an Employment Tribunal hearing are not part of the court records. Judges’ notes are made by the judge solely for the purpose of assisting in and in preparation of a decision. The notes do not constitute the formal record of the case, or any part of the formal record of the case.”
Myth Judges Notes denied by all Employment Tribunal departments, including MOJ and Judiciary.
“I am writing in regards to allegations of bias and perversity in the above Appeal. In line with the EAT Practice Direction (Employment Appeal Tribunal – Procedure) 2018, 12.12
Complaints about the Conduct of the Employment Tribunal Hearing or Bias;
The procedure set in Par.39 in Facey v Midas Retail Security & Anor  UKEAT 966_98_0905 (9 May 2000)
(i) First the steps outlined in the EAT Practice Direction paragraph 9 (3) will be taken and unsworn comments may then be taken from the Chairman (Employment Tribunal Judge Sherratt) and, if necessary, other Members of the Employment Tribunal under paragraph 9 (4);”
The appeal was refused on sift (1st EAT Judgment on papers by the EAT President Chaudhury) to later 6 errors in ET Judgment be identified in Rule 3(10) Hearing 2nd Stage, but on the same 55 pgs Notice of Appeal and evidence before the Court, different Judges. ET Judges notes nor comments, as per above EAT own Rules were not obtained, when Judge was still available –shortly after Sift decision retired.
Judges Notes were only requested on Claimant’s providing verbatim hearing transcript, due to numerous discrepancies in ET Judgment. EAT directed Parties to ‘agree note of evidence’ be it this verbatim hearing transcript. Respondent refused to agree, undoubtedly having mislead Tribunal throughout and in closing statements. EAT first ordered Judges Notes only from day 1 of the Hearing, later on 6 errors identified in ET Judgment.
HMCTS provided full notes consisting of handwritten doctors-writing notes of 116 pages produced in chaotic environment of 7 witnesses in 3-day Hearing, with, when deciphered next to verbatim hearing transcript, missing crucial evidence and facts.
AUTHORITIES AND CASE LAW
Crossland v Information Commissioner and Leeds City Council  UKUT 260 (AAC)
(ADMINISTRATIVE APPEALS CHAMBER)
“Proceedings in the First-tier Tribunal are not ordinarily recorded (it is not a court of record) and no transcript of the hearing will be available” – see Singh v Secretary of State for the Home Department  EWCA Civ 492 at [53(4)]. Still other tribunals operate entirely pragmatically, recording hearings if they happen to be sitting at a venue which offers that facility, but not if they are not.”
“… recording practice also varies across tribunals. Some tribunals digitally record all hearings as a matter of course. Other tribunals rarely, if ever, digitally record hearings, relying on the judge’s note. … [Others will do so] if they happen to be sitting at a venue which offers that facility, but not if they are not(…)”Par.58
“PRACTICE AND PROCEDURE
The claims of the claimant in the employment tribunal were heard at a four-day full merits hearing by a full tribunal. An oral decision was given at the hearing dismissing the claims. Following the hearing, the claimant completed and submitted to the employment tribunal form EX107, applying for a transcript of the proceedings at the hearing. The application was referred by the administration to the judge, who decided that the claimant was not entitled to apply for a transcript. The judge erred in so deciding.
Historically, proceedings in employment tribunals were not audio-recorded by HMCTS. It is therefore unsurprising that the Employment Tribunals Rules of Procedure 2013 say nothing about transcripts. Similarly, the EAT’s current practice direction proceeds, in relation to matters such as requests for a judge’s notes and agreement of notes of evidence, on the implied assumption that no other or better record will be available.”
“it is apparent that there has recently been at least one successful application to the employment tribunal administration for a transcript of parts of a hearing that was partially recorded by HMCTS, as is apparent from the decision in Werner v University of Southampton EA-2019-000973, 15 September 2021. He also referred me to a practice direction issued in Scotland in June 2020, regarding conduct of remote hearings, which refers to this possibility.”Par.19
“In summary, whilst historically employment tribunals did not audio-record their hearings, if (as in this case) an audio recording has been made by HMCTS, then, just as in other courts and tribunals, it should be possible to apply for a transcript. No rule of procedure is necessary to enable that. If, contrary to his primary submission, some rule needs to provide an umbrella for that process, then it could be found either in rule 2 (the overriding objective), rule 29 (case management orders) or rule 41 (regulation of procedure in relation to hearings). “Par.20
“It would not be right to infer that, because the CPR (39.9) contained such a provision and the 2013 Rule did not, the intention was that this facility should not be available in relation to employment tribunal proceedings, given that the silence of the 2013 Rules was merely a reflection of the historical fact that in the past such hearings were not audio-recorded at all by HMCTS. But, where such a recording did exist, the CPR approach should be followed.”Par.21
“71. The Employment Judge was also asked to comment on this. The judge stated that his notes were not as clear as he might have hoped. However, he stated that within his notes, he had placed an asterisk in his notes.”
‘10. Upon further consideration on the sift, permission to proceed to a full hearing before the EAT was granted by HHJ Auerbach on 5 March 2019.
11. I also note, as part of the relevant background, that on 31 August 2018, the Newcastle
ET (in relation to a different case), sent a letter to the Claimant in the following terms:
“Dear Dr Heal,
The Tribunal has noted and granted your request for reasonable adjustments,
i.e. at least size 12 Arial font; use of recording device during any hearing; and
comfort breaks during any hearing.”
d. The Tribunal’s notes of evidence will continue to be the conclusive record of the
hearing before it, certainly whilst it remains the position that Employment Tribunal
proceedings are not routinely the subject of official digital recording. The fact that a
Tribunal has consented to a recording being made by a party, and the undisputed
content of that recording appears to conflict with the Tribunal’s written notes of
evidence, would not mean that the recording automatically takes precedence.
Whether or not it should take precedence in respect of any issue will be a matter for
the Tribunal to determine having regard to all the circumstances.”
In Goldman Sachs Services Ltd v Montali  ICR1251 HHJ Peter Clark said, considering the overriding objective as it had been introduced in 2001 to Employment Tribunals, that this was the (paragraph 26):
“… clearest possible indication that when exercising any power under the Rules, as here, the employment tribunal will follow the same principles as those spelt out in the Civil Procedure Rules.”
Court of Appeal in Neary:
“I would accept [Counsel for the Respondent’s] submission that it should be inferred thatParliament deliberately did not incorporate CPR r 3.9(1) into employment tribunal practicewhen it chose to incorporate the overriding objective. There is, to my mind, an obvious reasonwhy Parliament did not do so. It has always been the intention of Parliament that employmenttribunal proceedings should be as short, simple and informal as possible. We all know thatthat intention has not been fulfilled and employment law and practice have become difficultand complex.
But where Parliament has apparently decided not to incorporate intoemployment tribunal practice a set of requirements such as those in CPR r 3.9, I do not thinkit proper for the courts to incorporate them by judicial decision. It is one thing to say thatemployment tribunals should apply the same general principles as are applied in the civil courtsand quite another to say that they are obliged to follow the letter of the CPR in all respects[emphasis added]. It is one thing to say that employment tribunals might find the list of CPRr 3.9(1) factors useful as a checklist and quite another to say that each factor must be explicitlyconsidered in the employment judge’s reasons. I would overrule the line of EmploymentAppeal Tribunal authority which, in effect, requires specific consideration of all the CPR r
3.9(1) factors on an application involving relief from a sanction in the employment tribunal.”
Off-Framework – User Permissions Form (EX107 OFC) omitted from GOV.UK guidanceand Portal
Application for permission to prepare atranscript or report from a recording madeother than by the court
When to use this form:
This form gives limited permission to prepare a transcript or report from a recording made otherthan by the court/tribunal, and where the court/tribunal are not contributing to the
commissioning of those services.
Permission to use transcription services must be obtained from a Judge via completion of thisform. By exception, if permission is given verbally in the court/tribunal this form must be
completed retrospectively and submitted to the court/tribunal for formal approval.
The applicant must complete part 1 of this form, sections A and B, and it should then be passedto the member of the judiciary conducting the hearing. Once approval has been granted, thecourt should complete section C and this should be retained by the Judge’s Clerk.
Claimants struggle to obtain judges’ notes, as an official Employment Tribunals’ record of evidence and it’s only upon convincing the EAT Judges and in the rare event of grounds of appeal allowed, some notes might be requested.
As LIP it is not ideal, as all the odds are stacked against you.
Affecting wider group of EU Citizens and disabled Claimants
Badgering of a disabled witness, unrepresented Claimant
Inequality of Arms
HMCTS Statistics – 2% to 3% race discrimination success rate in a decade!
There were 3599 race discrimination cases – Total number of receipts by jurisdiction, 1 April 2018 – 31st March2019. Further 3967 race discrimination cases from 01 Apr’19 to 31 Mar’20. But 1858 race discrimination cases year 2014/15, and 2002 race discrimination cases year 2015/16. Increase twofold.[MOJ, Quarterly Statistics Employment Tribunal]
Success rate for race discrimination cases (successful at hearing) was 3% in 2007-2014; 4% in year 2014/2016, 3% 2016/2019 and 2% in 2019/2020.
Similarly for sex discrimination cases 3% in 2007/2009, 2% in 2009/2014, 1% in 2014/2018, 2% in 2018/19 and 3% in 2019/20. [MOJ, Quarterly Statistics Employment Tribunal]
Is the Equality Act 2010 compatible with the Convention Rights having regard to EU Citizens protection from discrimination post Brexit Referendum? EU Citizens (Union Citizens) having been recognized as a separate group needing additional protection from discrimination in the UKs Withdrawal Agreement from the EU(2019/C 384 I/01) and no-existing rights do not guarantee safety from discrimination or hate crimes on the increase since the referendum anti-immigration campaign:
“RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non- discrimination; recognising also that rights deriving from periods of social security insurance should be protected.”
“Art.2.1.The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.”
“Art.12 Non-discrimination. Within the scope of this Part, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality within the meaning of the first subparagraph of Article 18 TFEU shall be prohibited in the host State and the State of work in respect of the persons referred to in Article 10 of this Agreement.”
The Equality Act 2010 having not been updated to reflect the extent of increased racism and xenophobia towards EU Citizens post Brexit Referendum rendered it inappropriate statue of law to deal with EU Citizens increased discrimination and victimisation post Brexit Referendum in the very specific hostile climate, hence suffered increased discrimination and victimisation without recourse to justice.
“Baroness Warsi says people have been given ‘a licence to be racist’ since Brexit referendum.” [Yorkshire Post,22Jan2020]
“Horrible spike in hate crime linked to Brexit vote, Met Police says”:
“Sir Bernard Hogan-Howe, the Metropolitan Police Commissioner expressed alarm about the figures, “We saw this horrible spike after Brexit”, he said. He revealed there was a connection between the referendum and many of the incidents and pointed out that many of the victims were Eastern Europeans.” [The Guardian, 28Sep2016]
“Britain’s 850000 Polish Citizens face backlash after Brexit vote”:
Britain’s vote to leave the European Union last week led to a near-immediate spike in reports of racist incidents. But while there is no shortage of British
racism towards familiar scapegoats such as Muslims and nonwhite immigrants, two of the most notable post-Brexit events focused instead on immigrants from a
predominantly white and Christian European country: Poland.
“Go home” were the words written on the Polish Social and Cultural Association’s building in West London. Meanwhile in Cambridgeshire, laminated cards were
distributed with the message “Leave the EU/No more Polish vermin,” written in not only English but also Polish. These two instances of anti-Polish sentiment have
prompted a high-level official response from British authorities, with Prime Minister David Cameron suggesting that such behavior “must be stamped out” during a
speech at Parliament on Monday. The Polish embassy in London also responded, releasing a statement that said it was “shocked and deeply concerned” by the
Anti-Polish sentiment is far from new to Britain. According to figures obtained by the Guardian, in 2013, British police officers arrested at least 585 people for hate
crimes against Polish people – a figure that may be a large understatement, as the newspaper was only able to get numbers from 26 of the country’s 46 police forces.
A survey from 2014 found that 81 percent of Polish people living in Britain had been subjected to verbal or physical abuse or knew another Polish person who had.[The Washington Post, Adam Taylor, June 28, 2016]
The Uk in a Changing Europe, Economic and Social Research Council (ESRC), which is part of UK Research and Innovation, and based at King’s College London, found:
“EU nationals feeling unwelcome in the UK”, 28 Nov 2019
“‘Go home’ rhetoric
The Conservative manifesto says that the EU Settlement Scheme was introduced for EU citizens who came to live in the UK before the referendum to ensure ‘they feel a welcomed and valued part of our country and community after Brexit’.
Our research shows that this is not what many EU citizens in fact feel. Rather, the images of the Home Office ‘Go Home’ vans from 2013, introduced as part of the hostile environment espoused by Theresa May (then Home Secretary), is more representative of what EU nationals experience.
The majority of EU nationals we have spoken to, as part of our UK in a Changing Europe project, have been subject to ‘’go home’’ rhetoric in one way or another since the referendum.
Others note that discriminatory comments are not just the hallmark of post-referendum life: they say that this rhetoric was always there but now people feel more empowered to voice those such sentiments in public.
This increasing hostility to migrants is supported by police data, which show that the number of recorded hate crimes has more than doubled in the past five years, spiking around the time of the referendum.
Alongside our focus groups, we have been running an online survey (which is still open).
To date we have had more than 100 responses from EU nationals from over 25 EU countries, the majority of whom have been living and working in the UK for more than five years.
The word that features most commonly in our survey responses is ‘unwelcome’.
‘’I am feeling less welcome in a country I consider home’’ (Spanish female, living in the UK for 15 years)
One interviewee, from King’s Lynn, told us that she is now increasingly asked “where are you from?”. She said it immediately made her feel different and like she didn’t belong. She said the subtext is: “You’re not from here.” She has lived in the UK for 15 years and is now a British passport holder, relinquishing her Lithuanian passport to settle here permanently.
Others speak of the stress this question causes them on a daily basis, even when the question is asked with conversational intent.
An Italian who has lived in the UK for nine years told us “I get asked where I’m from constantly, which is pretty anxiety inducing, as I’m never sure whether my answer will be considered an ‘acceptable‘ country or not; needless to say, most people mean it as a genuine ‘getting to know you’ question, but I’m not too keen to play Schrödinger’s Racist on a daily basis’’.
‘’I experienced racist remarks whilst speaking in my native language on the phone. A receptionist at the surgery in which I’m a patient replied: ‘That’s not how we do it in this country’ when I asked if I could book an allergy test’’ (Italian female, 10 years in the UK).
A related theme which emerged from our survey and focus groups is that EU nationals feel more visible: ‘’I am more self-conscious about how others perceive me, as a non-British person living and working in the UK’’ (Hungarian female, 10 years+ in UK).
Others do not feel comfortable speaking their own language on the streets and in communities. Some report that they now feel “stared at” if they do, and there are increasing levels of self-censorship amongst EU nationals living in the UK.
‘’After reading so many news stories on hate crime, I think twice before speaking Romanian in public in certain areas’’ (Romanian female, nine years in UK).
Others speak of having family or friends visit from their country of origin – for example over the summer – who do not speak English (and do not plan to stay in the UK), and who receive remarks on the street about speaking their own language to one another.
The survey evidence also shows how EU nationals engage in self-censorship when in public and out in communities: “I do not take calls from my relatives when I’m in a public enclosed space (public transport, trains, waiting rooms) because I don’t want to be identified as an immigrant and I don’t know how people will react to hearing me speak a different language” (Italian female, five years living in UK).
Others give examples of times when they have received abuse on the street because of their accent, even when speaking English: “Yes. I am more careful when speak outside, don’t want people hear my foreign accent. Recently a man shouted at me ‘Bloody foreigner’ hearing my conversation in a shop” (online survey).”
Most recently, the Joint Council for the welfare of immigrants, wrote to the Commission on Race and Ethnic Disparities in Nov 2020, stating:
“Recommendations that must be implemented to address racial inequality in the UK: A non-exhaustive list
The publications listed below that correspond to each of the four areas of interest to this commission represent merely an indication of the breadth of available literature examining the evidence on the issue at hand that is available already. We encourage members of the commission to revisit all the other evidence that has been collected and made available to them on this topic and to consider the prompt implementation of all the relevant recommendations. We further recommend that the commission examine other reports that have been made available to government over the past decade, including all the outputs of The Race Disparity Audit2016, the 2018 Shaw Review, as well as Wendy Williams’2020Windrush Lessons Learned Review, and the Joint Council for the Welfare of Immigrants’ briefing on it.
Conclusion The reports linked above represent only a small sampling of the meticulously researched data on racial inequalities in the UK that the government has available to it. Combined they represent uncounted hours of dedicated and skilled data collection and analysis presented in clear recommendations to the government intended to make the task of addressing these inequalities as straightforward as possible. We fear that this new consultation not only duplicates the tireless work that has already been done in this area but seeks to undermine it. Black, brown and other minority ethnic British people have waited long enough for their voices to be heard, their work to be recognised and their grievances to be addressed once and for all. It is time for a demonstration of true commitment to racial equality, demonstrated through tangible action.”
To my knowledge predominantly race discrimination cases related to Brexit failed or at least many of them, including mine. There is a pattern and a similar tone and narrative to the Judgment of those cases (see research enclosed) and it is confirming racial behavior towards EU Citizens, bound to be protected in the UK’s Withdrawal Agreement.
Badgering of the disabled witness (When a lawyer is unnecessarily hostile to, combatative with or harassing a witness) under the legal test ‘excuse’ to prove, ‘make everyone see their disability’, when they understandably DO NOT CONCEDE Claimant’s disability THEY HAVE CAUSED: in weeks or even months leading to the full hearing the Respondent took upon themselves ‘an attack’ on me regarding disability, despite providing medical records since a year prior of around 85 pieces of records from medical professionals and a disability statement, all requested by Tribunal evidence and statements! This didn’t stop at the hearing which was a Respondent tactic to emotionally ambush unrepresented and lone Claimant RIGHT AT THE START causing attrition of Claimant chances to put her case, stay on a ‘good’ or neutral side of tribunal and sustain dignity. Tribunal went along with the Respondent pursuing Claimant. Equal Treatment Bench Book states:
The courts’ duty to litigants in person
Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.
The outcome of the case may have a profound effect and long-term consequences upon their life. They may have agonised over whether the case was worth the risk to their health and finances, and therefore feel passionately about their situation.
Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal.
All too often, litigants in person are regarded as the problem. On the contrary, they are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants.
Claimant performed under huge stress and threat (car vandalised twice in a year since the start of the case), receipt of a threatening e-mail ‘Disgrace’ from sister associated company female Director! Work references blocked.
“…there is no access to justice for litigants in person, let alone people with disabilities; the “rights” that people supposedly have do not exist in reality (because there is no effective means of enforcement). We’re supposedly a first-world country and an enlightened society!” Kate B. ,2020
“We could definitely improve our employment justice system, thereby helping people who need it the most.” Katherine H., 2020
Inequality in Britain report: Doreen Lawrence says government’s race review gives ‘racists the green light’, Sky News Report 01 Apr 2021:
“The mother of murdered teenager Stephen Lawrence says the authors of a government-ordered race review (report from the Commission on Race and Ethnic Disparities) are “not in touch with reality” and “it has pushed [the fight against] racism back 20 years or more”.
But Baroness Doreen Lawrence, who was made a peer in 2013 after campaigning for justice for her son who died aged 18 in 1993 following a racially motivated attack in southeast London, says the review has given “racists the green light”.
Baroness Lawrence continued: “They [the report authors] are not in touch with reality basically. That’s what it boils down to. When you are privileged you do not have those experiences.”
The ET Hearing itself
The approach is to confuse you, to overwhelm you, to BREAK YOU.
Dare you say its racism or disability discrimination, badgering of a witness, unrepresented and vulnerable, alone and scared (threatened with car vandalism twice in a year, derogatory e-mail) in a court in the foreign country.
Hearing 3-5 Sep 2018, Respondent’s put forward 8 witnesses as opposed to 4 declared. Claimant unrepresented and alone.