Mr C Costagliola di Fiore and Ms H S Qadri v Introhive UK Ltd: 2203125/2020 and 2203126/2020

Case Number: 2203125/2020 and 2203126/2020 (V) EMPLOYMENT TRIBUNALS BETWEEN Claimant AND (1) Mr Claudio Costagliola di Fiore (2) Ms Huma Shams Qadri Introhive UK Limited Heard at: London Central (by video) Before Respondent On: 20 April 2021 Employment Judge Stout Representations For the claimant: Alexandra Sidossis (counsel) For the respondent: Jen Coyne (counsel) JUDGMENT The judgment of the Tribunal is that the claim should not be struck out under Rule 37(1)(a) and/or Rule 37(1)(c). REASONS The type of hearing 1 of 16 Case Number: 2203125/2020 and 2203126/2020 (V) 1. This has been a remote electronic hearing under Rule 46 which has been consented to by the parties. The form of remote hearing was V: fully video. A face to face hearing was not held because of the pandemic and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 747 pages, together with some additional documents that were provided to me in the course of the hearing by the parties. 2. The public was invited to observe via a notice on Courtserve.net. No members of the public joined. There were no connectivity issues of any significance. 3. The participants were told that it is an offence to record the proceedings. The issues 4. The issues to be determined at today’s hearing were as follows: The Claimant’s application for reconsideration of my Judgment of 4 December 2020; (2) Whether the evidence concerning the First Claimant’s settlement with his previous employer and other correspondence with his previous solicitors is admissible; (3) The Claimant’s application of 1 April 2021 to amend the ET1 and the Claimant’s application to amend the ET1 to include reinstatement; (4) The Respondent’s application to strike out all or parts of the Claimant’s claims under Rule 37 because: a. The Claimants are vexatiously abusing the Tribunal’s process; and/or b. The two claims were incorrectly included on the same form in breach of Rule 9. (1) 5. Further issues of case management arose which are dealt with in an accompanying (closed) Case Management Order. Background 6. The Claimants commenced employment with the Respondent on 8 October 2019. The Respondent is involved in the business of selling cloud-based software solutions to business customers. The First Claimant was dismissed on 16 January 2020 for what the Respondent alleges was poor performance. The Second Claimant was dismissed on 20 January 2020 for what the Respondent alleges was redundancy. The Claimants commenced these proceedings on 21 May 2020 on the same claim form. They claim that the real reason they were dismissed was because they had made protected disclosures concerning what they regarded as the Respondent's non-compliance with GDPR requirements, in particular that the Respondent was using and selling to its clients IT solutions which were not GDPR compliant and not disclosing this non-compliance to customers and those with 2 of 16 Case Number: 2203125/2020 and 2203126/2020 (V) whom they dealt. They further maintain that they alleged that the Respondent’s IT solution breached the personal data privacy of the data owners whose mailboxes were being harvested by Introhive Solution and that it was making such data available to others in the company for the purpose of driving sales and marketing activities. The claim is listed for a 10-day hearing commencing 11 October 2021. 7. In their original claim form, the Claimants brought claims of unfair dismissal, for redundancy payments, for automatic unfair dismissal (s 103A Employment Rights Act 1996 (ERA 1996)) and subjection to detriment for having made protected disclosures (s 47B ERA 1996). The First Claimant also brought a claim for victimisation under the Equality Act 2010 (EA 2010). They prepared Schedules of Loss, first presented to the Respondent on 2 June 2020, but filed with the Tribunal on 7 October 2020 in substantially the same form, totalling £867,451.27 for the First Claimant and £1,000,712.24 for the Second Claimant. 8. At a closed Case Management Preliminary Hearing (CMPH) before me on 4 December 2020, the Claimants withdrew their claims of ‘ordinary’ unfair dismissal, and for redundancy payment and other payments and the First Claimant’s claim for victimisation and I dismissed those claims accordingly by judgment. The parties had produced competing Lists of Issues and the Respondent was seeking further particulars of the Claimants’ case, especially in relation to the terms in which the Claimants alleged they made protected disclosures. I gave guidance and orders as to how they should go about agreeing a final list by 7 January 2021. The parties had already done disclosure. There was an issue as to potentially ‘without prejudice’ material referred to in the Respondent’s Response, which I ordered be considered at an Open Preliminary Hearing (OPH). The Respondent had not at that stage been provided with a copy of the ET1a containing the Second Claimant’s details, so I provided them with a copy at that hearing. 9. On 11 December 2020 the Claimants wrote to the Tribunal requesting reconsideration of the Judgment at the Preliminary Hearing to include a finding that an ET1a was correctly filed for the Second Claimant and that both Claimants had correctly issued their claims. 10. On 22 December 2020 the Respondent wrote to the Tribunal applying to have the Claimants’ claim struck out in part on the basis that the claims had wrongly been brought on the same form in breach of Rule 9. 11. By the beginning of February 2021 the parties had still not managed to agree a List of Issues as ordered by me at the hearing on 4 December 2020. The List of Issues as it stood on 8 February 2021 contained a lot of yellow highlighting indicating where the Claimants had sought to include matters in the List of Issues that the Respondent maintained were not in the pleaded case. 12. On 16 February 2021 the Claimants disinstructed their solicitors and switched representation to Whistleblowers UK, a not-for-profit organisation. 3 of 16 Case Number: 2203125/2020 and 2203126/2020 (V) 13. The OPH was held before EJ Grewal on 5 March 2021. At that hearing the parties had a number of applications they wished to make as listed in paragraph 1 of her Reasons in her Order from that hearing, but EJ Grewal decided only to deal with the question of whether ‘without prejudice’ privilege had been lost in relation to the matters at paragraphs 116-121 of the Grounds of Resistance. EJ Grewal considered the supposedly ‘without prejudice’ correspondence between the parties between 2 June 2020 and 12 August 2020, and in particular emails from the First Claimant dated 25 June and 21 July 2020. She found that in those emails the Claimants (para 32 of her Reasons): “acted improperly by making threats to take actions against third parties with serious consequences for them if the Respondent did not accede to their demands to make them an offer that they considered made it worth their while to engage in mediation and by giving the Respondent very short time scales within which to respond. That went beyond what is permissible in settlement negotiations”. She concluded (para 33): “I am satisfied that there was unambiguous impropriety on the part of the Claimants and that the “without prejudice” rule does not apply to the emails of 25 June and 21 July 2020 and any parts of the file notes that are identical to what is said in the emails, and that that evidence is admissible. If it is admissible, it would not be right for me to restrict the purposes for which it is admissible. It is always open to a party to object to the admissibility of evidence on the grounds of its relevance. If the Respondent wishes to rely on them at the substantive hearing and the Claimants believe that they are not relevant to any of the issues in the case, they can object to their admissibility.” 14. On 1 April 2021 the Claimants applied to amend their claim and there has been further correspondence between the parties since which, so far as is relevant to the applications I have to decide, I refer to below. Reconsideration application 15. After hearing from Ms Sidossis for the Claimants, I decided that this application was unnecessary and/or inappropriate and Ms Sidossis did not press it. There can be no application for ‘reconsideration’ because there is no relevant judgment to reconsider. The question of whether or not the Second Claimant was included on the original claim form (as indicated by Form ET1a) was not in dispute and I can simply record in this judgment, to the extent that it is necessary, that the Second Claimant was included on Form ET1a. The question of whether the two claims were properly brought on the same form (the Rule 9 question) is a separate point, on which I heard no submissions on 4 December 2020 and did not determine. It is an issue that arises for determination today and I deal with it below. Application to exclude evidence 4 of 16 Case Number: 2203125/2020 and 2203126/2020 (V) 16. The Respondent seeks to rely in relation to its application to strike out the claim for being vexatious on documents that it says it found on the First Claimant’s work computer after he left, comprising three documents or categories of document: a. Invoices from his previous solicitors dating from the early part of 2019 and relating to legal proceedings that the Claimant took against his previous employer (bundle pp 259-286); b. Email communications with his previous solicitors relating principally to their fees for those previous proceedings (bundle pp 402-412); c. Settlement agreement dated 6 March 2019 between the Claimant and his former employer. 17. The Claimants applied to exclude the evidence on the basis that it was subject to legal advice privilege and/or was confidential to the First Claimant and had been improperly obtained by the Respondent and/or because it was not relevant (or sufficiently relevant) to the issues before the Tribunal. 18. I...