Ms Madeline Luckham v HSBC Bank plc and Robert Clegg: 3202146/2018
| Judgment Date | 22 June 2020 |
| Citation | 3202146/2018 |
| Published date | 08 July 2020 |
| Court | Employment Tribunal |
| Subject Matter | Sex Discrimination |
Case Number: 3202146/2018
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EMPLOYMENT TRIBUNALS
Claimant: Ms Madeline Luckham
Respondents: (1) HSBC Bank Plc
(2) Robert Clegg
Heard at: East London Hearing Centre
On: 15 – 17; 21 – 24; 28 & 29 January and (in chambers)
30 & 31 January 2020
Before: Employment Judge C Lewis
Members: Mr T Burrows
Dr L Rylah
Representation
Claimant: Mr A Francis - Counsel
Respondents: Ms J McCafferty QC and Ms K Taunton – Leading and Junior
Counsel
RESERVED JUDGMENT
The unanimous judgment of the Employment Tribunal is that:-
1. The Claimant’s claims against the First and Second Respondent for direct
sex discrimination contrary to Section 13 of the Equality Act 2010 fail and
are dismissed.
2. The claims against the First and Second Respondent for harassment
related to sex contrary Section 26 of the Equality Act 2010 fail and are
dismissed.
3. The claims against the First and Second Respondent for victimisation
contrary to Section 27 of the Equality Act 2010 fail and are dismissed.
REASONS
1 The hearing took place on 15 – 17, 21 – 24 and 28 – 29 January 2020 and in
Case Number: 3202146/2018
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chambers on 30 and 31 January 2020.
Applications at the outset of the hearing
2 On the first day of the hearing applications were made for an anonymity orders
and restrictive reporting orders in respect of three individuals who are not the parties to
the proceedings but who had been named as a result of allegations made in the
proceedings. The applications under Rule 50 were not opposed by the Claimant’s
Counsel. A detailed skeleton argument was prepared by Ms McCafferty QC and
Ms Taunton on behalf of the First and Second Respondent. They set out the relevant
legal principles and the basis for seeking the restricted reporting orders and anonymity
orders, referring to the Article 8 rights (of the ECHR) of the individuals in question who
were not the parties but who nevertheless had been drawn into the proceedings as a
result of the allegations made by the Claimant.
3 Having carefully considered the application and the basis for it the Tribunal
concluded that it was necessary to give effect to those three individuals’ Article 8 rights to
protect their identities and granted both orders. We are satisfied that whilst this was a
restriction on open justice it was limited and specifically targeted to the names of these
individuals who are not parties. It did not prevent members of the public and the press
reporting the proceedings themselves, or understanding the nature of the proceedings and
the allegations, the restriction involved simply the identities of three individuals and we
found that the balancing exercise in respect of Article 8 and Article 10 required those
orders to be granted, in order to protect the Convention rights of those three individuals
and being in the interests of justice. The individuals are not to be named and are to be
known as Female 1, Female 2 and Complainant 1.
4 Complainant 1’s name had been anonymised and her name redacted from any
documents seen either by the Tribunal or available in the bundles and her name did not
form part of the proceedings. The person identified as ‘Female 2’ in the Respondents’
respective Responses (ET3s) and witness statements is now to be known as Female 1
and the witness previously identified as Female 3 is to be known as Female 2.
5 The Tribunal made a Restricting Reporting Order and Anonymity Orders in
respect of those individuals and the Restricting Reporting Order was published on the
door of the Tribunal. As a result any identification of those individuals in publications is
prohibited: a breach of the order amounts to a criminal offence.
The Claimant’s application to amend her claim.
6 The second application the Tribunal had to consider was an application to amend
the Claimant’s claim to rely on the acts relied on under section 13 the Equality Act as
direct discrimination, in the alternative as instances of harassment related to her sex
under section 26.
7 By a claim issued on 10 October 2018 the Claimant had brought claims of sex
discrimination, harassment related to sex, harassment of a sexual nature and victimisation
against her former employer HSBC Bank and her former line manager Mr Robert Clegg.
In her claim form the Claimant refers to various acts of direct discrimination: at paragraph
Case Number: 3202146/2018
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32 of the particulars of claim she relied on a number of instances relating to her exit from
the First Respondent, paragraph 32a – e; and at paragraph 32g to Mr Clegg’s conduct
following the end of their sexual relationship. The Claimant had pleaded these as acts of
direct discrimination. She sought leave to amend her claim to allege in the alternative that
the same acts form part of a campaign of harassment related to her sex orchestrated by
the Second Respondent.
8 The First and Second Respondents were both represented by the same legal
team and Ms McCafferty QC resisted the application on their behalf. The Claimant’s
submission in support of the application was set out in a written skeleton argument. The
Claimant’s submitted that this was a relabelling exercise, by reference to Selkent
principles, and did not involve any new factual allegations. The Claimant acknowledged
that the statutory time limits applied to the new claim and that the existing claim for direct
discrimination and the claim of harassment related to sex contained different elements
and the outcome in respect of each may be different. However it was submitted that the
new claims depended entirely on the facts already alleged and that the proposed
amendment was introduced on the basis of precisely the same facts and matters relied on
under the Section 13 claims; the scope of enquiry is almost identical, requiring the
Tribunal to draw inferences as to the reasons for treatment and are alternative possibilities
arising from the same factual matrix and lastly that the balance of prejudice fell in favour of
the Claimant. The timing itself was not decisive. It is noted that no explanation had been
put forward for the timing.
9 The Respondents’ Counsel had prepared a skeleton argument in response.
Counsel were agreed as to the applicable law, not surprisingly as it is well rehearsed. The
Respondents’ Counsel in particular relied on Unite the Union v Nailard [2019] ICR 28 and
sought to suggest that the Respondent would be denied a fair trial by the amendment
being allowed at this late stage; that the further elements introduced under the statutory
tort of harassment would need to be properly explored and responded to with the
Respondents’ witnesses; that this was another example of the Claimant seeking to
expand the scope of her claim incrementally via documents related to disclosure and the
list of issues; and illustrated a recognition of the causation difficulties in the Claimant’s
claim, having been brought at the point when the Claimant had over a month to consider
the Respondents’ witnesses evidence, it was effectively an ambush to introduce a new
claim for which the Respondents had no opportunity to prepare. The submissions also
addressed the substance, or merits, of the claim of harassment behind the application to
amend and took issue with the description of it as a relabelling exercise.
10 The Tribunal carefully considered the skeleton arguments and the oral
submissions by respective Counsel and the respective bundle of authorities provided by
each side. It was accepted that whilst time limits were of relevance the case of Galilee v
Commissioner of Police for the Metropolis [2018] ICR 634 held that the Tribunal would be
able to allow the amendment but leave the question of whether it is just and equitable to
extend time until the determination of the issues itself.
11 The Tribunal indicated to the parties that they would consider the application and
the other matters that have been raised and give their ruling the following day when the
parties returned.
12 On day two the Tribunal gave its ruling in respect of the Restricted Reported
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