Backtracking and pussy footing: How a top judge reneged on plans to start nationwide recordings at tribunals

Employment Tribunal Open Justice Campaign

Judge Brian Doyle, former president of employment tribunals for England and Wales Pic credit: Salford University

New information has emerged showing how HM Court and Tribunal Service has backtracked and pussy footed over ending the scandalous failure to provide proper recordings and transcripts at employment tribunal hearings.

This failure led to a letter signed by over 320 people -including 80 NHS consultants and leading professors- demanding an explanation from Sir Keith Lindblom, senior president of the tribunals, on why this has not been done. There is widespread dissatisfaction among whistleblowers both in the NHS and industrial hearings about this.

Now minutes from a national tribunal user group have revealed that a plan to introduce the recording of tribunals across the country was dumped – despite resources being available – two years ago.

Judge Brian Doyle, the former president of Employment Tribunals for England and Wales, promised on February 27, 2019 to introduce the recording of tribunals, at a meeting of the group. The group is attended by senior judges, representatives of the TUC, ACAS the Law Society, the Business Energy and Industrial Strategy department and the Citizens Advice Bureaux

Roll out of recording facilities planned to be completed by March 2020

The minutes record: “The President addressed the need for audio-recording of ET hearings. Resources had been found to enable this to be achieved and both the Employment Tribunal and the First-tier Tribunal would benefit from the acquisition of recording equipment in hearing rooms. It was planned to be a gradual rollout from April 2019 to March 2020.”

He went on: “Testing of equipment would be required. A nationally agreed protocol would cover the practice of recording hearings and the provision of transcripts. If a party were to ask for a transcript, as in the courts it would be on the payment of a fee.”

“The President said that audio-recording would be welcome for a number of reasons: reducing the need for the judges to take verbatim notes; providing parties with a transcript of the hearing; improving the conduct of hearings generally; providing some discouragement for litigants or witnesses to misconduct themselves in hearings; and giving leadership judges the means to check complaints about how a judge allegedly behaved in a hearing (and thereby perhaps discouraging unmeritorious complaints).

By November 2019 the minutes recorded: “The President updated the members on the intention to provide audio-recording equipment in all Employment Tribunal hearing rooms. A budget for the equipment had been secured, but making this proposal operational was taking a little longer than intended because it was important to get the right recording equipment and to have in place a protocol for its use. “

Yet by March 2020 when the pandemic struck nothing appears to have been done -apart from a few trials. One of them at social security and child support hearings in Exeter had already been a success before February 2019.

Judge Barry Clarke, current president of employment tribunals for England and Wales

Now two years later under a new president Judge Barry Clarke there appears to be little progress – no protocol has been published let alone sent out for consultation. If there had been transcripts could have been provided in a number of highly controversial whistleblowers cases – notably the case between Alison McDermott and Sellafield and the Nuclear Decommissioning Authority; Usha Prasad and Epsom and St Helier University Health Trust and further cases involving the junior doctor Chris Day and the Health Education England.

Instead there appears to be a hostile attitude by some judges to any transparency in the tribunal system.

I would cite Judge Hughes as a good example. She ruled in a Birmingham employment tribunal case ( Mr R Kumar V MES Environmental Ltd.) The case involved racial discrimination and victimisation. He lost the case and applied for a transcript.

She ruled this was ILLEGAL. He was told by a court administrator:.

“Employment Judge Hughes has asked me to inform you that the reason you cannot apply for a transcript is because you are not legally entitled to make such an application. You are referred to the Employment Tribunals (Rules of Procedure Regulations) 2013. “

The judge doubled down the was “no legal mechanism by which an application for a transcript of Employment Tribunal proceedings can be made”. The judge stated that there was no prospect of her decision being varied or revoked “because there is no legal right to a transcript of Employment Tribunal proceedings”.

Judge Auerbach Pic Credit: Law Gazette

Two months ago this ruling went before Judge Simon Auerbach at an appeal tribunal. He revoked this saying that since in this case HMCTS had made a recording of the hearing Mr Kumar was entitled to apply for it and it was not illegal to do so.

Now judges are many things but they are not stupid. It seems extraordinary that Judge Hughes was not aware that discussions were going ahead at the time to introduce recordings and she must known in that case the hearing had been recorded. She obviously did not want him to have it.

Similarly anti recording attitudes seem to be propagated by Judge Tony Hyams-Parish in Dr Usha Prasad’s case ( see previous blogs) and by the Judge Lancaster in Alison McDermott’s case agaInst Sellafield. He refused Alison’s request for a recording even though he had the equipment to do so. Both just say there is no recording so you cannot have it. Hyams-Parish also believes that journalists should not have access to the bundles in cases either.

Alex Chalk MP, the solicitor general

But there is worse to come. Anybody listening to a tribunal hearing is banned from recording it. One person who did is now being prosecuted by the solicitor general., Alex Chalk, the Conservative MP for Cheltenham.

Katarzyna Paczkowska has had her case referred to the High Court after she used a recording to challenge a tribunal judgement. Her case is complicated and runs to 1800 pages so I won’t go into it now – except to say how ferociously this rule is being used without the tribunals agreeing to record the hearings. Manchester employment tribunal and her respondent, R-com. Consulting, raised the issue.

For my mind the present situation is one of drift, back tracking and pussy footing by the top judges.

A Ministry of Justice Spokesperson said:

“Though there is no legal requirement to record employment tribunals, handheld recording devices have been made available through this pilot which started in September 2019.”

My understanding is that HMCTS has an aspiration of a nationwide recording of all tribunals but no timetable yet on how this going to be achieved. But there does not appear to be any drive and determination to get this done, even though resources had been put aside. It is simply not good enough.

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Sellafield Whistleblower Case: Claimant faces a £20,000 legal bill for necessary Freedom of Information and Subject Access Requests

Alison McDermott: Whistleblower

By Philip Whiteley and David Hencke

A law firm in the Sellafield whistleblowing case has put in a bid for £20,000 costs against the claimant Alison McDermott, in part to deal with Freedom of Information requests – even though it emerged at the Tribunal hearing that the firm’s client had failed substantially to provide relevant evidence.

The costs application by Pinsent Masons on behalf of the Nuclear Decommissioning Authority, if successful, could set a precedent that weakens a citizen’s right to request information. It would appear to undermine the will of Parliament, given that when the Freedom of Information Act was passed MPs specifically rejected the idea of levying a fee for FoI requests.

The other law firm in the case, DLA Piper, simultaneously put in a bid for £20,000 costs against Ms McDermott – the maximum allowed without being subject to a further hearing – listing other factors, principally changes the claimant made in the detail of her case.

Sellafield site Pic credit: gov.uk

At the three hearings in the case held so far there has been overwhelmingly strong evidence indicating that Ms McDermott’s FoI requests were both proportionate and necessary. She said: “The governing body [the NDA] in its ordinary disclosure, released one email. Then, when I put in direct subject access requests, many more emails proved that they had been asking questions about the termination of my contract. Then, at the hearing it emerged that Heather Roberts [former HR director at Sellafield] had withheld a key document that said that the NDA was very concerned about the timing of my termination and that conversations had been held. This information was never released.

“The Freedom of Information requests also revealed that contracts had been awarded for HR services, including EDI [equality, diversity and inclusion] services, for the value of £17 million. It was only after that that they [Sellafield] switched from financial reasons [for dismissal] to one of performance.”

Ms McDermott, an independent EDI consultant hired by the nuclear plant Sellafield, had her contract terminated the first working day after making a report detailing systemic discrimination and bullying at the plant, a pattern confirmed by a BBC investigation which reported earlier this year.

At the tribunal hearing in June-July 2021 her barrister, James Arnold, pointed to directly relevant evidence only coming to light shortly before the hearing – after a period of more than two years since litigation began. He was not contradicted by either Respondent (see our coverage on 30 June). This hampered Mr Arnold’s ability to call witnesses, and cross-examine them. Ms McDermott was not successful in linking the detriment she experienced to the reports she made, although she is appealing the ruling.

Law Firm Pinsent Masons claimed FOI requests were ” vexatious”

The law firm, Pinsent Mason, claimed that the requests for Freedom of Information and Subject Access Requests, were part of vexatious, abusive, disruptive and unreasonable behaviour by Alison McDermott against both Sellafield and the Nuclear Decommissioning Authority.

In a letter to the court the firm said she had “submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent [the NDA] to answer.”

It added it meant ”significant inhouse legal resource time and wider staff management time responding to data subject access requests and Freedom of Information Requests linked to the claim”.

Pinsent Mason said the NDA had spent £200,000 fighting the case and wanted £20,000 – the maximum it can claim at a tribunal – back.

Solicitors Regulation Authority takes no action against law firms

A critical response came from the Solicitors Regulation Authority who claimed that Ms McDermott had confused the difference between using all the information from Subject Access Requests with what was relevant to the case at the tribunal. The letter suggested that she should have highlighted more information from the requests if she thought the tribunal was not looking at the issue – citing the ruling from the judge.

The letter from the SRA making this point, dated 30 September 2021, cites from an earlier Tribunal ruling – following the strike-out hearing in July 2020. This was fully one year before the full hearing, where further directly relevant evidence came to light, as noted by Mr Arnold, including the correspondence in which the governing body admitted to nervousness about the timing of her dismissal.

DLA Piper wipes metadata and says it was a mistake

On another matter, as reported earlier, metadata was wiped from a piece of evidence in the case while in possession of DLA Piper, representing Sellafield, shielding information on authorship and time of creation of the document. The metadata was released to the claimant upon request.

The matter was referred to the Solicitors Regulation Authority, which decided in September to take no action. It accepted that this was a genuine mistake by DLA Piper, although its own investigation was inconclusive.

Pinsent Masons, for the Nuclear Decommissioning Authority, did not respond to a request for a statement or interview.

A spokesman for DLA Piper said: ‘As a matter of course, DLA Piper does not comment on client matters. We refute allegations of wrongdoing on the firm’s part. The employment tribunal’s decision is open to the public and we would refer you to this for details of the case and the outcome.’ The Solicitors Regulation Authority did not respond to a request for an interview or statement.

Nuclear industry leaders contradict each other in landmark whistleblowing case

Whisteblower Alison McDermott

Guest Blog from journalist Philip Whiteley who is covering the whistleblowing case with me

A split emerged between two leading employers in the UK nuclear industry at Leeds Employment Tribunal, in a case where they are both respondents in a whistleblowing claim, in the session on Tuesday 29 June. Representatives of the governing body the Nuclear Decommissioning Authority overwhelmingly backed the version of events put forward by the whistleblower, undermining the defence of Sellafield, the nuclear reprocessing plant.

The case is being brought by Alison McDermott, an experienced equalities professional, who is claiming her sudden termination of contract by Sellafield in October 2018 was in response to her making protected disclosures on acts of bullying at the nuclear reprocessing site in Cumbria. Sellafield’s management initially claimed that the reason for her dismissal was financial only, although at the tribunal it has produced witnesses reporting concerns over her performance.

On Tuesday three senior executives from the governing body, the Nuclear Decommissioning Authority, offered sharply contrasting evidence. All expressed admiration for Ms McDermott’s contribution to improving policies of equality diversion and inclusion (EDI), and all confirmed that there had been concerns over the competence of the HR director who sacked her, Heather Roberts, and the HR function at the nuclear site.

Sellafield Human Resources department ” not fit for purpose”

All said the reason they were given for Ms McDermott’s dismissal was financial. David Vineall, Group HR director at the NDA, said that Ms McDermott had been integral to the EDI ‘journey’ that the industry was embarking on. Under questioning from Ms McDermott’s barrister James Arnold, Mr Vineall conceded that the HR function at Sellafield was ‘not fit for purpose’, the words used in a damning report he had commissioned by external consultancy PricewaterhouseCoopers.

The court heard how the governing body had recommended that Ms Roberts be replaced by Mike Barber, an HR manager at the NDA. Mr Barber, one of the witnesses for the NDA on Tuesday, said he had ‘a very good working relationship with Ms McDermott’ and was ‘surprised’ to hear of her sudden dismissal.

Some of the most damning evidence undermining Sellafield’s case only came to the court’s attention in recent weeks. Mr Arnold pointed to the date of 26 April 2021 when the claimant first learned of an email from 23 October 2018, just a few days before Ms McDermott learned of her dismissal, in which Mr Vineall wrote to colleagues following a meeting with the then Sellafield CEO Paul Foster the day before, where he suggested that Ms Roberts be replaced immediately.

Nuclear Decommissioning Authority ” very nervous” about Ms McDermott’s dismissal

Just last week, the tribunal heard for the first time evidence from Ms Roberts that she had a made a note stating that the NDA was ‘very nervous’ about the timing of Ms McDermott’s dismissal so soon after her critical report.

The revelation that the respondents had hidden evidence from the claimant and the tribunal that was helpful to her case until this year is particularly significant, because there were earlier hearings in the case. There was a preliminary hearing in July 2019, and Ms McDermott had been granted a strike-out hearing, on the basis that her case was strong.

The strike-out hearing took place on 7 July 2020, some nine months before the revelation of Mr Vineall’s email, and 11 months before more evidence from Ms Roberts, also central to the case, was made available during the hearing itself. Judge Lancaster did not rebuke the respondents for this, but it potentially constitutes a breach of tribunal rules by the respondents, as well as a potential breach of whistleblowing legislation, as it potentially caused detriment to the claimant.

Had Judge Batten, sitting alone last July, been made aware of all the relevant evidence, she may have awarded a strike-out in Ms McDermott’s favour, sparing her the ordeal of a further year of litigation and a three-week full hearing.

Section 47 (A) of the Public Interest Disclosure Act 1998, under which the case is being brought, specifically prohibits employers from imposing a detriment on a whistleblower as retaliation for raising issues of concern in the workplace.

Mr Arnold reminded the court that much of the evidence has only been made available to the tribunal as a result of the claimant’s own efforts through subject access requests and Freedom of Information requests. This would indicate a strong claim of failure to follow tribunal rules – potentially a criminal offence by the respondents – though Mr Arnold did not press the case.

Ms McDermott’s data protection rights breached by Sellafield

Sellafield already has a ruling against it in the case. In January, the Information Commissioner’s Office ruled that it had breached Ms McDermott’s data protection rights in the handling of three letters of evidence on which Sellafield is relying to support its case in the tribunal over her performance issues. The letters were produced on non-secure home PCs. The tribunal has permitted Sellafield to use unlawfully produced evidence.

On one of the letters, the metadata was wiped while in possession of DLA Piper, Sellafield’s law firm, temporarily hiding details on the document’s authorship and time of creation. The law firm is separately under investigation by the Solicitors Regulation Authority over the issue.

The case continues.

Sellafield bullying cover up: Important three week whistleblowing tribunal case opens

Alison McDermott – whistleblower Pic credit: BBC News

A potentially ground breaking case bought by whistleblower Alison McDermott, a former consultant to the nuclear reprocessing plant at Sellafield, began a three week hearing at Leeds Employment Tribunal this week.

The case of McDermott versus Sellafield, the Nuclear Decommissioning Authority and former Sellafield HR director Heather Roberts has been brought under the Public Interest Disclosure Act 1998 – also known as the Whistleblowers’ Act.

Alison McDermott, an HR professional and diversity specialist, claims that the sudden termination of her freelance contract in October 2018 by Sellafield was linked to her protected disclosures containing evidence of systemic bullying, and racist and sexist incidents at the Sellafield site in Cumbria. The original story was reported in Byline Times

Since the report came out the BBC did an investigation into what it called toxic bullying, homophobia, sexual harassment and racism at the nuclear plant.

At the beginning of hearing Employment judge Philip Lancaster told the tribunal: “This, of course, is not a public inquiry into an alleged toxic culture at Sellafield and it is certainly not a forum to investigate specific allegations of improper behaviour on behalf of named individuals.”

The case has been complicated by one of the organisations fighting her, the Nuclear Decommissioning Authority, changing its stance and is distancing itself from Sellafield. More will come out later in the case.

Ms McDermott faced aggressive cross questioning of her stance by Deshpal Panesar QC, representing Sellafield and Ms Heather Roberts, the plant’s former human resources director.

” I hope you’re not going to tell me we’re going to start letting women in burkas in here”- HR director

Ms McDermott was paid £1,500 a day – the same sum paid to previous consultants Capita -to monitor equality, diversity and inclusion at the nuclear fuel reprocessing and decommissioning site in September 2018.

Mr Panesar pointed out that she had taken no action when she first met Heather Roberts who is said to have told her “”I hope you’re not going to tell me we’re going to start letting women in burkas in here.” He said this was a reference by Ms Roberts because of security at the plant where people had to have photo passes. She said she was horrified by the reference but did not raise it with her because it was their first meeting.

Yet later after she had investigated other complaints she had pressed for a formal inquiry into a series of complaints and allegations about bullying, homophobia and sexual harassment. He accused her of ” weaponising” the issue at the plant.

Ms McDermott denied this,

She said Ms Roberts then asked her to take part in a covert investigation to “flush out” issues raised in the report, but she refused and advised her there needed to be a formal investigation.

Mr Panesar suggested she had agreed to take part in an undercover investigation, using focus groups to question staff.

The case continues next week.