IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL IN THE MATTER: BETWEEN MS ERIN BISSON CLAIMANT AND STATES EMPLOYMENT BOARD RESPONDENT ORDER Reference: [2017]TRE203 Date: 16 April 2018 Before: Mrs H G Griffin, Chairman Background 1. On 10 April 2018, the Respondent made an application to strike out the Claimant s discrimination claim under the provisions of Article 24(1)(c) of the Employment and Discrimination Tribunal (Procedure) Order 2016 ( Procedure Order ). 2. By a Claim Form presented on 21 November 2017, the Claimant brought a claim of discrimination against the Respondent on the grounds of gender reassignment ( Claim ). 3. The Claim falls under the provisions of Part 5 Article 22 of the Discrimination (Jersey) Law 2003 as being alleged discrimination in the provision of Goods, Facilities and Services. 4. The Claim is one of direct discrimination. The Claimant asserts that because of the protected characteristic of gender reassignment, the Respondent treated the Claimant less favourably than it treated or would treat other people. 5. The Claimant identified the less favourable treatment as being called Mr Bisson by a Doctor at the Accident and Emergency Department (the Act ). 1
6. The Respondent does not dispute that an A&E doctor did refer to the Claimant as Mr Bisson. However, the Respondent asserts that the Act occurred because, due to a technical problem with the hospital s computer system arising from issues raised by the Pathology Department when the Respondent sought to change its records in 2016 (at the Claimant s request), the Claimant was recorded as being Mr Bisson on the doctor s computer screen. 7. The Respondent therefore asserts that the Act: a) did not amount to less favourable treatment; or b) even if the Act did amount to less favourable treatment, it did not occur because of gender reassignment but because of the technical problem with the computer system. 8. The Respondent therefore defends the Claim. Case Management Meeting 9. At a Case Management Meeting ( CMM ) on 5 March 2018, the Respondent notified the Tribunal that it wished to call a witness from the Pathology Department ( the Witness ) to explain why the Claimant s gender had been logged on the computer system in a certain way in 2016 and why, therefore, the Claimant was logged as Mr on the doctor s computer. 10. The Claimant objected to the calling of the Witness because she believed that the Witness would disclose details contained in the Claimant s medical records. However, the Respondent s representative was categorical in her reassurance that the Witness would not disclose any of the Claimant s medical data. 11. The Chairman was satisfied from Mrs Macnair s (the Respondent s representative) submissions that it was reasonable for the Respondent to call the Witness. The Chairman explained carefully to the Claimant why the Witness s evidence was relevant to the Respondent s defence and the Chairman re-iterated that the Claimant s personal medical data would not be disclosed during any future hearing. 12. During the CMM the Claimant accused the Respondent s representative of being perverts. This verbal attack was aimed at Mrs Macnair. The Chairman informed the Claimant in the strongest terms that the use of such language was not acceptable and that she was to treat Mrs Macnair and the Tribunal with respect. 2
13. At the end of the CMM, the Chairman drew the parties attention to an Order (which is now included in the Tribunal s standard Case Management Orders) which prescribed that, save for if making a formal application under the provisions of the Procedure Order, the parties should not contact the Tribunal unless provided for under the provisions of the Case Management Orders. Email correspondence 14. On 9 March 2018, the Tribunal received the following email from the Claimant in which she again objected to the attendance of the Witness at the hearing: I wish to make an application to remove the involvement of the Pathologist as the claim was not about medical records. The claim was about being referred to as male by the Doctor which has nothing to do how a patient is greeted by staff. On a further note any decision the tribunal makes is without an impartial medical expert that could advise what is best for the patient. Under prescribed the hospital must have consent from me before advising anyone of my history (sic). I do not consent to my data being used in this manner. This is an abuse of basic human rights. 15. On 12 March 2018, the Tribunal received a second email from the Claimant, stating (for the first time) that the Respondent s response should be rejected: I wish to make a further application as upon reading the response. (sic) The respondent failed to provide a copy of their policy as mentioned in their response. In view of this their response is rejected and out of time. 16. On 14 March 2018, the Tribunal received a third email from the Claimant, again regarding the attendance of the Witness: I wish to make an application to the tribunal that having read the sensitive data involved this must not be allowed to be released into the public domain. 3
I do not consent to my records being used in this manner and under the Gender Recognition Jersey Law 2010 and the General Recognition (Disclosure) Order this is breach. I am disgusted to be subject to this kind discriminatory behaviour from the Hospital and the Law Officers Department and Judicial Greffe. I do not consent for any disclosure to be made to the tribunal under any circumstances. 17. On 15 March 2018, the Respondent sent the following email to the Tribunal in response to the Claimant s three previous emails and accusing the Claimant of unreasonable behaviour: For the sake of completeness, the Respondent's position is that it was made clear to the Applicant by the Chair at Case Management Meeting that no personal data, particularly pertaining to medical records, was to be released into the public domain whatsoever. The Respondent's witness will be providing information as to how records were updated (not the content of such records) together with general information as to the Pathology department's position in respect of the way in which gender is recorded. The documents released to Ms Bisson as part of disclosure do not refer to personal medical details, but, as directed by the Chair, the process by which the Respondent's records were updated. The Respondent has received a number of emails from Ms Bisson, including unacceptable personal insults directed at me. I have requested that Ms Bisson contact this department only in respect of a matter arising from the Order and have also confirmed that any emails containing insults, such as the ones she sent yesterday will be immediately deleted. Whether the Applicant is being deliberately malicious or is trying to create additional work for the Respondent in the hope we may look to settle this matter, I am unsure, however I should be grateful if the Chair would reiterate the very clear statement that she made at the Case Management Meeting; that Ms Bisson is required to treat me with respect. The Respondent's case has been made very clear and in any event applications to the Tribunal should be in accordance with the Employment and Discrimination (Procedure) (Jersey) Order 2016. There is absolutely no basis for the email below, it does not constitute an application and is yet a further example of Ms Bisson continuing to waste time and abuse the process. 18. The Claimant sent a fourth email to the Tribunal on the same date in which she accused the Tribunal of treating the Respondent more favourably than the Claimant: Further to Mrs Macnair's email. As the allegations are false regarding insults. I will not even sit in the same room as her. I spelt her name wrong inadvertantly (sic) and she responds in block capitals. Shouting at me is this acceptable? I have asked for forgiveness but I will not be wrongly accussed (sic) of something I have not intentionally done. Mrs Macnair is defending departments that have had no compassion for me. Following that I wish to make an application that Mrs Macnair made a repuditory (sic) breach the order by carbon copying yourselves in an email. Its clear the tribunal allows others to do as they wish to me yet I have tolerate (sic) bad behaviour. 4
Tribunal s First Response 19. On 16 March 2018, on instruction of the Chairman, the Registrar sent the following email to the parties, which addressed each of the issues raised by both parties in their emails to the Tribunal ( First Response ). In order to avoid further inflaming the situation, the First Response was deliberately aimed at the conduct of both parties rather than singling out the Claimant for criticism: I write in response to the various recent emails which the Tribunal has received from the parties. The Chairman has instructed that I respond as follows: 1. The Respondent's Response Form complies with the requirements as set out in the Employment and Discrimination Tribunal (Procedure) Orders 2016 ("Procedure Order"). Parties are not permitted to include attachments with their claim or response forms. 2. A summary of the Respondent's case is set out in the Case Management Orders. This explains why the Respondent wishes to call [the Witness]. The Claimant's medical records form no part of this case and if the Respondent wishes to call [the Witness] as a witness, it is entitled to do so. 3. The Chairman has asked that I remind the parties that they are to treat each other with respect and cordiality. 4. The Claimant has been asked not to contact the Respondent's representative except where required by the Orders. The Tribunal would expect the Claimant to understand and respect this request, and the Tribunal will issue an Order to this effect if necessary. The Chairman is very concerned to see the manner in which this case is being conducted. Please note that the Tribunal will not tolerate either party behaving in an aggressive, unreasonable or vexatious manner in the conduct of their case. The parties are instructed to cease any such behaviour immediately. Claimant s response to Tribunal s first email 20. The Claimant responded to the above email on the same day, accusing the Tribunal of being discriminatory in its treatment of her and threatening legal proceedings against Tribunal staff and Mrs Macnair: Dear Registrar, I find your email discriminatory and therefore, please email the names of those I need to submit on a claim form as well as Mrs Macnair names which will be included on the claim form. 5
Warning of strike out 21. On 19 March 2018, on the instructions of the Chairman, and in response to the Claimant s on-going behaviour, the Registrar sent the following correspondence to the parties: Under the provisions of Article 24(1)(b) of the Employment and Discrimination Tribunal (Procedure) Order 2016 ("Procedure Order") the Tribunal may, in certain circumstances, strike out any claim or response on its own initiative. Article 24(1)(b) states as follows: "At any stage of the proceedings, either on its own initiative or on the application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds - (a)... (b) that the manner in which the proceedings have been conducted by or on behalf of the complainant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious..." On the basis of the Claimant's recent behaviour and conduct of her case, the Chairman is minded to strike out the Claimant's claim under the provisions of Article 24(1)(b). The Chairman's grounds for such a strike out are: (1) The Claimant's unacceptable behaviour towards the Respondent's legal representative at the Case Management Meeting on 5 March 2018, during which she referred to those acting on behalf of the Respondent as 'perverts'; (2) The Respondent's legal representative reporting that the she received a number of emails from the Claimant which included "unacceptable personal insults directed at me"; and (3) The Claimant's email to the Tribunal Registrar on 16 March 2018 in which she threatened to bring discrimination claims against staff at the Tribunal and against the Respondent's legal representative. The Claimant has until 4pm on Thursday 22 March 2018 in which to make written submissions as to why her claim should not be struck out. Such submissions shall be filed at the Tribunal and served upon the Respondent. Filing and service may be by email. The Respondent's legal representative may also make submissions if she wishes to do so, such submissions to be filed and served by 12pm on Friday 23 March 2018. 22. In response to the warning of a strike out, the Claimant submitted email correspondence which took place between the parties on 14 and 15 March 2018: Claimant to Respondent s representative Dear Mrs McNair, As per the response the document was not attached to your response why is it only being disclosed after. 6
This is misleading the tribunal and further application will be made. Please advise me. Respondent s representative to Claimant Dear Ms Bisson The correct spelling of my surname, as I have confirmed in previous correspondence, is MACNAIR. For ease, it is also at the bottom of each of my emails. I am not in a position to advise you, once again, if you require legal advice you should seek this from JACS, CAB or your own lawyer. Claimant to Respondent s representative Dear Tara, Forgive me for spelling your name wrong and forgive me asking why you were shouting at me. The insults are how you and others in States Departments persistently. I suggest you do not contact me under any circumstances and I will advise the tribunal of the repuditory (sic) breach by carbon copying the tribunal. This is appalling. Respondent s representative to Claimant Dear Erin As requested, please address me by my correct name, Mrs Macnair. I note that since requesting that you do so you have failed to do so once; instead either misspelling my name, calling me McChair or using my Christian name. All correspondence should be addressed to me correctly or it will not be read. With regards the allegation that I shouted at you. This is a lie. I have not and would never shout at you. We have not spoken at all since the Case Management Meeting therefore I could not have possibly shouted at you. Please be aware that my colleagues within this department are fully aware of this matter and of the fact that the allegation that I shouted at you is a complete fabrication. As I have mentioned in previous correspondence, please refrain from contacting this department other than in relation to the Order. Claimant to Respondent s representative Dear Tara, Writing an email containing block capitals is shouting. [An individual from a previous claim] knows this. It is called internet Netiquette. 7
The insults are all yours I have been repeatedly insulted by you and others. You sat at mediation when [an individual] referred to me as male and did nothing. Any way no correspondence in any form from you. A complaint will be made about your conduct. The pathologist has nothing to do with a doctor greeting me. This is deeply offensive. Respondent s representative to Claimant Dear Ms Bisson I note that you wish to make a complaint. All complaints regarding a member of the Law Officers Department should be made to the Attorney General. Tribunal s Orders 23. Having considered all of the above correspondence, being conscious of the onerous sanction of striking out the Claimant at this late stage in proceedings and being mindful of the fact that she was a litigant in person, the Chairman effectively gave the Claimant another chance by affording her a final opportunity to modify her behaviour. The Tribunal therefore sent an email to the parties on 26 March 2018, advising the parties that it would not tolerate any further similar conduct and setting out additional Orders ( Orders ) regarding the parties conduct in preparation for the hearing: The Chairman has asked that I write to the parties regarding her proposal to strike out the Claimant s claim under Article 24(1)(b) of the Procedure Order. The Claimant made brief written submissions and enclosed copies of the email correspondence between the parties. The Respondent chose not to make any submissions. Having considered all the information provided by the Claimant, the Chairman has decided that she will not strike out the Claimant s claim at this time. However, she remains of the view that the Claimant s conduct, both at the CMM and in her threats against the Tribunal were unreasonable. Such conduct shall not be tolerated any further and both parties are ordered to act with restraint in this regard. In view of the above, the Chairman HEREBY ORDERS that: (1) Neither party shall make any further written applications to the Tribunal. Any applications shall be made at the start of the Hearing. (2) Both parties shall comply with the provisions of the Case Management Orders. (3) The parties shall only contact each other as provided for in the Case Management Orders. Any breach by either party of the above orders may result in their claim or response being struck out and judgment being made accordingly. 8
24. The Tribunal did not issue a specific unless order because the nature of the Claimant s behaviour did not require specific action by a given date as provided in Article 25 of the Procedure Order. Respondent s application to strike out 25. On 10 April 2018 the Tribunal received the following email from the Respondent making an application to strike out the Claimant s claim: On 19 March 2018 the Registrar confirmed that the Chairman was minded to strike out the Claimant s claim under Article 24(1)(b) of the Procedure Order on the basis of the Claimant s behaviour and conduct of her case. The Chairman offered the Claimant an opportunity to make written submissions as to why her claim should not be struck out. The Claimant submitted an email chain highlighting her own behaviour and the rude manner in which she addressed me, however on the basis of this the Registrar confirmed on 26 March that the claim would not be struck out. The Chairman therein ordered that the parties must only contact one another as provided for in the Case Management Orders. Today, I received the email below. The email, in addition to being inappropriate, is completely unnecessary and was not sent in connection with any of the Case Management Orders. The Claimant has therefore clearly breached the Chairman s orders. On this basis I wish to make an application to strike this matter out in accordance with Article 24(1)(c). This Article states that At any stage of the proceedings, either on its own initiative or on the application of a party, the Tribunal may strike out all or part if a claim or response on any of the following grounds..(c) for non-compliance with any provision of this Order or with an order of the Tribunal. (emphasis added) I make this application today and not at the start of the Hearing in order to preserve the time of all parties, witnesses and the Tribunal, should this application be successful. This application is made against the backdrop of the Claimant s conduct throughout this matter. As you are aware she referred to those who represent the Respondent as perverts whilst sitting alongside me in my capacity as the Respondent s only representative at the Case Management Meeting. She has consistently misspelled by name and referred to me as Mrs McChair. All of this evidence is already with the Tribunal, however having provided Ms Bisson with a final warning, Ms Bisson has continued to flaunt the rules set by the Tribunal. She clearly has learned no lesson, has continued to waste time and act in an inappropriate and vexatious manner. The email below highlights her flagrant disregard for the Tribunal s authority and it is on this basis that I make this application. 26. The Respondent s representative attached the following email which the Claimant sent to her on 10 April 2018: 9
Dear Mrs Macnair, Without being funny would you like to make an application to the tribunal as I am in agreement if you are. That you should call a midwife to give evidence seeing as you have called a pathologist. Then the tribunal can confirm that a girl was born. Then you can deal with the death and resurrection at the same time. Claimant s submission 27. The Claimant made the following submissions in response to the Respondent s application to strike out the Claim: Following Mrs Macnair's application. I find it prejudiced and wholly unfair that the tribunal is holding me to the same rules that it expects of lawyers. I simply asked Mrs Macnair a reasonable question. Simply that I think a midwife should also be present. A pathologist is normally called to give evidence upon a death. Erin has never died and is alive and breathing. I am not or never have been trained as a lawyer. The last exams I sat were at GCSE and were 8 qualifications below C. I must note that compared to a lawyer I am intellectually challenged. The Law Article 24 28. Article 24(1)(b) of the Employment and Discrimination Tribunal (Procedure) Order 2016 ( Procedure Order ) provides as follows: 24 Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the complainant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any provision of this Order or with an order of the Tribunal; 10
(d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response (or part of it) may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in Article 12. 29. Article 24 of the Procedure Order directly mirrors the contents of Schedule 1 Rule 37 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861. I therefore looked to UK case law for guidance on the interpretation and implementation of Article 24(1)(c). 30. A strike out order under Article 24 is one of only two sanctions available to the Tribunal as part of its powers to manage proceedings (the other being an unless order). Unlike in the UK, the Tribunal does not have the ability to sanction parties with an award of costs being made against them. The Tribunal therefore currently has a very limited ability to manage litigants who repeatedly defy Orders or who conduct their cases in an unreasonable or a vexatious manner. UK case law 31. In the case of Harris v Academies Enterprise Trust [2015] IRLR 208, the EAT stated: A party that does not observe an order is at the mercy of the Tribunal. Though in may cases an unless order will be granted before there is a strike-out, it [an unless order] is not an essential prerequisite of an application to strike out and is no guarantee that [a strike out] will not follow in an appropriate case. 32. When deciding whether or not to strike out a party s case for non-compliance with an Order, tribunals must consider all relevant factors in light of the Overriding Objective, which is contained in Article 2 of the Procedure Order. This includes considering: a) the proportionality of the sanction; and b) whether a lesser sanction would be more appropriate in the circumstances. 11
33. In the case of James v Blockbuster Entertainment Ltd [2006] IRLR 630, the Court of Appeal stated that the striking out of a claim or response for non-compliance with an order short of an unless order should not be too readily exercised; strike out should only be applied where it is proportionate to the offence. In cases where the unreasonable conduct or default falls short of wilful, deliberate or contumelious disobedience, a claim or response may only be struck out if a fair hearing is not possible and strike out is proportionate. 34. I take from the UK case law that the sanction of striking out should only be used in circumstances where it is proportionate to the non-compliance and where the default has amounted to wilful, deliberate or contumelious disobedience. 35. I also note, however, that in Jersey the Tribunal does not have the power to award costs against a party as a sanction. I therefore consider that it is appropriate to interpret and apply the UK case law in the context of the constraints under which the Tribunal is required to manage cases. Conclusion 36. I have carefully considered all of the evidence and submissions made by both parties in light of the case law as set out above. In reaching my decision I made the following observations: a) The Tribunal warned the Claimant on four separate occasions (at the CMM, in correspondence and in the Orders) that her behaviour was not acceptable. b) The correspondence from the Tribunal to the parties made it clear that continued poor behaviour could result in the striking out of a party s case. c) The email from the Tribunal, which included the Orders, expressly stated that previous conduct would no longer be tolerated. The Tribunal was reluctant to strike out the Claim and chose to give the Claimant a final opportunity to change her behaviour. The Claimant knew that it was her conduct which had triggered the Orders and which the Tribunal was seeking to moderate. However, as shown in her submissions, she believes that there are different rules for her. This is not the case; all parties in the Tribunal, whether or not they are represented, are expected to comply with the Tribunal s orders and procedures. 12
d) The Orders were simple, clear and unambiguous. e) The Tribunal attached no weight to the Claimant s mis-spelling of Mrs Macnair s name. 37. I am satisfied that the Claimant wilfully and deliberately ignored the Orders. The Orders were a final attempt by the Tribunal to persuade the Claimant to cease her unreasonable and aggressive behaviour towards both the Tribunal and the Respondent s representative. The Orders were not complex legal orders; they were simple instructions which the Claimant understood but chose to ignore. No legal qualifications would have placed the Claimant in any better position to understand what the Orders required. She simply did not wish to comply with them and chose to continue with the behaviour which the Orders were seeking to prevent. In so doing, she showed a blatant disregard for the Tribunal s authority and procedures. 38. I am satisfied that the Claimant: a) knew that the Orders applied to her; b) understood that a breach of those Orders could result in the striking out of her Claim; and c) chose to deliberately disregard the Orders in the misplaced expectation that she would not be subject to sanction. 39. I am satisfied that the sanction of striking out the Claim is both proportionate and appropriate in the circumstances. 40. The Claim shall therefore be STRUCK OUT under the provisions of Article 24(1)(c) of the Procedure Order and the hearing of this matter shall be vacated. Mrs H G Griffin, Chairman Date: 16 April 2018 13