The employment tribunal was wrong to strike out a Crown court judge’s claims concerning the handling of grievances she lodged against senior judges and court staff, an employment appeal tribunal has heard.

The legal team for Her Honour Judge Kalyani Kaul KC asked Mr Justice Swift last Friday to set aside an employment tribunal judgment of May 2021 which struck out elements of the claim Kaul brought against the Ministry of Justice, lord chancellor and lord chief justice. Swift was also asked to order that summary determination of Kaul's claims was not appropriate and that the matter should be remitted to a different judge for further case management.

Kaul raised judicial and staff grievances in 2019, claiming senior judges and court staff failed to support her and bullied her after she raised complaints about the conduct of counsel during a lengthy trial in 2015.

‘What this case concerns is what happens next, when HHJ Kaul raises formal grievances against the judges and staff. In her case, obstacles were placed in the way of resolving these matters,’ barrister Jesse Crozier, for Kaul, told the appeal tribunal.

Crozier added that each question or issue the employment tribunal struck out was ‘fact-sensitive to the extent that, as a matter of law, it is not amenable to a summary determination.

‘If one is going to the summary stage, you start to fill in the factual matrix with evidence or assumptions on what you at least need to fill it all. The [employment tribunal] judge did not here,’ Crozier said.

Kaul felt obliged to produce a Scott Schedule in respect of her grievances but the employment tribunal ignored the time, cost and reasons why the request to produce a Scott Schedule might be viewed by any reasonable worker as a detriment, Crozier said.

The employment tribunal struck out Kaul’s claims in relation to a time bar being set and the judge being asked to justify why her grievances should not be treated as out of time. Crozier said there was no formal time limit in any of the relevant grievance policies; the time limit prevented her staff grievance being determined; and the employment tribunal was wrong to ignore the language ‘out of time’ used in an email from judicial HR to Kaul.

Matthew Purchase KC, for the Ministry of Justice, lord chancellor and lord chief justice, argued that the appeal tribunal’s jurisdiction was limited to correcting errors of law. ‘It is important to be careful one does not trespass into second guessing the judge’s conclusions,’ he said.

Purchase said there were ‘no hard or fast’ rules regarding when it might be acceptable to strike out a case on the basis that it has no reasonable prospect of success. The employment tribunal judge ‘directed himself properly as to the law’. The Scott Schedule ‘was plainly an invitation and not a requirement’, which mattered in deciding whether or not it constituted a detriment.

Purchase said much had been made of the use of the phrase ‘out of time’, but it was right to look at the phrase in the context of the letter in question as a whole. ‘It is saying, “These things happened a long time ago. Can you explain to us why, notwithstanding that, you think we should still consider the complaint”. There are time provisions in the grievance policies which do say things should be resolved as quickly as possible and within three months of it actually occurring. It is entirely normal for people to refer to issues of timing using language “out of time”. This email is simply shorthand for timings set out in the policies.’

Responding to Purchase’s submissions, Crozier said the underlying documents before the employment tribunal judge told a story ‘before disclosure, before witness evidence and without an opportunity to challenge’.

Mr Justice Swift reserved judgment.

 

Devereux Chambers' Jesse Crozier, instructed by Edwin Coe Solicitors, represented HHJ Kaul KC. Matrix Chambers' Matthew Purchase KC represented the Ministry of Justice, lord chancellor and lord chief justice