Employment judge dismisses claim of woman who alleged respondent’s solicitor harassed her

Michelle Donnelly raised the claim against her former employer, Build A Rocket Boy Games Ltd, alleging discrimination on the grounds of disability and unlawful deprivation of holiday pay, seeking £2.5 million in compensation. An application was made for strike out of the respondent’s claim, which the respondent resisted and countered with an application for strike out of the initial claim on the grounds that it was without merit.

The case was considered by Employment Judge M Macleod. The claimant was represented by a Ms McMillan, while the respondent was represented by B Doherty, solicitor.

Requests for information

On 30 June 2022, the claimant wrote to the Tribunal alleging that the respondent’s solicitor Mr Doherty had sent her a “continued barrage of abuse and harassment”. She sought to have Mr Doherty removed from proceedings, however following her acceptance that this was not a matter for the Tribunal she asserted that the respondent’s case had no reasonable prospect of success.

At a preliminary hearing on 4 August, which was not attended by the claimant, Mr Doherty explained that he had been in touch with the claimant’s representative in order to try and agree the terms of a Joint Bundle of Documents. Having received no initial response, he then sent a bundle of documents but again received no reply.

Mr Doherty had made requests for information about Ms McMillan including her postal address, clarification of the claimant’s postal address, and details of the company under which she operated. While it was accepted there was no requirement for that level of information to be provided under the ET Rules of Procedure, the Tribunal observed that the request was not an unreasonable one.

It was alleged by the claimant that Mr Doherty had acted dishonestly and had made unfounded and inflammatory attacks on the integrity of the claimant and her representative. His requests had been a deliberate attempt to disrupt proceedings made because the respondent’s case was unlikely to succeed.

The claimant’s allegations were denied by the respondent, which sought to strike out the claim in return as the proceedings had been unreasonable and vexatious. The claimant had made abusive, disparaging comments about Mr Doherty, including accusing him of criminal behaviour, and had been insulting towards the Tribunal by accusing it of trying to bully her and saying that the service was not fit for purpose.

Excessively personal attack

In his decision, Employment Judge Macleod observed: “What is striking from the correspondence is how extraordinary the claimant’s reaction - and that of her representative - has been to this request. It has generated an extremely hostile response from the claimant and her representative, and it is quite clear that the tone of the claimant’s application amounts to a gross overreaction to the application. It is incomprehensible why a valid representative and the claimant would react in such a way.”

Assessing the conduct of Mr Doherty, the judge said: “He has not suggested that the claimant does not have the right to be represented, but has proposed that he be given more information about the identity of that representative. On the face of it, as I have indicated above, there is no apparent reason why a valid representative would take such a request quite so badly. Taking the application as a whole, it amounts to an excessively personal attack on the professional actions of a solicitor who is entitled to conduct litigation on behalf of his client.”

On whether the claim should be struck out, Judge Macleod first noted: “Many claimants who represent themselves, or representatives who are not bound by the professional regulations of the Law Society of Scotland, express themselves in strong and sometimes unpleasant ways, in an attempt to press their case or persuade either the Tribunal to find in their favour or the respondent to concede the point and reach a financial settlement. The job of a solicitor in such circumstances may simply be to tolerate it, and respond in as professional a manner as possible.”

However, he went on to say: “What distinguishes the conduct of Ms McMillan and the claimant in this case is not just unpleasantness - and there is plenty of that, and arrogance too - but the persistent and baseless complaints to the Tribunal about the professional conduct of Mr Doherty, and perhaps in particular the regular allegations that he has been dishonest and has attempted to interfere with the course of justice.”

Judge Macleod continued: “I accept entirely the respondent’s submissions that the conduct of the claimant and her representative has amounted to unreasonable and vexatious conduct. The claimant’s representative persistently refers to an extraordinarily high sum of compensation sought, for an extremely short term of employment, and it is impossible not to reach the conclusion that the blizzard of abusive and accusatory correspondence directed at the respondent and at the Tribunal is designed to achieve a financial outcome for which these whole proceedings have been constructed.”

The claim was accordingly dismissed.