Malgorzata Jolanta Kopec, R (on the application of) v London Central Employment Tribunal

1. By a judicial review claim form sealed on 8 August 2024, Ms Kopec seeks permission to challenge decisions of the Employment Tribunal, sitting at London Central.

2. The background is that, on 1 April 2023, Ms Kopec brought proceedings in the Tribunal against her former employer, the British Academy of Jewellery Ltd. That company, the respondent before the Tribunal, is named as an interested party in these judicial review proceedings. As I will explain, the Employment Tribunal proceedings have now resulted in a final judgment, which was promulgated following a full merits hearing held between 9-18 September 2024. The lengthy reserved judgment, dated 11 October 2024, was sent to the parties on 23 October 2024.

3. The judicial review claim form prompts claimants to give the details of the decision that is challenged: see box 3.1. In her form, Ms Kopec wrote, "The case is ongoing in the London Central ET", which was the case when the claim form was filed. No specific date(s) of the decision(s) challenged were identified. Attached to the claim form were a number of documents, including one headed "Detailed Statement of Grounds", containing seven numbered grounds. This document reveals which decisions and omissions of the Tribunal are intended as the target of this claim. I summarise them below. As with any summary, I do not mention every point raised; I did, however, read the document in full and was taken through it today in argument. I should also indicate that I confine my summary to complaints about decisions, actions or omissions of the Employment Tribunal, as opposed to other bodies (not defendants to this claim) which were mentioned in the paperwork.

4. The grounds can be summarised as follows: a. By grounds 1 and 2, Ms Kopec complains about decisions taken at a Preliminary Hearing for Case Management held on 24 November 2023, and the written case management orders subsequently produced in relation to that hearing, which Ms Kopec received on 22 June 2024. Ms Kopec contends, in broad summary, that the hearing and subsequent written record breached article 6 of the European Convention on Human Rights; that the case management orders contained incorrect information (including as to the identity of the judge who conducted the hearing, which Ms Kopec says amounts to judicial deception); and that the Tribunal’s record of the hearing omitted items from the list of issues. She complains of apparent bias and that the Tribunal was responsible for unreasonable delays, including in the production of the case management orders (which, she says, impacted on her ability to prepare for subsequent stages of the Tribunal proceedings). b. By ground 3, complaint is made about the Tribunal's response to Ms Kopec's proposed Amended Particulars of Claim. Ms Kopec complains that on 26 February 2024, and on a number of dates in March thereafter, she submitted proposed Amended Particulars of Claim to the Employment Tribunal but did not get a response. She also complains about the way in which proposed amendments were dealt with prior to, and at, the Preliminary Hearing for Case Management on 24 November 2023. A further aspect of this part of Ms Kopec’s complaint is the respondent failed to amend its Response by the date ordered at the Preliminary Hearing, that date being 14 April 2024. Ms Kopec contrasts this with her treatment in relation to the Amendment of her Particulars of Claim. c. Next, by ground 4, Ms Kopec complains that she lodged complaints with the Tribunal regarding what she saw as neglect and mishandling of her case on 5 April 2024 and on various dates thereafter, up to a complaint on 22 July 2024. Subsequent complaints included what she saw as the respondent having fabricated evidence and a failure to comply with orders and deadlines. She complains that she did not get a substantive response and the Tribunal did not investigate. d. Next, by ground 5, Ms Kopec complains about the way in which the Tribunal dealt with a number of applications that she made. Ms Kopec complains that she submitted three applications on 15 December 2023, and these were not dealt with by the Tribunal, despite follow up by her, until she received a document dismissing them at the same time as receipt of the case management orders from November 2023. That receipt was on 22 June 2024. She also complains that she submitted further applications on 5 April and 11 April 2024 and six applications on 28 June 2024, but did not receive adequate responses. She then submitted two further applications on 22 July 2024. Her position is that the Tribunal failed to respond to what she regarded as important applications in a timely manner. e. By ground 6, Ms Kopec complains that the Tribunal failed to take enforcement action against the respondent to the proceedings, despite her filing a formal complaint on 28 June 2024. In her grounds, she cites 11 instances of alleged non-compliance with orders between 18 December 2023 and 18 June 2024. f. Finally, by ground 7, Ms Kopec complains that the cumulative effect of the alleged instances of procedural impropriety and delays by the Tribunal is indicative of bias against her and resulted in her being denied a fair hearing.

5. By way of remedy, Ms Kopec sought an order transferring her case away from the Employment Tribunal to a Higher Court; the quashing of various orders of the Tribunal; orders changing the nature of Case Management Hearings held by the Tribunal (for example, from private to public); various substantive orders in the litigation with her former employer that she says the Tribunal ought to have granted; an order prohibiting the Tribunal from holding a final hearing; orders directing the Tribunal to deal with various matters expeditiously; and an order for costs. Urgent Consideration and Refusal of Permission

6. The judicial review claim form was accompanied by an application for urgent consideration. Ellenbogen J considered that application and refused it on the papers by order dated 19 August 2024.

7. Ellenbogen J observed that by a letter of 1 August 2024, issued shortly before the judicial review claim was commenced, the Employment Tribunal had notified the respondent (Ms Kopec’s former employer) that it was considering striking out its Response to the claim for failure to comply with Tribunal orders. The employer was given until 15 August 2024 to file an objection. Ellenbogen J also referred to a further letter from the Tribunal dated 1 August 2024. That had been sent to the claimant and indicated that she should continue to prepare for the merits hearing as best she could and that it was undesirable to relist the final hearing which was due to start on 9 September 2024. The claimant was told by that letter that the Tribunal would reconsider the listing of the final hearing once the date by which the respondent was to object to the strike-out warning had passed.

8. At paragraph 5(b) of her reasons, Ellenbogen J continued as follows: “In any event: (1) the proper route for challenging that and any earlier order is (or was) by way of appeal to the Employment Appeal Tribunal; (2) if and to the extent that the challenges to earlier orders/conduct are free-standing and susceptible of judicial review, they do not give rise to any need for urgent relief at this stage; and (3) it is not the function of this court to case manage employment tribunal claims, or to deal with appeals from the tribunal's case management of them.”

9. Ms Kopec sought reconsideration of that decision, but it was maintained by Ellenbogen J by her order of 20 August 2024.

10. On 4 October 2024, the papers were then considered by Mr C M G Ockelton, sitting as a Deputy High Court Judge. He refused permission to apply for judicial review and made no order as to costs. At paragraph 2 of his reasons, the Deputy Judge stated as follows: “The appropriate process for challenge to any final decision of the ET is by appeal to the EAT. As explained in the Court's previous orders, judicial review during the course of proceedings before the ET is not available as a means of attempting to supervise the ET’s case management processes. If the claimant considers that the outcome of the proceedings is unjust to her, she has the means of challenge by appeal. If she does not so consider, any proceedings by way of judicial review would serve no useful purpose." Renewal of Application for Permission and Application of 10 February 2025

11. Following receipt of that Order, Ms Kopec applied to renew her application for permission. Furthermore, by application dated 10 February 2025, she applied to supplement her claim for judicial review with what she calls a "Post-Final Hearing Supplementary Submission". In essence, the claimant is seeking permission to amend her judicial review claim form to include further points of challenge, which she says arise since she lodged her original claim for judicial review. These further points include the way in which the Employment Tribunal considered her case at the final hearing between 9 and 18 September 2024, how it determined her claims in its judgment sent to the parties on 23 October 2024, and how it dealt with her post-judgment applications.

12. The Supplementary Submission appears at page 543 of the large bundle that was placed before me at this hearing. In the opening paragraphs, and in the updated grounds (which appear from page 606 of the bundle), the claimant explains that, in addition to the previous matters, she is aggrieved and wishes to advance the following further challenges: a. By ground 8, she contends that she was given inadequate notice of the Final Hearing in the Employment Tribunal. She refers to a notice of hearing dated 29 August 2024 and says this breached the requirements of Rule 58 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) because it came 11 days, rather than prescribed 14 days, before the final hearing. Ms Kopec accepts that at the November 2023 Preliminary Hearing, the Tribunal listed the 9-18 September 2024 Final Hearing, and recorded the same in the written orders she received in June 2024 (see paragraph 110 on page 377). Nonetheless, she maintained that the subsequent letter sent on 29 August 2024 provided inadequate notice under the ET Rules. b. By ground 9, Ms Kopec argues that the Tribunal’s reserved judgment inaccurately records that she withdrew her wrongful dismissal and unauthorised deductions from wages claims. c. By ground 10, the claimant complains her harassment, direct discrimination and reasonable adjustment claims were dismissed on the basis of time limits. d. By ground 11, the claimant argues that the Tribunal made irrational jurisdictional findings and prejudged the merits of her case. e. By ground 12, the claimant contends the Tribunal's decision to uphold the dismissal as fair was irrational, inconsistent and procedurally flawed. f. Ground 13 is that the Tribunal failed to recognise the claimant's ADHD as amounting to a disability under the Equality Act 2010 . This is said to breach legal principles, procedural fairness and rationality. g. Ground 14 is that the Tribunal demonstrated bias against the claimant and failed to ensure fair treatment "regarding witness-related matters". h. Ground 15 is that throughout the whole process, including the Final Hearing, the claimant experienced procedural unfairness and a bias against her. Further, the claimant is aggrieved that the judgment was published on the on-line database of Employment Tribunal decisions on 6 November 2024, before the expiry of the period of time – 14 days – during which she could apply for a reconsideration of the judgment (see Rule 71 of the ET Rules). She complains that Judge Batty, who determined the final hearing, refused her applications to delay publication and for an extension of time to request a reconsideration. i. Ground 16 is that there was procedural unfairness and bias at the final hearing. j. Finally, ground 17 is that there was irrationality bias and procedural impropriety in assessing the respective reliability of evidence. Ms Kopec says her evidence, that of her witnesses, and her supporting documentary evidence, was dismissed, while unreliable and fabricated evidence put forward by her former employer was accepted by the Tribunal.

13. In addition to the relief I have outlined above, the claimant asks this Court to quash the reserved judgment, retract it from public access and order a full re-hearing of the case to take place before the Court of Appeal. The Employment Tribunal’s Final Judgment and Subsequent Applications

14. It will be apparent from the foregoing that since this claim for judicial review was lodged, the Employment Tribunal has finally determined Ms Kopec’s employment claims at a hearing in September 2024. The Tribunal reserved its decision and in a 93-page, 577-paragraph judgment sent to the parties on 23 October 2024, gave its reasons for rejecting the claimant's claims.

15. It is right to record that before that hearing took place, on 14 August 2024, the claimant wrote to the Tribunal in response to the letter of 1 August 2024 (see paragraph 7 above). In her correspondence, Ms Kopec objected to the proposed strike-out of the respondent's response. Nonetheless, she continued to complain of the respondent's breach of orders and on 27 August 2024, EJ Nicholle issued an unless order (in accordance with Rule 38 of the ET Rules) requiring compliance by the respondent with its terms, failing which the respondent's Response would be struck out. As the Tribunal at the final hearing noted at paragraph 12 of its reserved judgment, the date for compliance with the unless order was a date part-way through the final hearing.

16. At the start of the Final Hearing, the Tribunal reviewed the previous case management of the case and spent, it says, until 2.15pm dealing with preliminary matters. These are recorded from paragraph 17 onwards of the reserved judgment. Amongst those matters, the Tribunal recorded that the claimant decided, ultimately, not to pursue her application to amend when the matter was discussed (see paragraph 38 of the reserved judgment).

17. When the tribunal promulgated its judgment by email of 23 October 2024 (see page 1291 of today's bundle), it did so by email, which attached the judgment and the usual cover letter (see page 1292).

18. Following the promulgation of the reserved judgment, the claimant applied for an extension of time for presenting an application for reconsideration. On 12 November 2024, Employment Judge Batty refused that application “for now”, but indicated that if the claimant in due course decided to make an application for reconsideration outside the 14-day limit, an application for extension would be considered at that time.

19. The same letter from the Tribunal recorded that EJ Batty had refused the claimant's application for a delay in the publication of the reserved judgment on the basis that the judgment had already been published. The judge indicated that the Tribunal had a discretion to order anonymisation of the judgment under Rule 50 of the ET Rules and indicated that it would consider a properly-tailored application.

20. By further letter of 15 November 2024, Employment Judge Batty refused the claimant's request that the judgment be retracted from publication online. My Assessment of the Claimant’s Renewed Application for Permission

21. I am dealing with the claimant's renewed application for permission to proceed with her judicial review claim. For the purposes of that application, I have considered her case in the round: that is to say including the matters she seeks to add into the claim by her application of 10 February 2025. I shall return to the question of permission to amend the judicial review claim to add further grounds after, and in light of, that consideration.

22. It is clear to me from the grounds that I have outlined, and the remedies that the claimant seeks, that her complaints are a direct challenge to the decisions reached by the Employment Tribunal, and alleged failures by the Tribunal to make certain decisions or to take action, which, she says, resulted in the procedural irregularities, bias, unfairness and unlawfulness that she sets out in her grounds. Further, she says the Tribunal acted unlawfully and contrary to the ET Rules, including in relation to more recent events concerning the publication of the judgment.

23. As the claimant has been told by the orders of Ellenbogen J and Mr Ockelton, Deputy High Court Judge, (both of which preceded the reserved judgment in this case) these sorts of challenges to decisions or actions or inactions of the Employment Tribunal lie on appeal to the Employment Appeal Tribunal. That appeal jurisdiction is in accordance with section 21(1) of the Employment Tribunals Act 1996 , which provides as follows: “An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal under or by virtue of…" There then follows a list of jurisdictions, which include the jurisdictions pursuant to which the claimant brought her claims in the Employment Tribunal.

24. It is clear from that wording that appeals to the Employment Appeal Tribunal are not limited to appeals from decisions of the Employment Tribunal. The language of the statute is clear that alternatively (or additionally) appeals can be brought on any question of law arising in any proceedings before the Tribunal. That can include (for example) appeals put forward on the basis that the Tribunal erred in law by failing to take a step it was required to take under, for example, the ET Rules (replaced, since the judgment in Ms Kopec’s claim, by the Employment Tribunal Procedure Rules 2024) or as a matter of producing a fair ultimate hearing.

25. The Practice Direction of the Employment Appeal Tribunal 2024 sets out a non-exhaustive list of examples of grounds which might amount to errors of law (see paragraph 2.5.1). At (h) and (i), that list includes grounds of appeal that the Employment Tribunal: “did not follow the correct procedure in a way that affected the outcome (you would have to give full details of the procedure that was not followed and how it affected the outcome) “conducted the hearing in an unfair way (you would have to give full details of what was done that was unfair and say whether and, if so, how it affected the outcome)”

26. The Practice Direction also sets out the particular requirements that the Employment Appeal Tribunal has when appellants seek to raise issues of bias or procedural impropriety (see at paragraph 3.10 of the Practice Direction).

27. If the Employment Appeal Tribunal finds an error of law to have been committed by the Tribunal, it may set aside any relevant decision and order a re-hearing (including in front of a fresh Tribunal), or substitute its own decision. For the relevant considerations see Jafri v Lincoln College [2014] ICR 920 and Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 .

28. Statute, therefore, prescribes that the route of challenge in relation to the Employment Tribunal is by way of appeal to the Employment Appeal Tribunal. The claimant could have raised the matters about which she now complains by way of one or more appeals to the Employment Appeal Tribunal complaining that the Tribunal erred in law when reaching the decisions or taking the actions it did, or by failing to take action or comply with the ET Rules.

29. Further, in respect of the post-judgment applications, the claimant was told by the Tribunal that, if she were to make a reconsideration application out of time, the Tribunal would consider the question of extending time then and, if she were to make a tailored Rule 50 application in relation to anonymisation, the Tribunal would consider it.

30. It is well established by authority that judicial review is a remedy of last resort. As Lady Hale put it at paragraph 19 of R ( Cart) v Upper Tribunal [2012] 1 AC 663 : "Where there was a right of appeal, of course, an aggrieved party would be expected to use that rather than judicial review. Judicial review was always a remedy of last resort."

31. In R (Sivasubramaniam) v Wandsworth County Court [2003] 1WLR 475, Lord Phillips MR, at paragraph 47, referred to an "abundance of authority" supporting the proposition that permission to apply for judicial review of a decision of a court or tribunal should not be granted where there is a possibility of an appeal to a higher court pursuant to provisions of statute. After citing that authority, Lord Phillips said this (paragraph 47): "What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure, it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused."

32. An example of these principles applied to attempts to judicially review decisions of the Employment Tribunal can be seen in Riniker v Employment Tribunals and Regional Chairmen [2009] EWCA 1450: a case concerning costs consequences arising from an attempt to so.

33. Ms Kopec referred me today to the decision of the Court of Appeal in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445 . She relies upon this decision for the proposition that judicial review remains justified when an appeal process is inadequate to remedy fundamental procedural unfairness.

34. The judgment of the Court of Appeal in R (G) was given by Lord Phillips MR. He applied the principles in the Wandsworth County Court case that I have just cited (see at paragraphs 15 to 21 of the judgment). At paragraph 20 of R (G) , the Court held: "… Mr Fordham was correct to concede that, in principle, the court is right to consider whether an alternative remedy is proportionate when deciding whether to exercise its power of judicial review. The consideration of proportionality involves more than comparing the remedy with what is at stake in the litigation. Where Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law but also that, in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy."

35. At paragraph 21, the Court observed that in the Wandsworth County Court case, regard was had to the objects of the relevant provisions of the Access to Justice Act 1999 , viz avoiding a waste of judicial resources and ensuring the level of judge dealing with potential appeals was appropriate to the dispute.

36. These considerations appear to me to apply similarly in relation to the route of appeal to the Employment Appeal Tribunal provided for by section 21 Employment Tribunals Act 1996 . That statutory provision has the clear purpose of providing a route of appeal (limited to questions of law) from one specialist tribunal appeal to another at a higher level. Rather than judicial review, Parliament intended that appeals to the Employment Appeal Tribunal should be the route litigants adopt when challenging decisions of the Employment Tribunal.

37. The R(G) case recognises that judicial review might remain available where an alternative remedy does not provide a satisfactory safeguard. That was recognised, too, in the Wandsworth case, where reference was made to the possibility of an “exceptional case” arising when the statutory procedure is less satisfactory than judicial review (see paragraph 47 of Wandsworth ).

38. In my judgment, this is not an exceptional case. The appropriate route to challenge the Employment Tribunal, which the claimant should have taken in respect of the grounds now advanced by this court, was by way of appeal to the Employment Appeal Tribunal. As I have explained, appeals to the Employment Appeal Tribunal are not limited to appeals against final decisions. They can and frequently are advanced against interlocutory decisions, or other actions or inactions of the Tribunal. Points of law raised on such appeals can include alleged procedural failures, allegations of bias, allegations of breaches of natural justice or a contention that the right to a fair determination of the issues meeting the requirements of the common law and Article 6 of the European Convention of Human Rights has been breached. I do not accept that there is anything in the proposed judicial review that takes this case into any form of exceptional category rendering judicial review more convenient or that there is anything about the route of appeal to the Employment Appeal Tribunal which renders it unsatisfactory, or might give rise to concern that it provides an inadequate safeguard. The Employment Appeal Tribunal is a specialist tribunal established by statute, with expertise suited to its task of supervising and correcting errors of the Employment Tribunal. This covers the nature of the complaints raised here by the claimant, including whether, as a matter of substance, the Tribunal below afforded her a fair hearing. I do not agree that there is anything so systemic or complicated in this case that it would render it appropriate to proceed by way of judicial review rather than by way of appeal to the Employment Appeal Tribunal. The Employment Appeal Tribunal is well-equipped to deal with complaints of the type raised in this judicial review.

39. That, in my view, is a complete answer to the claimant's claim for judicial review and applies irrespective of the question of the claimant's knowledge of that alternative route. However, it is quite clear that the claimant was put on notice about the possibility of an appeal to the Employment Appeal Tribunal from at least the time she read Ellenbogen J's order; in other words well before the promulgation of the final judgment in her Tribunal case.

40. I am also of the view, in respect of the post-judgment applications, that the claimant had a viable alternative route open to her by making applications to the Tribunal, as Employment Judge Batty explained in his decision letters, notwithstanding that, as she told me today, she had lost trust in Judge Batty. She, of course, had an onward right of appeal from any determination on those applications to the Employment Appeal Tribunal. Those are plainly the more suitable routes for the claimant's concerns to be ventilated rather than by way of judicial review. Conclusions

41. For the above reasons, I refuse permission to apply for judicial review. That conclusion applies both to the claim as originally lodged and as now formulated in the proposed amendment.

42. For completeness, and for the same reasons, I refuse permission to amend the judicial review claim form. The claimant's other applications (for example, for expedition: see the application notice of 10 February 2025) fall away given my decision.

43. I should make clear that I reach these views without having formed a final view as to the substantive merits of the claimant's challenges to the Tribunal, in case Ms Kopec raises those issues before the Employment Appeal Tribunal. Were an appeal now to be brought before the Employment Appeal Tribunal it is likely to be regarded as out of time: see Rule 3 of the Employment Appeal Tribunal Rules 1993 (“EAT Rules”). However, it would be for the Employment Appeal Tribunal to consider whether time should be extended and whether any grounds presented to it disclose a reasonable basis for bringing an appeal. The claimant is referred to the EAT Rules and the Practice Direction of the Employment Appeal Tribunal 2024. _______ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected] 9