Martha v Donny

Watching 'Baby Reindeer' made me think that I might have met a couple of 'Marthas' or worked for a few 'Donnys' in the past.

Baby Reindeer.? If you are not familiar (really?), it’s a ‘true story’ TV drama about a struggling comedian who works in a pub and ends up being stalked by a regular.? Everyone is talking about it.? Most are of the opinion that the actions of the stalker (Martha) are unjustified and that the actions of the victim (Donny) are well meant, but sometimes unhelpful to his predicament.

There are parallels with this story, and the actions of the characters and what can sometimes happen in legal disputes between employees and their employers.

Over the last 25 years I have been involved with four or five cases that stand-out in my mind as being ‘Martha v Donny’ cases.? In all of them, the Claimant was unrepresented and alleged to have been discriminated against on the grounds of their mental health (although the one who was on the Jeremy Kyle show by the title of ‘My Mum is my Dad and my Dad is my Mum’ alleged discrimination on the grounds of him being a lesbian).

These cases all escalated out of a genuine dispute that the Claimants all ultimately lost however, along the way, some small technical victory inspired them to keep going.? In the first case of this sort that I worked on as a newly qualified solicitor in London, the Respondent had made an application for her claims to be struck out.? Such applications are granted only after serious consideration and therefore reasonably rarely, but they are worth making if not only to put pressure on a Claimant to consider their risks very carefully which can lead to an early settlement.

On this occasion, the Employment Judge declined to grant the Order, pointing out that there were ‘triable issues’.? This is not the same as saying that the Claimant’s case was a good one, far from it, but that’s not what the Claimant heard.? When she lost her claim, she appealed (fortified in the belief of her claim by the reference to the ‘triable issues’).? When she was given permission to appeal (which motivated her further) she made constant applications to make changes to her grounds of appeal.? These requests were refused and those decisions were ones she also appealed against.? And so it went on, with her becoming more and more absorbed in legal arguments about minute details that were satellite to the real one; was she the victim of discrimination by her employer? While she was arguing with the court and with us about who should pay for the costs of getting a transcript from a preliminary hearing about an issue to do with the rejection of an application to add a new ground of appeal etc, she was extending the life of the dispute.? For so long as she had not been found to be wrong, her belief that she was right could continue.

Similarly there was the case of the driver who was transitioning from a man to a woman, during the course of which he crashed his lorry and was suspended pending an investigation in to the facts.? While suspended the driver started a relationship with a lesbian woman and thus she (the driver) too identified as a lesbian woman.? Having been found wholly at fault for the damage to the very expensive HGV and dismissed as a consequence she brought multiple claims on the grounds of discrimination.

That case was ultimately struck out but only after three years of to and fro with the Claimant always calling in sick on the first day of every hearing that was ever listed.? The Claimant was very happy to argue with the lawyers and the court in correspondence but was never prepared to take the stand.? The Claimant defended our final attempt to have the case struck but was not present in court, due to being a driver on tour with the Rolling Stones.? Fortunately, the court agreed with us that the Claimant had failed in their duty to prosecute the case in a proportionate way and the claim was, finally, struck out.

Both of those cases were conducted some years ago, however the most recent one is still live.? The litigation began in 2016.? After one unsuccessful claim for discrimination and an unsuccessful appeal against the judgment, an employee brought a brand new claim against her employer (which was essentially a re-run of the first case).? However not long after the defence was submitted (applying for a strike out for being the same case as before, among other things) the company went into Administration and, effectively the Claimant had no one to sue.? She tried (and failed) to join the directors into the action, to sue them in their personal capacities and her latest action (as yet not yet determined) is to try to join the then insurance company to the claim on the basis that they would have paid out if liability were established (which has not been yet established).?

There is a sadness to this last case story, as I am sure there was in the others and as was the case in the sub-plot of 'Baby Reindeer'.? One of the directors who the Claimant had tried to join into the action had been quite friendly with her in times past, and knew she had a young son who must have been about 12 years old when this all began. ?While it is impossible to know what goes on in the lives of others, there has to be a high chance that the process had a great and negative effect on the Claimant’s already compromised mental health which must have been very hard on her son as well.

It is very difficult to bring these sorts of cases to an end.? The usual rules of commerciality only work when both parties recognise their risks relative to the other side’s, have a sense of proportion and a desire for the argument to end.? Usually an attempt to settle a case by making a commercial offer is seen as sensible, but in these cases either proves to the Claimant that the Respondent accepts its guilt or is seen as an attempt to squash them; making the matter harder to conclude.? Unqualified claimants who bring complex legal arguments tend not to be able to do it particularly efficiently either and when total vindication is the only acceptable outcome and while one is prepared to go to every length to try to secure it, cases go on and on.? Even unhelpful preliminary judgments and judicial warnings are seen as further evidence to support a solid, paranoid theory.

During such cases it is hard to empathise with the Claimant and it is easy to criticise the system for not having more power to bring them a quicker end.? However there are no changes planned that are likely to come into play anytime soon re legal aid or enhancing courts’ powers for summarily dismissing claims that make me think I won’t meet more ‘Martha v Donny’ cases in future.? However with an increase in awareness of the challenges of those with impaired mental health and the characteristics they display during litigation, we are ever better at working out ways to mitigate against the risks of engaging with them in litigation.

Jolyon Berry is a Director of Thompson Smith and Puxon. He leads the Employment Team and has over 25 years of experience working for companies and businesses