Mrs T Hussain v Dunrobin Street Medical Centre and Others: 1303174/2024
JUDGMENT
The claimant’s direct race and religious discrimination claim against the respondent are dismissed following a withdrawal by the claimant. The claimant’s remaining claim(s) will proceed to a final hearing on 20 June- 8 July 2025. _____________________________ Employment Judge Hena 12 August 2024 Case Number: 1303174/2024 PHCM Order 1 of 3 September 2023 EMPLOYMENT TRIBUNALS Claimant: Mrs T Hussain Respondent: Dunrobin Street Medical Centre(1) Dr N Arepali(2) Mr D Shikotra(3) Heard at: Birmingham (in public; by video) On: 8 May 2025 Before: Employment Judge V Jones Appearances For the claimant: Ms S Yaqoob, lay representative For the respondents: Mr B Hendley, consultant DECISION AT A PRELIMINARY HEARING[1]The respondent’s application to strike out the claimant’s claim under rule 38 Employment Tribunal Rules 2024 is dismissed.REASONS
[1]At a preliminary hearing on 5 December 2024 Employment Judge Perry made case management orders for the future conduct of the case. The claimant failed to comply with those orders and on 21 February 2025 the respondents applied for an “unless order” (under rule 39(1) of the Employment Tribunal Rules of Procedure 2024) requiring the claimant to provide the outstanding information and documents or have her claim struck out. The respondents repeated that application by email dated 11 March 2025 having received no response from the tribunal. The tribunal wrote to the claimant’s representative on 24 March 2025 inviting her comments. Ms Yaqoob responded on 10 April apologising for the failure to comply with orders by the due dates, stating that she would reply to the respondents’ email that day and requesting new dates which she said would be complied with.[2]On 10 April 2025 the respondents applied for the claimant’s claim to be struck out as she had not responded to the tribunal’s letter of 24 March nor to date complied with any of the case management orders made by EJ Perry. The claimant did not appear to be actively pursuing her claim. This preliminary hearing (in public) was fixed to determine that application. Case Number: 1303174/2024 PHCM Order 2 of 3 September 2023[3]Since the respondents’ application was made, the claimant has provided a schedule of loss (pp102-3 of the bundle).[4]I heard submissions from Mr Hendley for the respondents and from Ms Yaqoob for the claimant.[5]It was not in dispute that the claimant has not complied with the following orders: By 16 December 2024(i) identify the legal obligations relied on for her Protected Disclosure claim;(ii) provide copies of all medical notes, reports and other evidence that is/are relevant to whether the claimant is a person with a disability By 7 February 2025(iii) provide an indexed set of copies of all relevant documents that are or have been in the claimant’s control to include not only those that support the claimant but also those that support her opponents’ case Because of the claimant’s failure to provide further information about her claim the respondents have been unable to comply with the orders for them to file an amended response, prepare an agreed bundle of documents and file witness statements (due to be exchanged by 28 March 2025).[6]Mr Hendley submitted that there have been two preliminary hearings in this case since when the only progress has been the claimant’s compliance with an order to serve an impact statement and (shortly before this hearing) an order to file a schedule of loss, albeit late. A dispute resolution appointment listed for today has had to be postponed because the parties are not ready, and it will not be possible to prepare the case fully in time for the commencement of the final hearing on 30 June 2025. He asked for the claim to be struck out under rule 38(c) and (d) on the grounds of serious non-compliance and the claimant’s failure actively to pursue her claim.[7]For the claimant Ms Yaqoob apologised unreservedly to the respondents and the tribunal for the failure to comply with tribunal orders. She said the fault lay entirely with her and not with the claimant, who has complied fully with all her requests for information. At the time of the hearing before EJ Perry Ms Yaqoob explained that her father was terminally ill and this was recorded in the Order of 16 December 2024. Ms Yaqoob has recently provided a letter to the respondent and tribunal (p112) explaining her situation. She is her father’s primary carer and she has struggled with the sudden and drastic deterioration in his health. This, together with having to battle with the NHS for the treatment he needs has impacted her ability to assist the claimant. Ms Yaqoob accepted she had not dealt well with this matter. The claimant has relied on her to produce and submit documents on her behalf but Ms Yaqoob has not been responsive to her. Ms Yaqoob submitted none of this is the claimant’s fault and she should not be penalised for it. Ms Yaqoob has made arrangements to fly to Pakistan with her Case Number: 1303174/2024 PHCM Order 3 of 3 September 2023 father next week for him to have surgery. She has explained to the claimant that she can no longer represent her.[8]Ms Yaqoob submitted that a fair hearing is still possible. The claimant has found new employment with commensurate pay and has mitigated her loss. The claimant is ready and willing to exchange her medical evidence and documents by tomorrow and to represent herself going forward. Ms Yaqoob said she is willing to spend time with the claimant this afternoon to assist her with this.Conclusions
[9]Having heard the parties’ submissions and having had regard to all the circumstances, I concluded it would not be proportionate to strike out the claim. I accept the responsibility for the non-compliance lies entirely with the claimant’s representative and until recently the claimant believed Ms Yaqoob was progressing the case on her behalf. She has cooperated fully with her representative. The claimant is willing and able to represent herself going forward and is in a position to serve her medical records and list of documents on the respondents. While it will not now be possible for the parties to prepare the case in time for the hearing scheduled for 30 June 2025, the parties confirmed their availability to attend a postponed hearing between 5 and 13 January 2026. I do not consider that this 6-month delay will cause significant prejudice to the respondent or render a fair hearing not possible. In those circumstances I find it would be disproportionate to strike out the claimant’s claims.[10]I do however consider it appropriate to make an Unless Order under rule 39(1) of the Employment Tribunal Rules of Procedure, requiring the claimant to comply with the orders to serve her medical records and list and copy documents on the respondent within 7 days of this hearing. That Order is being sent to the parties separately. With the agreement of the parties I have also made case management orders rescheduling the dates for compliance with the remaining outstanding orders. Those are set out in a separate case management order. Approved by EJ V Jones Date 13 May 2025