Ms Ezzahra AzaanounClaimantKier Limited & OthersRespondent
Before
Employment Judge Meichen, Mr E Stanley, Mr J ReevesMiss I Brown (instructed by counsel) for respondentDate 30 September 2024
JUDGMENT
[1]The claim is dismissed for the following reasons.[2]The final hearing in this case was due to start today at 10.30 am.[3]The claimant wrote to the tribunal (but not the respondent) at 10.23 am as follows: “I have tried to call you as requested by my barrister's clerk, it seems that she has not prepared anything and is not going to the hearing. I was asked to ask for more time for her to negotiate a settlement. I was discharged from hospital a couple of hours ago, I was given strong painkillers to help with ongoing health complications that I had recently and I would like for the hearing to be postponed as a reasonable adjustment, I will send medical records to explain this once I obtain them, I have tried to call the tribunal to make you aware of as soon as I could this but the line busy. I am sorry for the inconvenience, I was looking forward to the resolving this matter.”[4]The panel considered that this email disclosed no adequate reason to postpone the hearing, particularly because the application to postpone was put on medical grounds but the claimant did not provide any medical or supporting evidence. The panel further considered that as the claimant had said she had tried to call the tribunal she could access the video link to join the hearing.[5]The Employment Judge wrote to the claimant at approximately 10.40 am as follows: 1 of 3 "Any application to the tribunal must be copied to the respondent. Any application to postpone on medical grounds should be accompanied by medical evidence. The claimant should join the video hearing and the situation can be discussed. We will delay the start time of the hearing until 11 am to allow the claimant to join."[6]The claimant did not respond to that email and she did not join the hearing at 11 am.[7]Shortly after 11 am the tribunal clerk attempted to contact the claimant by phone. The number the tribunal had for the claimant did not connect. The tribunal asked the respondent if they had an alternative contact number to contact the claimant. They did not.[8]The panel decided to give the claimant a final chance. At approximately 11.16 am the Employment Judge wrote to the claimant as follows: "The claimant has not joined the hearing at 11 am as directed and has not responded to the tribunal's email. The tribunal has also attempted to contact the claimant by phone without success. For the avoidance of doubt the claimant's application to postpone has been refused because of a lack of supporting medical evidence, although the panel has indicated a willingness to discuss the issues which may be affecting the claimant. If the claimant has not joined the hearing by 11.30 the tribunal will consider proceeding in her absence, including considering the strike out application."[9]The grounds for the respondent’s strike out application included that the claimant had provided her witness statement very late (around 1 pm the working day before the hearing) and that it was very brief and did not address the allegations in her claim. We had already read the claimant’s statement. It did not provide sufficient evidence in support of any of her claims.[10]The claimant did not respond to the tribunal’s second email and she did not join the hearing at 11.30 am.[11]The panel decided to start the hearing because we considered we had waited long enough and done our best to contact the claimant. The hearing started at 11.33 am. The respondent invited the panel to determine the strike out application or dismiss the claim under Rule 47.[12]Rule 47 provides as follows: Non-attendance If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence. 2 of 3[13]The panel decided to dismiss the claim under Rule 47. We considered the only information available to us about the claimant’s absence which was her email sent at 10.23 am. We had already decided that did not contain any adequate reason to postpone and we had communicated that to the claimant.[14]The reasoning also appeared incomplete and/or unclear because:14.1 The claimant had not previously indicated that she was to be represented at this hearing.14.2 We understand the claimant had been, briefly, represented by a barrister but he was male.14.3 If a barrister had been instructed why would she not have prepared?14.4 The email suggested the claimant had been admitted into hospital but she had been communicating with the tribunal the working day before the hearing and had not explained anything about when and why she had been admitted.14.5 The claimant did not specify the health problems she had been experiencing or explain why she needed a postponement as a reasonable adjustment.14.6 Why would the claimant be discharged from hospital first thing in the morning (i.e. a coupe of hours before 10 am)?14.7 Why could the claimant not join the video hearing if she was well enough to phone the tribunal, at least to explain the situation?[15]We considered that the reasons available for the claimant’s absence were wholly inadequate.[16]We further considered that we had done all we could reasonably be expected to do to contact the claimant. She had apparently ignored our emails. We had waited over an hour for the claimant to respond.[17]In these circumstances we decided it was just, fair and proportionate to dismiss the claim under Rule 47.[18]By the time the hearing concluded it was around 12.30 pm. The claimant had still not attempted to join the hearing or respond to our emails. ____________ RECONSIDERATION JUDGMENT The claimant’s application for reconsideration is refused because there is no reasonable prospect of the original decision being varied or revoked.
REASONS
[1]This case was listed for final hearing to start on 30 September 2024. The hearing was listed for 4 days to take place by video. The claimant failed to attend the hearing following the refusal of her postponement application. The respondent made an application for the claim to be dismissed under Rule 47 of the tribunal’s rules of procedure. The tribunal acceded to that application.[2]The circumstances surrounding the claimant’s non-attendance and our reasons for dismissing the claim are set out in the tribunal’s judgment and reasons dated 30 September 2024.
Law
[3]Rule 68 of the tribunal’s rules of procedure provides as follows: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.”[4]Rule 69 sets out the procedure for applying for reconsideration. It includes that any reconsideration application shall set out why reconsideration of the original decision is necessary.[5]Rule 70(2) then provides as follows: “If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the 1 of 7 application must be refused and the Tribunal must inform the parties of the refusal”.[6]When dealing with the question of reconsideration I must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ (Rule 2). This includes:a. ensuring that the parties are on an equal footingb. dealing with cases in ways which are proportionate to the complexity and importance of the issuesc. avoiding unnecessary formality and seeking flexibility in the proceedingsd. avoiding delay, so far as compatible with proper consideration of the issues; ande. saving expense.[7]I should also be guided by the common law principles of natural justice and fairness. This would include the importance of finality in litigation.[8]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, Her Honour Judge Eady QC explained that the wording ‘necessary in the interests of justice’ allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially; “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.[9]Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. It is incumbent on the party applying for reconsideration to explain why the new evidence was not produced beforehand and why it is now in the interests of justice to consider that evidence.[10]The principles to be applied in this scenario come from the case of Ladd v Marshall 1954 3 All ER 745, CA. In summary, it is necessary to show:a. that the evidence could not have been obtained with reasonable diligence for use at the original hearing,b. that the evidence is relevant and would probably have had an important influence on the hearing; andc. that the evidence is apparently credible.[11]The EAT has confirmed that the tribunal should refuse an application for reconsideration unless the new evidence is likely to have an important bearing on the result of the case (Wileman v Minilec Engineering Ltd 1988 ICR 318, EAT). 2 of 7[12]The EAT in Outasight also held that the interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not have been obtained with reasonable diligence at an earlier stage. This might apply where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment. However, it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight to provide all the evidence available in support of their cases at the original hearing.
Findings
[13]The tribunal set out the correspondence we had with the claimant and the attempts we made to get her to join the hearing in our judgment dated 30 September 2024. The next thing which happened after the hearing was that on 7 October 2024 the claimant wrote to the tribunal as follows: “I am attaching some of the medical reports/notes which I have, others will take a while to arrive. I also attach the wrist bands which given to me in my recent visits to the hospital, which are red, due to ongoing chest problems. I did not copy the defendant because the attached documents contain my hospital number and my NHS number, which I do not trust them with. After all, they have caused me all this migraine and chest pain, to a point I almost passed out a couple of weeks ago, hence why I had to visit A&E, after which I had to see my GP a few days later as it was not getting any better. Moreover, I had to go to hospital at least 3 times in the past 4 or 5 weeks. In my last visit, I was kept in the hospital all night, for ECG, blood test and various other tests, so I did not sleep then I was given strong painkillers, in the morning, which made me very drowsy, dizzy and unable to do anything.”[14]This email came with 4 attachments. It was not copied to the respondent.[15]The attachments included a sick note showing that the claimant had been assessed as not fit for work on 25 September until 2 October due to migraine. This sick note looks to have been provided by a GP.[16]There was also a letter from a hospital showing that the claimant had attended A & E on 30 September at 01:27. The claimant’s complaint was “generalised weakness”. The diagnosis was “probable infectious gastroenteritis”. The claimant was discharged home. The letter does not clarify the time of the claimant’s discharge (but in her email to the tribunal sent at 10.23 am on 30 September the claimant said she had been discharged from hospital a couple of hours ago).[17]The hospital letter does not support the claimant’s claim that she had been given “strong painkillers” at the hospital. According to the hospital letter the concerns which the claimant had were diarrhoea and haemorrhoids. The only medication mentioned is Imodium and haemorrhoid cream. 3 of 7[18]The hospital letter also does not support the claimant’s claims that she had been experiencing migraine, chest pain or chest problems. None of those issues are mentioned at all in the letter.[19]The hospital letter also does not support the claimant’s claim that she left the hospital drowsy, dizzy and unable to do anything. The discharge notes suggest that the physical examination carried out on the claimant revealed no concerns (“small haemorrhoid externally… no bleeding and not engorged”) and her blood tests were all normal. There is no mention of the symptoms of drowsiness etc as described by the claimant.[20]The final attachment to this email was some red wristbands which indicate that the claimant was admitted to hospital. However there is no date on them and no information as to what the claimant’s condition which necessitated her admission to hospital. Although it is vague the claimant’s suggestion appears to be that the wristbands are from her hospital admission on 30 September and the fact that they are red shows that she was admitted with chest pain. The wristbands are undated so do not assist with showing when the claimant attended hospital. The suggestion that the claimant attended with chest pain is not supported by the hospital letter which, as I have mentioned, does not mention chest pain at all.[21]The tribunal clerk sent the parties a copy of the tribunal’s judgment on 9 October.[22]On 23 October the claimant wrote to the tribunal as follows: “I understand that there are many deadlines that I would have to comply with, and today is the deadline for the reconsideration. I would like my previous email to be treated as reasons for reconsideration, I am still undergoing treatments and continue to have health issues, this time I was only provided attendance letters and no explanation, as I would have to request this from a different department. The case is based on discrimination due to disability, and I have provided evidence for ongoing health problems. The email you sent me says that the tribunal was willing to make reasonable adjustments but did not, although I was not able to join because I was unwell and was given in the hospital strong medication to help with the pain and the health issue that I was suffering from. I have had to seek medical help again at the hospital, as seen attached, I am still not feeling well.”[23]This email was again not copied to the respondent. Nevertheless, I am going to deal with the claimant’s application on its merits even though she has been specifically told by me previously that she must copy any application she makes to the respondent. 4 of 7[24]There were two attachments to the email, which showed that the claimant had attended hospital on 18 October 2024 for 13 minutes for emergency treatment. Neither the reason for the hospital attendance nor the treatment the claimant received during her very brief visit is explained in the documents.[25]In her reconsideration application the claimant has not taken the opportunity to address the concerns the tribunal had about the incomplete and unclear information the claimant had provided on the morning of 30 September (see paragraph 14 of our judgment of 30 September). The alleged issue with her barrister, which had been the first thing the claimant mentioned when she wrote to the tribunal on 30 September, is not mentioned at all and the claimant has not provided any evidence to try and explain that. Furthermore, the claimant has not attempted to explain why she did not respond to the tribunal’s emails and requests for her to join the hearing on 30 September. As we said in our original judgment it appeared that the claimant had ignored our emails refusing the postponement request and requiring her to attend. The clamant has not explained why, after her postponement application was refused, nothing was heard from her until 7 October.[26]I was forwarded the claimant’s reconsideration application on 24 October 2024. Unfortunately I was off sick between mid November 2024 and early January 2025. This explains the delay in responding to the claimant’s application.
Conclusions
[27]There is no reasonable prospect of the original decision being varied or revoked because:a. The sick note dated 25 September could have been provided to the tribunal in time for the hearing on 30 September. If it was relevant, the claimant has not explained why she did not produce it earlier.b. The claimant did not inform the tribunal that she was suffering from a migraine or that this would prevent her attending the hearing. She did not even mention migraine in her email to the tribunal on the morning of 30 September. Presumably the claimant would have let the tribunal know if the migraine she consulted her doctor about on 25 September would prevent her attending the hearing.c. The sick note says the claimant is unfit for work for 7 days. It does not evidence that the claimant was too ill to attend the video hearing on 30 September.d. The hospital letter does not establish that the claimant was too ill to attend the video hearing on 30 September. As explained above the information contained in the hospital letter in fact appears to indicate that the claimant’s condition was different and less serious than what she has suggested to the tribunal.e. Since they are undated and do not provide any information about the claimant’s condition the red wristbands do not assist with demonstrating that the claimant had a good reason not to attend the video hearing on 30 September. 5 of 7f. The evidence showing the claimant attended hospital on 18 October does not assist with demonstrating that the claimant had a good reason not to attend the video hearing on 30 September as it postdates the hearing. I acknowledge that the evidence does support the claimant’s case that she has a number of ongoing health concerns. This is further supported by the fact that the hospital letter records that the claimant had attended the hospital on 19 previous occasions, and 9 occasions in the last year. The tribunal was aware of the claimant’s health issues when we made our decision. However the crucial point was that the claimant had failed to provide an adequate explanation as to why she could not attend the hearing on 30 September. In my view that remains the position.g. In my view the further information provided by the claimant does not clarify the reasons why she did not attend the hearing on 30 September, in fact it confuses the matter further and gives the impression that the claimant has not been straightforward with the tribunal (particularly in light of the discrepancies between what the claimant has told the tribunal and what is contained in the hospital letter). The claimant has now had several opportunities to explain why she could not attend the hearing but the picture in my judgement remains unclear. d. In the above circumstances the new evidence which the claimant seeks to rely on could have been obtained earlier, is not relevant, undermines the credibility of the claimant’s position and/or would not have had an important influence on the hearing.h. The claimant has not explained why she did not join the video hearing once her postponement application was refused, or why she did not respond to the tribunal’s emails asking her to join.i. The claimant has now had nearly 4 months to provide medical evidence to explain her non-attendance at the hearing on 30 September. However the evidence provided falls very short of what would be required for the tribunal to be satisfied that the claimant had a good medical reason for her nonattendance and therefore the hearing should have been postponed. For example there is still no statement from a medical practitioner that in their opinion the claimant was unfit to attend the video hearing and there is no prognosis of the claimant’s condition. There is no clarification of the nature of the condition which allegedly prevented the claimant from attending on 30 September and no explanation as to why a reasonable adjustment of postponing the hearing was required. In my judgement there is no cogent evidence from which the tribunal could conclude that the hearing should have been postponed as a reasonable adjustment instead of taking the course we did.j. Finally, there are two matters of relevant context. The first is that this was a video hearing which the claimant could have joined from home in circumstances where she says she had been well enough to contact the tribunal by phone. It is just as easy to join a video hearing as it is to make a phone call. The tribunal had indicated a willingness to discuss the issues which may have been affecting the claimant. I have not seen anything which explains why the claimant could not join the hearing to explain the situation and the tribunal could, if necessary, have made adjustments to ensure the hearing could proceed fairly. Once her postponement application had been 6 of 7 refused it was incumbent on the claimant to join the hearing and engage with the tribunal about how to proceed.k. The second matter of relevant context is that as we mentioned in our original decision the claimant had only provided her witness statement the working day before the hearing, it was very brief, it did not address the allegations in the claim and it did not provide sufficient evidence in support of any of her claims. It is virtually impossible to see how the claim could have succeeded in reliance on this statement.[28]For the above reasons reconsideration is not necessary in the interests of justice. In my judgment reconsideration would not be compatible with the overriding objective. It would be disproportionate and cause unnecessary delay and expense. It would be unfair to the respondent who has already prepared for and attended the final hearing which the claimant failed to attend for reasons which remain opaque. In the circumstances set out above there is a strong public interest in favour of finality of litigation.[29]Accordingly the claimant’s application for reconsideration is refused.