Mrs S Monaghan v Unison West Midlands Community Branch and others: 1308175/2023
EMPLOYMENT TRIBUNALS
Case No 1308175/2023
Between
Mrs S MonaghanClaimant(1) Unison West Midlands Community Branch (2) Unison (a trade union) (3) Money Advice TrustRespondent
Before
Employment Judge FaulknerDate 25 April 2025
JUDGMENT
[1]The claims for arrears of holiday pay and arrears of pay are dismissed on withdrawal. Employment Judge Clarke 30 July 2024 Case Number: 1308175/2023 EMPLOYMENT TRIBUNALS Claimant: Mrs Sarah Monaghan Respondent: Unison West Midlands Community Branch Heard at: Birmingham On: 25 April 2025 Before: Employment Judge Wedderspoon Appearances For the claimant: No attendance For the respondent: Ms. C. Ibbotson, counsel The claimant’s claim is struck out.[2]The DRA listed for 6 May 2025 is vacated.[3]The final hearing listed for week commencing 7 July 2025 is struck out.
REASONS
[1]The Tribunal notified the parties of the hearing today on 18 March 2025 to consider the respondent’s strike out application and case management. The claimant did not attend. There had been no communication from the claimant since 25 February 2025. The Tribunal clerk telephoned the claimant; but the call rang out and the clerk left a voicemail message about today’s hearing. Additionally the Tribunal clerk emailed the claimant today about the hearing. There was no response from the claimant.[2]The Tribunal determined in the interests of justice and pursuant to the overriding objective with particular regard to a DRA listed for 6 May 2025 and a final hearing listed in July 2025 that the hearing should proceed.[3]The Tribunal was provided with an electronic bundle of documents of 223 pages. Background Case Number: 1308175/2023
Background
[4]By claim form dated 28 November 2023, the claimant pursues complaints of ordinary and automatic (whistleblowing) unfair dismissal; disability discrimination (failure to make reasonable adjustments); direct sex discrimination; wrongful dismissal and public interest disclosure detriment.[5]This case has been subject to significant case management. On 30 July 2024 Judge Clarke made directions and listed the case for a final hearing commencing on 7 July 2025. Judge Clarke had ordered the claimant to provide a schedule of loss by 10 September 2024 and ordered the parties to exchange lists and copies of documents by 8 October 2024.[6]On 10 October 2024 REJ Jones varied the case management orders and extended time for compliance; the claimant was given until 14 November 2024 to provide a schedule of loss and parties were ordered to complete disclosure by 14 November 2024.[7]The case came before me on 12 of December 2024 when it was agreed by the parties, that the claimant would confirm by 14 February 2025 whether she wished to withdraw her claim against the respondent. In the alternative the claimant was given until 21 of February to provide a schedule of loss and to provide a list of documentation. The claimant explained at that time she had some ill health which has inhibited her compliance with some of the orders. She was awaiting some treatment and was confident with a new lens her health would improve and she could be able to participate in case preparation.[8]On 14 February 2025 the claimant confirmed that she did not wish to withdraw her claim.[9]On 21 February 2025 the claimant sent an e-mail attaching a schedule of loss and a list of documents. The schedule of loss was incomplete because it failed to identify the amount of injury to feelings the claimant pursues and the sum total of her unfair dismissal compensation. Her schedule of loss states “I have drafted a basic schedule as I have not been able to research the topic areas because of illness and have only in the last few days been able to view in small amounts the paper and electronic paperwork..”[10]The list of documents provided, were noted by the claimant to be “unreadable”. The claimant stated in her email dated 21 February 2025 “List of documents (order-incomplete more time required – disability related)”. The judge having perused the document today notes that the list document appears to be corrupted and there are no documents at all listed. The respondent provided its disclosure to the claimant on 14 of November 2024.[11]The claimant having stated that she was having some difficulty complying with the unless order, By my order I extended compliance with the orders until 25 of March 2025. This represented an extension of time from the original deadlines of Judge Clarke as over 7 months extension for the schedule of loss and over 6 months extension for the disclosure of documents.[12]There has been no correspondence from the claimant since 25 of February 2025 when the claimant stated that the order for the “list (disclosure) visibility is still being addressed”. The claimant stated she had identified the issue which is a Case Number: 1308175/2023 “ formatting error in a data.. it was from a different source causing conflicts”. The claimant stated in that e-mail that she would provide the respondent by the end of February 2025 the full list of data that she holds. The claimant did not. Submissions[13]The respondent submitted today that there has been no material compliance with the unless order and the claim should be struck out. The respondent submitted it was unlikely that this case would be ready for the trial window in July 2025 because no further steps of trial preparation have been taken by the claimant to prepare for the final hearing. The schedule of loss remains incomplete as does the claimant’s disclosure so that a bundle of documentation has not been agreed and witness statements have not been prepared. A dispute resolution appointment has been fixed for 6 of May 2025. Directions for that hearing have not been complied with by reason of the claimant’s breaches including the lodging of position statements.[14]It was submitted the claimant accepted on serving her schedule of loss that she had drafted a basic schedule (see email dated 21 February 2025) “as I have not being able to research the topic areas because of illness and have only in the last few days been able to view in small amounts of the paper and electronic paperwork”. However on 21 of February 2025. Eight weeks later at today's date there has been no further information received by the claimant about her schedule of loss. Further the respondent notes the claimant has not provided any medical evidence to substantiate her assertion that she is unable to participate with case management orders. Although contained within the schedule of loss there are some losses identified as wages; it remains an incomplete document in breach of the unless order.[15]The respondent referred to the fact that the claim was presented in November 2023. The tribunal had extended dates for compliance of case management order and extended the dates for compliance with the unless orders. The claimant has not even not attended the preliminary hearing today and there has just been silence from the claimant since 25 of February 2025.[16]The respondent referred to the decision of Minnoch v Interserve FM Limited 2023 EAT 35. The respondent submitted that there was no ambiguity in the drafting of the unless order. The claimant has not materially complied with that unless order and her claim should therefore be struck out. The claimant has not cooperated by sending a full schedule of loss and the document list is unreadable and unworkable. The respondent continues to incur costs in defending this litigation with the claimant not engaging or participating in the progress of her claim. It is unclear as the reason for the claimant’s default although it may be suggested by the claimant this was ill health in previous correspondence there is no medical evidence to support that. It cannot be said at this particular time that a fair trial is not possible at some stage because witnesses are still available but the July date 2025 is at risk. In the absence of disclosure of the claimant’s documents a final hearing is unlikely to be able to take place in the trial window. The Law Case Number: 1308175/2023
The Law
[17]HHJ Tayler in Minnoch v Interserve FM Limited (2023) EAT 35 provided useful guidance in dealing with unless orders. Judge Tayler stressed the draconian consequence of material non-compliance of unless orders. He further described there was a broad consideration in terms of what is in the interests of justice. Before operating the draconian consequences of an unless order the tribunal should take into account the following(a) the reason for the default in particular whether it was deliberate;(b) the seriousness of the default(c) the prejudice to the other party(d) whether a fair trial remains possible and(e) each case will depend on its own facts.[18]In terms of the general principles applicable to strike outs HHJ Tayler in the case of Smith v Tesco 2023 EAT 11 directed that great care should be taken before striking out a claim. It will be in inappropriate to strike out the whole claim if there is some proportionate sanction that may for example limit the claim or strike out only those claims that are misconceived or cannot be tried fairly.[19]In the case of Emuemukoro v Croma Vigilant Scotland Limited 2022 Mr Justice Chaudhry made a very important point about what constitutes a fair trial. He stated at paragraph 19 “I do not accept Mr. Kohanzad’s proposition that the power can only be triggered where a fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in arrow nominees (2000) 2 bclc 167 .. These include as I have already mentioned the undo expenditure of time and money; the demands of other litigants; and the finite resource is of the court. These are factors which are consistent with taking into account the overriding objective. If Mr. Kohanzad’s proposition were correct then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgement the question of fairness in this context is not confined to that issue alone or be it that it is an important one to take into account. It would almost always be possible to have a trial on the of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delaying costs for the other parties. However it would clearly be inconsistent with the notion of fairness generally and the overriding objective if the fairness question had to be considered without regard to such matters.”
Conclusions
[20]The claimant did not attend the preliminary hearing today. The parties were notified about the hearing on 18 March 2025. The tribunal clerk contacted the claimant prior to the commencement of the hearing by telephone; the phone rang out and the clerk left a voicemail message and also emailed the claimant to remind her about today's hearing. The claimant has not sent any explanations to why she has failed to attend today.[21]Judge Clarke at the preliminary hearing on 30 July 2024, ordered the claimant to provide a schedule of loss on 10 September 2024 and provided that documents should be exchanged by list and copies by 8 October 2024.[22]REJ Jones varied case management orders on 10 October 2024 extending the time to provide a schedule of loss to 14 November 2024 and disclosure to 14 Case Number: 1308175/2023 November 2024 . The respondent complied with its duty of disclosure 14 November 2024. The claimant did not.[23]At a further hearing on 12 December 2024 the claimant indicated she was considering withdrawing her complaints and asked until 14 February 2025 to confirm whether she wished to withdraw her claims against the respondent. Furthermore time was extended to provide a schedule of loss and disclosure by 21 February 2025. It was noted in Judge Wedderspoon’s order at paragraph 6 that the claimant had previously informed REJ Jones that she had PTSD and ME but did not consider the PTSD existed anymore or that it impeded her preparation for case. However, the claimant referred to the fact that she had developed neurological conditions including migraines and dry eye syndrome which affected her visual processing and processing of information. She thought at that stage by one month with anticipated treatment (by January 2025) she would be in a position health wise to participate in the preparation of her case or she would withdraw her claim.[24]The claimant has made some effort to prepare her schedule of loss (see page 212). On submitting the document, the claimant accepted “I have drafted a basic schedule as I have not been able to research the topic areas because of illness and have only in the last few days been able to view in small amounts the paper and electronic paperwork”. The claimant submitted the document on 21 February 2025. Noting the claimant’s explanation accompanying the document, Judge Wedderspoon extended the order for compliance on 18 March 2025 to 25 March 2025. However there has been no further update from the claimant. What remains unclear is how the claimant values her injury to feelings award in respect of her detriment complaints and discrimination complaints or indeed the sum total of her unfair dismissal complaint.[25]The Tribunal determines that there has not been a material compliance with the unless order to provide a schedule of loss. The tribunal takes into account that the claimant is a litigant in person (although has previously suggested she would seek to use a solicitor to assist her with her schedule of loss preparation) and has suffered some ill health (but has not provided medical evidence to support this). However, an incomplete schedule of loss is a material non-compliance of the unless order. Although ultimately it could mean the case could proceed to final hearing as a liability only hearing with remedy being postponed to another date if the claimant is successful; the absence of a schedule of loss does affect the respondent’s litigation strategy; a party is entitled to know the case it needs to meet at trial and its value so that it may take appropriate litigation steps which could include settlement or continued defence of the claim.[26]The claimant has explained on 21 February that due to illness she hadn't been able to research the topic areas. The tribunal is sympathetic to that assertion but it is unsupported by any medical material. Furthermore the tribunal having extended the order to 25 of March 2025 has had no response from the claimant at all in correspondence and the claimant has failed to attend the preliminary hearing to discuss this matter.[27]The respondent is prejudiced by the failure to provide a complete schedule of loss because as stated it cannot be fully informed so to develop a litigation strategy. Although it cannot be said a fair trial is not possible at all, it does mean Case Number: 1308175/2023 that the dispute resolution appointment fix ed for 6 of May will have to be postponed. This has consequences for other cases in the list; costs to the respondent; impacts the finite resources of the tribunal and affects other litigants who seek to conscientiously pursue their claims before the tribunal.[28]The tribunal has viewed the document sent by the claimant on 21 of February 2025 which purports to be disclosure. The claimant introduced the attached in her email document as being “unreadable and the settings need to be addressed”. This document appears to be corrupted does not come anywhere close to being a list of disclosure which parties can identify any relevant documents. This has a significant consequence in trial preparation of the trial bundle and witness statement evidence. The tribunal had extended the order for compliance with the unless order in this regard to 25 of March 2025 but the claimant has not provided a further disclosure document or sought to attend and engage today to explain why she has failed to send a disclosure list since or when she might be able to do so.[29]Although it is unclear as to why the claimant has defaulted in this way it is a serious default which does indeed prejudice the respondent who is unable to complete its trial preparation and it impacts on the probabilities of a final hearing taking place in the trial window.[30]The nature of the claims brought by this claimant as identified by Judge Clarke include automatic unfair whistle blowing; protected disclosure detriment; direct sex discrimination; failing to make reasonable adjustments and victimisation. Discrimination claims are fact sensitive and therefore it is a preference for such claims be heard expediently.[31]The tribunal has reviewed the orders in this case and notes that extensions were provided on 10 of October 2024 for compliance with case management orders which were breached by the claimant. Further time was given to the claimant to comply with the schedule of loss and list of documents to 21 of February 2025; there has been partial compliance with the schedule of loss but no compliance with disclosure. The compliance with the unless order was extended again to 25 of March 2025. The claimant has not been in contact with the respondents or the tribunal since 25 of February 2025 when she stated that the order of the list for disclosure was being addressed. The claimant has not communicated further with the tribunal or explained why she is not attending today despite the efforts of the tribunal clerk to contact the claimant by telephone and e-mail; she has not joined the hearing.[32]The overriding objective contained in the 2024 Employment Tribunal rules is to enable employment tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes so far as practicable –(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay so far is compatible with proper consideration of the issues; Case Number: 1308175/2023(e) saving expense.[33]It is also important to note that the parties and their representatives shall assist the tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the tribunal.[34]The tribunal takes into account that striking out a claim is indeed a draconian consequence for a material non-compliance of an unless order. Pursuant to the interests of justice cases ought to be heard fully but they ought to be heard within a reasonable period of time and within the trial window fixed. The respondent continues to spend time and money in defending these claims. There are demands of other litigants in the system who wish for their cases to be heard. There are finite resources of the tribunal.[35]The tribunal determined that there has been a material breach of the unless order in terms of both the schedule of loss and disclosure. The impact of the failure to provide a full schedule of loss affects the respondent’s ability to devise a litigation strategy which a party to litigation can genuinely expect.[36]The failure to comply with a disclosure order significantly impacts the trial preparation and places the respondent at significant prejudice. It is unlikely that trial preparation is possible for the final hearing to take place within the trial window in July 2025. There has been no compliance for the directions for the DRA listed for 6 May 2025 because the appropriate trial preparation is incomplete as a consequence of the failure of the claimant to provide disclosure. There is significant prejudice to the respondent who is not being put on an equal footing to the claimant; the respondent has complied with its disclosure obligations; the claimant has not, despite extensions of time for compliance.[37]The Tribunal determined in the interests of justice the claim will be struck out for non-compliance with the unless order on 12 December 2024 (extended to 25 March 2025).[38]In the circumstances the dispute resolution appointment listed for the 6th of May and the final hearing listed for week commencing 7 July 2025 are also vacated.