Mrs M Begum v SKP Cleaning and Caring Services Ltd: 1309071/2020
EMPLOYMENT TRIBUNALS
Case No 1309071/2020
Between
Mrs M BegumClaimantSKP Cleaning and Caring Services Ltd RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge ChoudryIn person for claimantDate 9 August 2022
JUDGMENT
(1) The claimant’s claims for disability discrimination and arrears of pay are struck out.(2) The claimant’s claim for unfair dismissal will proceed based upon the information provided to date.
REASONS
(1) This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was via video. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. Strike out application(2) The claimant was employed by the respondent, a company providing a range of home support and domestic care services to clients in the West Midlands and Greater London regions, latterly as a cleaner, from 1 February 2018 until 1 of 11 dismissal with effect on 15 May 2020. By a claim form presented on 14 September 2020, following a period of early conciliation from 16 July 2020 to 14 August 2020, the claimant brought complaints of unfair dismissal, disability discrimination and arrears of pay. The claimant asserts that she is disabled by reason of depression. The claimant asserts that she was dismissed as she was absent from work on 8 April 2021. She also states that her line manager told her that her mental health problems were “all in her head”. The respondent’s defence is that the claimant was employed as a cleaner and support worker and that she was dismissed for gross misconduct because the claimant had only said that she was attending a medical appointment on 8 April 2020 but could attend work later and her failure to attend the clients she was supposed to visit that day put their health and safety at risk. The clients are elderly and vulnerable.(3) By case management orders issued on 12 March 2021 the claimant was ordered by the Tribunal to provide copies of any medical evidence relevant to the issue of disability by 23 April 2021 and disability impact statement by 7 May 2021. In the event the claimant did not provide her medical records until 28 May 2021.(4) At a preliminary hearing (case management) which took place on 29 June 2021 before Employment Judge Cookson the claimant was ordered to provide further information in relation to certain aspects of her claims no later than 10 August 2021. The matter was also listed for a further case management hearing in person on 1 October 2021 as an Urdu interpreter was required for the claimant. In her note of the hearing Employment Judge Cookson set out sources of free advice for the claimant. Employment Judge Cookson also reminded the claimant that she had a duty to co-operate with and assist the Tribunal.(5) The claimant failed to provide the further information ordered by Employment Judge Cookson despite being chased by the respondent’s representative on 17 August 2021. As such, on 26 August 2021 the respondent made an application for the claimant’s claim to be struck out on the basis that it was not being actively pursued and/or non-compliance with orders of the Tribunal.(6) On 29 September 2021 the Tribunal wrote to the claimant following a direction of Employment Judge Dimbylow asking the claimant to confirm by return of email as to why she had failed to comply with the orders of the Tribunal and why she had failed to deal with correspondence from the respondent’s representative dated 26 August 2021 and 31 August 2021.(7) On 30 September 2021 the claimant’s daughter wrote to the Tribunal seeking an adjournment of the preliminary hearing listed for 1 October 2021 as the claimant was unwell – she had a temperature and cough and would be doing a covid test shortly. In response to the application made on behalf of the claimant the parties were advised that if the preliminary hearing was adjourned the matter would not be able to be re-listed until March 2022. The respondent objected to the application to postpone the hearing.(8) By an order of the Tribunal dated 30 September 2021 the preliminary hearing listed for 1 October 2021 was adjourned and the claimant was advised that she needed to respond by return of email the Tribunal’s letter of 29 September 2021 2 of 11 and the respondent’s letters dated 26 August 2021 and 31 August 2021. The claimant was advised that in the absence of a response to the Tribunal’s letter of 29 September 2021 the Tribunal would consider issuing a strike out warning to the claimant.(9) On 30 September 2021 the claimant’s daughter acknowledged safe receipt of the Tribunal’s correspondence and indicated that the claimant was unwell.(10) No response was received to the Tribunal’s letter of 29 September 2021. As such, on 27 October 2021 the respondent renewed its application for a strike out order.(11) On 22 November 2021 the Tribunal issued a strike out warning to the claimant indicating that it was considering striking out the claimant’s claim as the claimant had not complied with the Orders of the Tribunal dated 12 March 2021, 29 June 2021 or letter dated 29 September 2021 and the claim was not being actively pursued. The claimant was advised that if she wished to object to this proposal she need to provide her reasons in writing or request a hearing at which she could make her representation by 29 November 2021.(12) On 29 November 2021 the claimant emailed the Tribunal in the following terms: “Hello, I apologise for the delay in response. The reason for the delay is I have been unwell and I do not speak English really well and require the assistance of my daughter who has not been available to help me with writing and responding to emails. The whole process has been stressful and I have found it difficult to follow so I do apologise for my delay. I have a witness statement prepared which I can attach and send if you please keep my case active. My daughter is now back and can help me with this case. Please accept my apology and give me a chance. Maqbool”.(13) The respondent provided its comments on the claimant’s email on 8 December 2021. The respondent noted that the claimant’s email only appeared to attempt to explain the delay in responding to the Tribunal’s Order of 29 September 2021 and the claimant had not addressed her failure to comply with the Orders of 12 March 2021 or 29 June 2021.(14) In light of this correspondence on 14 December 2021 the matter was listed for preliminary hearing to consider the respondent’s strike out application and, if appropriate to deal with further case management. On the same day the parties were sent a notice of preliminary hearing advising them that a video hearing would take place on 8 June 2022 at 10.00am.(15) On 7 June 2022 the claimant’s daughter emailed the Tribunal to ask if the preliminary hearing listed for 8 June 2022 could be rearranged as she normally helped the claimant with technology and she was not in the country until in the afternoon of 8 June 2022. 3 of 11(16) Shortly after her daughter’s email the claimant emailed the Tribunal on 7 June 2022 in the following terms: “Hello Please find attached the witness statement from me. I apologise for the delay. Since the time I was sacked from my position at SKP cleaning my mental health deteriorated. It was my first proper job and I believe without a valid reason. My employed knew I suffered with my mental health as we had numerous conversations about this before and during covid this worsened. I provided my employer a sick note from my doctors to cover my period of sickness however I was still sacked for not coming into work. I was out of work during the covid months and I was struggling financially. This impacted my mental health and I required medical assistance. It impacted on my ability to find a job straight away because I was ill again. I believe I was dismissed unfairly whilst I had a sick note. Maqbool Begum”(17) Regional Employment Judge Findlay agreed to the postpone the preliminary hearing in the interests of the overriding objective. On the same day the Tribunal sent the parties a new notice of preliminary hearing by video hearing on 9 August 2022. The notice of preliminary hearing made it clear that at the hearing an Employment Judge would consider the respondent’s strike out application and, if appropriate, deal with further case management.(18) By an email dated 15 July 2022 the Tribunal confirmed to the parties that the case remained listed for a hearing on 9 August 2022.(19) The claimant attended the hearing on her own. She did not have a copy of the bundle as she said that her daughter had it and her daughter was not at home. I gave the claimant time to call her daughter. However, her daughter did not pick up the phone. I was told that she worked in Coventry and had only recently left home to go to work. As such, I proceeded to remind the claimant of the chronology of the case and to ascertain why she had not complied with case management orders which had been issued more than a year previously.(20) The claimant indicated that she had not seen the correspondence from the Tribunal. It was her daughter who received the correspondence and responded to the Tribunal. I asked the claimant whether she asked her daughter for a progress update on her claim. The claimant indicated that she did ask for an update and her daughter always told her that there was a hearing in August. The claimant indicated that she did not speak English, it was her first tribunal claim and she did not know what to do. Her daughter was very busy and had two jobs. 4 of 11(21) I asked the claimant whether she had thought to seek assistance from the CAB but the claimant said she did not know where to go. She also stated that she had not read the case management orders of EJ Cookson and her daughter did not tell her about them.(22) I asked the claimant whether she had any medical evidence to support her assertions that she had been unwell as indicated by her daughter in correspondence to the Tribunal. The claimant did not produce any medial evidence but merely re-iterated that she was very ill, had been taking medication and that she did not know how to deal with the case.(23) When asked where her daughter was today the claimant indicated that her daughter, who worked with the police, normally worked from home but had had to go into work due to some urgent work. I asked the claimant how she intended to prepare the case if she did not understand how to progress her case. The claimant indicated that her daughter knew about the case and would take advice from a solicitor. I asked the claimant why advice from a solicitor had not been obtained previously. The claimant indicated that it was because her daughter dealt with the claim and knew everything about it. When asked whether the claimant wished to submit anything further to me to consider as to why her claim should not be struck out she simply stated that she did not want her claim to be struck out as her daughter was not around.(24) Mr Goldup in his submissions argued that whilst the claimant was saying that she relied on her daughter she did not take any responsibility for ensuring that her daughter was available. In any event it appeared that the claimant’s daughter was not passing on information to the claimant. Furthermore, even if the claimant’s daughter was available she had still not complied with outstanding orders for over a year and the fact that the claimant’s daughter was busy was a problem in itself. Mr Goldup also noted that the claimant’s daughter had emailed the Tribunal to request an adjournment on two occasions but had provided no explanations as to why the orders of 10 March 2021 and June 2021 had not been complied with. Mr Goldup further submitted that if the claimant was allowed to proceed with her claim there would be further delays and the claimant had failed to provide an explanation as to how things would change if the claimant was allowed to proceed with her claim. He further argued that the claimant’s conduct had been unreasonable and the claim was not been actively pursued and there was an on-going failure to comply with the orders of the Tribunal.(25) Mr Goldup submitted that it would be in line with the overriding objective for the claim to be struck out and that by striking out the claim it would avoid further delays and would stop the respondent from incurring further costs.(26) The claimant was given an opportunity to respond to Mr Goldup’s submissions. In response the claimant stated that she did not want her claim to come to an end and that she wanted justice. 5 of 11 The Law(27)Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides: “37. Striking out (i) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (ii) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”(28) In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 EAT, the EAT emphasised the need for caution when striking out a claim for discrimination, per Langstaff P: “33. We would add this final note. Applications for strike-out may in a proper case succeed. In a proper case they may save time, expense and anxiety. But in a case which is always likely to be heavily fact sensitive, such as one involving discrimination or the closely allied ground of public interest disclosure, the circumstances in which it will be possible to strike out a claim are likely to be rare. In general it is better to proceed to determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not.”(29) In De Keyser Ltd v Wilson [2001] UKEAT/1438/00, the EAT made it clear that failure to comply with Tribunal orders will not automatically result in a strike out and the Tribunal must consider whether there may still be a fair trial, per Lindsay P: “24. As for matters not taken into account which should have been, the Tribunal nowhere in the course of their exercising their discretion asked themselves whether a fair trial of the issues was still possible. In a case usefully drawn to our attention by both sides' Counsel, namely Arrow Nominees Inc -v- Blackledge [2000] 2 BCLC 167 the Court of Appeal had before it a case where the Judge below had more than once declined to strike out the proceedings on the basis that whilst one party had, in the course of discovery, disclosed forged documents and had lied about the forgeries during the trial, a fair trial was, in his view, still possible. We pause to reflect on the magnitude of the abuse there in comparison 6 of 11 with Mr Pollard's and De Keyser's. Whilst in other respects the context of the Arrow Nominees case is very different, there are passages in the judgment in the Court of Appeal of relevance. Thus at page 184 there is a citation from Millett J.'s judgment in Logicrose -v- Southend United Football Club Ltd (1988) The Times 5th March 1998 as follows:— “But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice.””(30) The question of whether there can be a fair trial is possible was considered by the EAT in the case of Emuemukoro v Croma Vigilant (Scotland) Ltd 2022 ICR 327, EAT, per Choudhury P: “18. In my judgment, Ms Hunt's submissions are to be preferred. There is nothing in any of the authorities providing support for Mr Kohanzad's Case Number:3312941 /2020 4 of 8 proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party's unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike-out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so.(31) 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 set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources 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 judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and 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. […](32) In this case, the Tribunal was entitled, in my judgment, to accept the parties' joint position that a fair trial was not possible at any point in the five day trial window. 7 of 11 That was sufficient to trigger the power to strike- out. Whether or not the power is exercised will depend on the proportionality of taking that step. […]”(33) In Bolch v Chipman UKEAT/1149 Burton P offered guidance as to the questions which must be answered on an application for strike out under the predecessor to rule 37(1)(b): “(1) There must be a conclusion by the Tribunal not simply that a party has behaved unreasonably but that the proceedings have been conducted by or on his behalf unreasonably. […] (2) Assuming there be a finding that the proceedings have been conducted scandalously, unreasonably or vexatiously, that is not the final question so far as leading on to an order that the Notice of Appearance must be struck out. The helpful and influential decision of the Employment Appeal Tribunal, per Lindsay P, in De Keyser Ltd v Wilson [2001] IRLR 324 is directly in point. De Keyser makes it plain that there can be circumstances in which a finding can lead straight to a debarring order. Such an example, and we note paragraph 25 of Lindsay P's judgment, is "wilful, deliberate or contumelious disobedience" of the Order of a court. But in ordinary circumstances it is plain from Lindsay P's judgment that what is required before there can be a strike out of a Notice of Appearance or indeed an Originating Application is a conclusion as to whether a fair trial is or is not still possible. […] (3)Once there has been a conclusion, if there has been, that the proceedings have been conducted in breach of Rule 15 (2) (d), and that a fair trial is not possible, there still remains the question as to what remedy the tribunal considers appropriate, which is proportionate to its conclusion. It is also possible, of course, that there can be a remedy, even in the absence of a conclusion that a fair trial is no longer possible, which amounts to some kind of punishment, but which, if it does not drive the defendant from the judgment seat (in the words of Millett J) may still be an appropriate penalty to impose, provided that it does not lead to a debarring from the case in its entirety, but some lesser penalty (4)But even if the question of a fair trial is found against such a party, the question still arises as to consequence. That is clear because the remedy, under Rule 15 (2) (d), is or can be the striking out of the Notice of Appearance. The effect of a Notice of Appearance being struck out is of course that there is no Notice of Appearance served.”(34) For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response — Blockbuster Entertainment Ltd v James 2006 IRLR 630, CA.(35) In deciding whether to strike out a party’s case for non-compliance with an order under rule 37(1)(c), the Tribunal will have regard to the overriding objective set out in rule 2 of seeking to deal with cases fairly and justly. This requires a tribunal 8 of 11 to consider all relevant factors, including: (i) the magnitude of the non-compliance (ii) whether the default was the responsibility of the party or his or her representative (iii) what disruption, unfairness or prejudice has been caused (iv) whether a fair hearing would still be possible, and (v) whether striking out or some lesser remedy would be an appropriate response to the disobedience — Weir Valves and Controls (UK) Ltd v Armitage 2004 ICR 371, EAT.(36) Presidential Guidance has also been given in relation to strike out: “8.Under rule 37 the Tribunal may strike out all or part of a claim or response on a number of grounds at any stage of the proceedings, either on its own initiative, or on the application of a party. These include that it is scandalous or vexatious or has no reasonable prospect of success, or the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious. 9.Non-compliance with the rules or orders of the Tribunal is also a ground for striking out, as is the fact that the claim or response is not being actively pursued. 10.The fact that it is no longer possible to have a fair hearing is also ground for striking out. In some cases the progress of the claim to hearing is delayed over a lengthy period. Ill health may be a reason why this happens. This means that the evidence becomes more distant from the events in the case. Eventually a point may be reached where a fair hearing is no longer possible. 11.Before a strike out on any of these grounds a party will be given a reasonable opportunity to make representations in writing or request a hearing. The Tribunal does not use these powers lightly. It will often hold a preliminary hearing before taking this action. 12.In exercising these powers the Tribunal follows the overriding objective in seeking to deal with cases justly and expeditiously and in proportion to the matters in dispute. In some cases parties apply for strike out of their opponent at every perceived breach of the rules. This is not a satisfactory method of managing a case. Such applications are rarely successful. The outcome is often further orders by the Tribunal to ensure the case is ready for the hearing. It follows that before a claim or response is struck out you will receive a notice explaining what is being considered and what you should do. If you oppose the proposed action you should write explaining why and seeking a hearing if you require.” Conclusions(37) This is a claim arising from incidents which occurred more than two years ago. The claimant’s claim for disability discrimination and arrears of pay is unclear and despite Employment Judge Cookson’s efforts to try clarify these claims there is still a lot of information which is unclear and the question of whether or not the claimant is a disabled person under the Equality Act 2010 remains unclear as the claimant has failed to provide an adequate impact statement notwithstanding the guidance provided to her. The claimant has repeatedly failed to comply with 9 of 11 Employment Tribunal orders to clarify her claims for discrimination and unpaid wages. Indeed, the first order requiring the claimant to provide further information was made 17 months ago. The claimant has asked for adjournments on two occasions for hearings listed for case management and despite objections from the respondent these have been granted to the claimant. The claimant has failed to provide any medical evidence of ill health nor has she provided a pathway as to how she proposes to provide the information required to enable the respondent to understand the claims against it. The claimant has indicated that she is reliant on her daughter for support and yet her daughter did not attend the preliminary hearing before me. Furthermore, the claimant has indicated that her daughter is too busy and yet has not made an effort to seek any further support notwithstanding Employment Judge Cookson advising the claimant of other sources of support available. I consider the claimant’s non-compliance with the Tribunal orders to be significant. The claimant must take responsibility for the failure to comply with the Tribunal’s orders. I am satisfied that the respondent is subject to substantial prejudice as it does not know the case against it and has insufficient information to determine whether the claimant is a disabled person within the meaning of the Equality Act 2010. The delays will obviously have a detrimental effect on the respondent’s ability to gather evidence to defend the claim and it is likely that the case will not be able to be listed for hearing until later 2023 to early 2024 as a result of the claimant’s failure to comply with case management orders thereby increasing the prejudice to the respondent.(38) I have considered carefully whether a lesser sanction would be appropriate to assist in bringing the matter to a fair trial. However, in light of the claimant indicating today that she does not know how to progress her claim, is reliant on her daughter to do so but has not being able to secure the attendance of her daughter to assist her, her lack of plan as to when and how she will comply with the case management orders I am satisfied that there is no appropriate alternative order that could be made by the Tribunal which would be compatible with the overriding objective to deal with the matter fairly and justly. The claimant by failing to comply with employment tribunal orders and to secure the attendance of her daughter whom she says will assist her has created a situation whereby a fair trial in this matter is now impossible.(39) As such, for the reasons set out above the claimants claims for arrears of pay and disability discrimination are struck out in accordance with rule 37 (b), (c), (d) and (e) of the Rules.(40) The claim for unfair dismissal will proceed based on the information provided. The matter will be listed for a two day hearing to deal with unfair dismissal only and standard case management orders will be issued in relation to the claim for unfair dismissal. 10 of 11