Mr J Grantham v Bournemouth, Christchurch and Poole Council: 1400858/2019

EMPLOYMENT TRIBUNALS

Case No 1400858/2019

Between

Mr J GranthamClaimant

Bournemouth, Christchurch and Poole CouncilRespondent

Date 29 March 2022

REASONS

[1]On 17 March 2019 the claimant brought a claim of unfair dismissal and wholly unclear claims of disability discrimination. After a long history of repeated attempts to manage the case, and the claimant’s repeated and significant failure to comply with case management orders or heed warnings, a clear Unless Order was sent to the claimant on 22 April 2020. It is uncontroversial that the claimant did not comply with that order, albeit there was a relatively short time period for compliance. Unsurprisingly, the claimant was sent a notice confirming that the claims had been dismissed.

[2]The claimant made an application to set aside the order under rule 38(2). The application was made three minutes before the deadline. The claimant did not request a hearing. The tribunal considered that it was in the interests of justice to deal with the application on the papers. The application was robustly resisted by the respondent.

[3]The delay in promulgation of these reasons was due to unforeseen circumstances including absence.

[4]The tribunal decided that the claimant should be permitted to pursue his unfair dismissal claim.

[5]In essence, the claimant had been dismissed by the respondent after 13 years’ service, and he had set out his claim with sufficient clarity that the respondent should be able to call evidence and deal with the matters raised, in a relatively short and simple hearing. This would not need extensive case management. Whilst the claim is not articulated with great clarity, the legally-represented respondent will be accustomed to dealing with such cases, and there is no reason why a fair hearing cannot be achieved. The claimant’s defaults in respect of case management orders relating to the unfair dismissal are relatively minor. The main thrust of the orders, to which the unless order relates, was not directed at the unfair dismissal claim, and it is in the interests of justice to permit the claimant to pursue this claim. Had unfair dismissal been the only claim for the tribunal, it could have been listed for final hearing on receipt of the ET3, with standard directions.

[6]In respect of the disability discrimination claim, the tribunal considered that the respondent presented an extremely strong argument as to why the order should not be set aside. This is, regrettably, one of those problematical claims often referred to as “kitchen sink” cases by the appellate courts, which has required a very significant investment of time by the respondent and by the tribunal, which, regrettably, never resulted in any significant clarification of the discrimination claims.

[7]The claimant had attempted to bring a hugely complicated and entirely unclear claim, and despite repeated attempts by the tribunal to enable the claimant to present an understandable claim, which did not need to be anything other than short and simple, he failed to do so. The claimant had been given many opportunities, and clear case management orders, and the respondent’s earlier strike out applications had been refused, to give the claimant a final chance to set out, simply, what the claim was that he wished to bring. The judge went out of his way to enable the claimant to comply, but the claimant simply failed to do so.

[8]The Unless Order must be seen in the context of repeated orders, warnings and time extensions, and in fact the Order was issued at a time when extensions of time had already expired, and the claimant had previously made it clear that he would be able to comply within the time he had proposed for the extension. It is of considerable significance that the claimant’s purported, but late and incomplete, compliance with case management orders (after the deadline set out in the Unless Order) still failed to bring any clarity to his claim. The practical effect was that despite huge efforts from the tribunal and the respondent, the case was (by June 2020) no further forward than it had been in March 2019. There is no realistic prospect of making further progress with clarification. The events leading to the judgment

[9]The claim, bringing a claim for unfair dismissal and disability discrimination, was presented in March 2019, relating to a dismissal in October 2018. It was very unclear. On 4 June 2019 the Reginal Employment Judge listed a preliminary hearing (PH) in public, to take place on 19 September 2019, to hear the respondent’s application for strike-out (no reasonable prospect of success) or a deposit. The claimant was clearly under notice as to the weakness in his pleaded case, and the need to provide details of an arguable case.

[10]At the first PH on 19 September 2019, the judge started by attempting to clarify the issues. Despite the judge enabling the claimant to explain the basis of his various claims, the claimant did not provide any coherency. The judge also established that it was in dispute as to whether the claimant was a disabled person. The judge heard the respondent’s applications, but declined to make an order for strike out or a deposit at that stage. Instead, the judge gave the claimant a further opportunity to clarify his claims. In a detailed case management order, the apparent heads of claim were summarised, and it was explained to the claimant what further information would be needed. As was stated at paragraph 25 of the case management summary, “The case was not yet ready to list for a final hearing, and it was agreed that a further PH was needed. The orders below have been agreed, giving the claimant an unusually long time (at his request) to marshal his thoughts and obtain medical evidence.”

[11]Carefully worded orders required the claimant to provide a schedule of loss, to set out specified further particulars of claim, and to provide medical evidence relating to disability and a disability impact statement (which were explained in the orders). The orders went on to provide for various actions by the respondent, including an agreed list of issues, with the clear intention that before the next PH, it should be entirely clear what the claimant’s case was, why he said he was a disabled person, and that both parties would know what was in dispute. The parties would also be ready for a determination of the preliminary issue, namely as to whether the claimant was a disabled person, and deal with any other relevant applications and consequent case management. It should be noted that it is still in dispute as to whether the claimant is a disabled person.

[12]A further one-day PH in public was listed for 24 February 2020, to confirm the issues, determine whether the claimant was a disabled person at the material time, etc.

[13]The claimant failed to comply with any case management orders. The tribunal gave him a formal strike out warning on 23 December 2019.

[14]The respondent made a second written application for strike out, and a telephone PH was listed for 31 January 2020 to hear the claimant’s response.

[15]At the second PH, on 31 January 2020, the claimant had still not complied with any orders. The case was no further on from where it had been at the first PH. The respondent was represented by Mr A Peck (Counsel).

[16]For reasons given at the time, Employment Judge Emerton decided, again, on 31 January 2020, not to determine the respondent’s strike out application at that stage, no doubt somewhat to Mr Peck’s frustration.

[17]The next PH had to be cancelled, as there was no prospect of the parties being ready, despite having agreed to the date. However, the Judge decided, in the interests of fairness, and to give the claimant one more chance to comply with necessary case management orders, not to strike the case out, but to list a further two-day PH in public to deal with the matters which had been identified at the first PH. It might sensibly be pointed out that the Employment Judge went out of his way to enable the claimant to present his claim, whilst ensuring that he understood exactly what was required of him. It was already more than four months since the orders had been given, with a full written and oral explanation as to what was required. The judge made it clear that nothing lengthy or complex was needed, just the details set out in the orders. It is of some significance that paragraph 13 of the case management summary, typed in bold, set out the following: “The judge wished to make it entirely clear to both parties that the respondent had certainly set out an arguable case under rule 37 as to why the claim should struck out, and it would be unlikely that the claimant would be given another chance. Unless he complied with all the orders, it was difficult to see how the claim could be progressed. If the claimant again failed to comply with all orders in a timely way, it was inevitable that the respondent would repeat its strike-out application, which might succeed next time.”

[18]The claimant had already had an unusually long time to comply with orders, and was now given a further lengthy period, to 13 March 2020, to comply with the orders already given, as well as evidence relating to his failure to comply with earlier orders. The claimant stated that he needed another six weeks, and he was given another six weeks.

[19]The dates for compliance were agreed by the claimant. The judge made it clear (as reflected in the case management summary) that “there would be no further extension of time”.

[20]Just before midnight on 13 March 2020, the claimant provided the tribunal with some medical evidence said to relate to his failure to comply with orders prior to 29 November 2019. He complied with no other orders. He also emailed to say that he had not completed further particulars of claim. He made no mention of the other orders he had been given. He asked for an extension of time of one week, to 20 March 2020.

[21]On 17 March 2020 the respondent emailed the tribunal to complain that the claimant had failed to comply with the order to particularise his claim, to provide a disability impact statement, and there was partial compliance with other orders. The respondent resisted any extension of time, and repeated its application to strike out the claims.

[22]On 18 March 2020 the claimant repeated his request for an extension of time. He did not comply with the orders before 20 March 2020, the date he had himself requested for the extension of time.

[23]On 24 March 2020 the tribunal wrote to the claimant, directing him to comply with the earlier orders. The claimant replied on 25 March 2020, confirming that he hoped to comply with the orders later the same day, and on 26 March he confirmed that he would comply that day. On Friday 27 March 2020, the claimant confirmed that he hoped to complete later that day, and certainly “before the end of the weekend”.

[24]The claimant provided other updates, but did not in fact comply with the earlier orders.

[25]On 14 April 2020, the claimant was asked if he was requesting a further extension of time. The same day, the respondent wrote to ask for confirmation that the orders were still “live”, and highlighting the claimant’s defaults. On 15 April 2020 the claimant emailed, requesting an extension of time to midday on Monday 20 April 2020. This application was not approved. At 1200 noon on 20 April, the claimant emailed, asking for an extension to noon the following day. He emailed at 1158 on Tuesday 21 April 2020 to confirm that he was almost finished, and just wanted to “do some final edits tomorrow morning”.

[26]The claimant did not in fact comply with orders on 22 April 2020.

[27]On 22 April 2020, the tribunal wrote to the claimant, with a detailed explanatory letter, enclosing an Unless Order signed by Employment Judge Rayner. This specified that “Unless by the 24 April 2020 the claimant complies with all outstanding case management orders as set out in the order of EJ Emerton in the order dated 31 January 2020, attached to this order, the claimant’s claim will be dismissed without further order.”

[28]Just before midnight on 24 April 2020, the claimant emailed the tribunal (albeit in a format which could not be opened). On 27 April 2020, the claimant emailed again, attaching further particulars of claim and some other documents. He also sent a separate email commenting on his case and seeking to explain the delay. He also explained that he would be obtaining further medical evidence.

[29]The further particulars provided some information, albeit very unclear and lengthy, not in the straightforward format which had been carefully set out in the case management orders. It provided information about the following Matters: protected disclosures, unfair dismissal, direct disability discrimination, direct disability discrimination by association, discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments, harassment and victimisation. The particulars failed to provide the information in respect of disability discrimination required by paragraphs 4.5, 4.6, 4.7 and 4.8 of the orders of 9 September 2019 (reiterated by the orders of 31 January 2020).

[30]The claimant did not provide the tribunal with a schedule of loss (paragraph 3 of the September 2019 orders), but it appears that this was provided to the respondent on 13 March 2020.

[31]Although some medical information had previously been provided, it appeared that the claimant did not expressly provide any medical evidence to the respondent in relation to whether the claimant was at the material time a disabled person (paragraph 5 of the September 2019 orders). The claimant failed to provide a disability impact statement to the respondent, nor confirmation of the precise conditions relied upon, and the period of time to which the discrimination claim relates (paragraph 5.3 of the September 2019 orders).

[32]On 11 May 2020 the respondent wrote to the tribunal asserting that the claimant had not complied with the Unless Order, specifically that there was only partial compliance with order 2.1 (Medical evidence relating to failure to comply with orders by November 2019) and in respect of medical evidence generally, no compliance with the order to provide a disability impact statement and details of the conditions and material dates, and the further particulars did not provide all the information set out in the orders, and were “impenetrable and confusing, make new allegations and do not comply with the CMOs”. The claim should not be allowed to proceed, further to the Unless Order. If the claim proceeded or was re-instated, a further PH would still be required, and the respondent would be disadvantaged.

[33]Having reminded himself of the background to the PH, on 13 May 2020, Employment Judge Emerton took the view that the first matter which must be addressed is whether the claimant had failed to comply with the tribunal’s Unless Order, and therefore whether the claim should stand as dismissed. However, he considered that, in view of the voluminous correspondence received from the claimant, it would be appropriate to confirm (in particular) that the information set out in the respondent’s letter of 11 May 2020 was correct, and to give both parties the opportunity to make oral submissions in relation to setting aside the unless order.

[34]In the event, it was confirmed that the respondent’s summary was correct. The Unless Order had not been complied with, so the claim was struck out.

[35]On 19 May 2020 the tribunal issued a notice under rule 38(1) dismissing the claims. The preliminary hearing of 13 May 2020

[36]At the preliminary hearing on 13 May 2020, which was heard by telephone and which lasted some 50 minutes, Employment Judge Emerton explained that the initial matter to be addressed was whether the claimant had failed to comply with the tribunal’s Unless Order, and therefore whether the claim should stand as dismissed.

[37]The judge explained the structure of rule 38, and that this was not a consideration of the merits, but whether the claim was dismissed under rule

[38]Should the claim be dismissed, a notice would be sent to the parties. It would be open to the claimant to apply in writing for the dismissal to be set aside under rule 38(2), within 14 days that notice was sent. The judge would not hear oral submissions in advance. 38. The judge read out the Unless Order, and referred to the relevant parts of the case management orders of 19 September 2019 and 31 January 2020.

[39]The judge asked Mr Peck to confirm the alleged non-compliance with the Unless Order. He confirmed, in essence, the information set out above. He pointed out that the limited medical evidence provided did not comply with orders, and the claimant had failed to explain his non-compliance prior to 29 November 2019, an explanation he had been ordered to give. There was still no substantial compliance with providing further particulars, and those which had been provided made no sense. Disclosure by the claimant remained incomplete. The nature of the disability and disability discrimination claims were incomplete and there was no disability impact statement. There was nothing explaining the claim of victimisation. The claimant had failed to provide the specific information relating to his various heads of claim which he had been ordered to produce.

[40]The claimant expressly accepted that he had not complied with the orders, not providing the level of detail required, but felt he had made reasonable efforts. He felt he should not be required to disclose all the information about his disability. He argued that this was partial compliance, not noncompliance. He had provided medical evidence to support an extension of time, even if the contents had not explains his failure to comply with orders. He believed he had done what he thought was expected in the circumstances.

[41]The tribunal agreed with the respondent, as indicated above, that despite considerable extensions to the claimant, including postponements of hearing the respondent’s application to strike out, the claimant had plainly failed to take the unusually generous opportunity which was given to him to provide the necessary particulars and evidence, and to comply with the carefully worded and very specific case management orders. Although there had been partial compliance, large parts of the orders had been ignored, and the information provided by the claimant fell very far short of the minimum required to enable the case to be moved on. Judge Rayner had signed an unless order, and although there was limited time to comply, the claimant’s very frequent emails indicated that he was monitoring his inbox and was well able to respond immediately should she wish to do so. It is notable that in the period of almost 3 weeks between the deadline for compliance with the unless order, and the preliminary hearing, there had still been no (even if late) substantial compliance with the orders.

[42]It was clear that the Unless Order had not been complied with, and in consequence the claims stood as dismissed under rule 38. As indicated above, a notice to that effect was sent to the parties.

[43]The judge explained the claimant that it was open to him to make application to set aside, under rule 38(2). The application to set aside

[44]The claimant made an application to set aside on 2 June 2020 including following arguments in writing:a. there was at least partial compliance

b. what was required by the Order was not clear

c. the claimant is not familiar with what format is required for a witness statement

d. the Unless Order was a useful measure to help the claimant facilitate compliance

e. the consequences of the sanction is devastating to his claims

f. an Order striking out all claims is unjust in the circumstances of this case

g. a fair trial is still possible

[45]Subsequently, the claimant has added to these submissions. The response

[46]The respondent submitted a response to the claimant’s application on 15 June 2020. Among other things, the respondent says:a. the burden of proof is on the claimant to set aside the judgment

b. the factors the Tribunal should consider will depend on the circumstances of the case

c. the terms of the unless order were simple

d. the claimant still made no attempt to provide a finalised, compliant version of his further particulars

e. although a disability impact statement was eventually provided the respondent remained unclear as to the impairments relied on and how they relate to the allegations

f. to the extent that the Order remained unclear, which is not admitted, it was open to the claimant to raise this with the Tribunal

Discussion

[47]The issue for the tribunal to determine is whether the Unless Order should be set aside under rule 38(2).

[48]This is a potentially problematical area of law relating to the effective management of cases in the Employment Tribunal, where limited guidance is available from the higher courts as to the application of rule 38 in the Employment Tribunal. I recognise that the approach to relief from sanction in civil courts, under the Civil Procedure Rules (CPR), has been developing, but it does not necessarily follow that discretion would always be exercised the same way in the Employment Tribunal.

[49]I recognize that the issue of Unless Orders may be fraught with difficulty, and that it is on the face of it a potentially controversial area. One judge may decide that an Unless Order is necessary in the first place, and that the order has not been complied with, such that the claim should be dismissed. Another judge may then take a different view, and may give relief from sanction by subsequently deciding that the order be set aside under rule 38(2).

[50]Rule 38 is a useful tool in a judge’s tool kit. It is important that litigation is conducted efficiently and at proportionate cost, and there is a need to be able to enforce compliance with rules, practice directions and orders. Employment Judges, like civil judges, plainly need powers to enforce orders and to deal with the situation where litigation cannot effectively be progressed, through a party’s inability or unwillingness to comply with orders which a judge has deemed necessary. For example. Elias LJ suggested in Abergaze v Shrewsbury College of Arts & Technology

[2009] EWCA Civ 96

that an Unless order might be am proportionate way of dealing with a “recalcitrant litigant”. But it is also, in essence, a highly draconian measure, where a party may wholly lose the right to bring a claim, or defend a claim, where once an Unless Order is given, noncompliance leads to automatic dismissal of a claim or response. No subsequent reason need be given, save for “non-compliance”, as the dismissal is automatic, rather than an exercise of judicial discretion.

[51]An Unless Order needs to be carefully crafted to fit the circumstances of the case, and there needs to be a careful assessment of whether the order has in fact been complied with (the doctrine of “substantial compliance” may be of relevance here). It is often far from clear-cut as to whether parties have adequately complied with a case management order. Legally represented respondents frequently ask for Unless Orders (which are rarely granted), and unrepresented claimant frequently have difficulty complying with the precise wording of orders. All Employment Judges will be familiar with that situation. Technical compliance may in fact not result in anything useful being achieved, whilst a failure to comply with the precise wording of an order may often occur when in reality a party has done all that is reasonably required to progress the case or to provide necessary information. For this reason, many judges will only very rarely use an Unless Order, and then only with caution and only in certain situations, wording the order in such a way (and perhaps explaining the rationale in a case management order or letter) that it seen both to be necessary, and also to be unambiguous. Often a more appropriate approach will be to send a party notice of intention to strike out a claim or response for a specified reason, giving them an opportunity to submit which such an order should not be made. Exercise of other powers under the rules can then be exercised, in a balanced way.

[52]What marks this case out however, is that there had been repeated attempts to assist the claimant in setting out his case, various extensions of time, and numerous “opportunities to bite the cherry”. Recourse to an Unless Order was only has after repeated and supportive measures and guidance had failed to spur the claimant on to do what was necessary if his claim was ever to reach a final hearing.

[53]The Respondent has referred to The Governing Body of ST Albans Girls’ School v Neary

(2009) EWCA Civ 1190

and Thind v Salvesen

(2010) EAT 0487/09

. They point out that the tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interest of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised.

[54]The Rules of Procedure 2013, at rule 38, provides as follows: Unless orders 38.—(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. (3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.

[55]The Presidential Guidance on Unless Orders does no more than paraphrase rule 38, and need not be repeated. It is of no practical assistance.

[56]I must apply the overriding objective to deal with cases fairly and justly (rule 2). I should take into account the Presidential Guidance. I also note the contents of the CPR, in particular rule 3.9, which provides as follows:(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.

[57]I accept that my approach should be informed by the contents of the CPR, albeit there is something of a lacuna as to the extent to which guidance in cases such as Mitchell v News Group

[2013] EWCA Civ 1537

and Denton v T H White Ltd

[2014] EWCA Civ 906

should determine the approach in the Employment Tribunal. I need not, however, make express reference to the contents of these cases. Nor to a string of cases dealing with the extent to which the CPR rules are applicable. I have not received submissions on these cases, but have tried to ensure that my reasoning takes account of the civil case law. What I have found particularly helpful is the guidance provided by Underhill J (to which I referred the parties, at the hearing), in the EAT case of Thind v Salvesen Logistics Ltd

UKEAT/0487/09/DA

(see also

[2010] all ER (D) 05

(Sep)). Paragraph 14 reads as follows: ''The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal's procedural armoury (albeit one not to be used lightly) and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.''

Conclusions

[58]As set out above, this case has a long and detailed procedural history which led to the imposition of the Unless Order in the first place. There was continued and persistent non-compliance of case management orders by the claimant, prior to the imposition of the said order. I agree that the extent and duration of the non-compliance with case management orders, going back to November 2019, is material to the application to set aside.

[59]I do not accept that the unless order or the underlying case management order were, in any sense, unclear. In any event, it was open to the claimant to seek clarification from the tribunal. The claimant has been able to correspond both with the tribunal and the respondent on many occasions. Despite the further purported and partial compliance by the claimant it is still unclear to what extent and for what purpose the claimant relies on the conditions he has to ground a claim in disability discrimination.

[60]The claimant has not provided any medical evidence to explain his persistent non-compliance with case management orders. In fact, in his own submission, he says that the unless order assisted him in focusing his mind.

[61]As set out above, the claimant had attempted to bring a hugely complicated and entirely unclear claim, and despite repeated attempts by the tribunal to enable the claimant to present an understandable claim, which did not need to be anything other than short and simple, he failed to do so. The claimant had been given many opportunities.

[62]On this occasion a broad assessment of what is in the interests of justice and in accordance with the overriding objective has led me to refuse the application to reinstate the disability discrimination claim.

[63]However, the claim relating to unfair dismissal is more straightforward and more comprehensible. In any event, the unless order provided that unless the claimant comply with the orders dated 31 January 2020 the whole claim would be dismissed without further order. The central thrust of the orders made on 31 January 2020 related to the claim for disability discrimination.

[64]Accordingly, I do consider it in the interests of justice or in accordance with the overriding objective to permit the unfair dismissal claim to continue. Preventing the whole claim from proceeding would, in my view, be too draconian a measure.

[65]Accordingly, my judgement is that the Unless Order is partially set aside, insofar as it refers to the unfair dismissal claim. The Unless Order is not set aside, in respect of all disability discrimination claims.

[66]The claimant is therefore permitted to pursue his claim of unfair dismissal in the Employment Tribunal under sections 94 and 98 of the Employment Rights Act 1996, but no other claim. EMPLOYMENT TRIBUNALS Claimant: Mr John Grantham Respondent: Bournemouth, Christchurch and Poole Council On: 26th January 2022 Heard at: Bristol Before: Employment Judge P Cadney Representation: Claimant: In Person/Written Submissions Respondent: Mr A Peck (Counsel)/ Written Submissions Reconsideration/ Strike Out Judgment The judgment of the tribunal is that- i) The claimant’s application to reconsider the Judgment of EJ Emerton of 30th June 2021 striking out all claims save for that for unfair dismissal is dismissed. ii) The respondent’s application to strike out the unfair dismissal claim is well founded and the claim is struck out.

[1]On 26th January 2022 I heard a preliminary hearing listed to determine the respondent’s application to strike out the claimant’s claim for unfair dismissal, his other claims of disability discrimination and whistleblowing detriment having been struck out earlier. It emerged at the hearing that the claimant had made an earlier application for reconsideration which had not yet been dealt with. After consultation with the REJ he decided that I should deal with both applications and I gave further directions for written submissions which have now been received. 1 of 9 Procedural History

[2]The case has a lengthy and complex procedural history which I will summarise as briefly as possible:- i) The ET1 was received on 19th March 2019 arising from the claimant’s dismissal in December 2018, and included a request for a stay for more time to prepare his case. A six week stay was granted by EJ Harper. ii) On 2nd May 2019 the claimant wrote asking for more time and the case was listed for a PH to determine strike out/deposit order. iii) The PH was held on 19th September 2019 by EJ Emerton, He directed that the case be listed for an in person PH on 24th February 2020 and gave a number of case management directions; in particular to set out the details of his unfair dismissal, disability discrimination and whistleblowing claims. iv) On 30th November 2019 the claimant wrote asking for an extension of time. v) On 23rd December 2019 EJ Gray issued a strike out warning. vi) On 31st January 2020 at a TPH EJ Emerton vacated the hearing listed for 24th February 2020 and re-listed the hearing for 3rd /4th May 2020. Further time for compliance with the original directions from the September hearing was granted and extended to 13th March 2020. vii) On 13th March 2020 the claimant provided in partial compliance a Schedule of Loss and asked for a further week to supply particulars of his claims. Between the 18th March and 20th April 2020 the claimant made a number of requests for a further extension of time. viii) On 22nd April an unless order made by EJ Rayner requiring compliance by 24th April 2020. ix) In partial compliance some incomplete documents were sent shortly before midnight on 24th April 2020. x) As a consequence of the pandemic the PH was converted to a TPH on 13th May 2020 at which all the claimant’s claims were struck out for noncompliance with the unless order by EJ Emerton. xi) On 2nd June 2020 the claimant made an application for EJ Emerton’s order to be set aside. xii) Between then and 30th June 2021 the claimant continued to provide number of documents including on 19th May 2021 a document Further Particulars of Claim. 2 of 9 xiii) On 30th June 2021 EJ Emerton in part revoked his earlier order permitting the unfair dismissal claim to proceed. Directions were given and the case listed for hearing for three days 26th – 28th January 2022. Reconsideration Application.

[3]On 12th July 2021 the claimant applied for a reconsideration of EJ Emerton’s decision to strike out the claims, and not to set aside the Unless Order of 22nd April 2020. He asserted that the ”indirect disability discrimination” claim was inextricably linked to the unfair dismissal claim. He refers to having had a stress induced breakdown in 2014 and to recovery from reaction to severe stress and adjustment disorder during 2019. Although the application only specifically refers to the indirect disability discrimination claim I will assume, as this was certainly how the claimant put it to me orally at the hearing on 26th January 2022, that he was seeking to be permitted to pursue all of his claims including the public interest disclosure detriment and/or automatic unfair dismissal claims. His oral submission was to the effect that the decision to dismiss and the unfair dismissal claim could not be understood or properly assessed unless he is permitted to advance all of his claims.

[4]The first application is for reconsideration of EJ Emerton’s failure to set aside EJ Rayner’s unless order of 20th April 2020; and the second that in any event EJ Emerton should reconsider the decision only to permit him to pursue the unfair dismissal claim.

[5]EJ Emerton deals with this at paragraph 44 to 66 of the reconsideration Judgment of 30th June 2021. He sets out in great detail the background to the order, the legal principles to be applied, and he did partially set aside the unless order insofar as it related to the unfair dismissal claim. He did not set it aside in relation to the other claims. Having described (paragraph 58) the “continued and persistent non-compliance of case management orders by the claimant prior to the imposition of the order.”, the conclusion that any of the claims should be permitted to proceed is on the face of it a markedly generous one. The explanation appears to be that EJ Emerton took the view that the unfair dismissal claim was distinct and separable from the disability discrimination and/or whistleblowing claims. He describes (in para 5) that the claimant “had set out his claim with sufficient clarity that the respondent should be able to call evidence and deal with the matters raised, in a relatively short and simple hearing.”

[6]However, in the hearing before me on 26th January 2022 the claimant did not accept that proposition. He contends that the disability discrimination claims, and whistleblowing claims, and the unfair dismissal are inextricably linked and that even if his reconsideration application is unsuccessful and that he is not entitled to pursue the claims as separate freestanding claims, that he is entitled to rely on all the evidence in relation to all of the claims. This is clearly not how EJ Emerton understood the issues nor how he envisaged the case proceeding.

[7]It is sensible at this stage to attempt to summarise at least the unfair dismissal claim. The claimant was employed by the respondent as a Passenger Transport Officer. He was dismissed for having sent confidential information about some 3 of 9 138 service users comprising, the respondent alleges, in excess of 5000 separate data breaches from his work email to his home computer, and was subsequently discovered to have been storing at least some of these as printed material in his summer house. There is no dispute that the claimant had done this and the limited issues in the unfair dismissal claim appears to be whether he had a legitimate reason for doing so and/or whether the respondent should have accepted that he at least believed that he had a legitimate reason (even if he was wrong) sufficient to mitigate the apparent seriousness of his actions and to mitigate the sanction.

[8]The Further and Better Particulars supplied on 24th April 2020 set out claims for public interest disclosure detriment and automatic unfair dismissal; and disability discrimination claims (direct discrimination / associative discrimination/ indirect discrimination / discrimination arising from disability /harassment / victimisation). The specific allegations relating to the unfairness of the dismissal are set out at paras 4.3.3 and are summarised above.

[9]In addition he supplied further Draft Particulars of Claim on 19th May 2021. It is not clear whether these were before EJ Emerton at the time of his reconsideration decision. Insofar as it relates to the unfair dismissal claim sets out allegations of procedural failings, and substantive unfairness but again appears to accept that there is no dispute as to the underlying facts and states ”To date no one has sought to understand why I chose to disclose such sensitive personal information about my personal internet use..”, and later “My intention/purpose was good and justifiable in the circumstances of this case..”.

[10]In the circumstances it is completely understandable that EJ Emerton took the view that the unfair dismissal claim was not linked with or dependant on the other claims but centred on the discrete issue of the reason for the claimant’s actions. Similarly EJ Emerton’s reasoning for not setting aside the unless order and striking out the other claims is very clearly set out and equally comprehensible. The document supplied on 24th April 2020 was described by EJ Emerton as “Still failing to bring any clarity to his claim.”, and that as a result the case was no further forward by June 2020 than it had been in March 2019 and there was “no realistic prospect of making any further progress with clarification” (para 8).

[11]The reconsideration application does not engage with any of these points. As far as I can judge, however for the first time the claimant asserts that “the potentially fair reason for dismissal is dependant on conduct arising from my disability”. This appears to suggest that but for his disability the claimant would not have acted as he did in sending confidential documentation from his work to his home computer; and appears, therefore to suggest that he accepts that it was not legitimate to do so. However this is entirely contradicted by his continued assertions that his actions are entirely justified.

Conclusions

[12]On reconsideration the tribunal may confirm, vary, or revoke the previous decision where it is necessary in the interests of justice to do so (rule70). My task is obviously made more difficult by the fact that the decision being 4 of 9 reconsidered is not one that I made. However, I have EJ Emerton’s detailed reasoning as to the basis for the original decision.

[13]The first issue which I need to consider is the effect of the claimant’s contention before me that the disability discrimination claims and/or the public interest disclosure claims are inextricably linked with the unfair dismissal claim and that he is entitled to rely on the them evidentially even if not as free standing heads of claim. As set out above EJ Emerton’s reasons for striking out those claims (and refusing to revoke that decision on reconsideration) was based on the finding that despite being given every opportunity to elucidate them that there was still no clarity as to those claims. Insofar as it is relevant this is a conclusion with which I agree. Clearly if there is no clarity to the claims one possible conclusion is that it is not possible for the respondent to deal with them evidentially any more than if they are pursued as separate heads of claim. If this is correct one possible outcome of the reconsideration application would be to revoke EJ Emerton’s order permitting the unfair dismissal claim to proceed and to restore the original decision dismissing all of the claims. The alternative analysis is that the claimant has only sought reconsideration of the other claims and not the unfair dismissal claim and it is not open to me to revisit that decision. If that is correct the question of the admissibility of any of the material in relation to the disability discrimination claim is a case management issue.

[14]I bear in mind that this is an application for reconsideration of a reconsideration judgment; and that both initially and on reconsideration EJ Emerton applied the unless order and declined to set it aside; and dismissed all claims except that for unfair dismissal. In my judgement there is nothing in the application which leads me to the conclusion either that EJ Emerton was wrong or that I would not have reached the same decision; and nothing that leads me to the conclusion that EJ Emerton’s original decision should be revoked or varied in relation to the claims that he struck out.

[15]In relation the unfair dismissal claim I have reached the conclusion that whilst it was generous to allow it to proceed that there is no application for reconsideration of that decision and it should therefore stand. Strike Out Application

[16]In any application for the strike out of a claim the tribunal must firstly determine whether any of the conditions for doing so as set out in rule 37 have been met; and if so whether to exercise the discretion to do so.

[17]Where there is an assertion of unreasonable conduct (r37(1)(b)) the tribunal has the power to strike out a claim where there has been persistent or deliberate disregard of case management orders or where a fair trial is no longer possible; and if striking out is a proportionate response (Blockbuster Entertainment v James

[2006] EWCA Civ 1684

). The determination of whether a fair trial is still possible does not simply involve examining the “absolutist” question of whether a fair trial is possible at all at any stage; but of consideration of whether a fair trial is still possible in the trial window allocated for hearing, although the question of proportionality still applies (Emuenkoro v Croma Vigilant (Scotland Ltd [2021] UKEAT). 5 of 9

[18]As set out above, following EJ Emerton’s reconsideration the unfair dismissal claim was set down for hearing over three days on 26th-28th January 2022 and directions were given for the hearing. Those were standard directions for an unfair dismissal case and limited the bundle to 100 pages and the witness statement word count to 3,000 words for the claimant and 5,000 words in total for the respondent’s witnesses. Both these reflect EJ Emerton’s view that the unfair dismissal claim was relatively straightforward.

[19]The respondent contended and contends that the claimant has failed to comply with the case management orders. Firstly the claimant has not provided a concise outline as to why he contends that his dismissal is unfair or identifying what the live issues are. Secondly that whilst the respondent has in compliance with the case management orders provided a list of documents on 26th August 2021 the claimant has not done so but has made a series of document requests to the respondent without identifying why they are relevant to the unfair dismissal claim. The 100 page bundle was due to be agreed by 15th December 2021 and witness statements exchanged by 29th December 2021. Neither has taken place.

[20]Between the end of October 2021 and early January 2022 the respondent made a number of applications relating to the provision, of documents compliance with CMOs and finally seeking the postponement of the hearing and the strike out of the claim. On 5th January 2022 the claimant wrote accepting that he ”had difficulty complying with case management orders” and states “this is a direct consequence of my disability – depression and anxiety exacerbated by autistic inertia -and easily resolvable by reasonable adjustments such as mediation and dialogue”. He repeats that “..my actions were justified and in good faith…”. He also set out that his father had died on New Years’ Day having been diagnosed with cancer in August and asking for more time to be allowed on compassionate grounds.

[21]On 12th January 2022 EJ Self vacated the final hearing and directed that 26th January 2022 be converted to a Preliminary Hearing to determine the respondent’s strike out application on the basis of the claimant’s unreasonable conduct/ non-compliance with orders/ failing to actively pursue the claim.

[22]The respondent submits that those three are overlapping categories in this case. It contends that it is unreasonable behaviour to have failed to particularise the basis for the unfair dismissal claim some three years after the claim was lodged; that he is also in breach of the existing case management orders, and demonstrates that the case is not being actively pursued. Whilst the respondent understands that in general the claimant’s case is that he was in the circumstances entitled to send confidential material to his home computer (and whilst EJ Emerton took the view that the unfair dismissal claim was relatively straightforward) it is still not known specifically how the claimant puts his case, particularly as it still does not know the extent to which the claimant is seeking to rely on allegations relating to the disability discrimination claims and/or whistleblowing claims evidentially. It effectively submits that despite EJ Emerton’s optimistic hope that that the unfair dismissal claim would involve narrowly defined issues and a relatively short hearing it still has no way of 6 of 9 knowing if that is correct and if not how the claimant puts his case; and that the claimant has still not complied with the case management order from September 2019.

[23]Similarly the respondent asserts that the claimant has made no serious attempt to narrow his claim and focus on the unfair dismissal claim since the original strike out and then the re-instatement of the claim on reconsideration. It is now approaching two years since the claims other than unfair dismissal were struck out but the claimant appears to believe that he can proceed as if that decision had never been made. The claimant has not begun any serious process of limiting the documentation to comply with a 100 page bundle page limit, but has not applied to vary the order. Accordingly it submits that the case is not being actively pursued. Whilst it is clear that the claimant is still considering the case and is attempting to pursue it as a whole, he has never focussed specially on the unfair dismissal claim and is not in reality actively pursuing that claim as a stand-alone claim.

[24]In addition it asserts that a fair trial is no longer possible as a number of potential witnesses are no longer employed by it and witness memories are bound to have faded given the passage of time since the dismissal.

[25]It follows that the claims should be struck out for each of the three grounds identified by EJ Self.

[26]There are a number of aspects of the litigation that concern me: i) This litigation has been proceeding for three years. The discrimination and other claims were struck out nearly two years ago; and the claim for unfair dismissal was listed in July 2021 for hearing in January 2022. Accordingly it should now have been concluded. ii) The claimant was granted every opportunity to cogently and concisely set out his claims. He did not do so and the claims were struck out, with the unfair dismissal claim subsequently restored. iii) The claimant knew, or should have known from the decision, that EJ Emerton regarded the unfair dismissal claim as a stand-alone claim that was not dependant on any of the others. Whilst the claimant had applied or a reconsideration of that decision he could not assume that that application would be successful, but he neither applied for a variation of the case management orders or made any serious attempt to comply with them. iv) As a result the trial window had to be vacated as on any analysis the case was not ready for hearing; and is in reality was no further forward than it was when the directions were given. v) Despite the other claims having been struck out nearly two years ago the claimant continues to focus on them and he has made no attempt at all to restrict his claims; 7 of 9 vi) Given his inability to comply in nearly three years with the existing case management orders at every stage of the proceedings the expectation that he claimant will be able to narrowly focus and abide by any further case management orders is optimistic in the extreme. Conclusions

[27]On one analysis a fair trial is still possible even at this distance in time if the unfair dismissal claim is confined as narrowly as I have at paragraph 8 above and as was clearly anticipated by EJ Emerton. However the claimant is unwilling or unable to focus his claim and still seeks to pursue allegations which are the basis of claims which have already been struck out for his failure adequately particularise them. In addition the claimant’s request for ”mediation or dialogue” as a reasonable adjustment similarly does not suggest he has grasped the stage the litigation had reached by June 2021, with only the unfair dismissal claim remaining.

[28]That gives two possibilities. Firstly the unfair dismissal claim could be re-listed for a further three day hearing and more time given for compliance with the existing directions. Given the history of this case, however, I have no confidence that any future directions would meet with any greater success particularly as he claimant appears not to accept that the order of EJ Emerton requires him to focus exclusively and narrowly on the unfair dismissal claim. More fundamentally the purpose of case management is to allow claims to proceed to hearing within a reasonable timeframe, and to be ready for hearing. There must come a point at which the tribunal concludes that it is simply not fair or reasonable to the respondent to be facing litigation which should and could have been concluded by now. Had the directions been complied with the final hearing would have taken place in January 2022, which is itself nearly three years after the claim was lodged. That it did not is entirely due to the claimant’s failure to comply with case management directions. As set out above I am entitled to take into account not simply whether a fair hearing is possible at all at some point in the future, but whether a fair trial is possible in the trial window allocated. In this case self-evidently it was not.

[29]It follows that in my view the first threshold test is met in that there has unquestionably been a persistent disregard for case management orders. The second question is whether a strike out is a proportionate. In many circumstances where an unfair dismissal claim had been listed for final hearing which had not proceeded because of the default of one party an immediate strike out would be disproportionate. However, in the exceptional circumstances of this case, in my view the situation is somewhat different. For the reasons given above the claimant has been in persistent default of case management orders at every stage of the litigation. In consequence the case was not ready for the final hearing. I bear in mind the that a strike out is draconian sanction which may result in the dismissal of a meritorious claim and should only be used as a last resort and where there is no other proportionate sanction. However, bearing all of that in mind, and whilst I have some degree of sympathy for the claimant he has been given every opportunity to present his claims and has consistently failed to comply with case management orders to 8 of 9 allow him to do so and in my judgement in the particular and unusual circumstances of this case is a proportionate order.

[30]It follows that he claimant’s claim for unfair dismissal is struck out.