Ms N Keeble v Department for Environment Food and Rural Affairs: 1401787/2021 and 1402405/2022
EMPLOYMENT TRIBUNALS
Case No 1401787/2021, 1402405/2022
Between
Ms N KeebleClaimantDepartment for Environment Food and Rural AffairsRespondent
Before
Employment Judge P CadneyIn person for claimantMr P Keith (instructed by Counsel) for respondentDate 15 May 2025
REASONS
Background
[1]This comes before me today to determine the respondent’s application to strike out the claimant’s claims. Respondent’s Strike out Application[2]The respondent asserts that the claims should be struck out on the basis of rules 37 (1) (b), 37 (1) (d) and 37(1)(e) when read in conjunction with the overriding objective: 1 of 11 Rule 37 (1) - 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— (1)(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”. (1)(d) - “ that it has not been actively pursued;”. (1)(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).”[3]The principles against which a strike out application should be considered are well known. In particular respect of applications under rule 37(1)(b), 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. (See paras 38-40 of the judgment in Smith v Tesco below).[4]In respect of the test as to whether a fair trial is still possible, which is an issue relevant to determining the application on each of grounds there are two relevant recent authorities. The first is Emuemukuro v Croma Vigilant [2021] UKEAT, and specifically para 19 of the judgment of Choudhury P. The second is Smith v Tesco Stores [2023] EAT 11.[5]As the passage from Choudhury P’s judgment is set out in the judgment of HHJ Tayler in Smith v Tesco I have only set out the relevant parts of that judgment (paras 33 -45) below (para 35 is omitted as it sets out rule 37, the relevant subsections of which for the purposes today’s hearing are set out above) : “33 It is always worth going back to the wording of the overriding objective. Rule 2 of the ET Rules provides: Overriding objective The overriding objective of these 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; 2 of 11(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. 34. It is important to remember that parties are not merely requested to assist the employment tribunal in furthering the overriding objective, they are required to do so. (35-See above.) 36. The EAT and Court of Appeal have repeatedly emphasised the great care that should be taken before striking out a claim and that strike out of the whole claim is inappropriate 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. 37. Anxious consideration is required before an entire claim is struck out on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious and/or that it is no longer possible to have a fair hearing. 38. In Bolch Burton J considered the approach to be adopted in considering whether it is appropriate to strike out a claim because of scandalous, unreasonable or vexatious behaviour and concluded that the employment tribunal should ask itself: first, whether there has been scandalous, unreasonable or vexatious conduct of the proceedings; if so, second (save in very limited circumstances where there has been wilful, deliberate or contumelious disobedience of an order of the employment tribunal), whether a fair trial is no longer possible; if so, third, whether strike out would be a proportionate response to the conduct in question. 39. This approach was adopted by the Court of Appeal in Blockbuster Entertainment Ltd v James, [2006] EWCA Civ 684, [2006] IRLR630, where Sedley LJ stated: This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response. 40. In considering proportionality the Court of Appeal noted: 3 of 11 18. The first object of any system of justice is to get triable cases tried. There can be no doubt that among the allegations made by Mr James are things which, if true, merit concern and adjudication. There can be no doubt, either, that Mr James has been difficult, querulous and uncooperative in many respects. Some of this may be attributable to the heavy artillery that has been deployed against him, though I hope that for the future he will be able to show the moderation and respect for others which he displayed in his oral submissions to this court. But the courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably. 41. In Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 it was held: 55. Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court 42. Choudhury J (President) made a very important point about what constitutes a fair trial in Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 327: 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 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. 43. The backdrop to the conclusion that the claimant had acted in a manner that was scandalous, unreasonable or vexatious so that a fair trial was no longer possible, were the extensive attempts that had been taken to clarify the issues in the claim. In his Notice of Appeal the claimant referred to Cox v Adecco Group UK & Ireland and others [2021] ICR 1307 in which, in the context of an application for strike out of a claim on the basis that it has no reasonable prospect of success, I considered the particular care the 4 of 11 employment tribunal, and represented respondents, should take when dealing with litigants in person: 30 There has to be a reasonable attempt at identifying the claims and the issues before considering strike out or making a deposit order. In some cases, a proper analysis of the pleadings, and any core documents in which the claimant seeks to identify the claims, may show that there really is no claim, and there are no issues to be identified; but more often there will be a claim if one reads the documents carefully, even if it might require an amendment. Strike out is not a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues; doing so is a prerequisite of considering whether the claim has reasonable prospects of success. … 31 Respondents seeking strike out should not see it as a way of avoiding having to get to grips with the claim. They need to assist the employment tribunal in identifying what, on a fair reading of the pleadings and other key documents in which the claimant sets out the case, the claims and issues are. Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents, and key passages of the documents, in which the claim appears to be set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer, and take particular care if a litigant in person has applied the wrong legal label to a factual claim that, if properly pleaded, would be arguable. In applying for strike out, it is as well to take care in what you wish for, as you may get it, but then find that an appeal is being resisted with a losing hand. 44. That said, while stressing the importance of understanding the difficulties faced by litigants in person, and stressing the paramount importance of seeking to establish the core of the claim and bring it on for a hearing, I also noted: 32 This does not mean that litigants in person have no responsibilities. So far as they can, they should seek to explain their claims clearly even though they may not know the correct legal terms. They should focus on their core claims rather than trying to argue every conceivable point. The more prolix and convoluted the claim is, the less a litigant in person can criticise an employment tribunal for failing to get to grips with all the possible claims and issues. Litigants in person should appreciate that, usually, when a tribunal requires additional information it is with the aim of clarifying, and where possible simplifying, the claim, so that the focus is on the core contentions. The overriding objective also applies to litigants in person, who should do all they can to help the employment tribunal clarify the claim. The employment 5 of 11 tribunal can only be expected to take reasonable steps to identify the claims and issues. Conclusions 45. This claim was not struck out because the failed attempts at identifying the issues meant that the claims had no reasonable prospects of success. Nor was the claim struck out because the failure of the claimant to cooperate in identifying the issues meant that there could not theoretically be a fair hearing of any of the claims because it would not be possible for the tribunal to understand the issues. The claim for unfair dismissal could have proceeded without further particularisation and it might theoretically have been possible to hold a trial of at least some of the discrimination claims on the basis of the list of issues produced by EJ Flood. The reliance placed by EJ Cookson on the two matters raised in the grounds of appeal, as clarified by HHJ Auerbach, the fact that the claimant had not engaged with or agreed the latest draft list of issues and that he had made a fresh application to amend, was not that they meant that there could not theoretically be a fair trial of any of the claims because none of the issues in any of the claims were sufficiently clarified; but that there could not be a fair trial because the claimant refused to cooperate with the respondent and employment tribunal. The great difficulty in identifying the issues was part of a course of conduct in which the claimant had shown that he was “not prepared to cooperate with the tribunal process”. EJ Flood concluded that the course of conduct showed that the claimant would not abide by his obligation to assist in achieving the overriding objective and that his disruptive conduct exhibited at the hearing before her was likely to be repeated. EJ Flood found that the claimant was guilty of a “continued refusal to cooperate”. The claimant would not work towards a trial that was fair in the sense of avoiding the undue expenditure of time and money, taking into account the demands of other litigants and the finite resources of the employment tribunal. One listing of the full hearing had already been lost and no progress was being made in preparing for the second hearing listed. Preparation was moving backwards, not forwards. There was every reason to believe that the lack of cooperation would persist.[6]The following principles can be derived from the authorities as summarised in Smith v Tesco: i) The question of whether a fair hearing is still possible is not to be considered in isolation or in absolute terms; ii) Fairness in this context includes the question of whether to proceed to trial involves the undue expenditure of time and money; iii) The tribunal is entitled to analyse the claimant’s past behaviour and ask whether there is any reasonable prospect going forward of the claimant complying with case management orders and or co-operating in accordance with the overriding objective. 6 of 11
Background
[7]The first claim (1401787/2021) was issued on 4th May 2021 and came before EJ Roper for a case management hearing on 7th March 2022.The second claim (1402405/2022) was then issued on 28th July 2022, and both claims came before me for a case management hearing on 14th November 2022. At that hearing I identified the claimant’s claims as I understood them and directed the claimant to notify the tribunal whether the claims had been correctly identified, if not to identify further claims and to provide further information (see directions below). At the time of the hearing both parties had prepared Lists of Issues but had not been able to agree a definitive list and it was agreed that I would produce a list of the claims as I understood them and would identify any further information needed. I summarised the position in paras 58/59 (set out below) and then set out the claims and further information needed as I understood it at paras 60 -81: “58 The parties have thus far not been able to agree the List of Issues and I indicated that after the hearing I would go through the documents and produce a List which (subject to the claimant’s agreement/amendment) attempts accurately to reflect her claims whilst refining the issues for the tribunal and setting out any Further Information needed. 59. The claimants List of Issues provides a lengthy narrative as to the events. It is not a criticism of the claimant but it is difficult to disentangle events that are simply part of the narrative and those which are the subject matter of claims before the tribunal. The EJ’s List of Issues below attempts where possible to identify claims specifically made by the claimant. The primary claims appear to be the failure to make reasonable adjustments/provide auxiliary aids and I have dealt with those claims first.”[8]In addition, I listed the claim for final hearing for five days commencing on 2nd October 2023. That hearing has had to be postponed as there is no realistic prospect of the parties being ready for the final hearing.[9]The essence of the respondent’s submission is that the claimant has failed to comply with the case management orders from that hearing, with the result that the final hearing has had to be postponed.[10]The specific directions in issue are set out below. “Claims and Issues[12]The claims and issues, as discussed at this preliminary hearing, are listed in the Case Summary below. Within 28 days of the service of the Reply/Amended Response the parties shall agree and supply to the tribunal marked FAO EJ Cadney a final agreed List of Issues. Further information 7 of 11[13]The Claimant must write to the Tribunal (marked FAO EJ Cadney) and the respondent within 28 days of the promulgation of this order:13.1 Whether the EJ has correctly identified her claims and if not to set out any other claims being brought;13.2 To provide the further information as to her claims identified as required by the EJ. Amended Response[14]The Respondent is permitted to serve on the claimant and tribunal (marked FAO EJ Cadney) within 21 days of the receipt of the Further Information:14.1 A Reply/ Amended Response;14.2 Any contention that any of the claimant’s claims require permission to amend and/or any objection to amendment;14.3 Any application that any of the claimant’s claims be struck out as having no reasonable prospect of success and/or a deposit order made for any having little reasonable prospect of success.. 11. The respondent submits that despite being granted an extension to comply with direction 13 from 10th February 2023 to 5th April 2023 the claimant had not complied by that date and has still not fully complied. As a result, it has not yet been able to comply with direction 14 and, in reality, the claims are no further forward than they were when the directions were given. 12. The claimant does not dispute that she received the case management directions but contends that her medical condition meant that she had a “psychological inability to log onto her laptop.” She has supplied after the hearing evidence that she did not log on to her laptop between 30th November and 9th January 2023. Also, that whilst she was given special permission to be in the office in January 2030 it was specifically for the purposes of submitting an ill health retirement application. She subsequently requested further adjustments including the provision of an ipad. She rented workspace in Spacehoppers in Stroud but because on absence of transport from 15th April to 23rd 2023. She was not able to read the CMO because it was supplied as a PDF. However, she contends that despite not complying with the case management directions she has corresponded to the extent that she is able, about work related issues with the respondent and its solicitors. 13. The respondent does not accept that there has been any reasonable impediment preventing her from complying with the orders. It points to the fact that the claimant applied for an extension of time on 27th February 2023, although for reasons it does not accept are accurate, and was granted an extension until 5th April 2023. The claimant did not comply with the order by the that point and on 11th April 2023 the respondent made its first strike out application, to which the claimant responded on 24th April 2023. 8 of 11 14. The claimant did supply a “Claimant’s List of Issues” on 14th June 2023. However, the respondent contends that it does not answer the specific questions posed in the order; and purports to introduce new claims of harassment and indirect discrimination. Accordingly, the respondent submits that it is no clearer as to the claims it has to meet, and now potentially faces further new claims. As a consequence, it has renewed its application to strike out the claim on 23rd June 2023.[15]In my judgement the following are broadly the considerations I have to take into account in determining whether the claimant is in breach of any of the rules relied on by the respondent.[16]On behalf of the respondent: i) The claimant failed until 14th June 2023, some six months after the order was sent and three months after the extension she had been granted, to even attempt to comply with the directions, and at a point where the final hearing was already significantly at risk; ii) In attempting to do so she as not in reality advanced the case significantly, and in my judgement, a further in person preliminary hearing will be needed to finally identify the claims and deal with any amendment application before it could be listed for final hearing; iii) The claimant has demonstrated that she is able, for example in response to the original strike out application, to respond with reasonable promptitude iv) The events themselves are already historic and the claims will not on any analysis finally come to hearing at some point in 2024.[17]On behalf of the claimant: i) Whilst she did not comply with either the initial or the extended order for an extremely long time, she has attempted belatedly to comply with the directions; ii) Even if it can be criticised her attempt to comply was a serious attempt to do so which clearly involved some thought and care.[18]In my judgement the claimant’s explanations do not fully explain why she was not able to even attempt to comply with the direction for six months, and the delay is unreasonable behaviour within the meaning of r37(1)(b), and that at least for that period the claims were not being actively pursued within the meaning of r37(1)(d).[19]However, that does not in and of itself resolve the issue of whether the claims should be struck out; which requires addressing two further questions - whether a fair hearing is still possible; and whether a strike out is proportionate.[20]In respect of a fair trial, that question is both a separate basis for striking out the claim(r37(1)(e)), and part of test for striking out on the other grounds. Whilst it is not determinative in and of itself it is a significant consideration that I am bound to take into account. However the question is not to be approached in absolute terms (see the extract from Emuemokoro above).The respondent relies on the fact that because of the claimant’s failure to comply the final hearing was at the time of the applications not feasible, and it has now been postponed. A fair trial would be one 9 of 11 held when originally listed and an adjourned hearing not caused by any fault of the respondent is by definition not fair.[21]However, there is no specific argument or evidence before me that the evidence has been affected to the extent that it cogency has been so impaired that a fair trial is not possible.[22]In those circumstances a fair trial in the absolute sense described in Eluemukoro is obviously still possible. The more difficult question is whether it is still possible given the time and expense to which the respondent will be put in continuing to defend the claims. In all the circumstances and on balance, albeit with some reluctance I am not persuaded that a fair trial is no longer possible, and in my judgement a fair trial of these is still possible.[23]The final question is whether it is proportionate to strike out the claims. As is frequently pointed out, to do so is draconian and may prevent the claimant from succeeding in what may be in whole or in part a meritorious claim.[24]Despite the breaches of the rules of procedure identified above, the claimant has belatedly attempted to comply with the directions. This is not a case in which the directions have been completely ignored. In those circumstances in my judgement to strike out what may be meritorious claims would be disproportionate.[25]It follows that as in my judgement a fair trial is still possible, and that a strike out of the claims would not be proportionate, the respondent’s application to strike out the claims is dismissed. Directions[26]As set out above in my judgement this case will need to be listed for a further PH to finally identify all of the claims and/or any amendment application. However, the claimant has indicated in the correspondence that she is intending to bring a further claim. If she does so it would clearly be sensible to consider all the claims together.[27]Whilst the tribunal cannot dictate to the claimant or limit her capacity to prevent further claims, it would assist the future conduct of this litigation if the claimant indicates whether she is intending to bring any further claim if so to indicate a likely timescale. She is directed to reply within 14 days. Further directions will then be given. 10 of 11[1]Reasons were given orally at the hearing, and the claimant requested written reasons which are now provided as follows.[2]This hearing was listed on the application of the claimant for relief from sanctions.[3]Her claimed the employment tribunal have been automatically struck out following her failure to comply with an unless order.[4]The history and the context to the application is as follows.[5]The claimant filed her claim to the employment tribunal on 4 May 2021. She made allegations of disability discrimination. The respondent denied the claimant’s claims in their entirety. At the point of filing its grounds of resistance the respondent noted that the claimant, who had been employed by them since the 10 June 2003, had had significant and long-term sickness absence since mid-2016 by reason of chronic fatigue syndrome and more lately due to anxiety.[6]The respondent set out a number of steps that it had taken to try to assist the claimant to return to work, including proposals for phased return.[7]A case management hearing before employment judge Roper took place on 7 March 2022. A 1-day preliminary hearing was listed to determine whether the claimant was disabled at all material times by reason of dyslexia with visual disturbances and optical migraines and to make further case management orders. The claimant was ordered to send to the respondent details of any matters that she relied upon in support of allegations of victimisation the claimant was also ordered to provide a schedule of loss.[8]On the 28 July 2022 the claimant filed a second claim to the employment tribunal, making further allegations of disability discrimination.[9]The respondent again denied all the allegations and a case management hearing took place on 14 November 2022 before employment judge Cadney.[10]At that hearing the case was listed for a five-day final hearing from the 2nd until the 6th November 2023 to determine liability only.[11]Orders were made for the final hearing, including orders for the exchange of documents, the preparation of the bundle and the exchange of witness statements.[12]It was recorded that the respondent had conceded that the claimant was disabled at all material times by reason of chronic fatigue syndrome anxiety dyslexia and visual disturbance and optical migraine.[13]Judge Cadney set out a framework list of issues, including indications of where the claimant needed to provide further information such as the need to identify a PCP relied upon for the purposes of a failure to make reasonable adjustments claim.[14]At this point the claims that the claimant was making were not at all clear, but the Judge set out in some detail the legal heads of claim as he understood them and the basis of any claim brought by the claimant again as far as it was understood from the hearing.[15]On 15 February 2023 the respondent wrote to the tribunal stating that the claimant had failed to comply with the directions, confirming that the employment judge had correctly identified her claims and providing the further information.[16]The claimant asked for an extension of time, stating she had not been able to read and type documents using her DEFRA laptop. She said she couldn't work from home using the laptop screen as it caused ophthalmic migraines and stated that she was intending to purchase an iPad and hire a desk at an alternative location. She asked that emails should continue to be sent to her different e-mail.[17]Case management orders were varied as a result and the new dates for compliance were sent to the parties on the 21 March 2023. The claimant was to provide her further and better particulars by the 5 April 2023 but failed to do so and the respondent wrote to the tribunal asking that she did so as a matter of urgency.[18]Only 11 April 2023 the respondent made an application to strike out the claimant’s claim on the grounds that she had failed to comply with tribunal orders and no longer appeared to be actively pursuing the claim.[19]The respondent asserted that despite chasing the claimant, she had failed to comply with the orders as amended. on the 24 April 2023 the Claimant replied to the respondent's application for a strikeout order, setting out a number of reasons why the application should not be granted. She referred to the fact that she is dyslexic and said that the provision of documents to her in a format that she could not read or understand without access to a monitor or an iPad, meant that she had not been able to properly deal with matters. She suggested that she was not able to read the case management order all the respondents letter of the 14th of April 2023 because they had been provided as PDF documents she said she could only read PDF files from her desk at horizon house which had a large monitor, but said that DEFRA were refusing to allow her to use the office.[20]She also said that during the same period of time she had been tasked to complete an ill health retirement application and that she was under threat of disciplinary from a former manager. She suggested that she was not ready to agree the list of issues and timelines because she was experiencing further disability discrimination and she asked that the five day employment tribunal was rescheduled.[21]Employment judge Roper replied on the 15 May 2023 reminding the parties that tribunal orders were mandatory and that parties were required to address and pursue their claims. The claimant was told that if she wished to make an application to vary case management orders due to her health she must provide medical evidence, failing which the respondent's application for strike out would be considered on its merits.[22]The claimant failed to respond by the date given and the respondent requested consideration of its strike out. The claimant wrote in stating she was not aware of the e-mail until the 26 May because she remained unable to log onto her email from home.[23]On the 8 June 2023 the respondent wrote to the tribunal disputing that the claimant had not been able to access her Defra account and asserting that the claimant had been logging onto her DEFRA account on a regular basis from a private rented office. It disputed that she would not have had sight of the tribunal's e-mail or would not have been unaware of the requirement to comply with directions.[24]Further the respondents said they had emailed the claimant documents in a word format because she had said she could not read the PDF documents.[25]The claimant had still failed to comply with the orders originally made in January 2023.[26]The respondent renewed its application for strike out on the 23 June 2023. Whilst the claimant had provided some medical evidence by the 14 June 2023, the respondent said there was no explanation for delay and that the medical information provided little information to support the claimant’s failure to comply with the order.[27]The claimant had sent her list of issues and disclosure documents to the respondent on the 16 June 2023.[28]The respondent noted that the claims remained unclear and requested if the tribunal was not minded to strike out the claimants claim, that the matter be listed for an open preliminary hearing to consider the claim for strike out and to identify the issues in the case.[29]On the 14 June 2023 the claimant wrote back to the tribunal stating that the respondent and their solicitors were aware that she could not work from home because of her dyslexia and that she needed to be in the office using her screen which had coloured overlays. She said the respondent had prevented her from doing so, and that she was therefore renting some private space in order to be able to deal with the deadlines.[30]The tribunal ordered the parties to attend at a preliminary hearing on 25 August 2023. That hearing took place before employment judge Cadney.[31]Judge Cadney determined that the claimant had conducted the litigation unreasonably within the meaning of section 37(1) b ET Rules of procedure and that she had failed actively to pursue the claims. However, he considered that a fair trial was still possible and that it was not therefore proportionate to strike out the claim. The application of the respondent to strike out was therefore dismissed.[32]The case was listed for a further preliminary hearing to identify the claims and or any amendment application.[33]A further preliminary hearing took place on the 8 May 2024 before employment judge Livesey.[34]At that hearing the claim was listed for a 7 day hearing in December 2024. Case management orders were made up to and including preparation for hearing. The issues in the claim were identified.[35]They responded submitted an amended grounds of resistance and the claimant submitted a schedule of loss.[36]On 7 October 2024 the respondent made a second application to the tribunal for a strike out of the claimants claim on the grounds that the claims were not being actively pursued and or that the manner in which the proceedings had been conducted were unreasonable and/or that the claimant's failure to comply with the order of the tribunal and that a fair hearing was no longer possible.[37]The respondent set out that the claimant had not cooperated over disclosure of documents and the preparation of a bundle. The respondent set out a number of occasions on which it had written to the claimant but received no response, including a warning that if they did not hear from the claimant by the 4th of October that the respondent would have no option but to consider an application to strike out her claim. The claimant did not respond. At this point the date for exchange of witness statements, being the 27th of September had passed, the respondent was not in a position to finalise the bundle and was unable therefore to finalise its own witness statements.[38]The matter was referred to the preliminary hearing already list to take place on the 16 October 2024.[39]At a case management hearing on the 16 October 2024, employment judge Rayner noted that the strike out application could not be heard at the hearing as listed and that if it was pursued it should be dealt with on the first day of hearing.[40]At this point the judge considered, having discussed with the claimant her reasons for noncompliance, and her lack of cooperation with the respondent that it would still be possible for a fair hearing to take place, provided that both parties complied with amended case management orders for the final preparation of a trial bundle and the exchange of witness statements.[41]Because of the imminent hearing and because of the claimant’s past failures to comply with case management orders, the judge considered it appropriate to issue the claimant with an unless order. The claimant was ordered to take a number of steps in respect of the preparation of the bundle by 1 November 2024, and to send the respondent a copy of her final witness statement for hearing by 4:00 PM, on 1 November 2024.[42]It was made absolutely clear to the claimant that the reason the order was being made was her previous failures to comply with case management orders and the imminence of the listed hearing.[43]It was also made very clear to the claimant what the effect of a failure to comply with the orders set out in the unless order would be. The claimant reassured the judge that she understood the orders and the potential effect of them and also reassured the judge that she would be able to comply with them.[44]The unless order was sent to the parties on the 16 October 2024.[45]The claimant failed to send her witness statement by 4:00 PM on the relevant date and the respondent therefore wrote in asking for confirmation that the claim would be struck out and the hearing vacated.[46]On the 19 November 2024 a notice confirming dismissal of claim was sent to the parties by order of employment judge Smail.[47]The claimant applied for relief from sanction on the 2nd of December 2024. In her e-mail she set out the reasons why she says she had been unable to file her witness statement by 4:00 PM on the 1st of November 2024.[48]A Hearing was listed for 21 March 2025 to consider the claimants application.[49]I heard submissions from the claimant in which she explained the circumstances leading up to her failure to send the witness statement at the required time.[50]I also heard submissions from the respondent and was referred to a number of documents which they had produced including logs of computer activity which they said demonstrated for that country to the claimant’s assertions she had been able to access her computer and had in fact done so at relevant times.[51]I reminded myself of the relevant legal provisions which I summarise as follows.[52]Rule 39(2) Rules of Procedure, states that a party whose claim has been dismissed as the result of an unless order may apply to have the order set aside on the basis it is ‘in the interests of justice to do so’.[53]There are three stages which the Tribunal must bear in mind when considering unless orders. The first is the decision to impose unless order at all. The second is whether there has been material non-compliance with the unless order and the third is whether it is in the interest of justice to set aside the unless order. I am considering the third stage.[54]In Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA, the Employment Appeal Tribunal stated “14…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.”[55]The approach to be taken on a Rule 38(2) application has also been helpfully set out by HHJ Tayler in Minnoch & others v Interserve FM Ltd & Others [2023] EAT 35 at paragraph 33 as follows: Stage 3 - Relief from sanction. 33.13. this involves a broad assessment of what is in the interests of justice 33.14. the factors which may be material to that assessment will vary considerably according to the circumstances of the case 33.15. they generally include: 33.15.1. the reason for the default - in particular whether it was deliberate 33.15.2. the seriousness of the default 33.15.3. prejudice to the other party 33.15.4. whether a fair trial remains possible[56]In Mrs G Vaughan v Modality Partnership, in the context of discussing the question of prejudice when an application is made to amend the proceedings, HHJ Tayler sated “ Representatives would be well advised to start by considering, possibly putting the Selkent factors to one side for a moment, what will be the real practical consequences of allowing or refusing the amendment. If the application to amend is refused, how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions. It requires representatives to take instructions, where possible, about matters such as whether witnesses remember the events and/or have records relevant to the matters raised in the proposed amendment.” The same principles apply, it seems to me, in a case such as this.
Conclusions
[57]Having heard the parties’ submissions I made the following findings and concluded that there was no basis on which to grant the claimants application for relief from sanction.[58]The claimant’s application is made in respect of a failure to comply with an unless order which is the latest failure in a series of failures by the claimant.[59]The reason the unless order was made was that the claimant’s case was, by late 2024, some years down the line without her having complying with any of the case management orders necessary to prepare the case for final hearing.[60]In particular there had been a failure by the claimant to liaise over the production of a final bundle for hearing, and in particular, witness statements have not been exchanged.[61]The unless order was made despite the fact that the claimant had been given significant latitude previously regarding case management orders and her failures to comply, to take account of her undoubted disabilities and the impact that they have on her ability to manage the proceedings and the tasks associated with litigation, as well as the difficulties of being a litigant in person.[62]On a number of occasions, the claimant was warned by respective judges that she was at the last point when she could expect or hope for any further allowances. She was well aware when the unless order was issued for example that this was a last chance and she gave assurances to the tribunal that she would be able to comply with the orders made.[63]I have considered the claimant’s explanation for her failures and what that explanation is.[64]I find that the claimant decided that she would remove herself from home and spend some days in a hotel at some distance from where she lived whilst analysing her witness statement in compliance with the case management orders.[65]It was her choice to remove to a hotel some way from where she lived, and she says that she did this firstly because she is unable to deal with matters relating to her case from her home because of her anxiety and secondly because she needed to find a hotel within her price range. She says that there were not available places nearer to her and that she chose somewhere that was inexpensive, but further away. That was her choice. I accept that it was a choice she made because she is disabled.[66]She says the reason why she did not file her witness statement by the 4:00 deadline was because of poor Wi-Fi connection at the hotel. She says she was not able to connect her laptop and was unable to send the e-mail.[67]The respondent asserts that their research suggests that a reasonably good level of connectivity could be expected within the area. The claimant asserts that she was not able to connect, and I accept her evidence that for whatever reason, at this hotel she was not able to connect to the Wi-Fi.[68]The claimant says she did not realise that there was a poor Wi-Fi connection until 2:00pm on the afternoon when she was due to send the statement at 4.00pm.[69]The claimant sent an e-mail to the respondent stating that she was unable to send her witness statement and that she would return home on the 2nd of November and send her emails from there.[70]The claimant had been staying at the hotel for a number of days before the date on which she was due to send her witness statement.[71]She had taken no steps prior to 2:00pm on the afternoon when she was due to file her statement to ensure that she had suitable connections and to ensure that she would be able to e-mail a statement within good time.[72]She had left it until very late in the chronology to check connectivity giving herself only two hours to resolve any issues that arose.[73]Because she had chosen to go to a hotel far from home, she was not able to return home and send the e-mail from there within time and indeed did not propose to return home until the next day.[74]I accept that she wanted to go to a hotel because her disability makes it difficult for her to work from home on these matters, but I do not accept that it was necessary for her to go so far away from home. She may well have been looking for a reasonably priced hotel but that was a choice that she made, and she has provided no evidence of less expensive hotels nearer to where she was living.[75]Nor has the claimant adequately explained why she did not check that she would be able to send the e-mail from the hotel at an earlier stage.[76]This is despite the fact that on her own evidence she has had difficulties with hotel connectivity before.[77]She had also failed to attempt to log on to her Defra laptop at any earlier point, in order to ensure that she would be able to access relevant documentation or use it to send the necessarily e-mail. It was also her choice not to check the connectivity and not to turn on her Defra laptop at any earlier stage. She has not suggested that she was not able to do so, but that she did not choose to do so.[78]I also find that having discovered that she had poor connectivity, and could not create a hotspot using her phone that she took no steps whatsoever to seek any assistance either from the hotel staff or indeed from anyone else.[79]Since most hotels will rely upon emails and use Wi-Fi it is highly likely that the staff at the hotel would have been able to assist her had she asked. She said that she didn't want to ask because the documents she was sending were confidential, but I find she took no steps whatsoever to see whether or not there were any facilities or assistance which might make it possible for her to send the witness statement confidentially within the time.[80]Mr Tibbetts is right to say that the claimant had time even at that stage to take some steps to ensure that the e-mail could be sent. She could have taken some advice or spoken to somebody at the hotel or asked to use their phone line, or since she had a removable hard drive, she may have been able to use a hotel laptop.[81]I find instead the claimant took no steps whatsoever that having left everything until the very last hours, the claimant took no steps to try to remedy the situation.[82]The claimant has suggested that part of the reason for her failure was that the respondent had not sent certain documents and emails to her Yahoo email account as well as the DEFRA email account, which was the email account primarily used for the litigation.[83]I accept that the claimant chose to use her Yahoo account which she said was the e-mail account that she usually accessed.[84]It is right that the respondent had previously agreed that it would try to send emails to both of her accounts and that they usually had done so, but this was not a formal agreement.[85]I accept that the claimant may well have usually worked by looking at her Yahoo e-mail and using that as an alert, to check her DEFRA e-mail.[86]On this occasion, the claimant had been sent information about the bundle by the Respondent and it had only been sent to the DEFRA account ,. This was an oversight by the Respondent, as the staff member who had responsibility for the file was on leave. The claimant said she was a waiting for this informant to complete her statement.[87]The Respondent had sent the relevant information to the claimant however, and had she checked her emails, she would have seen it. In any event, this factor does not excuse her failing to access the e-mail account which she intended to use, on the laptop she intended to use, to send her e-mail later on in the day. Nor is it the reason why she was unable to send the email with her statement attached to it.[88]I find that she had been sent the bundle in its almost final format, and that she could and did use that when preparing her statement.[89]I conclude that this was not any part of the reason for the claimant’s failure to send her witness statement on time, in compliance with the unless order.[90]The Claimant says that she did comply with the unless order within a short time, sending the statement the following morning when she returned home.[91]I have also taken into account a computer log that was provided by the respondent, which I accept shows the claimant’s activity on her Defra laptop.[92]I find that it shows that she did access her witness statement on a number of occasions and indeed do some work on it, after the date for the deadline had passed.[93]Mr Tibbetts has suggested that the real reason why the claimant did not send her statement was that she had not finished it.[94]Initially the claimant denied that she had accessed the statement or made any changes to it after the deadline, but when shown the log, she admitted that as somebody with OCD she continued to go back to it and also states that she did make amendments to it after the deadline. She asserts that she was only making was to change the colour of the text from blue to another colour. She was adamant that she had not made changes to the substance of it.[95]The point of a deadline given as part of an unless order is that the parties must meet it. It is not a line by which the parties attempt to complete things and may then run over. It is an absolute date by which things must be completed. A failure to complete has consequences, and in this case the consequence was that the claim was automatically struck out.[96]I recognise that it can be difficult for a disabled litigant in person, faced with the deadline; faced with failing technology to deal with these matters, but the claimant in this case was well aware of the deadlines, and had assured the court she would be able to comply with them, and she had adequate time to ensure that she was ready and able to comply.[97]I conclude that the reason for the failure to comply with the orders was her own failure to ensure that she was ready to exchange her statement , both in terms of having finalised the statement to her own satisfaction , but also in terms of being able to send the statement by electronic means.[98]It was her choice to remove to an untested venue, at distance from her home, but more importantly it was her decision not to log on earlier in her stay at the hotel, to check that all was ready for the exchange. The technology failures were things she ought to have checked well in advance, and which she had every opportunity to check and test.[99]The claimant failed to take sufficient steps to ensure that she was ready and prepared to meet the deadlines imposed upon her.[100]Whilst I do not consider that the claimant deliberately failed to send her witness statement, I do consider that her failure to take reasonable steps to ensure that she was in a position to send her witness statement was due to the choices and arrangements she made. I conclude that in this case, in the context of all the previous issues, that it was not excusable for her to leave something like this until the very last minute and then discover that there is a connectivity failure and rely upon that as the only reason for seeking relief from sanctions. I consider that this is a serious breach because the consequences of it were to cancel for a second time a listed final hearing. The respondent has again incurred additional costs in respect of this hearing as well as incurring the wasted costs incurred in respect of the hearing that did not take place. Witnesses who had expected to give evidence and would have arranged to take time off work were stood down for a second time.[101]I have considered the impact upon the respondent witnesses and the balance of prejudice, and whether a fair trial is still possible.[102]I accept the submission made by Mr Tibbetts that the delays that this case has been subject to have placed significant stress and caused distress to witnesses. The respondent witnesses had expected to give evidence and then found the case adjourned and re listed on two previous occasions.[103]I also accept Counsel’s assertions that during the period that this litigation has been ongoing, at least two witnesses have developed health conditions which may mean that they will not be able to attend at future hearings at all.[104]I have also considered whether or not the case is now ready for hearing. It is not. The claimant has indicated that she needs to make further amendments to her witness statement. Even if that is only in terms of adding in the page numbers, it is still another matter that needs to be finalised.[105]Mr Tibbetts indicates that the bundle itself would require some further work if the tribunal and anybody instructed to deal with the case were to be spared the prospect of a four-thousand-page bundle. The reason is that the claimant had not engaged in the process of finalisation of that bundle. I accept that that would be a significant issue.[106]I have therefore considered, taking all matters into account whether or not it is in the interests of justice to grant relief from sanction in this case.[107]Both the later matters could be resolved, and at some time in the future there could in theory be a fair hearing. However, I consider that the prejudice to the respondent witnesses is considerable and impacts in the fairness of the process. I have weighed this against the prejudice to the claimant if I do not grant relief, that she will not be able to reinstate her claim.[108]I also consider the chronology of events and the explanation of the reason for the default given by the claimant given by the claimant are such that it is not in the interests of justice to grant the claimant’s application for relief from sanction.[109]In all those circumstances I refuse the claimants application for relief from sanctions with the result that the claimant’s claims remain struck out and there will be no further hearing in this claim. Employment Judge Rayner Dated: 15 May 202529 May 2025 Jade Lobb For the Tribunal: Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.