Miss Z Csatordai v NHS West Sussex CCG: 1404979/2019
EMPLOYMENT TRIBUNALS
Case No 1404979/2019
Between
Miss Z CsatordaiClaimantNHS West Sussex CCGRespondent
Before
Employment Judge GrayNot represented for claimantMs Y Genn (instructed by Counsel) for respondentDate 15 January 2021
JUDGMENT
UPON the Claimant failing to attend or be represented at this hearing, AND UPON first considering the information available, the tribunal proceeded with the hearing in the absence of the Claimant under Rule 47 of the Employment Tribunal Rules of Procedure 2013, and THE JUDGMENT of the tribunal is that the Claimant’s claim is struck out pursuant to rules 37(1)(c), (d) and (e) of the Employment Tribunal Rules of Procedure. In view of the Claimant’s nonattendance Written Reasons are also provided as follows:
REASONS
[1]This is claim with a long and full administrative history. It was started by the Claimant by a claim form received on the 28 October 2019. The Claimant made claims of unfair dismissal, race and disability discrimination, and for money claims being notice, holiday, arears of pay and other payments.[2]There is then a two-day case management preliminary hearing in person before Employment Judge Emerton on the 19 and 20 February 2020. At that hearing it was noted about the Claimant’s claim that it was very detailed but unclear, hence why two days was required. However, despite best efforts over the course of the two days a list of issues could not be finalised. It was possible though to confirm that the complaint of unfair dismissal was not being pursued as the Claimant had been reinstated by that point.[3]Despite the complaints still needing further particularisation and clarification it was agreed that the claim would be listed for a final hearing. It was therefore listed for 10 days before a full tribunal panel at the Havant Justice Centre on the 25, 26, 27, 28, and 29 January and 1, 2, 3, 4, and 5 February 2021. Havant was selected because the Claimant had requested this as she “would find it easier to travel from her home in Brighton to Havant rather than to Southampton…”.[4]A further case management preliminary hearing was also listed to:a. Confirm the issues in the case (by reference to the agreed list of issues);b. Hear any other application which it is in the interests of justice to hear at this stage, including any further application under rule 50;c. If the further particulars appear to seek expand, rather than narrow down, the heads of claim, to hear an application to amend or to determine how the matter should be resolved;d. Confirm the position in respect of the claimant’s disability, and how it is proposed that any remaining issues be resolved;e. Confirm whether the amended response is accepted;f. List any further PH for case management or to deal with a preliminary issue which may be necessary (which might include an application for strike out or for a deposit order), and to make appropriate case management ordersg. Confirm (if possible to do at this stage) the listing and the arrangements for the final hearing (including the number and identity of witnesses) and agree a proposed outline timetable for that hearing; it may be possible to reduce the length of the final hearing;h. Consider listing a further “catch-up” telephone PH;i. Make any further case management orders which may be appropriate, to ensure that the parties are ready for the final hearing; andj. Consider judicial mediation.[5]That further case management hearing then took place before Employment Judge Salter on the 10 July 2020. The Claimant did not attend and the case management summary records … “15. This matter was extensively set out in the Case Management Order of Employment Judge Emerton after his two-day Preliminary Hearing on 19th and 20th February 2020. I repeat his exposition of this matter. His Summary and Orders are extensive, and are not repeated in this order. Part of his order was to list a further two-hour preliminary hearing at Bristol Civil Justice Centre for further case management and to determine various applications. During E.J. Emerton’s hearing he heard various applications form the Claimant including adding Respondent’s to the claim including NHS Portsmouth Clinical Care commissioning Group, as well as an application for anonymity; he rejected both.[16]On 16th March 2020 the Claimant presented fresh proceedings against NHS Portsmouth Clinical Care Commissioning Group (1401324/2020), this matter was responded to by that Respondent.[17]The matter could not proceed as an in-person Preliminary Hearing and so the matter was converted into a telephone case management hearing with a time estimate of 2 hours.[18]At just before 6pm on Thursday, 9th July 2020 the Claimant sent to the tribunal, and Respondent, extensive documentation by way of email attaching:(a) a “Letter to ET” stating she would not be in attendance at the preliminary Hearing (2 pages);(b) a Witness Statement Summary (5 pages);(c) an excel spreadsheet consisting of four tabs;(d) an application for amendment and anonymity order (13 pages);(e) a further particulars document running to 28 pages in landscape.[19]These documents fail to address the structure ordered by Employment Judge Emerton and do not assist in the understanding of the claims. They do not comply with Employment Judge Emerton’s clear and helpful Order.” 6. Case management orders were made and of relevance to today’s hearing it included for full document disclosure by the 25 September 2020 and the exchange of witness statements by the 13 November 2020. 7. A Telephone Case Management Preliminary Hearing was also listed for 30 November 2020 to confirm trial readiness. 8. That further case management hearing took place before Employment Judge Smail on the 30 November 2020. It notes: “The Claimant did not attend today’s telephone case management hearing. She did not attend the one on 10 July 2020 either. She had a sick note which expired yesterday saying she had generalised anxiety. That is not a reason for not attending today’s telephone case management hearing even if it covered today. The Claimant has not co-operated with the Respondent to define a list of issues. She has not disclosed any documentation. She has not served a witness statement, the extended deadline being 2pm today. One has to doubt whether she actually wishes to pursue this claim. A 10 day full merits hearing has been listed in Havant to start on 25 January 2021. If either the Claimant does not wish to pursue the claim in reality or if she remains in breach of case management orders so her case is not ready, the listed 10 days will be a waste of public resource. Accordingly -…” … “There will be a preliminary hearing in public but held by video (CVP) on 15 January 2021 at 10am to consider whether or not to strike out the Claimant’s claims on the basis of one or more of –(a) the Claimant is in breach of Tribunal orders;(b) the Claimant is not actively pursuing the claim;(c) it is no longer possible to have a fair hearing. A day has been set aside to consider the matter and to make any consequential case management orders…. … NB The best chance the Claimant will have of her case surviving the hearing on 15 January 2021 is if she has served a witness statement on the Respondent well in advance of that hearing; if she comments constructively on the list of issues provided by the Respondent and if she actually attends the hearing.” 9. Subsequent to the case management order of Employment Judge Smail the Claimant corresponded with the Tribunal by emails on the 12 and 14 January 2021. 10. The email of the 12 January 2021 simply said … “Please save me from any further abuse”. 11. Within the email of the 14 January 2021 the Claimant wrote … “Please could you advise on what reasonable adjustments have been considered in response to my requests, in light of an imminenty pending face to face live case management order having been again scheduled for tomorrow morning. To reiterate, potential reasonable adjustments I have been asking for are the following, and I would also welcome any other solutions you wish to propose: - alternative to face to face participation I am unable to keep up with because of my medical conditions and also my lack of legal knowledge and lack of resource capacities, such as conversion to an assessment based on written submissions instead, responding to and actually taking into account my difficulties re. timelines vs fully abled participants, - access to legal guidance and representation, and - access to admin support and recognition of the difficulties I'm facing to produce further materials, recognising the adjustments needed because of my impairments I have been describing re. communication and mobility, evidenced by medical reports. I have copied the Respondent's legal advisor on this correspondence, who I am also in conversation with about current status of hearing materials, in order to keep them informed about your advice about adjustment that may affect arrangements. I would be grateful for a confirmation of these prior to the time of the currently scheduled meeting tomorrow morning at 10am.” 12. By email in response on the 14 January 2021 the Respondent wrote … “The hearing will take place on the Cloud Video Platform. The claimant can therefore participate from home which should hopefully alleviate any issues caused by impaired mobility. There is also the facility for the claimant to dial in by telephone, rather than on camera, if joining by video would cause any further impediment. The Tribunal is well used to dealing with unrepresented parties who lack specialist legal knowledge and/or experience of the Tribunal system. If necessary, the claimant can be given short breaks during the course of the hearing. It would not be appropriate to deal with the matter by way of written submissions in substitution for a hearing, especially as that may engender further delay to the proceedings given that the scheduled full hearing is due to commence in 11 days.”. 13. As no application to postpone the hearing was made by either party the hearing proceeded at 10am today. 14. To assist the Tribunal, Respondent’s Counsel had submitted for reference at this hearing a chronology of the proceedings and a bundle of pleadings and party correspondence running to 147 pages. 15. This hearing lasted until around 11:10am and in that time the Claimant had not attended. 16. During the course of the hearing the Employment Judge (via the Tribunal clerks) and Respondent’s Counsel (via her instructing solicitor) were forwarded emails from the Claimant sent today, attaching an update on a draft index to a bundle of documents and a drop box link. In the Claimant’s email timed at 10:17 today she wrote “I have been preparing a response to finalise to send for the hearing this morning, but the time has been taken up by trying to resend the bundle documents to the Respondent and yourselves from last night because the internet is not connecting on my laptop again. Unfortunately I have also had my laptop cable give up the ghost on Monday (see replacement order attached) and have lost several days to prepare to send these to you in advance. In short, the documents are now organised into folders matching the heads of claim, and also the Issues list, the latter which I aim to update as soon as I can, hopefully by Monday, along with tidying up the Witness statement that includes my existing further particulars, ready to be assessed.”. 17. No explanation for the Claimant’s non-attendance was provided and no application for postponement was made, despite the Claimant being able to email the Tribunal and the parties during the course of this hearing. It is noted no medical evidence was submitted today, nor submitted with the Claimant’s email of the 14 January 2021, to support her position. 18. From this correspondence and the submissions of Respondent’s Counsel the current position on the Claimant’s compliance with the case management orders was therefore clear. The Claimant had not complied with the orders made by Employment Judge Salter by the times directed (as varied by the parties’ agreement). The Claimant had not heeded the guidance of Employment Judge Smail to serve a witness statement well in advance of today’s hearing (this the Claimant was hoping to do by Monday), nor commented constructively on the list of issues provided by the Respondent (again the Claimant was hoping to do this by Monday), nor actually attended today’s hearing. 19. These failures by the Claimant are in the context of the final hearing have been listed since February 2020 to start on the 25 January 2021 and last for 10 days.[20]About the final hearing Respondent’s Counsel submitted that the Respondent had prepared a bundle (without the Claimant’s documents as these had not been received as directed) and its witness statements. However, despite it having made these preparations, the reality for the Respondent was;a. It still did not understand the Claimant’s case due to the Claimant not engaging in the production of a list of issues (which has been “in production” since the preliminary hearing in February 2020), nor producing a witness statement (as directed) from which they could potentially be distilled;b. Its currently identified witnesses were to be involved significantly in the COVID vaccination programme which would curtail their ability to assimilate and review any evidence now produced by the Claimant before the final hearing starts;c. As set out in the chronology document provided by Respondent’s Counsel for this hearing … “In relation to C’s disclosure it is to be noted that her claim spans a period of more than 4 years. She names a significant number of personnel. Many have left R’s employment. Although correspondence may have emanated from their employer’s systems during the course of their employment many documents are not now be capable of retrievable once staff leave. C’s disclosure therefore needs to be seen, even though she identifies that documents have originated in the CCG, in order to enable targeted searches to be undertaken by R to ensure compliance with the ongoing duty of disclosure, and to identify whether any other staff need to give evidence.”[21]It was therefore the position of Respondent’s Counsel that the Claimant’s claim should be struck out pursuant to rules 37(1)(c), (d) and (e) of the Employment Tribunal Rules of Procedure (as already identified by Employment Judge Smail and alerted to the Claimant via his case management order), and rule 37(1) (b) could also potentially apply on the basis of the Claimant’s conduct being unreasonable.[22]In support Respondent’s Counsel submitted;a. The Claimant had breached case management orders since the hearing in February 2020, remained in breach of those and had failed to attend Tribunal hearings on the 10 July 2020, 30 November 2020 and today.b. Further, that the correspondence from the Claimant sent in advance of the 30 November 2020 hearing (as copied at pages 113 to 114 of the bundle Respondent’s Counsel had provided for this hearing) suggested the Claimant may not attend the final hearing in any event as it noted “Also, because of the severe nature of currently substantially triggered symptoms of extreme dysmenorrhea, chronic adrenal fatigue, and SOB asthmatic attacks in reaction to the pain medication needed to cope with the re-occurring pain, I feel it is necessary to indicate that although I have committed to fully cooperate and engage in the judiciary process meetings and its CMOs when asked at the February 2020 Preliminary Hearing, the monthly presenting debilitating illness is very unfortunately currently looking due to happen during the 10-day hearing scheduled for 25 Jan – 5 Feb 2021, and therefore there is a strong likelihood that this will substantially affect my participation and attendance at the hearing.”. This is all asserted by the Claimant without support of relevant medical evidence.c. That the Claimant’s conduct in these proceedings is one of “active inactivity”. Before the previous hearings, as with this one, the Claimant creates a flurry of last minute correspondence to the Tribunal that suggests activity, but does not actually progress matters as the case management orders are not complied with, and the Claimant does not attend the hearings. This causes disruption and prejudice to the Respondent.d. A fair trial was not possible. There would be a real injustice to the Respondent to meet this claim in this way resulting from the failure of the Claimant to engage in the process.e. Considering the matter objectively there were no lesser sanctions that would remedy these wrongs to ensure a fair hearing. So far, the Claimant has not done what the Tribunal has directed, nor attended the hearings. An unless order would make no difference as the Claimant had not heeded the guidance of Employment Judge Smail contained in his case management order.f. For all these reasons it was fair and proportionate to strike the Claimant’s claim out. There have been four case management preliminary hearings at which the Respondent has attended, but the Claimant has attended only the first. The Tribunal rules should be followed by the parties, and the Claimant has been in breach of them and orders of the Tribunal, with breach after breach.[23]Considering then the relevant rules of the Employment Tribunal Rules of Procedure:a. Rule 37: “Striking out 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—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out) …b. Rule 47: “Non-attendance 47. If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[24]Considering then the rules of Rule 37 that the Claimant was on notice would be considered at this hearing;[25]Rule 37(1)(c) the non-compliance by the Claimant of the Rules or with orders of the Tribunal (which would include attendance at hearings). The Claimant’s non-compliance has been continuous since February 2020. It is therefore of a significant magnitude.[26]The Tribunal accepts the submissions of Respondent’s Counsel that this would cause disruption and prejudice to the Respondent. From the commencement of the claim until now the extent of the complaints and the issues relevant to those remain unclear due to the lack of active engagement by the Claimant in the process. Due to the time that has now passed without the necessary clarification (particularly where the final hearing has been listed since February 2020 and the Claimant has known what she has needed to do since then and then been reminded of such through subsequent case management orders and in particular that of Employment Judge Smail), it is accepted that a fair hearing would not now be possible.[27]There is nothing to suggest that a lesser sanction would be appropriate as the Claimant’s conduct, as complained about by the Respondent and as noted first hand by the Tribunal at previous case management preliminary hearings and by her nonattendance at those hearings, has not altered despite the clear guidance given by Employment Judge Smail.[28]Considering rule 37(1)(d) that it has not been actively pursued, this appears to be so for the reasons referred to in respect of rule 37(1)(c) and as Respondent’s Counsel submits, the Claimant has been involved in the claim process with “active inactivity”.[29]Considering rule 37(1)(e), that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, this appears to be so for the reasons referred to in respect of rule 37(1)(c).[30]Therefore, the judgment of the Tribunal is to strike out the Claimant’s claim pursuant to the Employment Tribunal Rules of Procedure, rules 37(1)(c), (d) and (e) and in accordance with rule 47 in the absence of the Claimant.[1]The Claimant applied for a reconsideration of the judgment dated 15 January 2021 which was sent to the parties on 18 January 2021.[2]The Claimant’s reconsideration application is set out in an email dated 1 February 2021.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[4]By correspondence dated 6 March 2021 the Respondent was asked for its comments on the Claimant’s application and both parties were asked for their views on whether the application can be determined without a hearing.[5]In response by email dated 17 March 2021 the Respondent provided its comments/submissions and confirmed that its view was the matter could be determined without a hearing.[6]The Claimant by correspondence dated 15 July 2021 (after reminders from the Tribunal) requested that the matter be determined by hearing by video.[7]Having regard to these responses by notice of hearing dated 29 July 2021 it was confirmed that the judgment made on 15 January 2021 and issued on 18 January 2021 would be reconsidered on 10 December 2021. It was given a time allocation of 3 Hours and it was confirmed that it would be heard by video (CVP) (to start at 10am). The parties were directed that they … “may submit written representations for consideration at the hearing. If so, they must be sent to the tribunal and to all other parties not less than 7 days before the hearing. You will have the chance to put forward oral arguments in any case.”.[8]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[9]The Claimant sets out her grounds in her email dated 1 February 2021 (this was not copied to the Respondent at that time): “This is to request the review of the judgement sent on 18/01/2021, based on the following: - In response to the Respondent’s refusal to comply with CMOs - In the face of not having received any meaningful response from the Respondent to date, in comparison with me who have complied as best as I could despite being in a substantially disadvantaged situation - In sanction of the Respondent’s unreasonable, vexatious, and scandalously unacceptable, and inexcusable conduct re. breach of PID data re anonymity with a further victimising and harassing intent in retaliation, along the many others. - The ET not having assessed to the full list of medical reports issued since 15/01/2021.”[10]Then by email dated 2 February 2021 the Claimant referred to an attached medical report from 20/01/2021 which was texted to her phone. The attachment to the email was not accessible by the Tribunal.[11]By correspondence dated 6 March 2021 the Claimant was reminded that she must copy the Respondent into her correspondence to the Tribunal unless it is an application for a witness order. The Claimant was informed that the Tribunal couldn’t open the attachment of the medical report in her e-mail dated 2 February 2021 and requested that the Claimant resend it to the Tribunal and the Respondent, in a different format. It confirmed that the Claimant’s email dated 1 February 2021 appeared to be making an application for reconsideration pursuant to Rule 71 of the Employment Tribunal Rules of Procedure. The Respondent was requested to provide its response to the application within 14 days.[12]By email dated 17 March 2021 the Respondent submitted: “Interests of justice A judgment can only be reconsidered where it is necessary in the interests of justice to do so (Rule 70). Reconsiderations are a limited exception to the general rule that there should be finality in litigation. They are not available as general means of enabling a disappointed litigant to have a second bite of the cherry (Stevenson v Golden Wonder Ltd 1977 IRLR 474, EAT). In considering what is in the interests of justice, the Tribunal must consider “not only the interests of the party seeking the review or reconsideration, but also the interests of the other party to the litigation and the public interest requirement that there should, so far as possible, be finality of litigation” (HH Judge Eady QC in Outasight VB Ltd v Brown 2105 ICR D11, EAT). Responding to each of the claimant’s grounds for reconsideration, the respondent’s case is as follows: “The respondent’s refusal to comply with CMOs” The claimant has not put forward any basis for this assertion. There was no refusal to comply with CMOs by the respondent. The attached procedural chronology (which is an updated version of the one prepared for the preliminary hearing on 15th January 2021) makes clear the procedural history of this litigation which was characterised by repeated delays and failures by the claimant, as well as her non-attendance at three of the four preliminary hearings in this matter. We also enclose a copy of the bundle prepared for the hearing on 15th January 2021. Despite the claimant never having made her allegations clear and never having engaged with the issues, the respondent disclosed its documents to her and was in a position to exchange witness statements on 30th November 2020 (the extended deadline sought by the claimant). The respondent did all it reasonably could to make preparations for the final hearing despite a lack of engagement by the claimant. The claimant was aware of the difficulties caused by these delays and, in an email to this firm dated 11th November 2020, she wrote: “thank you for your understanding, and I trust this does not cause any hold ups for you or the judiciary personally” (page 107 of the bundle). It was not until 3.29am on 15th January 2021 (little more than one week before the final hearing was due to commence) that the claimant disclosed her documents. The index to the claimant’s disclosure alone ran to 18 pages and the eleventh-hour service of such a voluminous amount of documentation would have derailed the final hearing if the claim had not been struck out. The respondent had been seeking disclosure from the claimant since 25th September 2020. “No meaningful response from the respondent” Again, there is no basis for this assertion. The procedural chronology and supporting bundle make clear that the respondent was responsive to the claimant throughout and proactive in seeking to prepare for the final hearing. “The respondent’s unreasonable, vexatious, and scandalously unacceptable, and inexcusable conduct re. breach of PID data re anonymity with a further victimising and harassing intent in retaliation” Again, there is no basis for this assertion. The procedural chronology and supporting bundle make clear that the respondent was responsive to the claimant throughout and proactive in seeking to prepare for the final hearing. As noted above, the claimant thanked this firm for its “understanding” in her email of 11th November 2020. The claimant may be conflating events in these proceedings with unconnected absence management processes being undertaken by the respondent (as the claimant’s employer). We understand the “alleged breach of PID data” to refer to a letter sent to the claimant by the respondent (in its capacity as her employer) which appears to have become damaged in the post. This is entirely unrelated to the conduct of these proceedings and does not merit reconsideration of the decision taken on 15th January 2021. “The ET not having assessed the full list of medical reports issued since 15/01/2021” We have not had sight of any such reports and have been unable to open the attachment to the email sent to the Tribunal on 2nd February 2021. We understand from the Tribunal’s letter of 2nd March 2021 that it has not been able to open it either. The claimant did not assert at the time that she was unfit to participate in the hearing on 15th January 2021 and did not make an application to postpone it (albeit that she had sought reasonable adjustments to it). Despite not dialling into the hearing, she was emailing the Tribunal and this firm during the hearing itself with no explanation as to why she had not joined the hearing.”[13]By email dated 15 July 2021 the Claimant confirms her position in respect of a hearing being requested by video. Attached to that email were:a. A letter dated 28 January 2021 from Dr Jessica Robinson about a 90-minute telephone consultation she had with the Claimant on the 20 January 2021.b. Written submissions in support of her application.c. A copy of a document dated 21 December 2020 with the heading … “Agenda items for ET PH 21 Dec 2020”.[14]Then for this hearing the Respondent submitted:a. Written submissions (by email dated 3 December 2021 – albeit a copy had not made it to the Employment Judge by the start of this hearing, so a further copy was resent via the hearing clerk).b. An updated chronology and a further copy of the pdf bundle previously submitted (by email dated 8 December 2021).c. An electronic copy of the correspondence since the judgment (by email of 10 December 2021).[15]The Claimant submitted by way of a drop box link sent by email dated 8 December 2021 a zip file containing 6 sub files which included across them a total of 121 separate documents.[16]The hearing commenced with the parties shortly after 10am as the parties were having connection issues.[17]The hearing, its purpose and process was then explained to the parties.[18]The Claimant wanted to clarify orally the basis for her application referring to four matters (in summary):a. That she is not on an equal footing because she does not have legal representation.b. Medical evidence was not available at the time of the hearing, so it was not considered. This appears to be for the submission of new evidence to be considered in particular the report of Dr Robinson.c. That she feels continually harassed legally by the Respondent. She was not allowed to join her two cases. About this it was explained that the other case (1401324/2020) is against another NHS body.d. That she is trying to comply with the case management orders as best she can and does not feel that any case management orders have been made for her benefit.[19]The Claimant then explained that she also wanted to read out a written submission to make sure her application was received and understood. The Claimant confirmed that she had updated her drop box link this morning to include a copy of the submission she wanted to read from.[20]After review of the drop box link and it not being clear to which document the Claimant referred the Claimant agreed to email what she wanted to refer to. This was then emailed to the hearing clerk (and then forwarded to the Employment Judge – received at 10:52) and to Respondent’s Counsel. The email attached her written submission (consisting of 13 pages) and three versions of a chronology detailing the claim process, one being a tracked changes version of the Respondent’s chronology.[21]The Claimant then had connection issues and lost her connection entirely at just after 11am. Attempts were then made to reconnect her. This included the hearing clerk making three calls to the Claimant, but she did not take those calls or return them despite messages being left, and her connection was not restored by around 11:40. During this time the recently submitted written submissions were considered.[22]The Employment Judge expressed the view to Respondent’s Counsel that the matter may need to be adjourned in view of the Claimant not reconnecting and so being able to confirm if she had further submissions.[23]Respondent’s Counsel applied for judgment in the Claimant’s absence asserting that further delay in view of the efforts made by the Tribunal to allow the Claimant to participate was to the Respondent’s prejudice, it would be putting it to further costs to address matters that were expected to be determined today. Respondent’s Counsel then confirmed her submissions on the Claimant’s application.[24]After considering the submissions made, and what was understood from the Claimant’s application as clarified by her oral submissions at the start of this hearing, it was determined to dismiss the application for reconsideration on the basis that it was not in the interests of justice to do so.[25]The Claimant had not demonstrated with particular reference to the letter of Dr Robinson that she was medically unable to attend the hearing on the 15 January 2021, nor that the Respondent was at fault on the case management orders, nor that the Claimant had complied with them.[26]At that point the hearing clerk confirmed that she had now just heard from the Claimant who was trying to reconnect. The Claimant was then able to do so by telephone (so audio only) at 11:55.[27]The Claimant explained that she had tried a number of times to reconnect and had missed the calls from the hearing clerk.[28]What had happened in the Claimant’s absence was then explained to her including the decision that had been reached. The Employment Judge confirmed that as she had now re-joined the hearing he would consider any further submissions the Claimant wanted to make, then allow the Respondent to respond to those and then review the matter, which owing to the listed hearing time, it was anticipated that a reserved judgment would need to be issued on the Claimant’s application.[29]The Employment Judge directed the Claimant to focus on the judgment that she was applying for reconsideration of which found she was in breach of case management orders, was not actively pursuing the claim and a fair hearing was no longer possible. It was explained that she should explain and highlight the documents that support what appeared to be the two key aspects of her application, that she had complied with case management orders, contrary to the position as understood by the Employment Judge when making his decision on the 15 January 2021, and that she was medically unable to attend the hearing on the 15 January 2021.[30]The Claimant then made her oral submissions. During those the Claimant referred to her statement about disability sent on the 9 July 2020 and the 67 page document submitted on the 8 December 2021 (which did not appear to be a witness statement, instead being in the main, further particulars) to support that she had complied with the case management orders. Respondent’s Counsel submitted in her oral submissions that the Claimant had not evidenced compliance even by now.[31]The Claimant asserted that the letter dated 28 January 2021 from Dr Robinson supported that she was medically unfit on the 15 January 2021 by reference to the final paragraph. The Claimant also referred to the excel spread sheet of medical conditions that she had submitted to the Tribunal on the 9 July 2020. Respondent’s Counsel in her oral submissions highlighted that the Claimant had not sought to dispute the findings made in the judgment of the 15 January 2021 at paragraph 17.[32]Respondent’s Counsel in oral submissions asserted, in short, that the Claimant’s conduct at this hearing was as the previous ones, with the lastminute submission of many documents, of which the majority are not relevant to the specific issues to be decided. She referred to the Claimant’s “active inactivity”. Further, that this way of conducting litigation was highly prejudicial to the Respondent and the public interest. Also, having considered the Claimant’s 13-page submissions emailed during the course of the hearing, so far as she was able in the time when the Claimant was not present, Respondent’s Counsel expressed that they do not raise matters in support of the Claimant’s reconsideration application.[33]It was observed a number of times that, despite requests from the Employment Judge not to do so, the Claimant kept interrupting Respondent’s Counsel when she was making her oral submissions, which was unhelpful. The Claimant did apologise for this at the end of the hearing.[34]The parties’ submissions concluded shortly after 13:00, so it was confirmed judgment would be reserved.
The Law
[35]Under Rule 70 of the Employment Tribunals Rules of Procedure, a judgment will only be reconsidered where it is ‘necessary in the interests of justice to do so’. A tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ (Rule 2). This includes:a. ensuring that the parties are on an equal footing;b. dealing with cases in ways which are proportionate to the complexity and importance of the issues;c. avoiding unnecessary formality and seeking flexibility in the proceedings;d. avoiding delay, so far as compatible with proper consideration of the issues; ande. saving expense.[36]As to relevant case authorities concerning the grounds of reconsideration this was helpfully summarised in the written submissions of Respondent’s Counsel (paragraphs 8 to 14 of her submissions) and is noted as follows:a. The Employment Tribunal may take into account only whether it is in the interests of justice for the judgment to be reconsidered. However, the parameters within which ‘the interests of justice’ sit remain in keeping with the pre 2013 position. See Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported). Mrs Justice Eady QC pointed out that the former specific grounds for review could be seen as particular instances when the interests of justice would generally have required such a review, and any consideration of an application under one of the specified grounds would have taken the interests of justice into account. In short, not only did the interests of justice ground in the 2013 Rules require the same approach to be taken as under the previous rules but the principles in the case law that had built up under the previous rules, including the specific grounds, were still relevant post-2013 (see paras 30, 46–48). Therefore, it is necessary to take into consideration whether(a) the decision was wrongly made as a result of an administrative error;(b) a party did not receive notice of the proceedings leading to the decision;(c) the decision was made in the absence of a party; and(d) new evidence had become available since the conclusion of the hearing which could not have been reasonably known of or foreseen at that time per the 2004 Rules.b. It is accepted that ‘the interests of justice’ connotes a wide discretion, it is not without limit and must be approached with regard, not just to the interests of the party seeking the reconsideration, but also to the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation. See Flint v Eastern Electricity Board [1975] ICR 395 at 401 and 404, per Phillips J.c. The importance of finality was emphasised by the Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714, [2016] ICR 1128, where Elias LJ, giving the only reasoned judgment, stated that the discretion to act in the interests of justice is not open-ended and emphasised the importance of finality, which he said militated against the discretion being exercised too readily (see para 21). Further, the principle that it will only be in the interests of justice to allow fresh evidence to be introduced on review if the evidence was not available at the original hearing (para 25). The Decision[37]As is submitted by Respondent’s Counsel and which I accept, the Claimant does not address interests of justice particular to the judgment that she applies to be reconsidered. The original application together with the written submissions refer in essence to the hardships that she says she has experienced and that because of the disadvantage to her the Employment Tribunal must reconsider its judgment and set aside the decision to strike out to enable her claim to be determined. Her representations take no account of her failures to comply with tribunal orders nor the extent of delay that she imported into the substantive proceedings.[38]I accept (as also submitted by Respondent’s Counsel) that the Claimant has been afforded many opportunities to comply with Employment Tribunal directions and orders and to attend hearings. She did neither and has not provided any or any reasonable explanation.[39]The judgment of the 15 January 2021 does review the preceding orders and the nature and conduct of previous hearings to assess what guidance had been provided to the Claimant to ensure that she had had every opportunity to comply. The judgment also weighed the impact of the Claimant’s lack of compliance and engagement on the Respondent as can be seen at paragraph 26 of that judgment.[40]Having considered what was referred to and the submissions made at this hearing, the Claimant has not proven that she had complied with the breached case management orders relied upon in making the judgment dated 15 January 2021.[41]The Claimant has not demonstrated that she did or has now complied with the breached case management orders, nor that the Respondent was in non-compliance relevant to those orders the Claimant had to comply with.[42]The Claimant has not put forward reasons why it is now possible for a fair hearing to take place.[43]Having considered what was referred to and the submissions made at this hearing, the final paragraph of the letter dated 28 January 2021 from Dr Robinson does not support that the Claimant was medically unfit on the 15 January 2021. Further, the excel spread sheet of medical conditions submitted to the Tribunal on the 9 July 2020 does not address the issues as they stood on the 15 January 2021.[44]The Claimant asserts that she has many health concerns that impact on her mental health. What is not evidenced, despite the Claimant being given opportunity to identify and refer to a particular medical document or documents from those submitted by her for this hearing (some of which appear to be in Polish), is that her non-compliance of specific case management orders and her non-attendance on the 15 January 2021 was caused by her health concerns.[45]The Claimant did not assert before or on 15 January 2021 that she was not fit to participate in that hearing, neither did she make an application to postpone it. The Claimant was able to email the Tribunal and Respondent’s solicitors throughout that hearing. The Claimant has not adequately explained why she did not join that hearing.[46]As already noted, the previous Tribunal Rules provided that a judgment could be reviewed on the ground that it ‘was made in the absence of a party’. To succeed on this ground the applying party had to have a good reason for her absence from the hearing, such as illness or accident, or a genuine mistake about the hearing date. Considering then what is now the sole ground for a reconsideration under the current Tribunal Rules, that it is in the ‘interests of justice’, in relation to the non-attendance of a party. It is for the applying party to provide a good reason for her absence along with any supporting evidence, so that the tribunal can decide whether that reason is genuine. In addition, under rule 70, the party will also have to satisfy the tribunal that, owing to the reason for the original absence, it is necessary in the interests of justice for the tribunal’s judgment to be reconsidered. As discussed above, ‘the interests of justice’ relates to the interests of justice to both parties. I would observe here that even if the Claimant had evidenced a genuine good reason for failing to attend the hearing, I do not consider (based on the matters already identified above) that it would be in the interests of justice to reconsider the decision made in the absence of the Claimant.[47]For all these reasons the Claimant’s application for reconsideration is dismissed as it is not in the interests of justice to vary or revoke the judgment of the 15 January 2021.