Mrs T Webb and Mrs M Hartrey v Mr T Moss and others: 1600237/2017 and 1600238/2017
EMPLOYMENT TRIBUNALS
Case No 1600237/2017, 1600238/2017
Between
Mrs T Webb and Mrs M HartreyClaimantMr T Moss and othersRespondent
Before
Employment Judge S DaviesIn person for claimantMs J Williams (instructed by counsel) for respondentDate 11 June 2019
JUDGMENT
[1]Mrs Hartrey’s complaints are dismissed for lack of jurisdiction (section 111 Employment Rights Act 1996 and section 123 Equality Act 2010) and/or struck out as having no prospect of success (Rule 37(1)(a)).[2]Mrs Webb’s complaints are dismissed for non attendance at the hearing (Rule 47) and/or struck out (Rule 37(1)(c),(d) and (e)) .
REASONS
[3]By a notice of hearing dated 2 May 2019 a Preliminary Hearing was listed to consider:a. whether Mrs Hartrey’s claim was brought out of time. In particular, was any complaint presented outside the relevant time limits in the Employment Rights Act 1996 and the Equality Act 2010 and if so should it be dismissed on the basis that the Tribunal has no jurisdiction to hear it? Further or alternatively, because of those time limits, should any complaint be struck out under rule 37 on the basis that it has no reasonable prospects of success and/or should one or more deposit orders be made under rule 39 on the basis of little reasonable prospects of success? Dealing with these issues may involve consideration of subsidiary issues including: whether it was “not reasonably practicable” for a complaint to be presented within the primary time limit; whether there was “conduct extending over a period”; whether it would be “just and equitable” for the Tribunal to permit proceedings on an otherwise out of time complaint to be brought; when the treatment complained about occurred.b. in respect of Mrs Webb and Mrs Hartrey: i. If applicable, whether to strike out the claims for noncompliance with Orders of the Tribunal. ii. Whether to strike out the claims because they have not been actively pursued. iii. Whether to strike out the claims because the Tribunal considers that it is no longer possible to have a fair hearing.
The hearing
[4]Mrs Webb did not attend the hearing and Mrs Hartrey explained that she was unwell. No current medical note was provided by Mrs Webb to evidence the reasons for her non-attendance. Mrs Hartrey said that she could not speak on behalf of Mrs Webb.[5]The hearing commenced at 10:20am after a short delay to check with Mrs Hartrey whether copies of emails sent to the Tribunal could be shared with Ms Williams. These were photographs of bundles of documents and a copy of those photographs was given to Ms Williams with Mrs Hartrey’s permission.[6]A bundle of documents relevant to the preliminary issues was prepared by the Respondents and a copy was made available to Mrs Hartrey. References in square brackets in this judgment are to page numbers in the preliminary hearing bundle. Postponement application[7]The Claimants applied for the postponement of the preliminary hearing by way of handwritten letter on 31 May 2019. This request was refused by Employment Judge S Davies by letter of 4 June 2019 (a corrected version of the letter was sent to the parties dated 5 June 2019). There is an error in the Tribunal’s letter; it refers to a letter from a community mental health nurse dated 21 May 2019 as being in respect of Mrs Webb, when it in fact the letter relates to Mrs Hartrey. This error does not affect the decision.[8]Mrs Hartrey renewed her application for a postponement orally at the preliminary hearing. The basis for the application was that she was in possession of letters from Welsh Assembly Members but that these could not be disclosed, without permission, to the Tribunal or the Respondents. Mrs Hartrey described the letters as being from a ‘respected assembly member’ dated 11 January 2019, from Jeremy Miles dated 1 February 2019 and from Mark Drakeford dated 25 February 2019. Mrs Hartrey explained that she was awaiting confirmation that she could disclose the letters to the Tribunal and confirmed that she had written to the Tribunal about these letters on previous occasions. Mrs Hartrey said she had spent a number of days at the Welsh Assembly waiting for an opportunity to speak with the relevant ministers but had not been given an appointment. Mrs Hartrey described speaking recently with a police officer at the assembly for a two hour period. Mrs Hartrey referred to criminal matters and an independent inquiry but did not disclose the detail of the letters.[9]Mrs Hartrey explained the symptoms of her mental impairment. It is not necessary to include all the symptoms in this judgment, given that it will be placed on a public register, but they included stress and acute anxiety. Mrs Hartrey expressed her intention not to stay at the hearing to give evidence about time limits and her claim as it was ‘not in her best interests’ to do so.[10]Having considered Mrs Hartrey’s submissions, the Employment Judge refused the renewed application to postpone. Refusal was on the basis that letters from the Welsh Assembly Members had been in the possession of the Claimants for long period of time without them being prepared to disclose them to the Tribunal and the Respondents. The Claimants’ attempts to obtain the permission they believe they require to disclose the letters has not been secured to date and it would not be proportionate to wait longer, on the possibility of permission being granted in the future (assuming such permission is required). Further, it is not clear how the letters impact on the Tribunal claims.[11]Mrs Hartrey’s mental impairment is a significant consideration in determining whether the hearing should proceed. However it was notable that Mrs Hartrey was able to address the Tribunal articulately for a period of 15 minutes or more and make her application to postpone, without obvious difficulty. Mrs Hartrey was able to respond to questions appropriately and appeared to understand the consequences of her leaving the hearing; when the Employment Judge told Mrs Hartrey that a decision would be made in her absence if she left, Mrs Hartrey said that she thought that would happen.[12]Additionally Mrs Hartrey has been able to engage in lengthy correspondence with the Tribunal over the past two years. Her ability to articulate herself both verbally and in writing was a factor that the Employment Judge took into account when determining the application.[13]The Employment Judge explored the possibility of making adjustments to the hearing to accommodate Mrs Hartrey’s mental health condition. Adjustments explored were; the setup of the room, where the Employment Judge and counsel for the Respondent sat relative to her, allowing her to give evidence away from the witness table and the type of questions that would be permitted in cross-examination. Mrs Hartrey did not want to take up any of these suggestions, nor did she identify any adjustment herself, saying that it was not in her interests to give evidence about the jurisdictional (time limit) point because if evidence was given ‘her claims would be struck out as being out of time’.[14]In all the circumstances and in accordance with the overriding objective, which includes consideration of all parties’ interests, the application to postpone was refused. Mrs Hartrey’s attendance at the hearing[15]After the application for postponement was refused, Mrs Hartrey said that she intended to leave the hearing as it was not in her interests to stay. The Employment Judge explained that giving evidence would be an opportunity for her to explain her position about why the claim was brought outside the usual time limits. Mrs Hartrey was asked on four occasions whether she was willing to give evidence and she refused on each occasion. Eventually Mrs Hartrey left the hearing at around 11 am.[16]After Mrs Hartrey’s departure, the Employment Judge heard submissions from Ms Williams.[17]A short oral judgement was given with reasons being reserved. The Employment Judge felt that it was appropriate to reserve reasons as the Claimants were not present when judgment was given.
Background
[18]These claims were brought in the Employment Tribunal on 5 April 2017. Both Claimants have mental impairments; diagnosis for Mrs Hartrey at [153] and Mrs Webb at [155] (Mrs Webb has also been diagnosed with a physical impairment).[19]The Claimants were previously employed by Companies House and were both dismissed after long term sickness absence. Their claims are brought against their former employer and up to 26 named individuals (there is an unresolved issue about service of claim on 2 individuals).[20]Until today, when Mrs Hartrey attended, neither Claimant has attended any preliminary hearings in person.[21]A preliminary hearing in person for case management was first listed on 26 June 2017. This was postponed at the request of the Claimants; the Respondents wished to apply for strike out and insufficient notice of the hearing was provided (letter from Tribunal dated 23 June 2017 [75]). The Tribunal explained the purpose of a preliminary hearing in this letter and sought dates to avoid from the parties.[22]The Claimants provided medical evidence to the effect that they were unfit to attend the relisted hearing but did not copy this to the Respondents. The Tribunal explained in a letter of 25 July 2017 [83] that if the Claimants were not willing to share the medical information the Tribunal would be unable to act upon it.[23]The Claimants were provided by the Tribunal with a “sources of advice” leaflet for litigants in person, which provides information about organisations which provide free legal and other support. The Claimants contacted Citizens Advice who informed the Tribunal that they had been instructed on behalf of the Claimants by letter of 14 September 2017 [89]. Citizens Advice suggested a telephone preliminary hearing for case management which was listed for on 20 November 2017 [101].[24]Citizens Advice came off the record by letter of 24 October 2017 [96]. The telephone preliminary hearing was postponed as being unsuitable in the absence of a professional representative for the Claimants.[25]An Assembly Member intervened on behalf of the Claimants by email of 5 February 2018 [128]. At this point the Claimants had still not indicated when they would be well enough to attend a preliminary hearing.[26]As an adjustment, Employment Judge S Davies directed Tribunal staff to remove deadlines for responses from Tribunal letters (eg letter from Tribunal of 9 February 2018 [130]). The Employment Judge made other adjustments including extending deadlines and that the Tribunal would act as a “postbox” for correspondence, to avoid the parties corresponding directly with each other, as the Claimants indicated this negatively affected their mental health.[27]Throughout the period the Claimants engaged in lengthy correspondence with the Tribunal [eg 169-175]. Employment Judge S Davies wrote a detailed letter to the Claimants of 28 April 2018 informing them of resources which could assist disabled litigants, including the Advocates Gateway and the Equal Treatment Bench Book [176-179]. The process for applying for postponement for medical incapability was explained and the Claimants informed that without current medical evidence a preliminary hearing in person would be listed.[28]In the absence of progress, a deadline was eventually set for receipt of upto-date medical evidence of 5 May 2018, it was extended to 14 May 2018 and again to 22 June 2018. Despite these extensions of time the Claimants missed the final deadline, providing medical evidence on 26 June 2018 which was redacted; the Claimants failed to confirm that it could be shared with the Respondents. Employment Judge S Davies determined that a preliminary hearing in person should be listed for case management and this was confirmed in a letter from the Tribunal of 28 June 2018 [213-214].[29]In order to assist the Claimants, the preliminary hearing was listed on a day when the services of the pro bono legal advice clinic, ELIPS, were available. This led to a delay in listing the hearing, which could not be accommodated until 14 December 2018.[30]The Claimants applied for postponement of the preliminary hearing on 12 December 2018, which request was refused as confirmed in the Tribunal’s letter of 13 December 2018 [236]. The Claimants renewed the application late on 13 December 2018; the Claimants were informed it would be dealt with at the Preliminary Hearing in person the next day [251]. The postponement application was not pursued at the hearing.[31]The preliminary hearing in person was held on 14 December 2018 before Employment Judge S Davies. At that hearing the Claimants were represented by a volunteer from the ELIPS pro bono clinic, Mr M Jackson of counsel, and Mr A Midgley of counsel appeared for the Respondent.[32]The case management order of 14 December 2019 [264-270] records the adjustments afforded to the Claimants, in that they were permitted to submit their whistleblowing and victimisation complaints in stages and that their other discrimination complaints would be particularised at a later date.[33]The Claimants failed to comply with orders to particularise the whistleblowing and victimisation complaints.[34]A further preliminary hearing in person was held on 15 March 2019 [323- 326]. Although the Claimants attended the Tribunal building they refused to attend the hearing itself, submitting a postponement request in writing which was refused. The sequence of events that morning is recorded in the case management order at paragraphs 1 to 7.[35]The Tribunal made an Unless Order in respect of particularisation of the whistleblowing and victimisation complaints. The Claimants failed to comply with the Unless Order and their complaints of whistleblowing detriment/ dismissal and victimisation were dismissed under Rule 38 which was confirmed by the Tribunal by letter of 25 March 2019 [347].[36]The Claimants made a request for an ‘extension of time’ for the preliminary hearing listed on 6 June 2019 which was treated as a request for a postponement and refused, confirmed in the Tribunal’s letter of 15 May 2019 [350C].[37]A further application to postpone was received on 31 May 2019 on the grounds of Mrs Hartrey suffering the bereavement of her aunt, a letter from her community mental health nurse dated 21 May 2019 [350 l] and on the basis of awaiting a response from Mark Drakeford, First Minister in respect of an independent enquiry. The postponement request was refused by Employment Judge S Davies in the Tribunal letter of 4 and 5 June 2019 [350Q]. Remaining complaints[38]The remaining complaints, identified by ticked boxes in the ET1 claim form, were age and disability discrimination. Although the box for unfair dismissal was not ticked, the Employment Judge inferred from the content of the claim form that the Claimants intended to bring such a claim.
Law
[39]The Employment Judge considered Rules 2, 37 and 47 of the Employment Tribunal Rules of Procedure 2013, section 111 Employment Rights Act 1996 and section 123 Equality Act 2010.[40]Counsel for the Respondent referred to Riley v CPS [2013] EWCA Civ 951 at paragraphs 27-28 which deals with strike out in the context of the overriding objective and Article 6 of EHRC which emphasises that every litigant is entitled to a fair trail within a reasonable time; which is an entitlement of all parties to litigation. In particular: ‘If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to the Tribunal’.[41]Additionally the Employment Judge was referred to Weir Valves & Controls (UK) Ltd v Armitage [2003] WL 22827114 on strike out for non compliance with orders; paragraph 17 is noted - the factors to consider in accordance with the overriding objective. Mrs Hartrey – jurisdiction[42]Mrs Hartrey’s employment came to an end on 31 July 2016 [377]. Early conciliation with ACAS was not commenced until March 2017 and the ET1 claim form submitted on 5 April 2017.[43]Mrs Hartrey refused to give evidence at today’s preliminary hearing about the reasons why there was a delay between the date of her dismissal and her contacting ACAS and bringing a claim in the Tribunal. When the Employment Judge made efforts to encourage her to give evidence in order to give her version of events, she responded that it would not be in her interest to do so because her claim was out of time and would be struck out.[44]In the absence of evidence from Mrs Hartrey, the Employment Judge considered the material available including the ET1 claim form. On the claim form Mrs Hartrey identified that time was an issue from the outset, stating “the Tribunal may view my case as out of time” [14]. Mrs Hartrey says that she was on sickness absence with mental impairments that resulted in hospitalisation. Mrs Hartrey says that she lacked the mental capacity to make decisions or touch any paperwork associated with the case, hence the claims are “out of time”. The information in the ET1 does not give a time frame for any of the events relied upon as explaining the reasons for being out of time.[45]The Employment Judge considered the correspondence between Companies House and Mrs Hartrey in the period leading up to her dismissal [352-378]. Mrs Hartrey’s son represented her in correspondence and at a meeting with her former employer. Following a meeting with Mr Hartrey, Companies House informed him that they intended to dismiss Mrs Hartrey in a letter of 4 July 2016 which set out the right of appeal [365-367]. Mr Hartrey sought an extension of time within which to appeal and a further 10 working days were granted. Mrs Hartrey sent an email to Companies House on 27 July 2016 [375] about her fit note. Mrs Hartrey contacted her employer by phone on 28 July 2016 about a further extension for appeal; this was refused. Mrs Hartrey did not appeal and her dismissal was confirmed in a letter of 29 July 2016 [377-378].[46]Without oral or other evidence upon which to assess the reasons for delay after dismissal, the Employment Judge is unable to conclude that it was not reasonably practicable for Mrs Hartrey to bring her unfair dismissal claim in time, or even on the wider ‘just and equitable’ test to extend jurisdiction to consider the discrimination complaints (which predate dismissal) out of time. It is for Mrs Hartrey to persuade the Employment Tribunal of these matters. The information before the Employment Judge is an insufficient basis upon which to do so. Around the time of dismissal, although unwell, Mrs Hartrey was able to communicate with her employer by email and telephone. Commencing ACAS EC involves providing only brief details and an ET1 claim form can be submitted online with summary details of claim. Mrs Hartrey has not explained why her ill health prevented her from taking these steps to pursue her employment complaints.[47]All complaints are dismissed for lack of jurisdiction. Alternatively all complaints are struck out under Rule 37 on the basis that they have no reasonable prospects of success having been brought outside the applicable time limits. Mrs Webb[48]Mrs Webb’s non attendance at the preliminary hearing was explained as being for ill health by Mrs Hartrey. Mrs Webb did not send a representative to speak on her behalf (Mrs Hartrey said she could not speak for Mrs Webb) and did not provide up to date medical evidence of her state of health and ability to attend a hearing. The last fit note seen by the Tribunal was dated 4 February 2019 and states that Mrs Webb is not fit for work.[49]Under Rule 47 the Employment Judge dismisses Mrs Webb’s claim for her non attendance.[50]The Employment Judge also considered Rule 37 and considers strike out of Mrs Webb’s complaints is appropriate for the following reasons:a. Mrs Webb has not complied with orders throughout the history of these proceedings, this is relevant context to the most recent failure to comply with the Order of the Tribunal dated 15 March 2019 – directions 9 and 11 [326]. The photographs provided this morning of bundles of documents are not evidence of compliance with orders; the Tribunal cannot consider documents that are not before it;b. the case has not been actively pursued; Mrs Webb has been signposted to various sources of free help and advice yet has been unable to articulate the detail of her claims over a 2 year period; andc. it is no longer possible to have a fair hearing of the claim, largely because of the Claimants’ ongoing ill health. There is no indication from the Claimants or their medical teams of when a hearing can take place. It has not been possible to hold a preliminary hearing to discuss case management in the Claimants’ presence, let alone a final hearing of the case. The medical evidence that exists suggest that Mrs Webb remains unwell and there is no indication of when she will be well enough to participate. The Tribunal process has been ongoing for an extended period of more than 2 years without clarification of the complaints; the prejudice to the Respondents, particularly the individually named Respondents is evident. All parties have the right to have litigation concluded within a reasonable period of time. The prospect of litigation, especially when the allegations are unclear about matters which happened several years ago, is likely to cause stress and concern. It is not in accordance with the overriding objective to allow the case to continue indefinitely without prospect of resolution; the interests of all parties must be considered. Correspondence from Mrs Webb received after the Preliminary Hearing[51]On 7 June 2019 Mrs Webb sent further correspondence to the Tribunal; a fit note dated 4 June 2019. No explanation was given of why the note was not made available to the Tribunal at or prior to the preliminary hearing. Further photographs of papers were also sent. Mrs Webb did not give permission to share the fit note or photographs with the Respondents (she gave permission to share the fit note with the Respondent’s representative only). The Tribunal is unable to consider documents that cannot be shared with the Respondents.