Miss G McCarthy v Values in Care Ltd and Swanton Care & Community Ltd: 1600947/2024
JUDGMENT
The claim is struck out.REASONS
[1]By a case management order dated 13/11/2024, following a preliminary hearing held that day to which the Claimant failed to attend, the Tribunal gave the claimant an opportunity to make representations in writing by 4pm on 20/11/2024 or to make oral representations at the preliminary hearing listed today, 22/11/2024, as to why the claim should not be struck out because• the claimant had not complied with the multiple Orders of the Tribunal, including but not limited to those of Employment Judge Brace on 19/09/2024.• it has not been actively pursued.[2]The claimant has failed to make representations in writing and has failed to attend the hearing today to make oral representations.[3]The Respondent prepared a hearing bundle (no documents being served by the Claimant) and a skeleton argument. At the start of the hearing I waited 10 minutes during which time I had the Tribunal clerk try to reach the Claimant by telephone multiple times. I then started the hearing at 10.10, asked the Respondent’s Representative had she had any correspondence from the Claimant, and she advised that she had not, save for having been copied into an email of the Claimant dated 08/11/2024 where the Claimant claimed in response to the notice of hearing for the 13th November 2024 hearing, that she thought the hearing was taking place on 22/11/2024, demonstrating her knowledge of the hearing that was listed for today. I asked the Tribunal clerk to try the Claimant again at 10.15 and again there was no answer. I also had the email inbox checked for the Tribunal and noted that there had been no further correspondence from the Claimant. I consider that the Claimant had been served the notice of hearing, was aware of the hearing and had been served the orders of 13/11/2024 which included the Strike Out warning and the options to give representations. I consider that the Claimant has chosen, once again, to not attend a hearing and to not comply with Tribunal orders. I proceeded to hear the Respondent’s submissions.[4]The Respondent had made a renewed application to strike out the Claimant’s case following the Claimant’s failure to comply with the orders of Judge Brace on 19/09/2024 which had a deadline of 17/10/2024. The first application for strike out made by the Respondent was contained in the ET3 and was for issues of jurisdiction (time). I have not considered that point further today as the Respondent’s renewed application and the Strike Out Warning of the Tribunal given by Judge Ryan have superseded that point at present.[5]On registration, case management orders were automatically issued as the case was thought to be for unfair dismissal only. Therefore, standard directions were issued. The Claimant failed to comply with these. Judge Brace, as evident from the Case Management Order, converted the public preliminary hearing to private case management hearing on 19/09/2024 and explained in depth to the Claimant what the Claimant needed to do and urged her to take advice. She was also asked to contact her doctor the same day. Judge Brace varied the orders previously made and asked the Claimant to provide the following documents by 17/10/2024:- i) Medical evidence to support her claim that she has difficulty in processing and reading documents as a result of the medication she has been prescribed and is currently taking; ii) To confirm whether she intends to pursue a whistleblowing complaint and if so, to provide further and better particulars in relation to any such complaint she intends to bring; iii) To provide all documents relevant to the time issue; iv) To provide a witness statement relevant to the time issue and an explanation of why the additional complaints she seeks to amend her claim to include, were not including in the ET1 claim form.[6]The Claimant has failed to do any of the above but did ask on 16/10/2024 if she could have more time as she was taking advice on 17/10/2024. The Respondent agreed to a week’s extension and asked for an unless order. This was not responded to by the Tribunal, for which I apologise. The Respondent then contacted the Tribunal on 28/10/2024 renewing their application for a strike out and raising the continued non-compliance of the Claimant. The Claimant was asked for her comments within 7 days. The Claimant failed to reply. The Tribunal then arranged a further case management hearing for 13/11/2024 for which the Claimant failed to attend. When called by the clerk, the Claimant advised that she was unwell. This was not accepted and the Claimant was ordered to provide a fit note regarding the inability to attend by 10am on 22/11/2024. The Claimant did not comply with this. The Claimant has again failed to attend.[7]The Claimant is both not actively pursuing her claim and is also repeatedly failing to follow any Tribunal orders. The grounds to strike out are made out.[8]It is of course the case that just because the grounds to strike out are present, a case is struck out. I must then consider my discretion to strike out.[9]I note in this case that Judge Brace in a preliminary hearing on 19/09/2024 went to great lengths to explore the Claimant’s case with her, explain where the deadlines had been missed and was very clear what the Claimant had to do and when she had to do it. I also have paid particular attention to paragraph 59 of her order that made it clear that Judge Brace had warned the Claimant that is she did not comply with orders and directions, she risked her claim being struck out. I think it is of note that the Clamant, whilst having the risk of strike out explained to her, has continued to breach Tribunal orders. I find it even more concerning that the Claimant, when given a formal strike out warning by Judge Ryan has chosen not to send written representations or even attend the hearing today. Further, she still has not complied with all, or any, of the outstanding orders. I have considered the overriding objective and there must be fairness to both parties. I find that as the risk of strike out, the most draconian sanction, has already been raised twice with the Claimant by the Tribunal and multiple times by the Respondent, that there is no sanction that I can impose or action that I can take that is likely to cause the Claimant to actively pursue her claim and to comply with Tribunal orders. The Claimant has shown an utter disregard for the Tribunal process and has caused the Respondent to be in a position where almost 18 months after the Claimant having left their employment, they are still not sure what case she is trying to bring against them and on what grounds. I accept that her actions have rendered a fair hearing unlikely as the Respondent has explained that 2 of their key witnesses have now left their employment. I find that the Respondent is not able to take evidence from witnesses efficiently until they are aware of what claims they are to meet. As the Claimant has consistently failed to comply with directions, they have not been able to do this. I find that in this case, it is in the interests of justice that I strike out the Claimant’s case in its entirety. I have borne in mind fully that the outcome will mean that the Claimant cannot pursue her claims further. I however find that bar putting in an ET1, sending some limited correspondence and attending 1 of 3 preliminary hearings, she has not been pursuing her claim in any event.[10]The claim is therefore struck out.[11]The Respondent attended and said that the correct legal name of the Respondent is Swanton Care & Community Ltd. As the Claimant did not attend, I could not seek agreement to this. I therefore have added that company as a second Respondent and strike out the claim against both Respondents, to avoid any confusion.