Mrs L McManamin v Impact Education Multi Academy Trust and others: 1806788/2021
EMPLOYMENT TRIBUNALS
Case No 1806788/2021
Between
Mrs L McManaminClaimant1. Impact Education Multi Academy Trust 2. Phillip Hannah 3. Rachel Adams RECORD OF A PRELIMINARY HEARING Heard on 29 November 2022Respondent
Before
Employment Judge D N JonesDate 6 March 2024
JUDGMENT
[1]Save for the claims identified in the list of issues sent to the Tribunal on 18 November 2022 and the rulings on amendment in respect of that document at the preliminary hearing on 29 November 2022, all other claims are dismissed upon withdrawal.[2]The application to strike out the claim is dismissed.
REASONS
Introduction
[1]This is an application to strike out the claims. Strike-out of a claim or part of a claim are governed by Rule 37 and the ground upon which it is advanced that this is a case which should be struck out is that the manner in which the proceedings have been conducted by or on behalf of the claimant has been unreasonable, and that the claimant has not complied with orders of the Tribunal. The guiding principle is set out in the case of Weir Valves v Armitage [2004] ICR 371 in which His Honour Judge Richardson said “The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and still whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.”[2]The history of this case insofar as it is relevant to that issue is as follows. The claim was issued on 24 December 2021. The respondent applied for those claims which pre-dated 7 June 2021 to be struck out on 21 February 2022. On 2 March 2022 the claimant’s current representative took over the conduct of the file. There had been three other representatives prior to that time. She is represented by her union who have in-house solicitors.[3]On 9 March 2022 the case was listed for a preliminary hearing on 28 June to consider the respondents’ applications. The claimant failed to provide written representations and a witness statement in accordance with the notice of hearing seven days before the hearing but these were produced only the night before and the skeleton argument prepared by counsel first notified the respondent that it was alleging a reason for the delay was because of incorrect legal advice on the morning of the hearing on 28 June. Employment Judge Lancaster did not strike out the case but made orders that a succinct List of Issues and Schedule of Loss should be served and filed by 26 July 2022. He remarked upon the lengthy nature of the claim and the need for it to be clarified. No such clarification was given in the List of Issues by the due date and on 27 July 2022 the respondents’ representative wrote requesting the List of Issues. It received no response. On 1 August 2022 the respondents’ representative again sought clarification to which it received no response. On 8 August 2022 the respondent applied for a strike-out of the claim or an unless order and on 11 August 2022 the respondent again wrote requesting for a response.[4]The first time the claimant responded to say that the claimant was on holiday and hoped to provide information the following week, Employment Judge Brain having ordered her comments by 18 August 2022. On 19 August 2022 the respondent notified the Tribunal that there had still not been compliance with the order and the claimant requested an extension to 2 September 2022 which was granted in respect of providing the List of Issues and Schedule of Loss. Even that order was not complied with. By 12 September 2022 the claimant was provided with a strike-out warning to explain why the claim should not be struck out, to reply by 19 September 2022. On that date the claimant responded by her representative to state that the representative had been busy and it would be disproportionate to strike out and requested a further extension until 26 September. Further and Better Particulars were provided on 23 September 2022. That was not a List of Issues. On 26 September a further Amended Particulars was provided but still not a List of Issues. On 27 September the respondent notified the Tribunal there was a continuing breach. On 28 and 29 of September a Statement of Expectations and Schedule of Loss was submitted. On 3 August the respondent e-mailed the claimant a request that she comply with the order and supply a List of Issues. There was no response. On 18 November, eight working days before the preliminary hearing, a List of Issues was provided. That was the third iteration, the earlier two being further particulars.[5]That is the history of the non-compliance. It is self-evident that it is a failure to comply with many orders of the Tribunal. It is, in my judgment, unreasonable conduct of the proceedings. Having read the statements of the claimant and her representative, Ms Macey, I am satisfied that that is attributable to the acts of the representative and not the claimant, a matter to which His Honour Judge Richardson indicated, in Weir Valves v Armitage, I should identifiy.[6]I have considered whether this serious failure to comply with orders was deliberate or inadvertent. As I indicated to Ms Hart in submissions, there comes a point at which one has to question the assertion of a representative that they are simply too busy to the point at which what might have been inadvertence tips into wilful disregard or at least reckless disregard. I have limited information at this time on which to draw such an inference.[7]I have considered the statement of Ms Macey. The Union has been significantly understaffed. She has been coping with a workload outside her region in the form of the claimant’s case. I am prepared to accept that the workload has contributed to these unacceptable defaults of the Tribunal’s process. That of course is no assistance to the respondents, and particularly their representative, to whom I express my sympathy, who has diligently written to the representative of the claimant attempting to achieve compliance so that her client can proceed with the defence to the claim. I find no criticism can properly be made of the representative of the respondent and any suggestion in the statement of Ms Macey to that effect is rejected.[8]So, I am satisfied in respect of the magnitude of the default that it is significant but not wilful. The effect of it is that there has been a four month delay in a case which involves allegations going back two years. If the claimant was bringing claims which simply pre-dated the claim form by three months that would obviously not be as significant in terms of the impact on the case as one which spans back two years. I have that in mind as well. I am satisfied the default has caused some disruption in that only now will the case be able to be addressed and responded to instead of four months earlier. That is a hardship for the respondent.[9]In summary the threshold to strike out the claim is established because of unreasonable conduct on the part of the representative of the claimant and unacceptable failure to comply with Tribunal orders.[10]I then have to consider proportionality. In Blockbuster Entertainment v James [2006] IRLR 630, the Court of Appeal reminds tribunals that will include asking whether a lesser measure to address the default would be appropriate, particularly focussing on whether a fair trial is still possible in spite of the default and whether striking out the claim is disproportionate. As Lord Justice Sedgley remarked, the first object of any system of justice is to get triable cases tried.[11]I reach the conclusion that it has not yet reached the stage where I can say that a fair trial is not possible. Perhaps fortuitously for the claimant, this case is heard in a region in which the case at a final hearing can be heard within months not years and so that four-month delay may not be as disadvantageous as it might otherwise have been because the longer a case awaits a hearing the greater is the prejudice to the parties, all the parties, because of the effect of delay on the memories of the witnesses and the possible loss of witnesses themselves. I recognise in that respect that, as His Honour Judge Tayler indicated in Cox v Adecco [2021] UKEAT 0039/19/01, that although it is open to a party to say that there is a general effect on delay a party relying upon that is better placed to identify the particular issues which are affected by the delay or any witnesses who may no longer be available. The respondents assert that some witnesses will have left although I have no further particularisation of that.[12]Of course if there were to be further default, I cannot bind another judge, but I imagine the Tribunal would take that very seriously in the light of what I have already said. The reassurance that a lesser remedy may be appropriate in respect of further disobedience begins to wane. I anticipate that an unless order would be quite likely if any order is now not complied with.[13]Bearing in mind all of those factors, on the issue of proportionality I have reached the conclusion that a fair trial is still possible with tight case management. I do not consider it would be proportionate to mark the disobedience by striking out the claim, although I leave open the issue as to whether or not any application may arise from that. I do not deal with an application of a consequential cost to the respondent of these delays because I am not seised with sufficient information, but I do make that point that it is for the parties to consider their positions in the light of my current findings.[1]This was a preliminary hearing in public to decide whether the claim should be struck out because the Claimant has failed to comply with Tribunal orders and/or because the conduct of the proceedings by the Claimant or on her behalf has been unreasonable.[2]The Claimant was represented at the hearing by Mr Harris (counsel). Mr Harris is not the legal representative with conduct of the file, he is simply counsel instructed to attend this hearing. The Respondent was represented by Ms Blythe (solicitor). I was provided with a file of relevant documents. Ms McManamin had provided a witness statement for today’s hearing and I read it, together with her previous witness statements and attached documents. Ms McManamin gave brief oral evidence. Procedural history and factual background[3]This judgment should be read in conjunction with the judgment and written reasons of Employment Judge Jones, following a preliminary hearing on 29 November 2022. On that occasion, EJ Jones narrowly decided not to strike out the claims for non-compliance with Tribunal orders. He warned the Claimant that, while another judge could not be bound by his comments, the Tribunal was likely to take very seriously any further failure to comply with Tribunal orders, and that the reassurance that a lesser remedy than striking out might be appropriate in respect of further disobedience would begin to wane.[4]Having concluded that the claim should not be struck out, EJ Jones listed the final hearing to take place over 15 days in June and July 2023. He made case management orders, including orders for the parties to provide an agreed list of issues, for the disclosure of documents and agreement of a hearing file by the end of March 2023 and the exchange of witness statements by 10 May 2023.[5]The parties remained unable to agree the list of issues, and requested a further preliminary hearing at which that could be addressed. This took place on 22 May 2023. By that time, the Claimant had also made a request for specific disclosure and the Respondent applied for disclosure of the Claimant’s mitigation documents as none had been disclosed to date. EJ Maidment conducted the preliminary hearing. He dealt with issues relating to privilege and other matters and made some orders for specific disclosure by the Respondent. He then ordered the Respondent to provide the Claimant with a draft of the hearing file for the final hearing. The Claimant was ordered to provide comments on that file, including which items could be removed because they were irrelevant, and to make any request for specific disclosure by 14 July 2023.[6]EJ Maidment listed a further preliminary hearing on 28 July 2023 and postponed the final hearing to December 2023, because the parties were not ready for it to take place in June 2023.[7]EJ Deeley conducted the preliminary hearing on 28 July 2023. She moved the final hearing from December 2023 to February 2024 at the Respondent’s request because of the availability of its witnesses. She made further case management orders, including an order requiring the Claimant to provide mitigation documents by 25 September 2023; an order for both parties to send each other a list of documents contained within the lengthy draft hearing file that could be removed; and an order for witness statements to be exchanged by 20 November 2023. That order was expressly not an order for simultaneous exchange, but was an order for each party to provide its statements by the due date. The Claimant made an application for specific disclosure during the preliminary hearing on 28 July 2023 and EJ Deeley listed the 19 documents or categories of documents sought.[8]The Respondent responded in due course to the Claimant’s application for specific disclosure. It pointed out that 15 of the 19 documents requested were in the Claimant’s possession or had already been disclosed and were in the draft hearing file already.[9]On 30 October 2023, the Respondent made a further application for the claim to be struck out, on the basis that the Claimant had not complied with the orders to provide mitigation documents, to seek to agree which documents could be removed from the draft hearing file, and to confirm that disclosure was complete.[10]On 5 November 2023 the Claimant’s legal representative emailed the Tribunal to say that disclosure would be completed by 10 November 2023. On 27 November 2023 EJ Cox therefore refused the Respondent’s strike out application. She was of the view that this would not be proportionate, given the assurance that the documents were to be provided by 10 November 2023 and related to mitigation only. She said that the parties must cooperate to agree a manageable hearing file.[11]In fact, the Claimant’s representative had not provided any further disclosure by 10 November 2023. The Respondent’s representatives made repeated attempts to contact him, including by leaving voicemails, sending emails and even attempting to contact his supervisor. Eventually on 24 January 2024 the Claimant’s representative made contact with the Respondent’s. Apart from the very brief email to the Tribunal on 5 November 2023 (which was not in fact complied with), that was the only communication from the Claimant’s representative for almost four months. In the 24 January 2024 email, the Claimant’s representative said that the Claimant had disclosed all relevant mitigation documents prior to 28 July 2023. He said that he had “not been instructed to seek the removal of any documents from the existing file” and he said that they were currently working on witness statements. The Respondent’s representative then requested specific disclosure of evidence relating to two roles for which it knew the Claimant had applied in around May 2020. She asked for confirmation that the Claimant’s representative had actually read the draft file, drawing attention by way of example to pages that needed removing and pages that were duplicates. She also asked when the Claimant’s representative proposed exchanging witness statements.[12]The Respondent had applied for an unless order on 15 January 2024. That application had not been dealt with by the Tribunal by 26 January 2024, when the Respondent’s representative applied for a postponement of the hearing that was due to start on 19 February 2024. At that stage, she was due to go on annual leave for two weeks, after which it was half-term, so it had become impossible for the file and statements to be finalised and exchanged and the parties to be ready for the hearing.[13]Employment Judge Wade declined to postpone and re-list the hearing. Instead, she ordered that one of the days be used to decide whether the claims should be struck out.[14]The Claimant’s representative disclosed further mitigation documents on 31 January 2024.[15]That is the procedural history that brings the matter before me today.[16]I have read with care the Claimant’s witness statement, in which she explains that her own preparations have been hampered by illness among family members and by a bereavement. She also explains that her email was hacked in August 2023 and that for a few weeks she did not have email access. She explains that she thought she had disclosed all relevant mitigation documents, and promptly disclosed others when she realised they were potentially relevant and when she managed to find copies of them on her mother’s computer. I accept at face value her evidence about these matters. She also says that her solicitor told her in November 2023 that the date for exchanging witness statements would have to be pushed back. This was not a conscious decision by her not to comply with a Tribunal order and she did not realise it might lead to a further strike out hearing. Correspondence from the Claimant’s legal representative referring to pressure of work and backlog makes clear that failures to respond to correspondence and to address the case management orders were primarily the responsibility of the Claimant’s representative, not her own responsibility.[17]Mr Harris tells me that the Claimant would be in a position to provide her witness statement within seven days if so ordered. He tells me that the Claimant’s union acknowledges that it might have to pay some reasonable costs in relation to the recent delays. Were this case to be re-listed, it would be autumn 2024 before it could be heard.[18]I also note:18.1 The Respondent did not send its witness statements to the Claimant by the due date or at all. That was, strictly, in breach of EJ Deeley’s order. Statements were taken some time ago.18.2 Two witnesses for the Respondent, who are the alleged perpetrators in relation to an early allegation, no longer work for the Respondent and left under a cloud. They would be likely to be hostile witnesses. Legal principles[19]The legal principles are uncontroversial. Under Rule 37 of the Employment Tribunal Rules of Procedure 2013, the Tribunal can strike out all or part of a claim, among other reasons for non-compliance with a Tribunal order or where the conduct of the claim by or on behalf of the Claimant has been unreasonable.[20]In deciding whether to strike out a party’s case for non-compliance with a Tribunal order, the Tribunal must have regard to the overriding objective of seeking to deal with cases fairly and justly. The Tribunal must consider all relevant factors, including: the magnitude of the non-compliance; whether the default was the responsibility of the party or his or her representative; what disruption, unfairness or prejudice has been caused; whether a fair hearing would still be possible; and whether striking out or some lesser remedy would be an appropriate response to the disobedience: see Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, EAT.[21]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 that it has made a fair trial impossible: see Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA.[22]In both cases – non-compliance with Tribunal orders and unreasonable conduct - the Tribunal must not strike out the claim unless it is also satisfied striking out is proportionate. That involves consideration of whether there is some step short of striking out the claim that will achieve the desired result. The first object of any system of justice is to get triable cases tried: see Blockbuster.[23]In Harris v Academies Enterprise Trust [2015] ICR 617, while rejecting the submission that the strict approach that is taken to striking out under the Civil Procedure Rules should be taken in the Employment Tribunals, the EAT nonetheless held that justice is not simply a question of the court reaching a decision that may be fair as between the parties in sense of fairly resolving the issues; it also involves delivering justice within a reasonable time. Indeed, that is guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Overall justice also means that each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share of the resources of the court. The EAT also observed that one relevant factor may be that a failure to comply with Tribunal orders over a period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again.
Conclusions
[24]Applying those principles, I have reached the following conclusions. First, there has been a failure by the Claimant or her representative to comply with Tribunal orders and there has been unreasonable conduct by the Claimant’s legal representative. On her behalf, Mr Harris, sensibly, does not seek to avoid that.[25]The non-compliance with Tribunal orders involves non-disclosure of mitigation documents, failure to comply with orders designed to reduce the Tribunal hearing file to a manageable and proportionate size, and failure to provide a witness statement. I accept Mr Harris’s submission that it is important to look properly at these matters in context. The hearing could have gone ahead in the absence of mitigation documents – that would have prejudiced the Claimant not the Respondent – and could have been based on the unwieldy draft hearing file that has been prepared. The Respondent could have (and perhaps should have) unilaterally disclosed its witness statements. In principle, a hearing could potentially have taken place if it had done so.[26]However, the more fundamental difficulty is the total failure of the Claimant’s representative to communicate with the Respondent’s representative for a period of months in the run up to a fifteen-day Tribunal hearing. That meant that the parties were unable to co-operate to ensure that they were prepared for the hearing and it was this that led, inevitably, to the hearing being postponed again. This conduct was wholly unreasonable.[27]The question is therefore whether a fair hearing is still possible and, if not, whether striking out the claim is proportionate. I must consider whether some lesser step could be taken instead.[28]It is necessary to balance all the relevant factors in deciding whether a fair hearing is possible and whether striking out is proportionate. In doing so I take into account that the Claimant makes serious and weighty allegations. There are, of course, two versions of events, but the allegations clearly cannot be dismissed as hopeless or trivial. I also take into account the impact of these events on the Claimant as set out in her witness statement. It is also necessary to take into account that much if not all of the responsibility lies with the Claimant’s legal representative, not her. It is evident that this arises from pressure of work and lack of people to do it. There are, of course, steps the Claimant can take in respect of failures by her legal representatives. Nonetheless, these matters weigh in the Claimant’s favour.[29]On the other hand – if the case is postponed and re-listed in the autumn, the claim will be heard almost three years after the claim was presented and four years after many of the events about which complaint is made. I am not persuaded by the Respondent’s submission that prejudice would arise because of the two identified witnesses who have “left under a cloud.” It seems to me that the Respondent would have faced those issues in any event if the hearing had gone ahead this week. But it is quite clear that in general terms memories will fade, and a further six to eight months’ delay will be significant. That is so even if there are documents from the time and witness statements have been taken. Witnesses will be crossexamined and called on to remember events, and inferences may be drawn if they cannot provide answers and explanations.[30]I also take into account what the EAT said in Harris. A fair hearing involves delivering justice within a reasonable time. Here, one corporate Respondent and two named individual Respondents have now been facing very serious allegations for a number of years. Twice a fifteen-day hearing has been in their calendars and then moved at relatively short notice. If the hearing is moved to the autumn, that would leave these allegations unresolved for another six to eight months. That is in the context of a 3-month primary time limit.[31]I have concluded that overall a fair hearing is no longer possible. The delay is too great; the impact on recollections will be significant; and putting this matter off again for many months is inimical to the concept of fairly resolving the disputes between parties within a reasonable time.[32]I have considered very carefully whether there is something less than striking out that could be done instead. Mr Harris, in his very careful and persuasive submissions, suggests that there is a step short of striking out these claims that could be taken: make the provision of the Claimant’s witness statement subject to an unless order. He submits that either she will provide it and the hearing can go ahead on the new date, or she will not and the claim will be struck out. I have thought very carefully about this, but balancing all the relevant factors and in the context of the history of these proceedings, I am not persuaded that this step would enable a fair hearing to take place. It does not overcome the difficulty that this hearing will now be delayed until later this year. Furthermore, I do take into account that in this case compliance has been promised in the past and not delivered. The Claimant narrowly escaped having her claim struck out more than a year ago and what has followed. on any view, entails further shortcomings in compliance, failure properly to engage and, ultimately, a period of total failure to communicate or co-operate. Disclosure was promised in November, which led EJ Cox to reject a strike-out application at that stage, and then nothing further was done or said for more than two months. The email from the Claimant’s representative dated 24 January 2024 still has all the hallmarks of failure to engage properly with the detail of this matter. It, like the specific disclosure application made last July, gives the clear impression that nobody has still properly read or engaged with the claim and documents.[33]Bearing in mind the overriding objective and the need to do justice to both sides, for all these reasons I have concluded that a fair hearing is not possible and that it is proportionate and necessary to strike out these claims for non-compliance with orders and unreasonable conduct.[34]I conclude by saying that in his able submissions Mr Harris said everything that could be said on the Claimant’s behalf. I also note that this judgment is not intended as personal criticism of the Claimant’s legal representative. I have not been provided with detailed information about the circumstances, but it is clear that the context is, as I have said, one of overwork and lack of resource. Unfortunately, the consequence is that it is no longer possible to have a fair hearing of these claims.