Ms Elizabeth George v Pearson College Ltd: 2200346/2019

EMPLOYMENT TRIBUNALS

Case No 2200346/2019

Between

Ms Elizabeth GeorgeClaimant

Pearson College LtdRespondent

Before

Employment Judge Mr Paul Stewart

Date 1 November 2019

JUDGMENT

The claims should all be struck out pursuant to Rule 37(1)(c).

REASONS

[1]The Claimant has not appeared today and is not represented at today’s hearing which has been scheduled to be heard in Room 509, the room in Central London Employment Tribunal that is equipped with such equipment as is required for receiving evidence by videolink. The reason the hearing was so scheduled was because, at the Preliminary Hearing (Case Management) on 10 June 2019, Employment Judge Snelson reacted to the (too) late application made by the Claimant after office hours on Friday 7 June 2019 for the 20 June 2019 hearing to be conducted by video conference on the basis that she suffers from agoraphobia by providing her with information as to how she might timeously apply for hearings to be conducted by video link.

[2]The Claimant was sent along with a copy of Employment Judge Snelson’s order dated 12 June 2019 a copy of an information sheet on how to arrange for video conferencing. She has not made contact with the administrative officer named in Case Number: 2200346/2019 2 2 the sheet, Mr Mobarak Joaque, to arrange either for a test call to be instituted or for conferencing to take place without a call.

[3]Ms Masters made the point that a copy of the video conferencing sheet did not accompany the order that was sent out by email to the parties at 1241 hours on 12 June 2019. However, paragraph 12 of the Observations of Employment Judge Snelson accompanying the Order he made would have alerted the Claimant to the fact that a “one-page standard form note” should have been sent to her with the Order and that advice could be obtained from the administrative officer responsible, Mr Mobarak Joaque. If the Claimant did not receive such a sheet, she was thus on notice not only that she should have done but that she could obtain advice on the subject from Mr Joaque.

[4]And, indeed, the Claimant was alerted for she emailed the Tribunal on 20 June 2019 addressing the email to Mr Joaque saying: Please refer to the Employment Judge A M Snelson’s case management orders dated 12 June 2019. Given my Agoraphobia disability and medical recommendation to participate in our hearing via video I was directed to liaise with the relevant administrative staff i.e. yourself to arrange how one may join the 24 July 2019 preliminary hearing by video given the Central London Employment Tribunal as a public body is committed to making reasonable adjustments related to people with disability.

[5]Mr Joaque wrote to the Claimant on 28 June in response to her email of 20 June setting out precisely the information that was contained in the one-page standard form note.

[6]As the Claimant has not followed up on her contact with Mr Joaque to arrange for a video conferencing link to be established and has failed to attend today, I have decided to proceed with the Preliminary Hearing in her absence.

[7]Following the Agenda set out by Employment Judge Snelson in paragraph 8 of his Order of 12 June 2019, the first item should be to deal with the Respondent’s application to strike out and / or deposit order.

[8]However, as Ms Masters for the Respondent accepts, it is appropriate to deal with the application made this morning by the Claimant in a letter emailed to the Employment Tribunal at 0923 hours. In that letter which, it should be noted, extends into 20 pages of single-paged typing, the Claimant asks for three things: a) A stay “due to High Court proceedings” b) Rule 52 discontinuance c) That the Respondent’s ET3 and complete defence should be struck out for dishonesty.

[9]I am informed by Ms Masters that the Respondent has not been served with any Claim form in respect of High Court proceedings issued by the Claimant and is not aware of such service on any of the five people threatened with the commencement of proceedings by the Claimant in a letter dated 10 July 2019 and headed “Pre-Action Protocol for Defamation & Letter of Claim”. Those five individuals are all employees of the Respondent. One of them, Mr Will Nash, is a Case Number: 2200346/2019 3 3 lawyer occupying the position of Senior Counsel for the Respondent. He had no dealings with the Claimant ahead of her dispute with the Respondent and, therefore, he appears to have been threatened with proceedings as a representative of the Respondent rather than in his own right.

[10]But, in any event, the Claimant’s letter of 10 July 2019 in its penultimate paragraph gave the recipients 10 days within which to acknowledge the letter and a deadline of 4 p.m. on 23 July 2019 for “your full defendant’s response”. That rather suggests that proceedings, were they to have been issued because of the failure to the recipients of the letter to provide a response, would not have been served by 10.00 a.m. today.

[11]In the circumstances, therefore, there would appear to be no High Court proceedings which give rise to the application made by the Claimant for a stay. The Claimant asks secondly for: “Rule 52 Discontinuance: Given commencement of High Court proceedings that the Tribunal needs to be fair and approve a discontinuance in accordance with rule 52”

[12]This request is based again on High Court proceedings having been commenced. As there is no evidence of the same, that basis for the application disappears. What I – and Ms Masters – understand from the way the application is made and from the wording of Rule 52 is that, in the absence of obtaining a stay, the Claimant wishes to withdraw the claim but with the proviso of reserving the right to bring a further claim and wishes the Tribunal to be satisfied that there would be legitimate reason for so doing. However, I am not so satisfied. It seems to me that, if I am not satisfied that there is a good reason for a stay, I cannot – on the same information – be satisfied of a legitimate reason for the Claimant withdrawing her claim but reserving to herself the right to bring a further claim. Therefore, I not only reject the application of a stay of proceedings due to the alleged commencement of High Court proceedings, but I also reject the application of the Claimant to discontinue on the terms she seeks.

[13]As for the third application of the Claimant: viz The Respondent’s ET3 and complete defence needs to be struck out for dishonesty. Claimant will show should show irrefutable evidence how Respondent, are misleading the Central London Employment Tribunal. The Respondents made up to 30 false statements in their ET3, letters and in court. This is dishonesty, perjury intent and justice pervasion. I cannot strike out a response on the basis that the Claimant considers certain of the allegations contained therein to be false and dishonest. To arrive at the conclusion that what the Claimant says is correct would require a trial. If I were to strike out the ET3, there would be no trial. Therefore, I reject that application.

[14]We can therefore proceed to consider the agenda as set out by Employment Judge Snelson. The Respondent applies for the Claimant’s claims to be struck out under Rule 37(1)(c) which states: Case Number: 2200346/2019 4 4 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— … (c) for non-compliance with any of these Rules or with an order of the Tribunal;

[15]Ms Masters has provided a Skeleton Argument which sets out a Chronology demonstrating principally two things; first, the occasions when the Claimant missed a deadline and, second, the dates on which the Claimant sent a letter or an email to the Respondent or the Employment Tribunal. In her Chronology, she highlighted those occasions when deadlines were missed by using a red font to which, for the benefit of those to whom this judgment is printed out without colour, I have added 15% shading to the background. Ms Masters has highlighted the dates on which the Claimant corresponded with the Tribunal or Respondent by using a blue font. I have adjusted her regular blue font to an italic blue font for the benefit of those reading without colour. Her Chronology thus adjusted is set out as an Appendix to this judgment. The page numbers refer to the Bundle which the Respondent prepared for this hearing

[16]Ms Masters took me through the Chronology. The first entry is a Judgment and Orders in the East London Employment Tribunal Case No. 3200482/2018 between Dr B Beeka and Coventry University London Campus Ltd (“Coventry”), a decision of Employment Judge Russell of 27 September 2018. The Claimant was apparently hired by the Respondent as Dr B Beeka and the respondent in that case was her previous employer. Ms Masters pointed out that there are similarities between the hearing presided over by Employment Judge Russell and today’s hearing. The Claimant neither attended nor was represented in either. The Claimant applied for a stay of her case against Coventry pending resolution of High Court proceedings the existence of which, unlike those in this case, was accepted. In that application, she was successful.

[17]However, the thrust of Ms Masters observations on the Coventry case is that the Claimant is experienced in the procedure of the Employment Tribunal. And the main point of her Chronology is to demonstrate that the Claimant is well capable of writing at some considerable length on the subjects of her choosing but manages to avoid complying with any directions or orders she does not care for.

[18]She has not fully complied with the direction given on 25 March 2019 to produce a statement of remedies. She has not produced an index to her discrimination claim by 30 May 2019 or at all as ordered by the Employment Tribunal on 2 May 2019. She has failed to comply with the first three orders of Employment Judge Snelson made at the Preliminary Hearing of 10 June 2019, the order having been sent to the parties on 12 June 2019. All three orders required her to take certain positive steps by 24 June 2019. She did not comply with any of these orders by 24 June or at all. She was, however, able to write to the Tribunal on 21 June 2019 seeking to have the 24 June 2019 deadline “extended by two or three weeks”. She was further able to email on 24 June itself enclosing a typed single spaced letter twenty pages in length seeking an extension of the deadline. Case Number: 2200346/2019 5 5

[19]The seventh of Employment Judge Snelson’s orders made on 10 June required the Claimant to deliver to the Tribunal and copy to the Respondents’ representative by 15 July 2019 much medical evidence as she may wish to rely upon in support of any application to be made today for any reasonable adjustment in the procedural handling of the case. She had supplied, ahead of that order being made, a letter dated 5 June 2019 from a general practitioner asserting the Claimant to suffer from agoraphobia, the symptoms of which had prevented the Claimant leaving her house and opining that a forthcoming court attendance would make her symptoms worse. The doctor considered a video link would be beneficial to aid the Claimant. That letter had been attached to the letter sent after close of business on Friday 7 June 2019 seeking to have the preliminary hearing of Monday 10 June conducted via telephone or audio / video technology and Employment Judge Snelson would have seen it. He made an observation in respect of his order relating to medical evidence that “the medical evidence is intended to inform the tribunal’s handling of the case procedurally, given its duty as a public body to make reasonable adjustments in favour of persons with disabilities”.

[20]It is clear that the intention behind the order was to allow the Claimant to provide the medical evidence that might be used to support any application for reasonable adjustment in respect of any medical condition that might amount to a disability. It is also clear that Employment Judge Snelson did not think that the GP’s letter of 5 June 2019 represented the medical evidence that informed the tribunal’s handling of the case procedurally – otherwise he would not have made the order. However, the Claimant did not comply with the order by 15 July or at all.

[21]I also bear in mind that, when refusing the Claimant’s request made on 21 June 2019 to have the 24 June 2019 deadline “extended by two or three weeks”, Employment Judge Snelson directed the Claimant be told that: [the order of 10 June] sets up a timetable up to the hearing on 24 July. You must make this litigation a priority.

[22]I should also record that the Claimant, while failing to comply with the orders made in the litigation she initiated, found time to write a 17-paged letter on 8 July 2019 sent to the five employees of the Respondent entitled “Pre-Action Protocol for Defamation & Letter of Claim”. She has not complied with the advice of Employment Judge Snelson to make this litigation a priority.

The law

[23]I have already set out Rule 37(1)(c). Ms Masters directed by attention to the well-known case of Blockbuster Entertainment Ltd v James

[2006] IRLR 630

and to the judgment of the court delivered by Sedley LJ who said, at paragraph 5, of the power to strike out: 5. This power, as the employment tribunal reminded itself, is a Draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to Case Number: 2200346/2019 6 6 consider whether, even so, striking out is a proportionate response. The principles are more fully spelt out in the decisions of this court in Arrow Nominees v Blackledge

[2000] 2 BCLC 167

and of the EAT in De Keyser v Wilson

[2001] IRLR 324

, Bolch v Chipman

[2004] IRLR 140

and Weir Valves v Armitage

[2004] ICR 371

, but they do not require elaboration here since they are not disputed. It will, however, be necessary to return to the question of proportionality before parting with this appeal.

[24]In one of the decisions cited by Sedley LJ, that of De Keyser v Wilson, a judgment of the EAT, Lindsay J (President), provides guidance on the principles to be applied in deciding whether striking out is a proportionate response. He said this: 24.. As for matters not taken into account which should have been, the Tribunal nowhere in the course of their exercising their discretion asked themselves whether a fair trial of the issues was still possible. In a case usefully drawn to our attention by both sides' Counsel, namely Arrow Nominees Inc -v- Blackledge

[2000] 2 BCLC 167

the Court of Appeal had before it a case where the Judge below had more than once declined to strike out the proceedings on the basis that whilst one party had, in the course of discovery, disclosed forged documents and had lied about the forgeries during the trial, a fair trial was, in his view, still possible. We pause to reflect on the magnitude of the abuse there in comparison with Mr Pollard's and De Keyser's. Whilst in other respects the context of the Arrow Nominees case is very different, there are passages in the judgment in the Court of Appeal of relevance. Thus at page 184 there is a citation from Millett J.'s judgment in Logicrose -v- Southend United Football Club Ltd (1988) The Times 5th March 1998 as follows:— “But I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The Court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice.” 24.. In Arrow Nominees Chadwick L.J. adopted those observations in a passage which, although directed to discovery, is of more general application. Thus at page 193 g–h one finds:— “But for my part I would allow that appeal on a second, and additional, ground. I adopt as a general principle, the observations of Millett J. in Logicrose … that the object of the rules as to discovery is to secure the fair trial of the action in accordance with due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules, even if such disobedience amounts to contempt for or defiance of the Court, if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the processes of the Court as to render further proceedings Case Number: 2200346/2019 7 7 unsatisfactory and to prevent the Court from doing justice, the Court is entitled, indeed, I would hold bound, to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the Court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the Court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.” 24.. Later, Ward L.J. speaking of the risk of a fair trial not being possible said at p. 201 :— “It undoubtedly is a factor of very considerable weight. It may often be determinative. If the Court is satisfied that the failure to disclose a document or the effect of a tampered document can no longer corrupt the course of the trial, then it would be a factor of much less and perhaps even little weight in considering a strike out. Where, in my judgment, Evans-Lombe J. erred, was to treat the question of a fair trial as the only material factor. It was not; other matters have now to be put into the scales and weighed.” 25.. We must keep in mind, too, that the case at hand is a case not involving disobedience to or failure to perform an order of Court; wilful, deliberate or contumelious disobedience was not in issue. Parts of those passages from Arrow Nominees and in particular the passage from Logicrose show the great importance, in relation to a discretion to strike out the whole of a case where there has been no such disobedience, of an inquiry into whether a fair trial is or is not still possible. Unfortunately there is no sign whatever of that having been considered by the Employment Tribunal in the case before us. Whilst no-one would suggest that it is incumbent upon a Tribunal necessarily to set out every consideration which, in the exercise of its discretion, affects its mind one way or another, to leave out so crucial a factor as the question of whether a fair trial is still possible either indicates that the matter was not within the contemplation of the Tribunal (thereby committing the error of law of leaving out of account something which so obviously should have been taken into account) or, if the matter had truly been in the Tribunal's mind but is omitted from express mention, leaves the Tribunal open to argument that it has failed the Meek -v- City of Birmingham test.

Discussion

[25]Given the ability of the Claimant to construct long letters of considerable complexity, it is well within the Claimant’s abilities to comply with the orders made in her case. I am driven to the conclusion that her failure to obey the orders of the court is wilful and deliberate. I also consider the Claimant’s failure to be “contumelious” because, while it is difficult to detect scornful and insulting behaviour from mere inaction, the repeated failure to comply with case management orders is somewhat insulting to the judicial institution from which the Case Number: 2200346/2019 8 8 Claimant has sought to remedy whatever wrong or wrongs she believes she had suffered. The orders that have been ignored by the Claimant include the first three of Employment Judge Snelson’s orders which read as follows:(1) No later than 24 June 2019 the Claimant shall deliver to the tribunal and copy to the Respondents’ representative a draft of the new claim(s) for automatically unfair dismissal and ‘whistle-blowing’ detriment which she wishes to add by way of amendment of her claim form, setting out in each case the legal nature of the claim the core facts on which it is based.

(2) No later than 24 June 2019 the Claimant shall deliver to the tribunal and copy to the Respondents’ representative a completed version of the “Schedule of Claims” proforma already supplied to her. In accordance with the direction of the Tribunal contained in this letter of 2 May 2019, the allegations must be set out in chronological order and the document must not exceed two pages of A4.

(3) No later than 24 June 2019 the Claimant shall deliver to the Respondents’ representative and copy to the Tribunal a schedule of all remedies claimed in the proceedings.

[26]Compliance with the first two of these orders would have allowed the Respondent to have complied with consequential orders that would have seen the Respondent file and serve draft amended ‘Grounds of Resistance’ and file and serve a first draft list of issues. As it is, they have not be able to comply.

[27]Compliance with the third order would have allowed the Respondent to assess and cost the risk that the claims presented.

[28]In addition, there is the failure of the Claimant to comply with the seventh order, that which required her to file such medical evidence as she may wish to rely on in support of her any application to be made today for any reasonable adjustments. Non-compliance with that order prevents the Tribunal from carrying out its duty to make reasonable adjustments in favour of persons with disabilities although, whatever adjustments might be made would be rendered useless if, as was the case today, the Claimant ignores the facilities offered her to participate by video link.

[29]I ask myself whether a fair trial is still possible. My view is that it is not. If the Respondent is not provided with either a draft of the new claims the Claimant wishes to bring and a completed version of the “Schedule of Claims” proforma already supplied to her by the Respondent such that it cannot amend its response or prepare a draft list of issues, then the whole purpose of case management is negated and the overriding objective of dealing with cases fairly and justly is frustrated.

[30]The Claimant initiated the litigation. She has experience from a previous claim she has brought of the requirements of case management. She chooses to concentrate on the matters she wishes to concentrate on and not to give priority, as Employment Judge Snelson advised, to this litigation. I see no prospect of her altering her behaviour. Her non-compliance, in my view (adopting and adapting the words of Chadwick LJ) amounts to such an abuse of the processes of the Case Number: 2200346/2019 9 9 [Tribunal] as to render further proceedings unsatisfactory and to prevent the [Tribunal] from doing justice.

[31]Therefore, I have acceded to the Respondent’s application that the case be struck out. _____________________________________ EMPLOYMENT JUDGE STEWART On: 24 July 2019 _____________________________________ There is also duplicate correspondence.

[2]There is also duplicate correspondence. Case Number: 2200346/2019 11 11 10.6.19 Claimant emailed the Respondent purporting to comply with the Pre-action Protocol on Defamation and complaining about the Respondent’s compliance with a Subject Access Request. 160- 164 14.6.19 Claimant emailed the Respondent purporting to comply with the Pre-action Protocol on Defamation and complaining about the Respondent’s compliance with a Subject Access Request. 165-179 14.6.19 Claimant emailed the Respondent making a request for specific disclosure. 180-181 16.6.19 Claimant emailed the Respondent raising data protection issues. 182-184 21.6.18 Claimant emailed the Employment Tribunal seeking to postpone the Third Orders. 185-195 24.6.19 Deadline to comply with Third Order(1) missed. To date, no compliance. 70 24.6.19 Deadline to comply with Third Order

(2) missed. To date, no compliance. 70 24.6.19 Deadline to comply with Third Order

(3) missed. To date, no compliance. 70 24.6.19 Claimant emailed the Employment Tribunal seeking to postpone the Third Orders. 196-203 28.6.19 EJ Snelson wrote to the Claimant refusing her request to extend the dates on the case management orders and explained that “You must make this litigation priority”. 207 8.7.19 Deadline for Respondent to comply with Third Order (4). Respondent unable to do so as no compliance with Third Orders (1) and (2). 703 8.7.19 Claimant made an application to stay the Employment Tribunal proceedings due to potential High Court litigation. 208-211 8.7.19 Respondent complied with Third Order (5) i.e. particularisation of strike out application. 212-216 10.7.19 Claimant emailed the Respondent purporting to comply with the Pre-action Protocol on Defamation. 217- 236 15.7.19 Deadline for Respondent to comply with Third Order (6). Respondent unable to do so as no compliance with Third Orders (1) and (2). 70 15.7.19 Deadline to comply with Third Order (7) missed. To date, no compliance. 70 17.7.19 EJ Snelson rejected the Claimant’s stay application. 243 22.7.19 Claimant writes to the Employment Tribunal implying that stay application may be renewed. 244- 245 24.7.19 PH as per Third Order (8). 71

[3]There is also duplicate correspondence. Case Number: 2200346/2019 12 12 8.8.19 Deadline for Third Order (9) i.e. disclosure. 71 29.8.19 Deadline for Third Order (10) i.e. bundle. 71 17.9.19 Deadline for Third Order (11) i.e. exchange of witness statements. 71 8.10.19 Deadline for Third Order (12) i.e. agreed cast list and chronology. 71 8.10.19 Start of a 7-day substantive hearing. 42 . 2200346.2019 - Judgment Reasons on application for reconsideration.docx Page 1 of 4 THE EMPLOYMENT TRIBUNALS BETWEEN Ms Elizabeth George Claimant and Pearson College Limited Respondent

Discussion

[1]The Claimant has applied by letter dated 7 August 2019 for a reconsideration of the judgment I made in her case at the public preliminary hearing on 24 July 2019 whereby I struck out all her claims pursuant to Rule 37(1)(c). That preliminary hearing had been ordered by Employment Judge Snelson at a preliminary hearing (case management) conducted on 10 June 2019 to determine both the Respondent’s strike out and / or deposit order applications and any additional applications by either party. If the claims survived the strike out application, then the issues for determination at the final hearing needed to be determined as well as outstanding case management points.

[2]The Claimant did not attend that hearing and, further, she did not follow up on the arrangements that had been set in motion by Employment Judge Snelson for the purpose of allowing her to participate in the hearing by video conference.

[3]In her absence, I first considered the Claimant’s application made that morning in a letter emailed to the Employment Tribunal at 0923 hours. In that letter, the Claimant asked for three things: a) A stay “due to High Court proceedings” b) Rule 52 discontinuance Case Number: 2200346.2019 - Judgment Reasons on application for reconsideration.docx 2 c) That the Respondent’s ET3 and complete defence should be struck out for dishonesty.

[4]I rejected the application for a stay on the basis that there appeared to be no High Court proceedings which gave rise to the application made by the Claimant for a stay. Notwithstanding that her letter seeking the stay extended into 21 pages, the Claimant had provided no information therein of any detail of the High Court proceedings that she argued should warrant the Employment Tribunal approving a stay. Ms Masters advised that the Respondent was unaware of any proceedings although it was acknowledged that the Claimant had served what she described as being a “Pre-action Protocol for Defamation & Letter of Claim” dated 10 July 2019 on five individual employees of the Respondent. That letter, in its penultimate paragraph, gave the recipients 10 days within which to acknowledge the letter and a deadline of 4 p.m. on 23 July 2019 for “your full defendant’s response”. That suggested to me that proceedings, were they to have been issued because of the failure to the recipients of the letter to provide a response, would not have been served by 10.00 a.m. on the day of the hearing.

[5]The Claimant in her application for reconsideration – a letter of 21 pages – attached an N1 Form which shows that proceedings had indeed been issued in the Queen’s Bench Division by her against the Respondent and four of the five employees who had been the recipients of her letter of 10 July 2019. This indicates her claim had been given the number QB-2019-002639. It bears the date stamp of the QBD showing 24 July 2019, but the issue date is shown as having been corrected in manuscript from an original printed 24/06/2019 to 19/7/19. The Claimant explains in her letter of 7 August 2019 that she originally put the date of 24/06/2019 on the claim form which she then sent to the High Court by Royal Mail “Sign For” post. It is not clear to me whether the Claimant, before she sent the claim form, substituted the issue date of 19/7/19 for the printed 24/06/2019 or whether the substitution was made in the QBD office.

[6]The application for reconsideration suggests that there is a material difference in the factual background against which I refused the stay. However, before getting into the detail of the Claimant’s application and giving consideration as to whether there be any reasonable prospect of my decision being varied or revoked, I must have regard to the issue of time.

[7]I remind myself of the Rules relating to Reconsideration: Principles70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application

71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Case Number: 2200346.2019 - Judgment Reasons on application for reconsideration.docx 3 Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

[8]My decision was sent to the parties on 25 July 2019. That was the same day as the Claimant emailed the Tribunal attaching thereto her letter of 24 July 2019 which she had sent the previous day and which was taken into account when I delivered judgment. An acknowledgment that such was the case was sent to the Claimant on 12 August 2019 as an attachment to by Mr Priyam Sukul, an Administrative Officer of the Tribunal, at 14:43.

[9]The application of the Claimant for reconsideration is dated 7 August 2019 but was only sent as an attachment to the Claimant’s email of 12 August 2019 at 1636 hours. The body of that email contains a message addressed to “Dear Regional Chairman” and “Dear Sirs” of three substantive paragraphs. This message appears to be replicated twice more so that the whole message appears three times. The email itself is a reply to the message that was sent by Mr Sukul. However, the time that is recorded for the message Mr Sukul sent is 09:42:45 GMT - 4. I apprehend that, with British Summer Time taken into account [GMT + 1], this must be the equivalent in the GMT - 4 time zone of the time of Mr Sukul’s email – i.e. 14:43.

[10]In the first paragraph of the Claimant’s email, she writes: I applied to withdraw my ET claim because one commenced High Court claims and the ET would not approve a claim against judicial hierarchy principles. Hence, please find the attached my application for reconsideration emailed last week …

[12]There is at Rule 5 a provision permitting the extending of time: Case Number: 2200346.2019 - Judgment Reasons on application for reconsideration.docx 4 5. The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.

[13]The Claimant has not made an application to extend time. Indeed, in her email of 12 August 2019, she has asserted that she was repeating the exercise of attaching her application for reconsideration “emailed last week” which, if it had been emailed, may or may not have thus been an application made within 14 days of the date on which my decision was sent to the parties.

[14]Given the absence of any indication on the file that there was any email sent to the Tribunal in the week preceding 12 August and given that the Claimant’s email of 12 August purports to reattach her application for reconsideration as opposed to forwarding her email of the previous week along with its attachment, I form the view on the balance of probabilities that the Claimant did not send an email to the Tribunal in the week preceding 12 August. That being the case, her assertion that she “re-attached” her application for reconsideration appears to me to be false. It does not pre-dispose this Tribunal to deciding on its own initiative to extend the time limit specified in the Rules.

[15]Indeed, when considering whether to extend time or not, I bear in mind the basis upon which I determined that the claims made by the Claimant should be struck out in their entirety. That basis was because I was satisfied that the Claimant failed to comply with a number of orders of the Tribunal and I did not think that a fair trial was possible. It appears to me that the way the Claimant has presented her application for reconsideration shows that she failed to comply with the time requirement of Rule 5.

[16]I therefore refuse the application for reconsideration of my judgment of 24 July 2019 on the basis that it was made outside the 14-day time requirement of Rule 71. EMPLOYMENT JUDGE - Stewart On: 14 August 2019

Discussion

[1]On 24 July 2019, at a preliminary hearing at which the Claimant did not attend, I struck out all her claims pursuant to Rule 37(1)(c). The Claimant then applied by letter dated 7 August 2019 for a reconsideration of that judgment – her first application for reconsideration. I considered the application and wrote a judgment refusing the application for reconsideration on 14 August, which judgment was sent to the parties on 16 August 2019. The Claimant has applied by letter dated 28 August 2019 for reconsideration of my refusal to accede to her first application for reconsideration of my judgment of 24 July 2019. I will refer to the application of 28 August 2019 as being her second application for reconsideration.

[2]The basis upon which I refused the first application was that, on the evidence available to me, it appeared that the Claimant’s application was made outside the 14-day time limit requirement of Rule 71. I wrote:

[9]The application of the Claimant for reconsideration is dated 7 August 2019 but was only sent as an attachment to the Claimant’s email of 12 August 2019 at 1636 hours. The body of that email contains a message addressed to “Dear Regional Chairman” and “Dear Sirs” of three substantive paragraphs. This message appears to be replicated twice more so that the whole message appears three times. The email itself is a reply to the message that was sent by Mr Sukul. However, the time that is recorded for the message Mr Sukul sent is 09:42:45 GMT - 4. I apprehend that, with British Summer Time taken into Case Number: 2200346/2019 2 account [GMT + 1], this must be the equivalent in the GMT - 4 time zone of the time of Mr Sukul’s email – i.e. 14:43.

[11]The difficulty with that last statement is there is no evidence on the file of the Claimant having emailed an application for reconsideration in the week previous to Monday 12 August 2019. And the fact is that, if the date of the Claimant’s application for reconsideration is, indeed, 12 August 2019, then it is out of time, as 12 August is 18 days after 25 July. 3. The Claimant’s letter dated 28 August 2019 extends over 31 pages and 164 paragraphs. To it, she attached copies of two emails from her that have been acknowledged apparently by the Tribunal. The first of these is dated 7 August 2019 at 1505 hours UTC [Universal Time Coordinated, the successor to Greenwich Mean Time - GMT] which appears to have received an acknowledgement of receipt from the Tribunal on 7 August 2019 at “00:53:24 GMT-4”. The second email from the Claimant is dated 8 August 2019 at 0724 hours UTC to which is attached her earlier email of 7 August 2019 and the acknowledgment of receipt from the Tribunal. 4. I have checked with the administrative officer who handles the emails that come into the Tribunal and it would appear that the email of 7 August 2019 was received on that date together with her attachment. I remain puzzled as to how the acknowledgment of receipt from the Tribunal that the Claimant has produced is timed earlier than the email in respect of which it was acknowledging receipt. And I have not been able to explain as to how the copy of the Claimant’s email of 7 August, along with a copy of the Tribunal’s acknowledgment of receipt, failed to make its way onto the file. 5. Therefore, I accept that contention of the Claimant for which I was not able to find any evidence for when considering on 14 August 2019, on the basis of the file alone, that on 7 August 2019 she had made an application for reconsideration of my judgment of 24 July 2019. 6. Therefore, it is apparent that the basis for rejection of the Claimant’s first application for reconsideration – that it was made outside the 14 day time requirement of Rule 71 – falls away given that the judgment of 24 July 2019 was sent to the parties on 25 July 2019 and thus the Claimant’s application for reconsideration was made on the 13th day thereafter. 7. It follows that I must accept that, there must be more than a reasonable chance of my dismissal of the Claimant’s first application for reconsideration being revoked. That raises the question as to the way forward. It seems to me that I must look at the Claimant’s first application anew and consider whether, now that the time point does not determine the application, there is a reasonable prospect of the original decision being varied or revoked, see Rule 72(1). 8. At the start of my judgment of 14 August 2019, I had set out the background which had led to my judgment of 24 July 2019: Case Number: 2200346/2019 3

Discussion

[3]In her absence, I first considered the Claimant’s application made that morning in a letter emailed to the Employment Tribunal at 0923 hours. In that letter, the Claimant asked for three things: a) A stay “due to High Court proceedings” b) Rule 52 discontinuance c) That the Respondent’s ET3 and complete defence should be struck out for dishonesty.

[9]This was the point at which, on the basis of the contents of the file, I concluded that the Claimant’s application for reconsideration was out of time. So, given that the Claimant has satisfied me now that the application was in time, I will pick up where I left off. Case Number: 2200346/2019 4

[10]It seems to me, on a reading of Halstead v Paymentshield Group

[2012] EWCA Civ 524

, that the Court of Appeal approved HH Judge McMullan QC’s view that a letter before action should be treated as an indication that proceedings had been commenced in the High Court. If I am wrong about that, there would appear now to be evidence not before the Tribunal on 24 July 2019 that the Claimant had submitted an N1 form to the Queen’s Bench Division which was initially dealt with on 19 July 2019 before being stamped with the seal of the Division on 24 July 2019. Whatever way one looks at it, the Claimant appears to have presented a claim form to the QBD ahead of the hearing before this Tribunal on 24 July.

[11]As I had determined on 24 July 2019 that no High Court proceedings had yet been issued and am now persuaded that they had been, it is clear that I cannot say there is no reasonable prospect of my original decision being varied or revoked. Therefore, I do not refuse the Claimant’s application and direct that the matter be reconsidered at a hearing at which both parties will have the opportunity of making their submissions on the issue being reconsidered.