Ms H Hassan v British Broadcasting Corporation: 2200516/2020
EMPLOYMENT TRIBUNALS
Case No 2200516/2020
Between
Ms H HassanClaimantBritish Broadcasting CorporationRespondent
Before
Employment Judge ElliottIn person for claimantMr N Roberts (instructed by counsel) for respondentDate 7 January 2023
JUDGMENT
[1]The claims for unfair dismissal and breach of contract are struck out as having no reasonable prospect of success.[2]It is just and equitable to extend time for the claims for the discrimination and victimisation. These claims proceed to a full merits hearing.
REASONS
(1) A preliminary hearing by telephone took place on 9 June 2020 before Employment Judge Welch which identified six issues for consideration at this preliminary hearing. The following required determination at an open preliminary hearing: a) Whether the claimant was dismissed or whether she resigned by virtue of voluntary redundancy? b) Whether the tribunal has jurisdiction to consider the claims due to them having been presented out of time? c) Whether any of the claims should be struck out on the basis that they have no reasonable prospect of success?(2) The first issue as to whether the claimant resigned or was dismissed was conceded by the claimant during the last hearing on 22 October 2020 that she was dismissed. She also accepted this in her Skeleton Argument for this hearing in paragraph 16. This issue therefore fell away.(3) The other matters were the claimant’s application to amend and whether to order a deposit under Rule 39. The deposit application was considered together with the strike out application under Rule 37 as the considerations are similar. The other issue was disability status, which was conceded by the respondent in August 2020. This was no longer a matter for the tribunal’s determination. Witnesses and documents(4) There was an electronic and a paper bundle of 212 pages. There was a Skeleton Argument from the claimant of 16 pages. This was prepared to a very high legal standard and the claimant had prepared this herself. The respondent relied upon its written submission from the October 2020 hearing, of 10 pages. The claimant also relied upon a written submission she prepared for the hearing in October 2020. All submissions were fully considered together with the case law relied upon, whether or not expressly referred to below.(5) Evidence was heard from the claimant on the time limit point. The structure of the claim(6) In the claim as presented and before the consideration of the amendment application, there were three categories of claim: (i) the disability discrimination claim for reasonable adjustments and victimisation. This centred on the refusal to allow the claimant to move to a different team. This was put as a failure to make a reasonable adjustment and an act of victimisation due to the claimant’s grievance of January 2017.(7) The unfair dismissal claim related to the claimant taking voluntary redundancy.(8) The breach of contract claim was in two parts: firstly not paying the claimant’s wages for September to December 2019 and the secondly not paying notice pay.(9) The respondent argued that the claims were either outside the tribunal’s jurisdiction as being out of time or had no reasonable prospects of success. For the discrimination claim the respondent relied upon a decision made on 13 September 2019 as to the claimant not being permitted to move to another team. The respondent says that on the time limit it is prima facie out of time and it is not just and equitable to extend time.(10) The claimant relied upon a continuing act and said that the failure to allow her to move to another team was a failure to make a reasonable adjustment which continued until the date of dismissal on 9 December 2019. She said the continuing act went further because of a disciplinary outcome letter she received on 30 December 2019 which upheld that decision not to allow her to move (page 199). In any event it was accepted by the respondent that if there was a continuing act to 9 December 2019, it was in time.(11) On the unfair dismissal claim, the respondent said that at the point of dismissal all communications between the claimant and respondent were in writing because the claimant was not attending work and did not want to meet or have discussions with her managers. The respondent said as such, it was possible to demonstrate on the papers that there was no reasonable prospect of success.(12) For the breach of contract claim – on unpaid wages, it was agreed that the claimant was asked to return to work and declined to do so. The claimant said she had reasons for declining and the respondent said as a matter of law it was entitled to withhold wages. On notice pay, the respondent said that the termination date of 9 December 2019 was agreed.(13) There was also an application to amend the claim. It was necessary to decide the other matters to see how the claim looked after those matters had been determined. It was agreed at the outset that the amendment application would follow the determination of the above matters.(14) At the end of day 1 deliberation time was needed on the above issues. It was agreed with the parties that rather than deal with a detailed amendment application on Friday afternoon 11 December, most likely not starting before 2:30pm, the tribunal would seek availability dates and list a separate case management hearing for half a day to deal with this, if applicable. Agreed matters(15) The ET1 was presented on 10 February 2020. The dates of Early Conciliation were from 6 January 2020 to 6 February 2020. It is agreed that this meant that anything prior to either 6 or 7 October 2020 (the exact date was not agreed) was on the face of it out of time.(16) It was also agreed that the unfair dismissal and the breach of contract claims were within time.(17) It was agreed that the notice period in the claimant’s contract of employment was a period of 2 months. Relevant factual position(18) The claimant worked as a broadcast journalist for the BBC World Service. Her substantive role was in the Arabic Radio team.(19) The background to the case is that the claimant raised a grievance in January 2017 about what she called “gender related issues”. It included an allegation that she had been addressed inappropriately by team members. Her grievance was heard on 20 March 2017 under the Grievance Policy. This grievance is relied upon as the protected act for the victimisation claim.(20) In a first restructure round, the claimant’s role was put at risk of redundancy. She was notified of this in a letter of 15 February 2018, bundle page 142.(21) There was a further grievance raised on 6 August 2018. The claimant wished to be moved to a different team. It is not in dispute that on a temporary basis, pending the outcome of this grievance, the claimant was placed in the social media team.(22) The August 2018 grievance was unsuccessful. The claimant appealed the grievance decision and received an outcome on 16 July 2019; it was not upheld. She said she continued to “suffer from the same mistreatment” and said she expected to be referred to Occupational Health which did not happen. The claimant describes her request to move to another team as a request for a reasonable adjustment.(23) On 5 August 2019, a year after lodging the latest grievance, the claimant emailed her manager Ms Wanda Petrusewicz (page 170). She said her move to the social media team was coming to an end at the end of the week and she wanted to know what was going to happen next. Ms Petrusewicz replied that the claimant would stay in the social media team until her leave in October 2019 and they would discuss it. The claimant wanted a “final word” on the matter.(24) Ms Petrusewicz offered a meeting (page 169). The claimant replied that they did not need to meet to talk it through. Ms Petrusewicz emailed on 9 August saying that she was happy to discuss the claimant’s return to the radio team after her leave in October. Mediation was offered (pages 168/169) which the claimant said was “adding insult to injury” (email page 155).(25) The claimant clearly said in an email on 9 August 2019 (page 168): “I refuse to go back to radio”. She asked for a “final decision” by 1 September 2019.(26) Ms Petrusewicz saw no reason why the claimant should not return to radio as this was her substantive position. She said “you will return to the Radio team from Saturday 14th September….” (page 166). Offers of mediation and a mentor were repeated. The claimant swiftly replied that she would not be going to work again with the Radio Team.(27) Ms Petrusewicz replied on 30 August (page 165) saying that she expected the claimant to return to radio on 14 September and that failure to do so would lead to disciplinary action for failing to follow a reasonable management instruction. Ms Petrusewicz asked the claimant to contact the scheduler about her return to work. The claimant replied on 12 September saying that she had made it crystal clear she was not going back to radio (page 163/164) and again asked for a final decision.(28) A key email was sent by Ms Petrusewicz on 13 September 2019 (page 163) in which she said: “As I have said…, your substantive role is in radio and this is where we expect you to work as from 14th September. This is our final decision”.(29) It is not in dispute that the claimant was on authorised leave from 1 September 2019 and that she did not return to work on 14 September 2019. It is not in dispute that she did not return to work at any point after 1 September 2019. So far as the respondent was concerned, from 14 September 2019 this was an unauthorised absence. A disciplinary process was commenced on 14 October 2019.(30) In relation to the breach of contract claim, it is also not in dispute that payday is the 15th of the month. On 15 October 2019 the claimant discovered she had not been paid for September (page 156). It is agreed that the claimant was not paid from 14 September 2019 through to the date of dismissal, save for a period of annual leave in October 2019.(31) The claimant was given a final written warning at a hearing in her absence on 21 October 2019. The outcome letter was dated 20 December 2019; the claimant received it on 30 December 2019 (page 199).(32) As there was no verbal dialogue between the claimant and her managers and no meetings took place during the dates referred to above, I am satisfied that the position of the parties is recorded in the email correspondence. The redundancy process(33) In November 2019 there was a further restructure proposal for BBC Arabic and on 26 November a Q&A paper was published on the reasons for this (page 105). This followed the earlier restructure in February 2018. In November 2019 it was proposed that 18 posts would go, there would be consultation and that voluntary redundancy would be offered to all staff whose substantive role was in radio (page 106). This included the claimant.(34) On the same day, 26 November 2019, there was internal email correspondence (page 174) asking if the claimant had been in contact and the reply was that she had not. It was redacted and I was told that this email exchange was between the claimant’s managers Ms Petrusewicz and Mr Soliman.(35) In an email dated 29 November 2019 at 10:52 (page 101) the claimant was informed that her role was impacted by the proposals. She was told that there would be both individual and collective consultation. Attached to that email was a letter dated 27 November 2019 (page 102) by which she was formally put at risk of redundancy. The respondent said they would consider all options to avoid a compulsory redundancy. The covering letter did not mention the possibility of voluntary redundancy.(36) Within about 2.5 hours, by 13:31 on 29 November 2019, the claimant emailed HR (page 110) to say: “Can you please take note of my voluntary redundancy request? I work for BBC Arabic Radio which is currently running a saving project [she quotes her staff number]. Please let me know ASAP if my request can be approved and the earliest date on which I can leave”.(37) On 2 December 2019 the claimant sent an email to Mr Soliman saying that she had read the attached documents and that she had sent a request for voluntary redundancy. She said “Can you please let me know when should I expect the request to be approved and subsequently processed?” (page 114). There was nothing in this email to say that she felt compelled to volunteer. She asked no questions about the redundancy exercise.(38) There was an internal email from Mr Soliman at page 177 asking if the voluntary redundancy could be approved before the end of consultation.(39) On 4 December 2019 at 09:04 Ms Petrusewicz sent an email to the claimant offering a telephone conversation about her request for voluntary redundancy. The claimant did not want to have a telephone conversation, she replied concisely at 10:36 saying: “In my view, it’s pretty simple and there’s no need to waste anyone’s time over it. I just need to know if the request can be approved and when it can be finalised?” (page 113).(40) Ms Petrusewicz replied at 13:37 on 4 December saying: “If we were to approve the request, when would you prefer to leave under VR?”. The claimant was told it could be any time between 9 December and two months’ time. The claimant replied: “I think in my case the earlier the better so I’d like to leave on Monday 9th December” (page 112).(41) There was some further discussion about the termination date. The claimant suggested 31 December (page 111) but was told it would involve working back in radio. The claimant said she would not accept returning to radio she said the letter should have the “original date” meaning 9 December 2019. I find that this was not a fresh decision that the claimant needed to return to radio, it was a reference back to the original decision that if the claimant wished to return to work she needed to do so in her substantive role. It was the consequence of the decision already made that if she wanted to return to work, it was back in her substantive role.(42) The termination letter was dated 5 December 2019 giving a termination date of 9 December (page 119). It was a proforma letter sent to employees who take voluntary redundancy and was not amended in detail to reflect the claimant’s situation. It referred to a consultation meeting and it is not in dispute that no such meeting took place. The claimant did not want such a meeting. She had made it clear that she did not want to “waste anyone’s time over it”.(43) The letter told the claimant that the “period between now and your leaving date” - a period of four days – included her contractual notice and it had been agreed that she would not serve her full contractual notice. She was told that her “equivalent earnings” would be paid in lieu of notice and would be taxable. There were no “equivalent earnings” as the claimant was not being paid due to her refusal to return to work. I make no comment here on the reasons why she had refused. This is to set out the position as to her pay.(44) The claimant signed an acceptance of her voluntary redundancy on 9 December 2019 (page 127). The voluntary redundancy payment was £27,690.97 (letter page 120).(45) In submissions the claimant said that she was asked to return to her original role or to take voluntary redundancy. I find that the respondent did not present her with this choice. The claimant had the option to engage in the redundancy process to see if there were ways by which redundancy could be avoided and she chose not participate in that process. The two matters were separate, her grievance issues and the redundancy process. They were not part and parcel of the same matter and she was not offered voluntary redundancy as an alternative to going back to her original role. The submissions on prospects of success(46) The parties submissions are not fully replicated below. As set out above the tribunal had their written submissions and all submissions made, whether oral or written, were fully considered, even if not expressly set out. Unfair dismissal(47) The respondent reminded the tribunal that the claimant accepted that she was expressly dismissed and submitted that she cannot argue that she should not have been dismissed when (a) she insisted on it and (b) she was not given an ultimatum, because the outcome of the redundancy process was unknown. This was the start of the consultation process and the redundancy exercise did not conclude until sometime after the claimant left.(48) The claimant submitted that she did not insist on voluntary redundancy, she just asked if it could be approved and when it could be finalised. She also submitted that as she was not getting paid and she had “no hope” of her reasonable adjustment (moving teams) this was the best option for her and that the respondent was very keen to dismiss her as soon as possible. She also had a pending disciplinary process. The claimant agreed that she signed her acceptance of the voluntary redundancy letter.(49) Breach of contract: On notice pay the respondent said that the entitlement to notice pay was rebutted by the agreement as to the early termination date of 9 December. On the entitlement to pay, the respondent submitted that the claimant refused to attend work and as she was unwilling to work and that the law is clear that she was not entitled to be paid.(50) The respondent said that the claimant should not conflate compensation for the discrimination claim with contract law. If she did not want to work in the radio team, this may be a valid discrimination claim but it is not a contract claim. In her written submission the claimant raised for the first time a section 44 ERA health and safety claim – the respondent submits that this is not relevant to a contract claim and cannot be relied upon in a contractual dispute. It was also not part of the pleaded case.(51) In her written submission the claimant said that she was not offered a fair opportunity to serve her notice and/or should have been allowed to serve her notice with a different team. Submissions on continuing act of discrimination claim(52) On the face of it the on the pleaded case, the claim for disability discrimination was out of time. The claim for disability discrimination and victimisation related to the respondent’s decision not to agree to the claimant’s request to move team.(53) The respondent submitted that the claim was out of time and the claimant had no reasonable prospect of showing that it was within time. This is also subject to the just and equitable issue which was considered separately.(54) The respondent’s case was that the decision that the claimant should return to the radio team and therefore was not permitted to move teams, was made on 13 September 2019. This was when Ms Petrucewicz said (as set out above) “your substantive role is in radio and this is where we expect you to work as from 14th September. This is our final decision”.(55) The primary time limit expired on 12 December 2019. The ET1 was presented on 10 February 2020. The claimant commenced Early Conciliation on 6 January 2020, which was outside the primary time limit.(56) The claimant said that this was a continuing act which extended to the date of dismissal and beyond. The claimant had also had further acts of victimisation but these were the subject of her amendment application which was to be dealt with on the conclusion of all the other issues for this hearing.(57) The claimant referred to her disciplinary case in her ET1 Grounds of Complaint at paragraph 5 saying “I was contacted by a hearing manager on 14 October 2019 to attend a disciplinary hearing. When asked about the prospects of outcomes, she confirmed that it doesn’t include the possibility to move to another platform. Moreover, it could’ve resulted in dismissal….”. The claimant pointed out that the in disciplinary outcome letter dated 20 December 2019, the disciplinary officer said: “my view is that the business was reasonable to expect you to return to work” (page 200).(58) In written submissions, paragraph 24, the claimant relied upon there being a discriminatory policy or practice, the application of which amounted to a continuing act of discrimination. The relevant law on strike out(59)Rule 37 of the Employment Tribunal Rules of Procedure 2013 provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success.(60) Under Rule 39 where the Tribunal considers that any specific allegation or argument in a claim ….has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(61) In Anyanwu v South Bank Students’ Union 2001 ICR 391 the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact sensitive and require full examination to make a proper determination. It may be necessary to determine whether discrimination is to be inferred. Decision on the unfair dismissal claim(62) The claimant’s suggestion that she was only enquiring about voluntary redundancy and that she did not seek voluntary redundancy was not consistent with her email correspondence. This was abundantly clear that she did not want to discuss it, she did not want to waste anyone’s time over it, she wanted to know if it could be approved and what was the earliest date upon which she could leave – in her case “the earlier the better”. The claimant agreed that she signed her acceptance of the voluntary redundancy terms. This is not consistent with just making an enquiry about it. Whatever the claimant’s internal thought processes and reasons for accepting voluntary redundancy, this not being a constructive dismissal claim, the respondent was entitled to take her application for voluntary redundancy at face value.(63) The mistakes in the proforma termination letter were insubstantial in the circumstances and did not materially affect the position. The reference to a meeting was meaningless as both parties knew no such meeting had taken place and the claimant was clear that she did not want a meeting. The reference to being paid between now and the termination date could only have amounted at best to four days pay. The claimant knew she was not receiving any pay at that time. She was very clear that she did not want to meet and I find that even if she mistakenly thought she might be paid for four additional days, this would not have affected her very firm decision.(64) The claimant was dismissed due to voluntary redundancy which is a dismissal in law. It was not relied upon as a constructive dismissal. The claimant relied upon it as an express dismissal. She actively sought voluntary redundancy; she did not want to discuss it; she did not wish to engage in the redundancy process which was at an early stage and its outcome was unknown; she did not want to take her chances in that exercise; she wanted voluntary redundancy at the earliest opportunity.(65) Whatever the claimant’s reasons for doing so, in putting herself forward and actively seeking termination by voluntary redundancy and signing her acceptance of it, she cannot complain that this method of termination was unfair to her. If this were the case, employers would be duty bound to explore with volunteers for redundancy their precise reasons for volunteering to check whether they might yet be exposed to an unfair dismissal claim. I find that employers are not under such duty.(66) As such, I find that the claim for unfair dismissal has no reasonable prospect of success and is struck out. Decision on the breach of contract claim(67) On notice pay it is clear that the claimant chose 9 December 2019 as her termination date. She was given the option of 9 December 2019 as the earliest date or any time up to two months ahead. There was some discussion about working until 31 December but when the claimant understood that this was in her substantive role in radio, she reverted to her choice of 9 December.(68) The claimant’s reasons for not wishing to return to the radio team goes to her reasonable adjustments / disability discrimination claim and is not to be conflated with a breach of contract claim. Under pure contract law, the claimant was given the option of any time between 9 December and two months’ forward. She could have chosen two months ahead. Given her choice of termination date of 9 December 2019 her claim for breach of contract for notice pay has no reasonable prospect of success and is struck out.(69) In relation to her pay, the common law position is clear that the where the employee is ready and willing to work he or she is entitled to be paid under the contract. If the employee is not ready and willing to work, there is no entitlement to be paid. The claimant had made her position clear by saying in writing: “I refuse to go back to radio”. As a matter of contract law, the claimant made it very clear that she was not willing to work under the terms of her contract of employment. As such I find that her claim to be paid under the terms of that contract has no reasonable prospect of success and is struck out. Decision on continuing act(70) The claim form makes clear the claimant’s case that she was told that the disciplinary process was not going to deal with the question of moving to another platform or team. The disciplinary outcome letter was sent to her after the termination of her employment. She received the letter on 30 December 2019. The disciplinary officer said “my view is that the business was reasonable to expect you to return to work”. This was not the disciplinary officer making a fresh decision, but expressing a view on the reasonableness of the decision already made. In any event that letter could not amount to a new decision on the place where the claimant was to work, because she was no longer employed by the respondent.(71) The respondent said that the pleaded complaint was being asked to return to work on 14 September 2019 (ET3 Grounds of Complaint paragraph 4). The issue for the tribunal was whether the claimant could show there was a continuing act after that date.(72) The claimant’s case is not on point with Cast v Croydon College (below and relied on by both parties) where the tribunal found primary facts to the effect that there were several decisions which indicated the existence of a policy that the holder of the appellant's post should work full time. The Court of Appeal said at paragraph 22 (the section numbers refer to the predecessor legislation): The authorities distinguish between a complaint of a 'one-off' discriminatory decision whether or not it has a long-term effect, which is governed by the general provision in s.76(1), and one of the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time, 'an act extending over a period' for which s.76(6)(b) provides.”. At paragraph 38 the Court of Appeal said “If Mrs Cast's case is considered as a complaint of a number of decisions by the college, each amounting to a fresh refusal of a fresh request by her to work part time, then the most recent refusal would be the relevant one for the purpose of the time bar. As I have said, that would be so whether or not the refusals were the application of a policy or regime….”(73) Applying Cast to this case, there was no fresh decision after 13 September 2019. The claimant’s own pleaded case made clear that she was told by the disciplinary officer that her disciplinary case would not include the possibility of moving to another platform. The outcome letter (page 200) expressed a view that the decision made was reasonable, but this was not the making of a fresh decision and could not be, because the claimant was no longer in employment.(74) As such I find that even if there was a continuing act, it did not extend beyond 13 September 2019 and the claim in relation to the decision not to allow the claimant to move teams is on the face of it out of time and subject to a consideration of the just and equitable test. The just and equitable test(75) The claimant gave evidence on this issue and on that evidence I find as follows:(76) The claimant first sought legal advice a few days after the termination of her employment. She contacted the Citizens Advice Bureau by telephone. They told her that their office did not specialise in employment law so they referred her to ACAS.(77) ACAS told the claimant about the three month time limit. On her evidence that this was a few days after the termination of her employment I find that this was no later than 16 December 2019, a week after termination of employment. ACAS also told the claimant about the Early Conciliation process and the claimant understood this as she was able to explain to the tribunal, her understanding of the stopped clock provisions. ACAS told the claimant that she could claim unfair dismissal and disability discrimination.(78) When the claimant presented her claim on 10 February 2020, having gone through Early Conciliation, she believed that her claim was in time. The first time and she learned that there was a time limit issue, was when she read the ET3 in March 2020.(79) The claimant is not a lawyer. When she presented her claim, this was the starting point and she believed that she would have the right to expand upon her claim as much as she wished. When the respondent told her that further and better particulars were required, she agreed. This led to a very substantial expansion of her claim which requires a detailed consideration of an amendment application. The claimant was informed of this by Employment Judge Welch at the preliminary hearing on 9 June 2020. The claimant has since done a great deal of research on legal matters and her written submission for this hearing would do credit to a qualified legal practitioner.(80) The claimant relied upon her health condition as making it just and equitable to extend time. Disability is conceded by the respondent. In terms of medical evidence there was only one entry from the claimant’s medical records relied upon and this post-dated the issue of proceedings being an entry from her medical records dated 13 March 2020. It was not of a great deal of assistance in terms of understanding the claimant’s [redacted] health during and immediately after the end of the primary limitation period (12 December 2020). Submissions on the just and equitable test(81) The claimant relies upon her health and lack of knowledge of the implications of the time limit for the 13 September 2019 decision.(82) The respondent submitted that the claimant is a very capable individual who has shown her ability to deal with legal matters. The length of the delay in relation to 13 September 2019 is about two months. The respondent submits that in relation to the claimant’s ill-health there is little to support this.(83) In relation to the balance of prejudice the respondent relied upon Miller v Ministry of Justice 2016 EAT/0003/15 at paragraph 12 which sets out two types of prejudice to a respondent: (a) the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence and (b) forensic prejudice caused by the passage of time for example on the cogency of evidence. The respondent said that they should not be put to the burden of defending the claim.(84) The respondent submitted that if the amendment application was granted it would greatly expand the case that the respondent would have to meet. This was not put as a prejudice as yet, but it would open the door to such prejudice.(85) The respondent submitted that the prejudice to the claimant was not great if the unfair dismissal claim did not survive, as the claim as pleaded was not in relation to a discriminatory dismissal. The relevant law on time limits(86)Section 123 of the Equality Act 2010 provides that: (1) ………….proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(87) The just and equitable test is a broader test than the reasonably practicable test found in the Employment Rights Act 1996. It is for the claimant to satisfy the tribunal that it is just and equitable to extend the time limit and the tribunal has a wide discretion. There is no presumption that a tribunal will exercise its discretion to extend time. It is the exception rather that the rule - see Robertson v Bexley Community Centre 2003 IRLR 434.(88) In British Coal Corporation v Keeble 1997 IRLR 336 the EAT said that in considering the discretion to extend time: It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to – (a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had cooperated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.(89) However, in the applying the just and equitable formula, the Court of Appeal held in Southwark London Borough v Alfolabi 2003 IRLR 220 that while the factors above frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion'.(90) This was approved by the Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 IRLR 1050 when the Court noted that “factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).''(91) The tribunal must therefore consider: i. The length and reasons for the delay ii. The extent to which the cogency of the evidence is likely to be affected by the delay iii. The prejudice that each party would suffer as a result of the decision reached(92) The tribunal has a broad discretion to extend time in discrimination cases if it is just and equitable to do so, but it remains for the claimant to persuade the tribunal that the discretion should be exercised - Chief Constable of Lincolnshire Police v Caston 2010 IRLR 327(93) On continuing act, Cast v Croydon College 1998 IRLR 318 was cited by both parties and holds that the application of a discriminatory policy or regime pursuant to which decisions may be taken from time to time is an act extending over a period. There can be a policy even though it is not of a formal nature or expressed in writing, and even though it is confined to a particular post or role.(94) South Western Ambulance Service NHS Foundation Trust v King EAT/0056/19 held that there are generally two ways that conduct might be said to form a continuing act. The first is where there are a series of separate discriminatory acts which are somehow linked as opposed to being isolated or unconnected. The second is where there is a discriminatory policy or practice, the application of which causes a continuing act of discrimination. Decision on time limit(95) The claimant was suffering from [redacted] at the material time and disability is conceded by the respondent. This affected her ability to deal with matters. It was only after the expiry of the primary time limit in relation to the 13 September 2019 decision, that the claimant became aware of the time limit. She did not understand the importance of the ET1 at the time and did not know until she saw the ET3 that the claim in relation to the 13 September 2019 decision was out of time. She calculated the time limit from the date of termination of employment.(96) On the respondent’s side, the obvious prejudice of having to meet the claim is the same in every case. On the forensic prejudice, there was little put forward other than the general position that memories fade with time.(97) In terms of making this decision on the just and equitable test, I have not taken account of the amendment application. This is a separate matter to be considered on the relevant principles, including the question of time limits.(98) The case as pleaded has the benefit of considerable documentary records, particularly during a period when the claimant declined meetings or telephone conversations and the dialogue is in the email correspondence. This will assist witnesses when they come to prepare their witness statements. I was not told for example that any particular relevant witnesses had left the respondent’s employment.(99) Based on my decision above, the claimant can no longer pursue claims for unfair dismissal or breach of contract. The delay in this case is not substantial, it is just under two months. She takes the view that the respondent failed to make a reasonable adjustment in allowing her to move teams and that there was victimisation based on her January 2017 grievance. I do not share the respondents view that this is a claim of little value. The value of a finding in favour of a claimant can be as important as the financial value. The prejudice to the claimant if time is not extended is that her claim fails in its entirety.(100) The claimant acted promptly in December 2019 and January and February 2020 on her understanding of the law at the time. She did not know until she saw the ET3 that the claim was potentially out of time in relation to the decision to refuse to allow her to move teams.(101) The claimant has also had to deal with the difficulty of her acknowledged disability.(102) For the above reasons I consider that the balance of prejudice lies in favour of the claimant and I take the view that it is just and equitable to extend time. The claim for disability discrimination and victimisation will proceed to a full merits hearing. . JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the tribunal is that:
The claims
[1]the claimant’s claim for direct disability discrimination having been withdrawn by the claimant, is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. - 1 -[2]The applications made by the claimant for postponement of the Final Hearing on 16, 17 and 18 November 2022 are dismissed.[3]The claimant being neither present nor represented during the second day of the Final Hearing and at a point in excess of 364 minutes after the time set for the third day of the Final Hearing and there being no answer on the telephone number furnished by the claimant for the purposes of the Tribunal communicating with her and the claimant not having otherwise communicated with the Tribunal after the dismissal of her postponement application made on the third day of the Final Hearing; on the respondent’s application made at the Bar, the Tribunal dismisses the claim in terms of Rule of Procedure 47 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[1]The claimant presented a claim for unfair dismissal, disability discrimination, victimisation pursuant to the Equality Act 2010 (“EqA”), and breach of contract (including notice pay and arrears of pay), which the respondent defended.[2]A Preliminary Hearing took place on 09 June 2020 during which the Tribunal set down directions for a Preliminary Hearing to determine various preliminary issues/strike out applications.[3]Pursuant to the Judgment issued to parties on 11 December 2020 (and following the Preliminary Hearing on 10 December 2020) Employment Judge Elliott struck out the claimant’s claim in respect of unfair dismissal and breach of contract on the basis that they had no reasonable prospect of success and extended time on just and equitable grounds allowing the claimant to pursue her complaints for disability discrimination and victimisation pursuant to the EqA. - 2 -[4]Following a Preliminary Hearing before Employment Judge Heath on 14 January 2022, the claimant was granted permission to amend her claim to allege direct disability discrimination, indirect disability discrimination (all relating to the decision not to allow the claimant to move teams in September 2019), discrimination arising from disability, and victimisation pursuant to section 27 of the EqA. The claimant was not granted permission to rely on any other alleged claims. Procedural background[5]A further Preliminary Hearing (case management) took place before Employment Judge Klimov on 07 April 2022 which recorded that the claimant’s disability (which is conceded by the respondent – please see the issues recorded below) is depression and that the claims before the Tribunal included direct disability discrimination, indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, and victimisation (whether the respondent subjected the claimant to a detriment as a result of her complaining of “gender-related complaints” in her grievance of January 2017). The list of issues relating to those claims were recorded at pages 150 – 152 of the Hearing Bundle and the Final Hearing was listed to take place by Cloud Video Platform (“CVP”) between 16 and 18 November 2022. He also directed that written submissions should be provided 7 days before the hearing.[6]By an Order dated 04 October 2022 the Employment Appeal Tribunal (“EAT”) directed that the claimant’s appeal relating to Employment Judge Klimov’s orders shall proceed to a full EAT Hearing (on a date to be notified to parties). His Honour Judge Barklem states in his reasons dated 03 August 2022: “The appeal is against Case Management Orders made by EJ Klimov following a hearing on 7th April 2022, and specifically in relation to the Judge’s categorisation of the issues at pages 9 and 10 of the document. Essentially they limit the scope of her reasonable - 3 - adjustments and victimisation claims to 13th September 2013” (see pages 816-817 of the Hearing Bundle).[7]On 05 October 2022 Employment Judge Klimov refused the claimant’s application for a stay pending the determination of her appeal by the EAT.[8]By an email dated 03 November 2022 the claimant sent an email to the Tribunal in the following terms: “I’m sending this email to apply for withdrawal of the direct disability discrimination claim of the above case. The Respondent is copied in this email.”[9]The claimant sent an email dated 04 November 2022 to the Tribunal in which she made an application for further information and for specific disclosure, which was refused on 08 November 2022.[10]The claimant made an application dated 08 November 2022 to postpone the Final Hearing, which was refused by Employment Judge Klimov on 10 November 2022. As the claimant’s application dated 04 November 2022 was not granted, the claimant’s grounds for making the application were not considered to be well-founded.[11]Following correspondence sent to the Tribunal by the respondent on 11 November 2022, Employment Judge Stout issued directions on 11 and 14 November 2022, respectively. The respondent was directed on 14 November 2022 to produce their submissions in outline form appropriate to answering the claimant’s questions by the start of the hearing so that the claimant as a litigant in person has a fair opportunity to consider and respond to them by the end of the hearing. Withdrawal of claimant’s direct discrimination complaint[12]At the outset of the Final Hearing the claimant confirmed that as stated in her email dated 03 November 2022 she wished to withdraw her - 4 - direct disability discrimination claim. The respondent applied for the claimant’s direct disability discrimination claim to be dismissed and the claimant did not object. We therefore dismissed the claimant’s claim for direct disability discrimination pursuant to Rule 52 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”). The issues to be determined by the Tribunal[13]At the outset of the hearing the parties were advised that the Tribunal would investigate and record the following issues as falling to be determined, both parties being in agreement with these: 1.1. Did the Respondent do the following: on 13 September 2019, require the Claimant to work in her substantive role in BBC Arabic Radio? 1.2 The claimant’s disability is depression. The respondent concedes that the claimant suffered from depression. The respondent conceded that the claimant was a disabled person by reason of her depression in relation to the material date which is 13 September 2019 (the date of the alleged act referred to in 1.1 above). 2.1. Did the Respondent commit the action referred to in paragraph 1.1 above? 2.2. If so, did such action constitute a provision, criterion, or practice (PCP)? 2.3. If so, did such PCP put or would it put the Claimant and persons who share the Claimant’s disability at a particular disadvantage in comparison with non- disabled employees? 2.4. If so, was the Claimant put to that particular disadvantage? 2.5. If so, was the treatment a proportionate means of achieving a legitimate aim? The legitimate aims relied on by the Respondent are fairness and transparency; equality of opportunities; enforcement of contracts of employment; and/or effective running of the organisation. 3.1. Did the Respondent commit the action referred to in paragraph 1.1 above? 3.2. If so, did that amount to unfavourable treatment? 3.3. If so, did the following arise in consequence of the Claimant’s disability: the Claimant declining to get back to her substantive role in Radio in 2019? 3.4. If so, was that treatment done because of the thing arising in consequence of the Claimant’s disability? - 5 - 3.5. If so, did the Respondent know, or ought it reasonably to have known, that the Claimant was disabled at the material times? 3.6. If so, was such treatment a proportionate means of achieving a legitimate aim? The legitimate aims relied on by the Respondent are fairness and transparency; equality of opportunities; enforcement of contracts of employment; and/or effective running of the organisation. 4.1. Did the Respondent know, or ought it reasonably to have known, that the Claimant was disabled at the material times? 4.2. If so, did the Respondent commit the action referred to in paragraph 1.1 above? 4.3. If so, did such action constitute a provision, criterion, or practice (PCP)? 4.4. If so, did such PCP put the Claimant at a substantial disadvantage in comparison with non-disabled employees? 4.5. If so, did the Respondent know or ought it reasonably to have known of that disadvantage? 4.6. If so, did the Respondent fail to make reasonable adjustments for the Claimant, namely: on 13 September 2019, permit the Claimant to move to another team? Victimisation s 5 of list of issues 5.1. Did the Claimant perform a protected act by complaining of “gender-related complaints” in her grievance of January 2017? 5.2. If so, did the Respondent commit the action referred to in paragraph 1.1 above? 5.3 f so, did that constitute a detriment? 5.4. If so, was it done because of the Claimant’s protected act?[14]In terms of 3.1 of the list of issues the claimant said that the respondent insisted not to consider her condition and that they instigated a disciplinary process against her. The respondent’s representative submitted that this was not pleaded and referred to Employment Judge Heath’s order (see page 124 of the Hearing Bundle). The claimant was given permission by Employment Judge Heath to amend her claim, solely to the extent that the decision not to allow the claimant to move teams in September 2019 is claimed to be unfavourable treatment arising from her disability. Having heard both - 6 - parties submissions, we therefore did not consider it appropriate to include the additional matter raised by the claimant in the list of issues.[15]Prior to this hearing the claimant and the respondent each sent to the Tribunal a separate Bundle of Documents and we were also provided with a file of witness statements (containing four witness statements in total). Claimant’s postponement application made on 16 November 2022[16]Upon the claimant’s application to postpone this hearing made at the outset of the hearing orally on 16 November 2022 and upon hearing oral submissions from the claimant (which we considered were informative and very ably made) and the respondent’s representative, the claimant’s application to postpone the Final Hearing (which was listed for 3 days) was refused.[17]We considered the Tribunal’s previous case management orders and the directions made by Employment Judge Klimov and Employment Judge Stout. We also took into account Employment Stout’s order of 14 November 2022 requiring the respondent to send any opening submissions to the claimant before the start of the hearing and the fact that those submissions were provided on the morning of the first day of the hearing (including in relation to the claimant’s comments that they did not address her request for information made on 04 November 2022 and that the respondent’s defence was not clear from her perspective). We considered that the claimant would be able to make any points she wishes to make in relation to the respondent’s defence and the answers provided to her questions within the respondent’s opening submissions when she asks questions to the respondent’s witnesses in cross examination and when she presents her oral closing submissions at the conclusion of all the evidence. - 7 -[18]We also took into account that the claimant said during her submissions that she was not well. We had not received any medical evidence to show that she was not capable of participating in the hearing. We indicated that we would consider any required reasonable adjustments at the outset of the hearing to facilitate the claimant’s participation in this hearing . We also advised the parties that we would shortly be adjourning the hearing to read the documents for the rest of the first day of the hearing and we will possibly require additional reading time on the second day of the hearing. We further advised that this allows the claimant ample time to review the respondent’s opening submissions and to undertake any research or seek advice if she wanted to do so.[19]Employment Judge Klimov had previously rejected the claimant’s request for a stay of proceedings on the basis of the claimant’s ongoing EAT appeal and he set out his reasons in detail in his directions dated 05 October 2022. We did not consider that there was any material change of circumstances since that date. In any event, we did not conclude that a postponement was necessary in light of the claimant’s EAT appeal.[20]We considered the overriding objective (Rule 2 of the ET Rules), and we concluded that a postponement was not necessary or proportionate. The claimant’s claim was presented in 2020 and it is in the interests of justice for the claim to proceed to avoid further delay (which could affect the quality of the witness evidence and cause prejudice to the respondent). Any prejudice to the respondent was outweighed by any prejudice to the claimant. In addition we concluded that the circumstances in Rule 30A of the ET Rules are not made out and there were no exceptional circumstances. First day of the Final Hearing – the procedure[21]The Employment Judge then set out the procedure including the reading time we will require, the order of witnesses, an explanation of - 8 - the evidence process (including witness statements being taken as read and evidence in chief, cross examination, and re-examination), and directions were made (by agreement) that the respondent will make their oral submissions first and then the claimant second.[22]Parties were advised that if there was adequate time remaining the Tribunal may give an oral judgement with reasons (and that parties could apply for written reasons during the hearing or within 14 days from the date that the Judgment is sent to the parties). The Employment Judge asked the claimant if she required any reasonable adjustments, but she repeatedly replied that she simply wanted the hearing to be postponed. The respondent’s representative did not suggest any reasonable adjustments that required to be made in relation to the claimant or the respondent’s witnesses. In any event it was indicated to the parties that the Tribunal will try to ensure that there was a 10-15-minute morning break, 1 hour lunch break and 10– 15-minute afternoon break each day to assist the claimant. The Employment Judge also indicated that the claimant may ask at any time for further breaks if required.[23]We then adjourned the hearing at 1.32pm on 16 November 2022 until 11.00am on 17 November 2022 to enable the Tribunal to read the documents and to allow the claimant an opportunity to review the respondent’s opening submissions and to seek advice if necessary. Claimant’s postponement application made on 17 November 2022[24]The claimant made an application by way of an email sent to the Tribunal on 17 November 2022 at 10.06am and further documents were sent at 11.07am. The claimant did not attend the hearing on 17 November 2022 (which was due to start at 11.00am). The hearing was convened at 11.19am and it was adjourned at 11.25am to allow the respondent an opportunity to consider the claimant’s postponement application. The respondent’s representative replied to the application by email setting out its position at 11.39am (a copy of an extract from - 9 - IDS and the Presidential Guidance was attached) and the hearing resumed at 11.49am to consider oral submissions in terms of the claimant’s application. Although the claimant was not in attendance, the respondent’s representative provided oral submissions which the Tribunal found to be informative.[25]We noted that the claimant made an application for an adjournment on 16 November 2022 which was not granted. That application was an oral application made at the outset of the hearing and we gave oral reasons for refusing the application during the first day of the hearing. There were also directions issued by Employment Judge Klimov and Employment Judge Stout in relation to the claimant’s previous applications which we considered.[26]The claimant in her application of 17 November 2022 sought to point out that this hearing should not be re-listed as her EAT appeal is due to be listed for a Full Hearing. The claimant previously applied for a stay of proceedings and Employment Judge Klimov declined to grant that application. Additionally, one of the grounds of the claimant’s application made to us on 16 November 2022 was the ongoing EAT proceedings, and as we stated in our reasons in refusing the previous application, we did not consider that it was necessary to postpone the hearing as a result of the claimant’s EAT appeal.[27]We took into account that the claimant’s application stated that her situation deteriorated after the hearing was adjourned on 16 November 2022 and she attended Ealing Hospital. Whilst the claimant stated that she was not fit to represent herself at the hearing, she did not indicate any details about her condition and when she would be likely to be in a position to attend this hearing (or a Final Hearing on any future dates in the event that her postponement application was granted). - 10 -[28]We reviewed the medical documents provided by the claimant. The hospital triage notes indicated that she had presented with symptoms of depressive disorder including low mood and suicidal ideation. Her physical observations were recorded as normal, the psychiatric team saw her, and she was considered safe for discharge and for any follow up to take place via the claimant’s General Practitioner.[29]We also considered the Presidential Guidance – Seeking a Postponement of a Hearing and the fact that although the medical evidence from the hospital indicated the claimant’s symptoms and clinical observations, it did not include a statement that in the opinion of the medical practitioner the claimant was unfit to attend the hearing, the prognosis of the condition, and an indication of when that state of affairs may cease (see examples number 1 within the Presidential Guidance). We therefore considered that the evidence presented by the claimant in support of her application was not in accordance with the requirements within the Presidential Guidance. We took into account that the burden of proof was on the claimant to satisfy the Tribunal that a postponement was necessary and proportionate in the circumstances (and we were not so satisfied).[30]We did not accept the claimant’s contention that any prejudice to the respondent will not exceed the prejudice to the claimant if the Final Hearing was re-listed after the EAT hearing. It was significant that the allegations in this case dated back to September 2019 (there were also matters referred to in the claimant’s witness evidence from several years prior to this), the respondent had prepared their witness evidence, the respondent’s witnesses were in attendance at the hearing (ready to give evidence), and solicitors and counsel had been instructed for the hearing. If this hearing were postponed not only will the respondent suffer prejudice in terms of incurring further time and costs in defending the claim, but we were also concerned that witnesses’ ability to recall the evidence may be further impacted. - 11 -[31]We considered the Court of Appeal’s guidance in Teinaz v London Borough of Wandsworth 2002 ICR 1471, CA and various other authorities both of the Court of Appeal (“CA”) and EAT (please see extract from IDS Employment Law Handbooks Volume 5, Chapter 13 relating to postponements and adjournments and ill health of parties) and the overriding objective (Rule 2 of the ET Rules). The Court of Appeal suggested in Teinaz that if a medical practitioner has advised a litigant not to attend the hearing on the ground of ill health, then the person cannot reasonably be expected to attend and further that the Tribunal is entitled to be satisfied that the inability of the litigant to be present is genuine (and the onus is on the party making the application to prove the need for such adjournment). However unlike in Teinaz, the claimant’s medical evidence did not indicate that the claimant should not attend the hearing.[32]We also considered the case of Andreou v Lord Chancellor’s Department [2002] IRLR 728, CA in which the Tribunal provided the claimant with a further limited opportunity of making good the deficiencies in terms of her medical evidence and the Court of Appeal’s reasoning that it was necessary to balance the fairness between the claimant and the respondent (and anyone else named in the accusations). The respondent’s representative invited the Tribunal in his submissions to provide the claimant with a further limited opportunity during the course of 17 November 2022 to send additional medical evidence while dismissing the application to enable the claimant to make a fresh application if she chooses to do so.[33]The respondent’s representative also suggested that the adjournment on the afternoon of 17 November 2022 will provide the claimant with a further opportunity to review the respondent’s opening submissions and to seek advice if necessary. - 12 -[34]For the above reasons, whilst we rejected the claimant’s application, taking into account the content of the claimant’s application and the supporting medical evidence (and the impact of the claimant’s nonattendance), we decided to adjourn the hearing for the remainder of 17 November 2022 at 12.50pm to allow the claimant a further limited opportunity to obtain additional medical evidence and to make a further postponement application if she wished to do so. We made our decision in those terms and our decision was communicated to parties in writing at 1.36pm. We gave oral reasons for our decision at 2.46pm (the claimant was not in attendance). The hearing was adjourned at 2.55pm to allow the claimant a further limited opportunity to obtain additional medical evidence in accordance with the Presidential Guidance and to make a further application if she wished to do so.[35]The directions issued to parties that afternoon were in the following terms: “Dear Miss Hassan Employment Judge Beyzade has directed me to write to you to confirm the outcome of your application which is as follows: 1. Upon application by the claimant to postpone the hearing made in writing on 17 November 2022; upon the respondent objecting to that application; upon considering the content of the claimant’s application and the attached supporting evidence; and upon hearing oral submissions from the respondent’s representative, the claimant’s application for a postponement is dismissed. The Tribunal's reasons are reserved and will be announced to parties at 2.30pm on 17 November 2022. Parties must log-in to the hearing using the details provided by the Tribunal at 2.30pm this afternoon. 2. Thereafter, the Tribunal will use any additional time this afternoon as further reading time and the hearing will start tomorrow morning at 10.00am. This will also allow the claimant a further opportunity to obtain medical evidence in compliance with paragraph 1 of the Examples set out in the Presidential Guidance at page 2 which states as follows: “When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.” 3. (if so advised) the claimant may make a further postponement application with supporting evidence as indicated in the Presidential Guidance and any such - 13 - application may be heard when we reconvene the hearing tomorrow (18 November 2022) at 10.00am. 4. For the avoidance of doubt, if no further application for a postponement is made (and granted by the Tribunal), following any adjournment this afternoon, the hearing will continue tomorrow, 18 November 2022, at 10.00am.” Respondent’s application made on the Morning of 18 November 2022[36]Following two emails sent from the claimant prior to the start of the hearing on 18 November 2022 (at 10.00am) the respondent applied to postpone the hearing until 2.00pm to allow the claimant additional time to send further medical evidence to the Tribunal.[37]We determined that upon the claimant sending two emails to the Tribunal on 18 November 2022 indicating that she intended to obtain additional medical evidence and to make a further application for postponement, upon the respondent’s representative’s application to postpone the hearing until 2.00pm on 18 November 2022 to allow the claimant a further opportunity to obtain medical evidence; and upon the Tribunal being satisfied that it is in accordance with the overriding objective (Rule 2 of the ET Rules) to grant the claimant additional time to obtain further medical evidence, the hearing was adjourned at 11.03am (until 2.00pm on 18 November 2022). We indicated that in the event that the claimant did not make an application with supporting evidence (and that application is not granted) or (in the absence of any application being made and granted by the Tribunal) if the claimant failed to attend the hearing, the hearing would proceed at 2.00pm in the claimant’s absence. Those directions were issued by the Clerk to the Tribunal to parties in writing at 11.23am on 18 November 2022. Claimant’s postponement application made on 18 November 2022[38]The claimant made a further postponement application at 1.12pm on 18 November 2022 which was accompanied by a Statement of Fitness to Work, an extract from the claimant’s GP records and a letter from the claimant’s GP (Dr Vishal Vala) dated 18 November 2022. - 14 -[39]The respondent’s representative submitted that the application should be dismissed on three grounds. Firstly it is no longer appropriate to seek further medical evidence from the claimant as there is no opportunity to do so and he invited us to decide the application on the basis of the medical evidence before us. Secondly he submitted that the medical evidence did not comply with the expectations that the Tribunal set the claimant in the Tribunal’s directions issued on 17 November 2022. Thirdly he submitted that on its own terms the medical evidence is not sufficient to justify a postponement.[40]The respondent’s representative made detailed submissions in relation to each of those points. He said that the reason he proposed that we do not direct the claimant to obtain further evidence was two-fold. The first reason was that there is no longer any such opportunity within the current listing of the hearing. He also said that the claimant has had ample opportunity to obtain appropriate supporting evidence and she has obtained a detailed letter from her GP. In the Tribunal’s order made on 17 November 2022 the expectations of the Tribunal were made clear including the requirement to comply with the Presidential Guidance. He submitted that the case law that was relied on by the respondent during the previous application demonstrated why it was important for the claimant to comply with the Presidential Guidance.[41]He also submitted that the case law suggested that there was a difference between unfitness to attend work and the inability to attend a hearing. The claimant had not complied with the Presidential Guidance, and he submitted that the Tribunal should be wary in terms of the evidence that has not been provided. He pointed out that the claimant could have shown her GP the Tribunal’s directions. He also relied on all his submissions from his reply to the claimant’s application on 17 November 2022 including in relation to the law, the test to be applied and the background and the context of the application. - 15 -[42]He contended that the claimant gave evidence of her physical symptoms by way of her medical notes. However at the hearing on 16 November 2022 she displayed no physical evidence of such presentation, and he invited us to be circumspect. He commented that the fit note simply says that the claimant is not fit for work. The consultation note from 16 November 2022 is incorporated in the letter from the claimant’s GP. That letter was an opportunity for the claimant’s GP to record any relevant points relating to the claimant’s medical condition and her application. He also submitted that prior to October 2022 the claimant had not attended her GP about depression for a period of some 2 years. There was no mention of the Employment Tribunal or the process in respect thereof in her recent medical notes prior to 16 November 2022.[43]He also submitted that the 16 November 2022 GP note does not take the Tribunal further than what the Tribunal already knew from the claimant’s hospital records. He stated there was no new information in the letter from the GP. The letter from the GP dealt with two matters namely that the claimant is extremely anxious, and that the GP would be grateful if she can be supported. The GP did not provide any opinion in terms of any method of support. Moreover he says the claimant was offered support by way of reasonable adjustments from the Tribunal.[44]He further submitted that the letter did not provide any prognosis and although the claimant may say this could be inferred from the fit note, that fit note simply states the claimant is not fit for work. He repeated his submissions about the requirements of fairness to both parties, the passage of time, costs, the circumstances of the application and that this was the claimant’s fifth attempt to delay this hearing. The respondent’s representative said that the respondent took matters relating to the claimant’s mental health seriously, but, having regard to - 16 - all the circumstances and the legal test, the claimant did not come close to justifying her application.[45]The Employment Judge enquired whether there were any alternative options to consider such as making an unless order. The respondent’s representative said it became a self-fulfilling exercise simply by taking up time and costs unnecessarily. He pointed out that this is not an issue of compliance with orders. He submitted that the claimant had not discharged the burden on her in terms of her application and in addition she had failed to turn up and give evidence in support of it.[46]We decided to refuse the claimant’s application because we considered that the medical evidence provided by the claimant both on 17 and 18 November 2022 did not assist the Tribunal in terms of determining the matters set out in the Presidential Guidance. Despite giving the claimant a further opportunity, the medical evidence she provided did not state that in the opinion of the medical practitioner the claimant was unfit to attend the hearing, the prognosis of the condition, and an indication of when that state of affairs may cease. We therefore maintained our view that the evidence presented was not in accordance with the Presidential Guidance. We took into account that the burden of proof was on the claimant to satisfy the Tribunal that a postponement was necessary and proportionate in the circumstances and we were not so satisfied. We took into account the substantial delay and further costs that would be incurred. The balance of prejudice was in favour of the respondent, and we had continuing concerns that the ability of witnesses in this case to recall evidence was likely to be impaired by any further delay. We considered the overriding objective (Rule 2 of the ET Rules), and we concluded that a postponement was not necessary or proportionate in the circumstances. - 17 -[47]The respondent’s representative made an application for the claim to be dismissed in accordance with Rule 47 of the ET Rules on the basis of the claimant’s non-attendance at the hearing.[48]Thereafter, we adjourned the hearing between 2.19pm and 3.20pm. The adjournment was to provide the claimant with a further opportunity to attend the hearing prior to hearing the respondent’s application.[49]We issued the following directions which were sent to the parties in writing during the adjournment: 1. “The application made by the claimant for postponement of the Final Hearing sent to the Tribunal on 18 November 2022 with further supporting medical evidence is refused. 2. The hearing is currently adjourned. The hearing will recommence at 3.20pm on 18 November 2022 and both parties must attend at that time promptly. If the claimant fails to attend the hearing at 3.20pm, the hearing will proceed in the claimant's absence. 3. The respondent's representative has made an application for the Tribunal to dismiss the claimant's claim in accordance with Rule 47 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. That application shall be heard when the hearing resumes at 3.20pm today (18 November 2022).”[50]Those directions were issued to parties in writing by the Clerk to the Tribunal at 2.52pm on 18 November 2022. Respondent’s application for claimant’s claim to be dismissed[51]The claimant did not attend the hearing when the hearing was reconvened at 3.39pm on 18 November 2022.[52]The respondent’s representative applied to dismiss the claimant’s claim pursuant to Rule 47 of the ET Rules.[53]He submitted that the claimant was not present or represented, and the respondent invited the Tribunal in the circumstances to dismiss the claim pursuant to the Tribunal’s powers under Rule 47 of the ET Rules. - 18 -[54]The grounds of the application were that the conditions set out in Rule 47 of the ET Rules were met. The respondent’s representative further submitted that the Tribunal now had the discretion to dismiss the claimant’s claim or to proceed with the hearing in the claimant’s absence having regard to any information about any reasons for her absence. He stated that the respondent had analysed the reasons for the claimant’s absence at some length and he contended that the claimant did not have a good reason for not attending the hearing. He averred that in relation to the series of claims which the claimant brought, she bore the primary burden of proof and that the claimant had to prove facts from which in the absence of any other explanation a contravention of the EqA had occurred. He pointed out that the standard of proof is on the balance of probabilities. The claimant had not attended the hearing to give evidence in order to discharge that burden. In the circumstances he submitted that it was the appropriate course for the Tribunal to dismiss the claim under Rule 47 of the ET Rules.[55]We set out the relevant procedural history relating to this claim above.[56]There was no appearance by the claimant (and the claimant was not represented) at the Final Hearing on the 17 and 18 November 2022. This was despite the Tribunal’s directions sent to the parties including the directions sent at 2.52pm on 18 November 2022 advising the claimant that if she failed to attend by 3.20pm the hearing will proceed in her absence.[57]On the Tribunal’s directions the Clerk checked and confirmed that no contact had been made by the claimant with the Tribunal in connection with the Hearing after the Tribunal’s directions were issued to parties at 2.52pm.[58]On the Tribunal’s direction the Clerk attempted to communicate with the claimant on the telephone number provided by the claimant for that - 19 - purpose, at approximately 3.00pm. The Clerk was not able to communicate with the claimant, but she left the claimant a voicemail message advising her about the terms of the email that was sent to her at 2.52pm. The claimant was also sent the directions referred to above by the Clerk at 2.52pm requiring the claimant to log-in and attend the hearing by 3.20pm and in default of which the Hearing will proceed in her absence.[59]At 4.04pm and in light of the claimant’s unexplained non-attendance and in the absence of a good reason (which was satisfactory to the Tribunal), and on the respondent’s application, the Tribunal dismissed the claimant’s claim claim in terms of Rule 47 of the ET Rules. We took into account the nature of the claimant’s claims, the issues that the Tribunal were required to investigate and determine (recorded earlier in this Judgment), the burden of proof provisions in relation to the claimant’s claim that are set out in section 136 of the EqA (the claimant had not attended days 2 or 3 of the hearing to discharge any obligation placed upon her), and the procedural history relating to the claim. We considered the overriding objective (Rule 2 of the ET Rules).
Introduction
[60]On the evidence that we heard and on the documents to which we were referred, to the extent necessary to inform our conclusions, the Tribunal made the following essential findings of fact:60.1 The Tribunal referred to its previous Judgment and its consideration of the relevant evidence contained therein.60.2 The claimant made a postponement application at the hearing on 16 November 2022. That application was refused and the reasons for refusal of that application were contained in the original Judgment (please see paragraphs 16 to 20 in respect thereof).60.3 The claimant visited Wembley Park Medical Centre on 16 November 2022 and at 2.32pm, the claimant had a duty, walk in consultation with Dr Imran Siddiq, Locum GP. A record of the matters reported to the claimant’s GP during that consultation can be found in the claimant’s GP’s notes at page 251 of the Joint Hearing Bundle. In view of the claimant’s presentation, arrangements had been made for the claimant to be taken to hospital. The claimant was collected from the surgery and taken to hospital at 3.56pm.60.4 The Discharge Summary from the Hospital’s Emergency department dated 16 November 2022 (see pages 153-156 of the Joint Hearing Bundle) records that the claimant presented with low mood, suicidal ideation and had no history of self-harm. The claimant was seen by the hospital’s psychiatric team whose observations were recorded in the Discharge Summary. The Discharge Summary records: “Seen by psychiatric team safe discharge: impression: low mood to be seen by psychiatric services in the community.” - 25 -60.5 The claimant was discharged later that evening. At the top of the Discharge Summary it is recorded “Discharge Outcome: treatment complete”. It is also recorded that the claimant was to be seen by psychiatric services in the community and that she was to have a safety netting return if there were any new symptoms.60.6 The claimant made a further postponement application by email on the following morning (see page 158 of the Joint Hearing Bundle). The claimant stated that she was not fit to represent herself at the hearing and she provided a copy of the hospital Discharge Summary (referred to above). In addition the claimant advised that there was no need to re-list the hearing because the claimant’s EAT appeal was due to be listed for a full hearing at the EAT as early as January or February. Following consideration of the same, the application was refused for the reasons set out in the original Judgment. The claimant was sent an email dated 17 November 2022 sent at 1.36pm which stated: “2. Thereafter, the Tribunal will use any additional time this afternoon as further reading time and the hearing will start tomorrow morning at 10.00am. This will also allow the claimant a further opportunity to obtain medical evidence in compliance with paragraph 1 of the Examples set out in the Presidential Guidance at page 2 which states as follows: “When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.” - 26 - 3. (if so advised) the claimant may make a further postponement application with supporting evidence as indicated in the Presidential Guidance and any such application may be heard when we reconvene the hearing tomorrow (18 November 2022) at 10.00am.”60.7 The claimant sent emails to the Tribunal on 18 November 2022 at 07.29am and 09.29am advising that she will be making a further postponement application and that she was trying to see a doctor in order to provide further medical evidence.60.8 The claimant visited Wembley Park Medical Centre on 18 November 2023 at 09.43am and attended a duty, walk in appointment with Dr Vishal Vala (GP). He recorded in his notes that he spoke to the claimant who told him that she has a hearing today that she would like to postpone and the hearing was in relation to her employer, the BBC. The claimant requested a letter from her GP. The GP commented that he helped with a Med3 and letter of support (see page 251 of the Joint Hearing Bundle). The claimant provided her GP with a copy of the respondent’s letter dated 17 November 2022.60.9 The claimant was sent an email from the Tribunal dated 18 November 2022 at 11.23am advising that the hearing had been postponed until 2.00pm on 18 November 2022 to give the claimant a further opportunity to obtain medical evidence.60.10 The claimant received further medical evidence from Dr Vala at around 1pm.60.11 The claimant sent an email to the Tribunal on 18 November 2022 at 1.12pm containing a 2-page document titled “Postponement Application” in which she stated that she had - 27 - enclosed four documents, she described her symptoms and she advised that: “On Thursday 17th Nov. at 16: 39, The Respondent sent me an email demanding that I need to send a letter they attached to the medical practitioner. Although I’m under no obligation to do so I have indeed sent the letter to the Dr. Vala who took it into consideration when wrote his letter to you. In their letter, the Respondent introduced distorted account and did not ask any particular questions to be considered in relevance to the matter. I believe I have complied with the requirements of the guidance; and that the supportive documents provided answers to the issues in questions namely: fitness to attend the hearing, prognosis of condition and indication when that state of affair may cease. I kindly urge for my application to be allowed and for my health condition to be considered and taken seriously.”60.12 A copy of the respondent’s letter of 17 November 2022 is at page 286 of the Joint Hearing Bundle.60.13 In addition, at the same time, the claimant supplied a Statement of Fitness for Work dated 18 November 2022 (confirming that the claimant was unable to work from 15 November 2022 until 15 January 2023) and a letter from her GP dated 18 November 2022 which stated at paragraphs 2 and 3: “I have noted the 17th November 2022 letter for the attention of the Doctor. I am attaching all relevant clinical encounters with us below from Year 2016. She is extremely anxious by her upcoming hearing. She has applied to postpone. Given her recent suicidal thoughts, I would be very grateful if she could be supported whilst she is awaiting further assessment and treatment by the psychiatry team.” - 28 -60.14 The letter from Dr Vala also included details of the claimant’s previous consultation on 16 November 2022 referred to above and records of other consultations between 17 October 2022 and 05 July 2016 (see pages 169 – 179 of the Joint Hearing Bundle).60.15 At the time the claimant believed that she had submitted sufficient evidence to show that she was unfit to attend the hearing, and accordingly no further evidence was sought by the claimant (until after she received the Tribunal’s directions dated 19 July 2023).60.16 As the claimant had not attended the hearing on 18 November 2022, the claimant was advised by email dated 18 November 2022 sent at 2.53pm that her application dated 18 November 2022 for a postponement had been refused, that the hearing had been adjourned until 3.20pm, and further, that if the claimant failed to attend the hearing at 3.20pm the hearing may proceed in the claimant’s absence (and that the respondent’s application to dismiss the claim under Rule 47 of the ET Rules will be heard when the hearing resumed that day).60.17 Following the claimant’s non-attendance at the hearing on the afternoon of 18 November 2022, the Tribunal gave an oral Judgment and thereafter it issued the written Judgment issued to parties on 09 January 2023 (see pages 182-201 of the joint Hearing Bundle).[61]The Tribunal’s essential findings of fact will be set out further under the heading ‘Discussion and Decision’ below, where the Tribunal will also set out their observations on the evidence. Submissions[62]Following an adjournment at 1.29pm, the clamant sent her written submissions to the Clerk to the Tribunal. At around 2.32pm a copy of - 29 - those submissions were provided by the Clerk the Tribunal in paper and electronic form to the Tribunal and the respondent’s representative (a paper copy was also provided to the claimant). The claimant made detailed supplemental oral submissions when we reconvened the hearing at 2.44pm.[63]The respondent’s representative relied on their Skeleton Argument and supplemented those submissions by way of oral submissions.[64]Thereafter the claimant made further detailed oral submissions in reply.[65]We found the submissions we read and heard to be informative. We refer to those submissions under the heading ‘Discussion and Decision’, where relevant. The Law – Reconsideration Applications[66]The Employment Tribunals (Constitution and Rules of Procedure) 15 Regulations 2013 (“ET Rules”) set out the Rules of Procedure in Schedule 1, and those in relation to the reconsideration of judgments are at ET Rules 70 – 73: “Principles[70]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. - 30 - 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.”67. When considering such an issue regard must also be had to the Tribunal’s overriding objective in Rule 2 of the ET Rules. The Tribunal’s “overriding objective” under Rule 2 is to deal with the case fairly and justly. The precise terms of Rule 2 of the ET Rules are as follows: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing; - 31 - (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (d)avoiding delay, so far as compatible with proper consideration of the issues; and (e)saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”68. The approach to be taken to applications for reconsideration was also set out more recently in the case of Liddington v 2Gether NHS Foundation Trust [2016] UKEAT/0002/16/DA in the Judgment of Mrs Justice Simler, then President of the EAT, and now Lady Simler in the Court of Appeal. The Tribunal is required to: “1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 3. give reasons for concluding that there is nothing in the grounds advanced by the (applicant) that could lead him to vary or revoke his decision.”69. .In paragraph 34 and 35 of the Judgment, the now Lady Simler, stated as follows: 34. In his Reconsideration Judgment the Judge identified the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage. In this case, the Judge addressed each ground in turn. He considered whether was anything in each of the particular grounds relied on that might lead him to vary or revoke his decision. For the reasons he gave, he concluded that there was nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision, and accordingly he refused the application at the preliminary stage. As he made clear, a request for reconsideration is not an opportunity for a party to - 32 - seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. 35. Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly.”70. There is a public policy principle that there must be finality in litigation and reviews or reconsiderations are a limited exception to that principle. In the case of Stephenson v Golden Wonder Limited [1977] IRLR 474 it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord Macdonald said that the review provisions were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence produced which was available before”. 71. The EAT went on to say in the case of Fforde v Black EAT68/80 that this ground does not mean “that in every case where a litigant is unsuccessful is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional - 33 - cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”[72]“In the interests of justice” means the interests of justice to both sides. The EAT provided further guidance in Reading v EMI Leisure Limited EAT262/81 where it was stated “when you boil down what it said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”[73]In Outasight VB Limited v Mr L Brown UKEAT/0253/14/LA, the then Her Honour Judge Eady KC (now The Honourable Mrs Justice Eady DBE, President of the EAT) stated at paragraphs 49 to 51: “49. More specifically, as to an application to introduce fresh evidence after the determination of a case, the approach laid down in Ladd v Marshall will, in most cases, encapsulate that which is meant by the “interests of justice”. It provides a consistent approach across the civil courts and the EAT. Should a different approach be adopted in the ET because the principles of Ladd v Marshall are no longer expressly set out in the Rules? I do not think so. Those principles set down the relevant questions in most cases where judicial discretion has to be exercised upon an application to admit fresh evidence in the interests of justice.50. In saying that, I allow that the interests of justice might on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not strictly met, but it was ever thus. Hence, the residual category allowed by Rule 34(3)(e) 2004 Rules and the recognition of how this might then be used in cases such as Flint and Deria. As to what circumstances might lead an ET to allow an application to admit fresh evidence, that will inevitably be case-specific. It is, of course, always dangerous to try to lay down any general principles when dealing - 34 - with specific facts, particularly where - as here - one party is not represented and where the point was not fully argued below. That said, it might be in the interests of justice to allow fresh evidence to be adduced where there is some additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage (Deria). This might arise where there are issues as to whether there was a fair hearing below; perhaps where a party was genuinely ambushed by what took place or, as in Marsden, where circumstances meant that an adjournment was not allowed to a party when otherwise it would have been (there apparently because of an error on the part of that party’s Counsel).51. For the reasons I have given, I consider that the ET in this case was wrong to think that the 2013 Rules had changed the position. That, however, is not the end of the matter and I have spent some time reflecting on whether it might, in any event, have been right in its exercise of discretion in this instance. In particular - given the way the Claimant has put his case on this appeal - I have considered whether there were broader issues of fair hearing (which can be seen as part of the requirement under the overriding objective, that ETs deal with cases fairly and justly). I am not sure that the ET in fact approached the case in this way; its focus seems rather to have been on the possible relevance of the material given the issues it had to determine. That might be characterised as looking at the interests of justice from the perspective of the Claimant. The reasoning does not detail the ET’s findings as to how the Claimant obtained the new evidence in issue and, particularly, why he could not have done so before. The ET’s conclusion was, however, that the Claimant had not demonstrated that he could not, with reasonable diligence, have obtained that information before.”[74]For completeness the principles from Ladd v Marshall [1954] 3 All ER 745, CA referred to by the EAT in Outasight are as follows, per page 748 paragraphs A and B of the then Lord Justice Denning’s Judgment: - 35 - “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.” Discussion and decision[75]We have now carefully considered both parties’ written submissions and oral submissions, our own notes of the submissions made by counsel for the respondent and by the claimant (who appeared as a litigant in person) at the Final Hearing on 16 November 2022 (after which date the claimant did not attend the hearing), any representations made in writing, and also our own obligations under Rule 2 of the ET Rules, being the Tribunal’s overriding objective to deal with the case fairly and justly.[76]We consider that the claimant has made detailed written and oral submissions in terms of the grounds of the Reconsideration Application. The respondent has provided their response to the application and subsequently they sent written submissions and the claimant and the respondent’s representative supplemented those with their submissions at this hearing. We had regard to the Judgment issued to parties on 09 January 2023 and our notes of the parties’ submissions made during the hearing and we also referred to any relevant documents.[77]On the test of “in the interests of justice”, under Rule 70, which is what gives this Tribunal jurisdiction in this matter, there is now only one ground for “reconsideration”, being that reconsideration “is necessary in the interests of justice.” That phrase is not defined in the ET Rules, but it is generally accepted that it encompasses the five separate grounds - 36 - upon which a Tribunal could “review” a Judgment under the former 2004 Rules.[78]While there are many similarities between the former and current Rules, there are some differences between the current Rules 70 to 73 and the former Rules 33 to 36. Reconsideration of a Judgment is one of the two possible ways that a party can challenge a Tribunal’s Judgment. The other way, of course, is by appeal to the EAT.[79]Rule 70 confers a general power on the Employment Tribunal, and it stands in contrast to the appellate jurisdiction of the EAT. In most cases, a reconsideration will deal with matters more quickly and at less expense than an appeal to the EAT.[80]Having assessed the submissions and representations made to us, we are of the view that this reconsideration application should be dismissed.[81]We are of the view that it is not necessary in the interests of justice to allow the claimant’s reconsideration application, and nor would it be in accordance with the Tribunal’s overriding objective to deal with the case fairly and justly to allow that application.[82]We will deal with each of the points in terms of the claimant’s reconsideration application in turn. Fresh Evidence (i) Claimant’s witness statement[83]The respondent’s representative contends that the witness statement and medical evidence provided by the claimant (see pages 243-252 of the Joint Hearing Bundle) were not before the Tribunal at the Final Hearing and that that evidence is inadmissible. The primary basis for inadmissibility, according to the respondent’s representative, is that the new evidence fails to pass stage one of the test in Ladd v Marshall, namely that both the witness statement and the additional medical - 37 - evidence could have been obtained with reasonable diligence during the Final Hearing.[84]The claimant submits that she did not understand why the fresh evidence she had provided was not admissible and that she had supplied these in accordance with the Tribunal’s directions, and that she fully complied with those directions. In her written representations provided during this hearing the claimant makes a number of points under the heading “New Evidence”, including that the “C believes she already submitted enough evidence. She’s not required to submit “beyond reasonable doubt” evidence.” She invites the Tribunal to put the evidence into perspective and in light of the respondent’s compliance with the principle of the overriding objective.[85]The respondent’s representative points out that the mere fact that the Tribunal directed the claimant to provide further evidence on 19 July 2023 is not a permissible basis for its admissibility. In terms of Outasight VB Ltd v Brown, it either has to satisfy the Ladd v Marshall test or there must be “some additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage.”[86]The claimant’s witness statement was dated 18 August 2023, which is almost 9 months after the Final Hearing had taken place.[87]In this regard we took into account the claimant’s circumstances including the claimant representing herself (as a litigant in person), the claimant’s health and her applications and medical evidence that were sent to the Tribunal on 17 and 18 November 2022.[88]We considered whether the claimant could have provided a witness statement with reasonable diligence setting out the detail provided in her witness statement relied on in support of her reconsideration application on either 17 or 18 November 2022. - 38 -[89]The claimant submitted that she was not aware at the time that she could submit a witness statement to support her application for a postponement. The respondent’s representative states that in addition to the provisions relating to medical evidence, the Presidential Guidance provides that the claimant should give the Tribunal an explanation with her application. Despite this, the claimant did not supply the explanations that she now puts forward in her witness statement, and she could have provided the same explanations with reasonable diligence on 17 or 18 November 2022.[90]In reaching our decision, we considered the evidence before us, including but not limited to the claimant’s 2-page application dated 18 November 2022. Although the claimant stated in her submissions that she could not provide the account in her 6-page witness statement at that time as a result of her health, we considered that the claimant’s 2- page application set out a detailed and a lucid account of the events at the relevant time. There was no suggestion that the claimant had difficulty at the relevant time in terms of recalling events. On the contrary, the claimant’s application was detailed and articulate. There is no good or satisfactory reason proffered in terms of why the claimant could not have either prepared a witness statement or provided the level of detail that is in her recently provided witness statement within the application presented to the Tribunal on 17 or 18 November 2022.[91]In the circumstances, on the evidence before us, we do not find that the claimant’s witness statement prepared and sent to the Tribunal following her reconsideration application (pursuant to the Tribunal’s directions) could not have been prepared and sent to the Tribunal with reasonable diligence during the Final Hearing. The first stage of the Ladd v Marshall test has not been satisfied by the claimant.[92]The Tribunal also concluded that the witness statement provided by the claimant did not meet the second stage of the Ladd v Marshall test. Per the respondent’s representative’s submissions, the evidence only - 39 - assists the claimant to a limited extent and it does not outweigh the right of the respondent to finality and the public interest in the prompt and efficient adjudication of cases, factors which the Tribunal considered.[93]The respondent’s representative, quite properly, did not seek to pursue any argument that the third stage of the Ladd v Marshall test was not met in terms of admissibility. However, the respondent’s representative said they will raise any matters relating to the credibility of the evidence in the event that the Tribunal found that the evidence was admissible.[94]Furthermore, we do not find that there is some other additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at the Final Hearing. There was no medical evidence or otherwise to suggest that the claimant was unable to supply a witness statement supporting her postponement applications during the Final Hearing (there was also no reference in the letter dated 18 August 2023 to the claimant’s inability to supply a witness statement or the information contained therein during the Final Hearing).[95]In reaching that decision we considered the EAT’s comments at paragraphs 38 and 51 in the Outasight case relating to the fact that a further consideration that might be applicable to the exercise of our discretion in the interests of justice could arise from the right to a fair hearing laid down by Article 6(1). We did not consider that on the facts of this case, there were additional circumstances such that the interests of justice would require new evidence to be adduced where it might not otherwise strictly meet the requirements in Ladd v Marshall. We were not satisfied that on the evidence before us the claimant had been ambushed at the Final Hearing or that there were any other relevant circumstances. In respect of the respondent’s submissions being provided to the claimant prior to the start of the Final Hearing, we refer to our findings below in respect of Ground A of the claimant’s reconsideration application. - 40 - (ii) Letter from claimant’s GP dated 18 August 2023[96]Although the claimant did not submit any fresh medical evidence with the claimant’s reconsideration application, the Tribunal issued directions in respect of the same in order to give the claimant an opportunity to seek to rely on fresh evidence (if appropriate) as part of her application. Any fresh evidence that a party seeks to rely on is subject to the application of the rules of evidence, whether pursuant to the principles in Ladd v Marshall or otherwise. The respondent strongly disputed the admissibility of the claimant’s proposed fresh evidence.[97]It is contended on behalf of the respondent that the claimant’s application to rely on the letter dated 18 August 2023 from the claimant’s GP do not meet the first stage of the Ladd v Marshall test because proper evidence as to the reasons for the claimant’s non-attendance at the Final Hearing, principally medical evidence commenting on the claimant’s fitness to attend, could have been obtained with reasonable diligence for use at the Final Hearing.[98]The claimant had a number of opportunities to obtain and provide such evidence during the Final Hearing, addressing her fitness to attend the hearing but she failed to do so. The claimant could have provided supporting evidence including medical evidence on 17 November 2022 showing that she was unable to attend the hearing, but she failed to do so. The claimant made her assertion in her email dated 17 November 2022 sent at 11.07am in terms that, “I’m not feeling well at all currently but I hope I managed to comply with the requirement”, but she did not provide medical evidence to support her position that she was unfit to attend the hearing at the relevant time.[99]The claimant was afforded a further opportunity to provide supporting evidence including any medical evidence with directions issued on 17 November 2022 as to what was required with specific reference to the requirements under the Presidential Guidance. The claimant was - 41 - granted an extension of time (following the respondent’s application) to enable her to present her supporting evidence on 18 November 2022.[100]Whilst the claimant was able to provide further medical evidence on 18 November 2022, this did not address whether or not she was fit to attend the Final Hearing, notwithstanding the Tribunal’s directions of 17[101]We noted the letter of 18 November 2022 was prepared by Dr Vala, who also provided the letter relied on by the claimant in terms of her reconsideration application. In her submissions made at this hearing, the claimant advised that the matters within the Presidential Guidance were not addressed by Dr Vala at the relevant time as they were running a busy GP practice, there were a number of patients seeking urgent treatment given the context at the time, and that this was also due to Dr Vala’s inadvertence (and his not appreciating the Tribunal’s requirements as he was not legally trained). There was insufficient evidence before the Tribunal in support of the claimant’s contentions relating to those matters. In the claimant’s reply to the respondent’s submissions at this hearing, the claimant confirmed that she had shown Dr Vala a copy of the letter from the respondent dated 17 November 2022 and the relevant email from the Tribunal.[102]Moreover, the Tribunal were not satisfied on the balance of probabilities that the claimant had presented a copy of the Tribunal’s directions dated 17 November 2022 to Dr Vala prior to the letter of 18 November 2022 being prepared and sent to the Tribunal (as asserted by the claimant repeatedly in her evidence and submissions at this hearing). We noted that despite the claimant’s assertion that she had presented the Tribunal’s directions to Dr Vala, he had not complied with the Presidential Guidance either wholly or in part (it is likely that if the GP were shown the Tribunal’s directions they would have dealt with at least part of the matters in the Presidential Guidance). There were no references to the claimant showing the Tribunal’s directions to her GP - 42 - (either prior to or during the consultation on 18 November 2022) in her application dated 18 November 2022, her reconsideration application dated 23 January 2023, or in her witness statement dated 18 August 2023. There was also no mention by the claimant that she had told or given a verbally account to Dr Vala about the matters that his letter needed to address during the consultation with him on 18 November 2022. Dr Vala’s letter dated 18 November 2022 did not state that the claimant had provided him with a copy of the Tribunal’s directions or that she had summarised these during their consultation.[103]The claimant submitted that Dr Vala was specifically asked to confirm that he had referred to the respondent’s letter dated 17 November 2022 whereas the Tribunal’s directions did not state that Dr Vala should refer to these in his letter. We noted that Dr Vala referred in his letter of 18 November 2022 to the respondent’s letter of 17 November 2022 only (please see page 280 of the Joint Hearing Bundle paragraph 17c in which the claimant confirms the same in her reply to the respondent’s response). Dr Vala did not address the issues from within the Presidential Guidance in his letter dated 18 November 2022 and the claimant did not contact him following receipt of the letter to request supplemental evidence addressing those points (until after the claimant received the Tribunal’s directions in July 2023). Dr Vala referred to the Tribunal’s directions that he was shown dated 19 July 2023 in his letter of 18 August 2023. We noted that Dr Vala’s letter of 18 August 2023 was prepared some nine months after the Final Hearing (following receipt of the Tribunal’s directions dated 19 July 2023).[104]If we are wrong to so find and the claimant’s GP was shown the directions of the Tribunal dated 17 November 2022, it is not clear why the claimant did not either ask the Tribunal for a further extension of time to obtain a supplemental letter or why she did not write to her GP to request a further letter after she had received Dr Vala’s letter at around 1pm on 18 November 2022 (the claimant did not request a further letter until after having received he Tribunal’s directions dated 19 July 2022). - 43 - The claimant’s application dated 18 November 2022 states that the claimant believed that the evidence she had supplied was satisfactory and she had referred to the Presidential Guidance in some detail.[105]In the circumstances, we consider that there is no good or satisfactory reason why the same or a similar letter could not have been obtained and submitted to the Tribunal by the claimant on either 17 or 18 November 2022.[106]We accept the respondent’s representative’s submission that in order to act with reasonable diligence, the claimant was obliged to provide the Tribunal’s directions dated 17 November 2022 to Dr Vala on 17 or 18 November 2022 (or at least to provide an oral summary of its contents during her consultation on 18 November 2022), which we found in terms of our findings of fact that the claimant failed to do. Had the claimant shown the Tribunal’s directions to Dr Vala on 17 or 18 November 2022, the claimant is likely to have been provided with a letter on 17 or 18 November 2022 which is the same as or substantially similar to the letter dated 18 August 2023. We note that in the letter of 18 August 2023 where Dr Vala had had sight of the Tribunal’s directions of 19 July 2023, he expressly refers to the Tribunal’s directions and he provides observations on each aspect of the Presidential Guidance under separate bold headings.[107]The claimant submitted that the GP did not realise the distinction between not being fit for work and not being fit to attend a hearing, and that the only difference between the two letters provided by Dr Vala was the terminology used. The respondent’s representative submitted that this was not correct. A further crucial difference was that the 18 August 2023 letter addresses the claimant’s fitness to attend the Final Hearing, the claimant’s prognosis and when she may be fit to attend a hearing, and significantly, those matters are absent from Dr Vala’s letter of 18[108]In relation to the claimant’s contention that her medical practitioner had to produce his supporting letter at short notice, the respondent’s representative responds that if the claimant’s GP had produced no letter of support at all, this may be relevant factor. It is submitted by the respondent’s representative that it cannot reasonably be said that any short notice meant that the claimant’s GP could not produce a letter in compliance with the Presidential Guidance. Moreover, the reason the - 44 - GP’s letter dated 18 November 2022 did not address the Presidential Guidance was not due to lack of time, but rather this was due to the claimant not acting with reasonable diligence by making clear to the GP what was required in terms of the content of the GP’s letter.[109]In response to the claimant’s submission that having given her GP a copy of the respondent’s letter dated 17 November 2022, the GP was confused as to what was required, the respondent’s representative refers to the letter at page 286 of the Joint Hearing Bundle and submits that there is no reasonable basis to contend that it impacted the GP’s ability to prepare a letter in terms of the claimant’s fitness to attend the Final Hearing. The letter set out a number of circumstances the respondent wished the GP to be aware of, but it did not place any different or inconsistent requirements on the GP. The claimant had also submitted that the respondent wanted the medical evidence she supplied to be a perfect product, and that they were expecting expert evidence (and that this should not be expected from a GP practice).[110]In cross examination the claimant suggested that due to her health she was not able to articulate adequately what was required in terms of the Presidential Guidance. There was (and there is) no medical evidence before the Tribunal in support of this matter. Moreover, the respondent’s representative in their submissions state that this is in contradiction to the claimant’s application at pages 166-167 of the Joint Hearing Bundle which is articulate and it refers to the requirements of the Presidential Guidance in summary form.[111]The claimant argues that the cases referred to by the respondent’s representative had little or no relevance to this case, and that the principles from those cases are not applicable to this case as the Final Hearing was only listed for three days, the Tribunal had to deal with three postponement applications in that timeframe (that limitation of time makes a difference), and that none of the cases referred to related to a claimant having a breakdown as a result of the respondent contravening the Tribunal’s Rules. The respondent’s representative invites the Tribunal to apply the principles from the authorities they have cited (which we have found informative and of assistance when considering the circumstances relating to the claimant’s case), and they submit that applying Teinaz and Andreou, the Tribunal gave afforded the claimant ample opportunity, giving clear guidance, and that in fact, the claimant was offered more than sufficient opportunity to enable the claimant to obtain the medical evidence in support of her application for postponement with reasonable diligence. The claimant did not avail herself of that opportunity and act with reasonable diligence. - 45 -[112]In the circumstances, we do not find that the claimant’s additional medical evidence sent to the Tribunal dated 18 August 2023 could not have been obtained with reasonable diligence during the Final Hearing listed between 16 and 18 November 2022. The first stage of the Ladd v Marshall test has not been satisfied by the claimant.[113]The Tribunal also concluded that the further medical evidence provided by the claimant did not meet the second stage of the Ladd v Marshall test. Per the respondent’s representative’s submissions, the evidence only assists the claimant to a limited extent and does not outweigh the right of the respondent to finality and the public interest in the prompt and efficient adjudication of cases, factors which the Tribunal took into account. Dr Vala’s comments as to the position when the claimant was assessed in August 2023 summarises the entry from the claimant’s GP notes for 16 November 2002, which was already before the Tribunal at the Final Hearing and when the claimant was seen by the specialist psychiatric team at hospital, they considered she had “low mood”, was safe to discharge home, and did not schedule any follow up (recording as the Discharge Outcome: “Treatment complete”), instead suggesting that she would be seen by psychiatric services in the community. This evidence from the psychiatric team was relied on at the Final Hearing and it is not affected by Dr Vala’s new evidence. We also note that Dr Vala does not comment on the claimant’s fitness to attend the hearing on 17 November 2022 (despite being requested to do so).[114]The claimant submitted that the conclusion that she had low mood in the discharge summary is an alternative way of saying that she had depression, and she did not know why this should not be considered as serious enough. The claimant said that the respondent seemed to be acting as medical specialists and they had obtained no evidence of their own to support their position. The claimant advised that there was GP evidence from two GPs stating that the claimant had been seen on 16 November 2022, sent to hospital and that the respondent cannot state that this was a small act, and that their submissions did not take account - 46 - of her history of depression. The claimant referred to the three sources of evidence in total including the hospital Discharge Summary, and that despite these she has been treated as if she was not being genuine. The claimant also maintained that she had no control in terms of the content of the medical evidence she obtained, which she was required to provide within a limited timeframe, and that the respondent’s contribution to the situation had not been taken into account.[115]The Tribunal noted that the symptoms that were described by the claimant on the Discharge Summary seemed rather serious, considering that the claimant was discharged later on the evening of 16 November 2022. The conclusion of the psychiatric team and the reference to “low mood” can be contrasted with the claimant’s reporting of her symptoms.[116]In terms of 18 November 2022 Dr Vala simply states, “On the 18th November, she saw me and in my opinion she was unfit to attend the hearing.” Dr Vala does not provide any reasoning or rationale in respect of that assessment, and none can be derived from Dr Vala’s entry in the claimant’s medical notes (which are referred to above). It also appears that Dr Vala was not aware of the evidence of the psychiatric team and the conclusion they had reached per the Discharge Summary dated 16[117]The respondent’s representative says the claimant has provided no evidence that she received any further assessment or follow up treatment from psychiatric services in the community, or any other psychiatric specialists. The claimant explained that she sought further medical evidence shortly before the hearing, but the GP surgery were unable to provide this information. She cited the recent global IT issues. There was no good or satisfactory reason why the claimant did not seek any such evidence sooner. It was clear from the respondent’s response to the claimant’s application (paragraph 20c.) that the respondent would be raising the point in their response (in terms that it appeared that the - 47 - claimant had received no further assessment or treatment after the entries in her medical records on 16 and 18 November 2022): “c. Third, it does not assist the Claimant. It contains very little additional detail. In fact, it rather supports the Respondent’s case because, despite initially stating that the Claimant would receive further assessment and treatment as at November 2022, it appears that she in fact received no further assessment or treatment. Further, it does not appear that the Claimant drew the Respondent’s Letter (or the Respondent’s underlying concerns) to her doctor’s attention.”[118]Accordingly, we had no medical evidence before us to suggest that the claimant had received any further treatment or follow up. Dr Vala commented on 03 August 2023 that the claimant no longer reports to be suicidal, she has no self-harm thoughts and is doing well, and that she was currently not undertaking any medical treatment for her depression. We accept the respondent’s representative’s contention that the surrounding context undermines the claimant’s assertions as to her health and that those assertions had formed the basis of Dr Vala’s conclusions.[119]The respondent’s representative, once again, quite properly, did not seek to pursue any argument that the third stage of the Ladd v Marshall test was not met in terms of admissibility. However, the respondent’s representative said that any matters relating to the credibility of the evidence would be raised in the event that the Tribunal found that the evidence was admissible.[120]Furthermore, we do not find that there is some other additional factor or mitigating circumstance which meant that the evidence in question could not be obtained with reasonable diligence at an earlier stage.[121]Once again we considered if there were any matters relating to Article 6 and the broader issues relating to a fair hearing (per Outasight paragraphs 36 and 51). We were satisfied that the claimant had not been - 48 - ambushed and that the claimant had had a fair and reasonable opportunity to obtain medical evidence during the Final Hearing and we carefully considered the medical evidence that was presented in support of the claimant’s application to postpone the hearing. On the evidence before us, we were not satisfied that there were any additional circumstances such as to mean that the interests of justice would require fresh evidence to be adduced in circumstances that might not otherwise strictly meet the requirements of Ladd v Marshall. Conclusion – Fresh Evidence[122]In the circumstances, we conclude that the claimant’s fresh evidence in terms of both her witness statement and the medical evidence provided by Dr Vala dated 18 August 2023 are inadmissible for the reasons set out above. Accordingly, the Tribunal did not give any further consideration to the claimant’s fresh evidence in terms of the claimant’s reconsideration application. The Tribunal proceeded to consider Grounds A to C of the claimant’s reconsideration application on the basis of the evidence that was before the Tribunal at the Final Hearing. Ground A of the claimant’s reconsideration application[123]The claimant contends that the respondent’s alleged contravention of the ET Rules by failing to submit their opening statement seven days prior to the Final Hearing (in fact this was not submitted until shortly before the start of the Final Hearing) prevented the claimant from fully participating in the Final Hearing.[124]The claimant raised this matter on the first day of the Final Hearing and made oral representations. The claimant says she asked to put her representations in writing, and she was not given the opportunity to do so. We recorded that the claimant’s submissions that were made orally on 16 November 2022 were very ably made. The Tribunal are satisfied - 49 - that parties were given a reasonable and proper opportunity at the Final Hearing to address the matter and to make representations.[125]The claimant insists that the respondent breached Employment Judge Klimov’s Case Management Orders which are referred to in the original Judgment issued to parties on 09 January 2023, pursuant to which the respondent was directed to file their Skeleton Argument (along with several other documents) seven days before the Final Hearing. The claimant also refers to the requirements under Rule 42 of the ET Rules in terms that “The Tribunal shall consider any written representations from a party…if they are delivered to…all other parties not less than 7 days before the hearing” and Rule 2 “ensuring that the parties are on an equal footing.”[126]We also considered the Tribunal’s powers pursuant to Rule 6 of the ET Rules and the totality of the provision set out at Rule 2 in the ET Rules relating to the Tribunal’s overriding objective.[127]The respondent’s position is that the claimant’s allegation as to the respondent’s contravention of the ET Rules is misconceived and that there is no reasonable basis to criticise the Tribunal’s approach to the postponement application. Firstly, it is submitted on behalf of the respondent that there is ordinarily no obligation on a party to produce written opening submissions at all. Secondly, the respondent’s representative points out that the claimant’s submissions ignore the fact that Employment Judge Stout’s orders dated 14 November 2022 (which were made some time after Employment Judge Klimov’s orders were issued to parties) directed the respondent to send any opening submissions in outline form appropriate to answering the questions that the claimant had asked in correspondence to the claimant by the start of the Final Hearing. This was in order to ensure that the claimant as a litigant in person could have a fair opportunity to consider and address the respondent’s submissions before the end of the Final Hearing. The respondent’s representative emphasises that the respondent complied - 50 - with Employment Judge Stout’s directions since the respondent sent its opening submissions by the start of the hearing (the claimant acknowledges at paragraph 8.5 of the reconsideration application that the respondent sent their written submissions some 15 minutes before the Final Hearing commenced on 16 November 2022).[128]The claimant submits in her submissions in reply that the respondent stated that they had complied with Employment Judge Stout’s order, but that this did not exempt them from complying with Employment Judge Klimov’s order (which she stated was issued first and therefore it should prevail).[129]We referred to paragraphs 17 and 18 of the original Judgment issued to parties on 09 January 2023. Ultimately, the hearing was adjourned on 16 November 2022 until 11.00am on the second day of the Final Hearing. As stated at paragraph 18 of the Original Judgment issued to parties on 09 January 2023, the Tribunal were satisfied that this allowed the claimant ample opportunity to review the respondent’s opening submissions and to undertake any research or seek advice if she wished to do so. In reaching this decision we took into account the claimant’s circumstances both as a litigant in person and in terms of her disability.[130]The Tribunal were mindful from the outset of the hearing on 16 November 2022 of the matters at paragraph 9.3 of the claimant’s reconsideration application namely that the respondent was represented by counsel whereas the claimant was a litigant in person and that she had a disability (namely depression). We took steps to ensure that parties were placed on an equal footing including explaining the process carefully, making enquiries in relation to reasonable adjustments, and providing additional time for the claimant to make submissions and to review the respondent’s opening submissions. In reaching our decision in relation to this matter and the claimant’s postponement application, we had in mind the provisions of the Equal - 51 - Treatment Bench Book relating to litigants in person and the claimant’s disability.[131]We had considered the terms of the directions made by both Employment Judge Klimov and the then Employment Judge Stout (referred to above) prior to adjourning the hearing to afford the claimant an opportunity to consider and respond to the respondent’s opening submissions. We do not accept that the original Judgment issued to parties on 09 January 2023 took (or appeared to take) into account irrelevant factors at paragraph 19 in terms of Employment Judge Klimov’s refusal to grant the claimant a stay of proceedings in light of her EAT appeal. We considered and took this into account as this formed part of the background and procedural history to the case. The respondent’s representative points out that the effect of the claimant’s application for a stay of proceedings (if it had been granted) would have been to postpone the Final Hearing (a matter which the claimant accepted in cross examination).[132]The claimant explains in her reconsideration application that the respondent’s contravention of the Tribunal’s orders and the ET Rules meant that the claimant was unable to understand some of the respondent’s case, felt ambushed, suffered an extreme anxiety attack and the claimant felt unable to fully participate in the hearing.[133]As stated at paragraph 18 of the original Judgment issued to parties on 09 January 2023, although the claimant stated during her submissions on 16 November 2022 that she was not well, the claimant did not provide any medical evidence to show that she was not unable to participate in the Final Hearing. Moreover, we considered that the claimant’s submissions on 16 November 2022 were made very ably, they were clear, reasoned, and thoughtful.[134]On the documents and evidence before the Tribunal at the material time and having heard submissions from the claimant and the - 52 - respondent’s representative, the Tribunal do not accept the claimant’s contention at paragraph 10.2 of the reconsideration application that in addition to being at a disadvantage owing to the respondent’s contravention of the Tribunal’s orders and the ET Rules, the claimant was not well enough to participate in the hearing.[135]Moreover, the claimant’s application appears to be an attempt to use the reconsideration process to attempt to relitigate matters that were canvassed before us at the Final Hearing. This is impermissible.[136]If the claimant insists on pursuing the matters in Ground A (and if so advised), this will need to be by way of an appeal and a perversity challenge. In the leading case, Yeboah v Crofton [2002] IRLR 634 at paragraph 93, Mummery LJ said: “Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable tribunal, on a proper application of the evidence and the law, would have reached. Even in cases where the appeal tribunal has ‘grave doubts’ about the decision of the employment tribunal, it must proceed with ‘great care’, British Telecommunications PLC v Sheridan [1990] IRLR 27 at para 34.” Although this is ultimately a matter for determination by the EAT, in our judgment, we do not consider that our reasoning can be described as perverse by reference to this test.[137]We consider this ground of the claimant’s application to be misconceived. The respondent had provided their opening statement to the claimant prior to the start of the hearing per Employment Judge Stout’s order (page 151 of the joint Hearing Bundle). We do not accept any assertion that this prevented the claimant from effective participation during the Final Hearing. The claimant suggests in her oral submissions that if the respondent’s opening submissions were provided seven days before the Final Hearing this would have avoided any deterioration in terms of her mental health (there was no medical evidence in support of this contention or to show that the claimant required more time to - 53 - consider the same in addition to the further time provided to the claimant by the Tribunal on 16 and 17 November 2022). The Tribunal adjourned the hearing on 16 November 2022 until 11.00am on 17 November 2022, which provided the claimant with a reasonable opportunity to consider those submissions taking account of the claimant’s concerns.[138]We do not conclude that it is necessary in the interests of justice to on the basis of the matters set out by the claimant at Ground A of her Ground B of the claimant’s reconsideration application[139]The claimant contends that she was not well enough to participate in the Final Hearing. Ground B appears to be a challenge to the Tribunal’s decision to refuse the claimant’s postponement application on 18 November 2022. We do not consider that the claimant’s contentions in respect of our decision are well founded. The Tribunal are satisfied that it considered all relevant factors including the content of the claimant’s application and the medical evidence. The burden was on the claimant to provide the necessary medical evidence to show that she was not fit to attend the Final Hearing. The claimant did not discharge that burden.[140]The claimant referred to the Presidential Guidance in her application dated 18 November 2022, in which she summarised the requirements contained therein. However (and contrary to the Tribunal’s directions dated 17 November 2022), the medical evidence provided had not addressed any of the matters that were set out within the Presidential Guidance. We were not satisfied having considered the evidence and the submissions before us that a postponement was necessary and proportionate in the circumstances (see paragraph 46 of the original Judgment issued to parties on 09 January 2023). This would not have been in accordance with the Tribunal’s overriding objective set out in Rule 2 of the ET Rules. - 54 -[141]Prior to the Tribunal reaching its decision, the Tribunal carefully considered the claimant’s written submissions (see page 166-167 of the Jjoint Hearing Bundle) and the evidence provided by the claimant (see pages 168 – 179 of the Joint Hearing Bundle). We also considered the respondent’s representative’s submissions and all the other circumstances and the evidence before us. The Tribunal are satisfied that it applied the appropriate legal tests and that we were entitled to consider matters including the substantial delay and further costs that would be occasioned as a result of granting a postponement (see paragraph 46 of the original Judgment issued to parties on 09 January 2023), bearing in mind the guidance in the authorities to which we were referred including the cases of Teinaz and Andreou. The respondent’s representative submitted that the Tribunal’s approach was also consistent with the authorities of O’Cathail and De Smith as set out in their written representations.[142]The respondent’s representative invited the Tribunal to take into account that the claimant’s alleged medical state was not well supported by the medical evidence, and in particular it was undermined by the Discharge Summary of the specialist psychiatric team at the hospital (please see the Tribunal’s findings of fact above). In addition, it is noted that the claimant had received a clear direction from the Tribunal explaining that “Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing.” The medical evidence provided by the claimant at the material time failed to state that the claimant was not fit to attend the hearing (and it could have done so). Whilst the Tribunal considered the medical evidence and the circumstances in which it was obtained, along with the claimant’s circumstances, this did not explain why the claimant’s GP did not confirm at the relevant time that the claimant was unfit to attend the Final Hearing.[143]The claimant submitted that her GP surgery informed her that they could not provide evidence at short notice, although we noted that the - 55 - claimant’s GP was able to supply evidence during the course of the Final Hearing. Although the claimant suggested in her evidence and submissions in connection with her reconsideration application that the GP was busy at the time and may not have appreciated the Tribunal’s requirements, we do not accept that the claimant provided a copy of the Tribunal’s directions to her GP in terms of our findings of fact. Furthermore, after having received the letter from her GP on 18 November 2022 the claimant did not request a further or supplemental letter from her GP (until after the claimant received the Tribunal’s directions on 19 July 2023 following her reconsideration application).[144]We do not accept that the Tribunal wrongly applied the Presidential Guidance. There was no suggestion in the medical evidence received on 17 or 18 November 2022 that the claimant was unfit to attend the Final Hearing. The hypothetical example provided by the claimant at paragraph 16.1 of her application is not analogous. It was not obvious as contended by the claimant on the basis of the evidence before the Tribunal at the time that the claimant could not attend or represent herself at the Final Hearing. This is also not an argument that the claimant sought to pursue in any of her applications made at the Final Hearing between 16 and 18 November 2022 (and it is not clear why this was not contended previously). The claimant’s reference to and description of the Presidential Guidance made within the claimant’s application dated 18 November 2022 is the antithesis to this argument that the claimant is now seeking to make.[145]Dr Vala’s statement in relation to the claimant being supported by the Tribunal whilst she is awaiting assessment “I would be very grateful if she could be supported whilst she is awaiting further assessment and treatment by the Psychiatric team” did not provide support to the claimant’s postponement application as suggested by the claimant.[146]The claimant’s criticism that the Tribunal was wrong (when weighting the claimant’s medical evidence) to conclude in essence that the - 56 - respondent’s financial expenditure outweighed any detriment to the claimant’s mental health is plainly not correct. This does not accurately reflect the terms of the Tribunal’s original Judgment issued to parties on 09 January 2023. We refer to the terms of the original Judgment in this regard. Furthermore, matters of weight are for the Tribunal to determine based on its assessment of all the relevant evidence and having heard submissions from parties and any representative. This is not an appropriate challenge in terms of a reconsideration application. We are satisfied that we considered and weighed all the relevant facts and circumstances prior to reaching our decision in respect of the claimant’s postponement applications.[147]In any event the claimant’s application appears to be a perversity challenge which (if so advised), should be pursued by way of an appeal and not a reconsideration application. The claimant states at paragraph 16 of the reconsideration application “It is submitted that decision was perverse and an error of law”. Although this is ultimately a matter for determination by the EAT, in our judgment, we do not consider that our reasoning can be described as perverse by reference to the perversity test quoted above from Yeboah v Crofton.[148]The claimant asserts that the Tribunal had sufficient evidence to show that the claimant was not fit to attend the hearing on 17 and 18 November 2022. We do not accept that submission. Neither the evidence from the hospital obtained on 16 November 2022 nor the evidence that the claimant’s GP provided on 18 November 2022 confirmed or supported the claimant being unfit to attend the Final Hearing. The respondent’s representative highlighted that the best medical evidence was that set out in the Accident and Emergency discharge letter of 16 November 2022 because the claimant was seen by psychiatric specialists (rather than GPs who are not specialists and had to rely on what the claimant had reported to them). It is submitted that the Discharge Letter did not support the claimant being unfit to attend the hearing and the conclusion drawn was that the claimant was - 57 - observed as having low mood and she was discharged home (it was recommended that the claimant be seen by the psychiatric team in the community without any urgency or suggestion of urgency).[149]We do not conclude that it is necessary in the interests of justice to on the basis of the matters set out by the claimant at Ground B of her Ground C of the claimant’s reconsideration application[150]In terms of Ground C of the claimant’s application, it is submitted that the Tribunal acted unfairly and committed an error of law by dismissing the claim without first considering granting a short postponement (which the claimant states would have been a less draconian measure) and giving the claimant adequate time to obtain a medical opinion.[151]The claimant was provided with a number of opportunities to make a postponement application and to provide appropriate supporting evidence including but not limited to medical evidence, within the listing period of the 3-day Final Hearing.[152]We note that the claimant did not write to the Tribunal on the afternoon of 18 November 2022 after her postponement application dated 18 November 2022 was refused to explain that she would not be attending the hearing and to request additional time to provide further medical evidence. In addition, the claimant did not write to her GP that day (or indeed until after having received the Tribunal’s directions following her reconsideration application) to request further medical evidence. There was no additional medical evidence supplied with the claimant’s reconsideration application that was sent to the Tribunal on 23 January 2023. - 58 -[153]The respondent’s representative points out that there was no obligation on the Tribunal to give the claimant a further opportunity in circumstances in which the hearing had concluded and the claimant had not attended. In addition, it is submitted by the respondent’s representative that: “Applying the Court of Appeal’s decision in Andreou set out above, after the Claimant provided deficient evidence in support of the fourth postponement application, granting the Claimant one “further limited opportunity of making good the deficiencies in her evidence” with directions which “spelt out what information was required” was not required, but nevertheless a “sensible course”. However, it was not appropriate, still less necessary, to offer a further postponement and yet another opportunity when the Claimant again provided deficient evidence.”[154]The burden was on the claimant to establish that the claimant had a satisfactory or good reason for not attending the Final Hearing. The claimant failed to discharge that burden. The 18 November 2022 was the final day of the Final Hearing. The claimant had not attended. The respondent’s representative contended that the Tribunal made their decision on the facts before the Tribunal at the relevant time, no further postponement could be accommodated within the listing of the Final Hearing and any postponement could be for a substantial period of time.[155]We considered that, in circumstances where the claimant did not attend the Final Hearing, in the absence of any satisfactory or good reason for her nonattendance, and in light of the complaints and issues that were before the Tribunal (as recorded in the original Judgment), that the decision to dismiss the claimant’s claim was reasonable and appropriate in all the circumstances. We took into account all the circumstances including but not limited to the substantial delay, the impact on witnesses and further costs in reaching our decision. We consider (albeit this is ultimately a matter for the EAT to determine) that - 59 - our decision cannot be said to be perverse in terms of the perversity test set down in Yeboah v Crofton (above).[156]In any event, the claimant’s contentions in terms of Ground C of her reconsideration application appear to be perversity arguments. It is not appropriate to raise those matters by way of a reconsideration[157]We do not conclude that it is necessary in the interests of justice to on the basis of the matters set out by the claimant at Ground C of her Alternatively: Rule 70 - confirm, vary or revoke the original Judgment[158]If we are wrong to so find, and the Tribunal should have concluded that the claimant’s fresh evidence was admissible, the respondent’s representative invited the Tribunal to not revoke its original Judgment on the basis that the new evidence does not establish that the claimant was unfit to attend the Final Hearing. Rule 70 of the ET Rules provides that “On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[159]The claimant, on the other hand, contends that the Tribunal’s original Judgment should be revoked and that the case should be listed for a Final Hearing. The claimant indicated that she had prepared for the Final Hearing, she could not proceed with the Final Hearing, that this was not her fault, and it seemed unfair to her that the case which started in 2020 had not been permitted to be heard. The claimant stated that she had followed the Tribunal’s orders previously and she had done so in a timely manner. She indicated that it was the respondent who had failed to comply with Employment Judge Klimov’s order (that they did not provide any reason for this), which caused her mental health breakdown and her application for a postponement. The claimant submitted that it was not - 60 - fair that she were paying the price for that and that the respondent had nothing to pay when they were in breach.[160]The claimant attempted to postpone the Final Hearing a number of times. The respondent’s representative submits that the claimant’s medical evidence provided by her GP is limited and it does not take matters much further than the claimant’s own reported symptoms. Furthermore it is submitted that this is undermined by two crucial matters that do not depend on the claimant’s own reporting of her mental health symptoms. Firstly, it is undermined by the evidence of the psychiatric team at the hospital, who did not accept in their conclusions that the symptoms that the claimant reported reflected the reality of the situation. Secondly minimal efforts were made by the claimant to obtain follow up or treatment once the need for evidence to support her postponement applications fell away.[161]Despite the claimant’s contention that she was contacted by the psychiatry team from within the community after her hospital visit on 16 November 2022, there was no evidence of any records, notes or written correspondences before the Tribunal to support the same. The claimant does not suggest she was prescribed any medication or talking therapy. As to the claimant’s point that she was not aware that she would be required to provide evidence in relation to her consultations after 16 and 18 November 2022 until recently, we note that the respondent’s representative put this matter in issue at paragraph 20c. of their response to the claimant’s application. The claimant did not submit any request to her GP for that evidence until 10 July 2023 (some nine months after the date of the respondent’s response to her application).[162]There was also no evidence before the Tribunal in respect of records of any further consultations with the claimant’s GP other than relating to 16 and 18 November 2022 and August 2023. The claimant did not raise any concerns with regards to her mental health with her GP according to the medical records dated 18 November 2022 (and we consider that - 61 - she could have done so at the time). The only further records thereafter are of the summary of the consultation on 03 August 2023 in which it is reported on the letter dated 18 August 2023 that the claimant no longer reported to be suicidal, had no further self-harm thoughts and she was doing well (and not receiving any medical treatment for her depression).[163]The respondent’s representative suggests that if the claimant’s fresh evidence was credible and her difficulties were as serious as she now suggests were reported to her GP at the time, it would be expected that she would have sought and received further care and treatment. The respondent’s representative submits that this suggests that the claimant sought evidence for litigation purposes rather than for genuine reasons of ill health. On the balance of probabilities, it is submitted that the Tribunal should find that the claimant has failed to establish her assertions about ill health.[164]Even if the claimant was to be given the benefit of the doubt and the Tribunal were to conclude that the claimant was unfit to attend the Final Hearing, the respondent’s representative submits that it is not necessary in the interests of justice to allow the claim to proceed to Final Hearing at this stage given the substantial time that has elapsed.[165]The respondent’s representative avers that the proceedings are stale. Reference is made to the Case Summary of Employment Judge Klimov at page 114 of the joint Hearing Bundle which was unsuccessfully challenged by the claimant.[166]We noted that in terms of the issues that are recorded by Employment Judge Klimov, paragraph 1 related to an allegation in terms that “Did the Respondent do the following: on 13 September 2019, require the Claimant to work in her role in BBC Arabic Radio.” Paragraph 2 (indirect disability discrimination), paragraph 3 (discrimination arising from disability), paragraph 4 (failure to make reasonable adjustments), paragraph 5.2 (victimisation) referred back to the allegation at paragraph - 62 - 1.1 above, which allegedly took place on 13 September 2019. In addition, considering the issues relating to the claimant’s victimisation claim, the claimant relies on a grievance dating back to January 2017. The alleged protected act occurred some 7.5 years ago.[167]If the decision to dismiss the claimant’s claim was revoked, the Final Hearing dates will be listed at some time in the future and the respondent’s representative contends that even if this were to be relisted tomorrow, this would be antithetical to and would seriously damage the respondent’s right to have a fair trial within a reasonable time and also contrary to the public interest to arrange a trial promptly.[168]The respondent’s representative emphasised that there are implications in terms of costs, the impact on the respondent’s witnesses, and specific prejudice as one of the respondent’s witnesses has now left their employment with the respondent (namely Adel Soliman, who was the claimant’s line manager and who would therefore be an important witness). Additionally, memories of witnesses will continue to fade due to the passage of time (which the respondent’s representative contends is particularly significant in discrimination cases).[169]The Tribunal were reminded that we had expressed continuing concerns in the original Judgment issued to parties on 09 January 2023 at paragraph 46 (page 198 of the joint Hearing Bundle) as to the ability of witnesses in this case to recall evidence which was likely to be impacted by further delay. The respondent’s representative contended that the parties are now at a point in excess of 18 months since the Tribunal issued their Judgment to the parties, and further delay is likely to exacerbate those concerns.[170]We determined that a fair hearing for both parties is unlikely to be possible in all the circumstances. The prejudice to the respondent of scheduling a Final Hearing during the course of the next few months, would be significant, and having considered and balanced this in terms - 63 - of the claimant’s circumstances, this would not be in the interests of justice. We also do not consider that this would be in accordance with the public interest, the principle of finality, and indeed, it would not be in line with the Tribunal’s overriding objective (Rule 2 of the ET Rules).[171]In light of those matters, if we were wrong to find that the new evidence the claimant is seeking to rely upon is not admissible, we would have confirmed the Tribunal’s Judgment issued to parties on 09 January 2023 in terms of Rule 70 of the ET Rules.[172]In reaching this view, as a full Tribunal, we have again carried out the balancing exercise in accordance with Rules 2, and 70-72, and related case law authorities, and we have taken account of all of the relevant circumstances in doing so.[173]We do not believe that we have made any error of law, as suggested by the claimant’s submissions, but we do recognise that whether an error of law has occurred is ultimately a matter for the EAT to decide upon, and not for the Employment Tribunal.[174]As we see things, in considering the oral and written arguments of both parties and the evidence before us, at the Final Hearing between 16 to 18 November 2022, we thereafter took all those matters into account, during our private deliberations in chambers. We did not fail to take into account relevant considerations, and we did not have had regard to irrelevant considerations.[175]As the EAT has made clear, in many other instances, when reading any Judgment of an Employment Tribunal, parties should know why they have won or lost, but the Tribunal’s decision is not required to be an elaborate formalistic product of refined legal draftsmanship – it must give adequate reasons for its decision, and failure to do so can amount to an error of law giving rise to an appeal to the EAT. - 64 -[176]Accordingly, the Tribunal do not consider that it is necessary in the interests of justice to reconsider its original Judgment. In the event that the Tribunal are wrong to so conclude, the Tribunal would not vary or revoke their original Judgment, as they would confirm it, that being the appropriate disposal.[177]In reaching our decision, we considered the overriding objective (Rule 2 of the ET Rules). Conclusion and Further procedure[178]Accordingly the claimant’s reconsideration application is dismissed.[179]Given our decision to dismiss the claimant’s reconsideration application, there is no further procedure to be determined by the Tribunal, other than directing that the Clerk to the Tribunal shall serve a copy of this decision on the Registrar of the Employment Appeal Tribunal.