Ms N Mukoro v Independent Workers’ Union of Great Britain and others: 2200786/2017
EMPLOYMENT TRIBUNALS
Case No 2200786/2017
Between
Ms N MukoroClaimantIndependent Workers’ Union of Great Britain and othersRespondent
Before
Employment Judge A M SnelsonDate 14 February 2022
JUDGMENT
On hearing the Claimant in person and Mr J Galbraith-Marten QC, leading counsel, on behalf of the Respondents, And on reading the written representations of the Claimant delivered on 10 September 2018, The Tribunal adjudges that: (1) The complaints of direct racial discrimination identified in paras 1.6 and 1.7 of the record of the preliminary hearing (case management) held by
REASONS
[1]The Claimant, a legally qualified woman in her mid-fifties, describes herself as black west African and claims to be disabled by anxiety, depression and panic attacks. The Respondents have conceded that she is so disabled. She was employed by the First Respondents (‘the union’) in the capacity of Legal Department Co-ordinator from 15 July 2015 until 6 November 2016, when she was dismissed.[2]By a claim form presented on 4 April 2017, the Claimant brought complaints of discrimination on grounds of race, disability and sex, a complaint of victimisation, a complaint of disability-related harassment, a claim for wrongful dismissal and a claim for arrears of pay. The above judgment and these reasons are concerned only with the race discrimination claim.[3]At a preliminary hearing (case management) on 13 March 2018, Employment Judge Grewal identified the allegations relied upon the purposes of the race discrimination claim in these terms: 1.6 Whether throughout the Claimant’s employment Jason Moyer-Lee and various volunteers and officers spoke in Spanish in the Claimant’s presence; 1.7 Whether on 20 April 2016 Jason Moyer-Lee (‘JML’) reported the Claimant to the Legal Department Sub-committee for being aggressive, rude, sullen and a “mouthy black woman”. The Claimant’s case is that her behaviour did not demonstrate those traits and that JML was applying a racial stereotype to her; 1.8 It is not in dispute that the Respondent dismissed the Claimant. Accordingly, it was common ground that the race discrimination claim rested on the two allegations listed at 1.6 and 1.7 and the dismissal.[4]By an application dated 2 May 2018, the Respondents’ representatives made applications in respect of the race discrimination claim for orders to strike out the first two as being out of time, alternatively as having no reasonable prospect of success. They further applied for the dismissalbased claim to be made the subject of a deposit order on the basis that it had little reasonable prospect of success.[5]That application came before me on 12 July 2018. The Claimant appeared in person, although she was accompanied by her daughter who provided valuable support. The Respondents were represented by Mr Jason Galbraith-Marten QC, appearing on a pro bono basis.[6]Mr Galbraith-Marten produced a helpful note which outlined and developed the main arguments pursued in support of the application. A copy of that note was given to the Claimant in advance of the hearing. The Claimant, having arrived late for the 10.00 a.m. hearing, asked for a short adjournment because she “needed air”. Accordingly, I put the hearing back to 11.00.[7]When the matter was called on, I asked the Claimant if she intended to give evidence on the time issue. She said that she did not, and that she was unwell and wanted a postponement. She produced no medical evidence suggesting that she was unfit to attend the Tribunal. I gave no formal ruling on the application but did observe that it was important to make progress with the litigation. The dispute was becoming stale. Moreover, a final hearing had been set for five days commencing on 20 September. The Claimant then said that she would at least need time to respond to the Respondents’ applications. Here, I was more sympathetic. Despite the polite objections of Mr Galbraith-Marten, I decided that it was in keeping with the overriding objective to allow her until 27 July to submit written representations in response to the applications, limited to 3,000 words. As I will shortly explain, the applications were narrow in scope. Mr GalbraithMarten’s note, which included a careful exposition of the law, barely exceeded 2,000 words. I also gave the Respondents the opportunity to reply to the Claimant’s submissions, limiting any comments to 1,000 words and setting a deadline of 3 August.[8]Mr Galbraith-Marten then addressed me briefly to reinforce certain points in his note. His submissions contained no surprises: they were wholly in line with what I had read in the original application and his note. By agreement the hearing was then adjourned.[9]Unfortunately, my directions were not complied with. The result was that I was not in a position to issue my decision in the week commencing 13 August, as I had envisaged. Eventually, after some difficulty, it was possible to set up a telephone hearing attended by the Claimant’s daughter and Mr Galbraith-Marten, which took place on 7 September. By that stage it had become common ground that, owing to the Claimant’s failure to comply with the directions for the preparation of evidence, the final hearing could not proceed. In the circumstances, Mr Galbraith-Marten asked me to retain one of the allocated days to hear an application on behalf of the Respondents for a striking-out order, any application by the Claimant and, subject to those, deal with further case management. Ms Mukoro (junior), while of course not accepting that any striking-out order would be appropriate, agreed that Mr Galbraith-Marten’s proposal would facilitate a resolution of all outstanding procedural issues. Accordingly, I vacated the final hearing but listed a preliminary hearing in public for what had been day five of the allocation (26 September) and gave short directions. I also granted a final extension of time for the delivery of the written representations first permitted on 12 July, to 10 September.[10]At 23:38 hrs on 10 September, 22 minutes before the last deadline, the Claimant delivered her written representations.
The legal principles
[11]By the Equality Act 2010, s123(1) it is provided that proceedings may not be brought after the end of the period of three months ending with the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. “Conduct extending over a period” is to be treated as done at the end of the period (s123(3)(a)). The ‘just and equitable’ discretion is a power to be used with restraint: its exercise is the exception, not the rule (see Robertson-v-Bexley Community Centre [2003] IRLR 434 CA).[12]By the Employment Tribunals Rules of Procedure 2013 (‘the Rules’), r37(1)(a), the Tribunal has power to strike out claims or parts of claims on the ground that they have no reasonable prospect of success.[13]It is well-established that striking-out orders are exceptional in discrimination cases. The Tribunals must exercise great care and caution when faced with an application for such an order (see Anyanwu-v-South Bank Students Union [2001] 1 WLR 683 HL). That said, in an appropriate case a strikingout order should be made and failure by the Tribunal to do so may be held to amount to an error of law (see ABN Amro Management Services Ltd-vHogben UKEAT/0266/09, 20 November 2009 (Underhill P)).[14]By r39(1) the Tribunal has power to make an order requiring a party to pay a deposit not exceeding £1,000 as a condition of being permitted to persist with an argument or allegation judge to have “little reasonable prospect of success”. The arguments[15]In respect of the claim recorded in EJ Grewal’s document, para 1.6, Mr Galbraith-Marten pointed out that the Claimant’s last day at work was 10 June 2016, the ACAS conciliation period was 25 July to 10 August 2016 and (as already noted) the claim form was not presented until 4 April 2017. For the purposes of the 2010 Act, s123(3)(a), there could be no question of the material conduct “extending over a period” ending later than 10 June 2016. The claim was hopelessly out of time and no sustainable reason for extending time had been shown.[16]As to the second allegedly detrimental act (EJ Grewal’s document, para 1.7), Mr Galbraith-Marten submitted that the conduct complained of could only be seen as a ‘one-off’ event. Time ran from 29 April (not 20 April) 2016 and the claim was therefore about eight months out of time. Again, no ground had been shown for substituting a more generous time limit than the statutory three months.[17]Mr Galbraith-Marten further submitted that both detriment claims were patently without merit and that that was a factor which argued against the exercise of the ‘just and equitable’ discretion, alternatively in favour of their being struck out as having no reasonable prospect of success.[18]In her written representations, the Claimant stresses that she was and is a vulnerable person and that she was not able to do justice to her case at the preliminary hearing. She briefly addresses the merits of the racial discrimination claims, contending that they are not weak but only suffer from the disadvantage of being poorly presented. No representations are offered on the jurisdictional challenge based on time. Conclusions and outcome[19]I am satisfied that Mr Galbraith-Marten’s submissions on the time issues are correct. It is plain that he is right about the dates from which time runs for the purposes of the detriment claims. There is no room for a tenable ‘conduct extending over a period’ argument. The Claimant declined to give evidence to explain the delay in commencing proceedings and her written representations are silent on the time point. She is (I am told) legally qualified and must be taken to have been aware of her legal rights or, at the very least, put on inquiry as to those rights. She has signally failed to show that her poor health prevented her from taking appropriate, or any, steps to safeguard her interests. No ground for exercising the ‘just and equitable’ discretion in her favour is made out. It follows that both detriment claims must be dismissed for want of jurisdiction.[20]I also agree with Mr Galbraith-Marten about the merits of the detriment claims. Had they survived the jurisdictional challenge, both would have been very strong candidates for striking-out or, at the very least, deposit orders.[21]The deposit order application in respect of the dismissal claim is dealt with in an accompanying document.
Introduction
[22]I first had regard to the relevant provisions of the Employment Tribunals Rules of Procedure 2013 (‘the 2013 Rules’). These begin with r2, which directs the Tribunal to interpret and exercise its powers in accordance with the overriding objective of dealing with cases fairly and justly, which is stipulated to include ensuring that parties are on an equal footing, dealing with cases in ways that are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense. The power to postpone hearings is governed by r30A. In this context, a postponement includes an adjournment to a later date (r30A(4)(a)). A postponement sought less than seven days before the date set for the start of the hearing may only be granted if the other parties consent and it is otherwise in accordance with the overriding objective, the application is necessitated by an act or omission of another party or the Tribunal, or there are exceptional circumstances (r30A(2)). Non-attendance is governed by r47, which states: If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any inquiries that may be practicable, about the reasons for the party’s absence.[23]Presidential Guidance on seeking postponements was issued by the former President of the Employment Tribunals (England & Wales) on 4 December 2013, pursuant to the 2013 Rules, r7. Under ‘Examples’ the Guidance includes this: 1. 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.[24]In Teinaz-v-London Borough of Wandsworth [2002] ICR 1471 the Court of Appeal offered some general observations on adjournment applications based on medical grounds. Giving the lead judgment, Peter Gibson LJ said: 22. If there is some evidence that a litigant is unfit to attend … but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. Arden LJ added: I agree with Peter Gibson LJ that applications for adjournment may raise difficult problems requiring practical solution. While any tribunal will naturally want to be satisfied as to the basis for any last minute application for an adjournment and will be anxious not to waste costs and scarce tribunal time or cause inconvenience to the parties and their witnesses, it may be that in future cases like this a tribunal or advocates for either party could suggest the making of further inquiries and a very short adjournment for this purpose.[25]In Riley-v-Crown Prosecution Service [2013] EWCA Civ 951 CA, another case concerning adjournment on medical grounds, Longmore LJ (with whom the other members of the court agreed) observed:[27]It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the ECHR emphasises that every litigant is entitled to "a fair trial within a reasonable time". That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time. Judge Hall-Smith correctly found assistance in remarks of Peter Gibson LJ in Andreou v The Lord Chancellors Department which are as relevant today as they were 11 years ago:- "The Tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights, having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that a complaint such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. … The Tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened Employment Tribunals are these days."[28]I concluded that the Claimant had failed to make out a good reason to further adjourn or postpone the hearing. She had had the opportunity to seek to obtain supporting medical evidence but none had been supplied. In addition, her daughter, now experienced in representing her interests, had had, but not taken, the opportunity to attend the Tribunal (if only to present and attempt to make good the postponement application) or to respond in any other way to the Tribunal’s email and telephone message. Postponement would result in significant prejudice to the Respondents, leaving them with the burden of facing already stale litigation for a significant further period (the Tribunal would not be able to re-list a preliminary hearing for some months and no final hearing would be possible before summer 2019 at the earliest – well over three years after the earliest matters complained of and more than two-and-a-half years since the last). The union is not large and its membership consists mostly of people on modest incomes. I considered it safe to assume that postponement of the preliminary hearing would result in exposure to costs in terms of money and management time which it could ill-afford. And, perhaps more importantly, three flesh and blood individuals would be put to the stress and anxiety of facing serious allegations of discrimination, stalled and with no progress made, for months to come. Delay is the enemy of justice. It prejudices not only the immediate litigants but also other service users. If any case is postponed or adjourned, the inevitable consequence is that access to justice for those behind them in the (ever-lengthening) queue is also delayed. In all the circumstances, I was quite satisfied that it was in keeping with the overriding application to refuse the application. The strike-out application[29]The nub of the Respondents’ application what that there was no realistic prospect of the Claimant being in a position to deal with the litigation in the foreseeable future and that accordingly a fair trial was no longer possible.[30]Mr Caiden relied on the procedural history which I have outlined above. He also drew attention to letters from members of the Claimant’s GP practice. The first that it is necessary to mention is a letter from Dr Bailey, dated 29 June 2017. It includes the following: This lady has a long history of depression. She has been receiving medical treatment through us for the last 13 months due to an exacerbation of her anxiety and depression, predominantly triggered by her recent issues at work. … She appears to be in a very vulnerable mental and emotional state and is therefore unable at this time to manage or participate in any stressful processes including legal proceedings. In particular, her issues with impaired concentration and memory, and high anxiety levels which are all symptoms of her mental health condition, mean that she finds she is unable to accurately recall and document events and in fact doing so severely exacerbates her depression and anxiety and triggers panic attacks. In a letter of 30 October 2017, Dr Gibson wrote: With reference to the capacity of the claimant to progress her case personally, I am not in a position to confidently confirm this will be the case. The extremely protracted nature of this case [reflects], in part, the intense anxiety she has experienced since it started and which has contributed to her limited engagement in the process. There is little evidence to date that the work she has done with [Richmond Wellbeing Service], or the medication she has taken, has equipped her to deal with it any more effectively. The recent recourse to alcohol is likely to reflect further anxious/avoidant behaviour. … With regard to prognosis, my view is, as I have indicated in the past, that there may well not be any significant improvement in Ms Mukoro’s psychological health until this legal case is resolved. I would also be guarded about the prognosis thereafter, given her premorbid psychological health and because it has been such a protracted confrontational process. Her experience of the process and her psychological inability to handle it may have a longer term impact on her psychological health. On 27 July 2018, Dr Gibson wrote a further report which included this: I wrote a report on 22/10/17 and was due to see Nancy yesterday but she felt unable to attend because of her high anxiety so I saw and spoke with her daughter Romany on her behalf. Romany explained that Nancy is struggling to meet the court imposed deadlines for submission of substantial documentation and asked if I could write to reiterate that her mental health difficulties impact on this and to request leeway in this regard. I understand Nancy is representing herself in proceedings. As I have previously indicated, I have little expectation that Nancy’s mental health is going to improve or stay stable during the litigation process. Legal proceedings are gruelling on anyone and more so on someone with an existing mental disability … Nancy’s mental health issues [mean] that she finds adapting to new situations asked of her difficult. All I can do in this situation is keep reiterating my opinion that Nancy’s cognitive functioning is impaired and will remain so.[31]Mr Caiden pursued a secondary argument based on the Claimant’s breach of the Tribunal’s orders but in the end did not press that as a separate ground for striking-out; rather, her failure to comply with directions was relied upon as additional evidential support for the central submission that a fair trial was no longer possible.[32]By the Employment Tribunals Rules of Procedure 2013, r37 it is provided (so far as material) that: (1) At any stage of the proceedings … a Tribunal may strike out all or part of the claim or response on any of the following grounds: … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response … The higher courts have frequently stressed that the power to make striking-out orders is one which must be exercised with considerable caution, particularly in discrimination cases (see eg Anyanwu & another-v-South Bank Students’ Union & another [2001] ICR 391 HL).[33]My conclusion was that this was one of a small class of cases in which the exceptional measure of striking-out was appropriate and in accordance with the overriding objective. I have already referred to the delay which has occurred to date and the fact that, if listed now, a final hearing would not be scheduled to start until more than three years after the earliest of the matters complained of. That by itself is not conclusive but it is a material factor. What seals the matter for me is the medical evidence, which is written by practitioners who know the Claimant and have her interests at heart. That evidence is compelling and persuades me to a high standard that there is no realistic prospect of this matter being brought to an effective final hearing within a reasonable period. It also persuades me that, the longer this litigation continues, the greater becomes the likely damage to the Claimant’s own wellbeing. Of course, the Tribunal has a duty to her to make reasonable adjustments but such adjustments do not include taking steps to prolong the destructive effects of this litigation upon her. On top of these considerations is the self-evident fact that I owe an obligation to do justice by all parties to this dispute. The Respondents, who face serious allegations, are entitled to see an end to their jeopardy. The observations in the Riley case are entirely in point. For all of these reasons, I held that all surviving claims must be struck out.
Disposal
[34]All claims having been struck out, the proceedings are at an end. The Tribunal will archive the file in the usual way.
The Law
[35]Article 6(1) of the European Convention of Human Rights provides, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[36]In Riley v CPS [2013] EWCA Civ 951 the Court of Appeal upheld the Employment Tribunal’s decision to strike out a claim in circumstances where the claimant was not well enough to pursue her claim nearly two years after she had issued it and on the basis of the medical evidence before the Tribunal would not be fit enough to attend the hearing in 12 months and, on the balance of probabilities not before the expiry of two years. Giving judgment Longmore LJ said, “It is important to remember that the overriding objective in ordinary civil (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 Of the EHCR emphasises that every litigant is entitled to “a fair trial within a reasonable time.” That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time… If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal”[37]Rule 39 of the ET Procedure Rules 2013 provides, “(1) Where at a preliminary hearing … the Tribunal considers that any specific allegation or argument in a claim or response 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. … (4) if the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out.” Conclusions Deposit Order
Conclusions
[38]Seven days after the deposit order was made the entire claim was struck out and the deposit order ceased to have any validity as the claim to which it related no longer existed and the Claimant could not pursue it. The Claimant appealed against the decision to strike out the whole claim but not the decision to make the deposit order. When the EAT allowed the appeal against the Employment Tribunal’s decision not to adjourn the hearing on 26 September, it concluded that that also meant that the claim should not have been struck out at that hearing. The effect of its decision was to put the claim back in the position that it was in before it was struck out. To my mind, that means that the claim that had been made the subject of the deposit order remains the subject of a deposit order. It would not be necessary if this claim proceeds for the Respondent to apply for that deposit order again. However, that would probably not have been clear to the Claimant. In any event, the date by which it had to paid on the original order could not longer apply and a fresh order should have been made to specify the date by which it had to be paid. It would not have been clear whether the seven days that had lapsed before the claim was struck out counted or whether time began to run from some date after the EAT remitted the case to the Employment Tribunal. The Tribunal should have sent to the Claimant a further copy of the order which clearly set out the date by which the deposit had to be paid. I accept that the Claimant has been aware for some time of the need to pay that order and has not taken any steps to do so. However, in the absence of an order making it clear that it still applied and the date but which it had to be paid, I do not accept that that claim has been struck out because the Claimant has not paid the deposit order. If I do not strike out the whole claim, I will make a fresh deposit order in the same terms as the previous order specifying the date by which it has to be paid. Strike out application[39]The complaints currently before the Tribunal are complaints of automatic unfair dismissal and that the dismissal was an act of direct race and disability discrimination and two complaints of failure to make reasonable adjustments between 1 June 2016 and the Claimant’s dismissal on 6 November 2016. In considering whether it is possible to have a fair hearing of those claims I took into account the following factors.[40]There has already been a considerable delay in the hearing of this claim. If the claim was to proceed to a hearing, the earliest date at which the Tribunal could hear it would be in July 2022. That would be nearly six years after the events of which the Claimant complains took place. I accept that part of that delay (2 years 4 months) is attributable to the amount of time it took for the appeal to be determined by the EAT. I also accept that at that time it normally took between six and nine months to get a case to a hearing. That, however, does not explain the rest of the delay – a period of about 3 years. A large part of that is attributable to the inability of the Claimant to progress the case because of her mental health. The Claimant provided particulars of her claim 9 months after she presented her claim, the preliminary hearing on 12 July 2018 did not conclude until 19 September 2018 because the Claimant was unable to respond to the application until 10 September 2018, The Claimant did not provide her witness statement by 27 July in accordance with the order made by the Tribunal. Those two matters led to the final hearing listed for 20-26 September 2018 having to be adjourned. Following the matter being remitted to the Tribunal on 24 March 2021, the preliminary hearings listed on 4 August 2021, 20 October 2021 and 1 November 2021 were postponed at the Claimant’s request. It was postponed on the last occasion to enable the Claimant to get representation. She attended the hearing before me without representation.[41]Furthermore, I am not at all confident that if the matter were to be listed for July 2022, the hearing would proceed and conclude in July 2022. I did not have any medical evidence before me to show that the position had changed since the report provided by the Claimant’s doctor on 27 July 2018. In that report he stated that he had little expectation that the Claimant’s health was going to improve or stay stable during the litigation process and that her cognitive functioning was impaired and would remain so. On the basis of the medical evidence before me, that remains the position today. The Claimant accepted that and did not claim otherwise. The difficulties faced by the Claimant are compounded by the fact that she now has a further medical condition which causes her to experience severe lethargy and widespread chronic pain and might well impact on her ability to carry out even simple tasks. All the medical evidence before me leads me to conclude that there would almost certainly be further delays before this case could be heard and concluded.[42]The Claimant made two points about that. Firstly, she said that, unlike the Claimant in Riley v CPS she had had some engagement in the process and the fact that she had pursued the appeal in the EAT showed that she was capable of proceeding with the hearing. The Claimant’s engagement with the process in this Tribunal has been very limited and erratic. She did not attend the preliminary hearing on 9 October 2017, she attended the preliminary hearing on 16 March 2018, she attended the preliminary hearing on 12 July 2018 but sought an adjournment on health grounds, she did not provide the written submissions and her witness statement by 27 July 2018, she did not attend the telephone preliminary hearing on 7 September 2018. I accept that the Claimant and/or her daughter submitted an appeal to the EAT and asked for an oral hearing when the appeal was originally rejected. Thereafter. matters were advanced in the EAT by counsel whose free services were provided under the ELAAS scheme. The legal arguments advanced by him would have required very little input from the Claimant. Since the matter has returned to the Employment Tribunal the preliminary hearing listed to advance this matter has been postponed on three occasions at the request of the Claimant. She attended the hearing before me and made brief submissions to oppose the application to strike out her claim. The level of engagement by the Claimant hitherto is very different from what will be required of her to bring the case to a conclusion. She will need to familiarise herself with the documents in the bundle and to draft a witness statement. She will then have to attend the hearing and be cross-examined on her witness statement. She will have to prepare and conduct cross examination of the Respondent’s witnesses. She will have to prepare and make closing submissions. I am not at all confident that the Claimant will get funding that will enable her to get representation at the hearing. The medical evidence before me indicates very clearly that the Claimant will not be able to engage at the level that will be required for a full merits hearing. Her limited engagement so far does not in any way negate that evidence.[43]The second point made by the Claimant was that the Tribunal has a duty to make reasonable adjustments in order to make it possible for a disabled person to have a hearing. I accept that. The Tribunal has made adjustments to allow the Claimant to pursue her claim. The Tribunal did not reject the claim when it was first presented on 4 April 2017 on the grounds that it was in a form which could not sensible be responded to, nor did it make an order for the Claimant to provide the particulars within a short time frame. Taking into account what she said about her medical condition, the Tribunal made an order for her to notify the Tribunal by 29 June 2017 as to when she would be able to provide those particulars. The Tribunal did not make an order for the Claimant to provide the particulars until 1 December 2017. When the Claimant failed to comply with that order, the Tribunal extended the time for her to do so. The Tribunal did not require the Claimant to respond to the Respondent’s application at the preliminary hearing on 12 July 2018 but gave her two weeks to make written representations. When she did not comply with that order, the time for making the representations was extended. The Tribunal adjourned the preliminary hearings listed on 4 August, 20 October and 1 November 2021 because the Claimant requested those adjournments. The main adjustment sought by the Claimant hitherto has been for more time to do things. It is very likely that she will continue to seek adjustments of that nature.[44]The Tribunal’s duty is to make reasonable adjustments (my emphasis). It is questionable whether having further delays in a case that relates to matters that occurred nearly six years ago would be a reasonable adjustment.[45]I considered the impact of the delay to date on the hearing of this case. Two of the Respondent’s main witnesses are no longer employed by it and one of them is no longer in the country. That in itself is not an insuperable difficulty but experience has shown that the longer the time gap between the employment ending and the hearing take place, the harder it is for the party concerned to ensure their attendance. That is compounded when the witness is no longer in the jurisdiction. In addition the Respondent will be obliged to satisfy the Tribunal that the country where he is does not object to him giving evidence to the Tribunal in the UK from that country. If the matter is heard in July 2022, that will be nearly two years after Mr Moyer-Lee left the Respondent.[46]The witnesses giving evidence in the case will have to give evidence about matters that happened about six years ago. The Claimant said that that does not pose any problem because the Respondent has known what her case is since she provided her further particulars in January 2018 and the issues were clarified in March 2018. I do not accept that. Her complaints of race and disability discrimination in respect of her dismissal are far from clear. In her particulars she appear to be saying that the dismissal was an act of race and disability discrimination because the allegations that led to the disciplinary process being initiated and her ultimate dismissal were false and made because of her disability and race. As EJ Snelson noted when he made the deposit order in respect of the race discrimination claim, the Claimant will have some difficulty in establishing that in light of the Court of Appeal decision in Reynolds v CLFIS (UK) Ltd [2015] ICR 1010. There does not appear to be any suggestion that Ms Morrissey made the decision to dismiss on the grounds of her disability and race. On the other hand, she is a named Respondent and can only be a named respondent in respect of the discrimination claims. The Respondent does not know on what basis it will be said that she discriminated on the grounds of disability or race. If the Claimant pursues her case on the basis that the allegations made about her behaviour in April 2016 were false and made because of her disability and race, witnesses will be asked to recall what was said and done six years ago and the context and the manner in which things were said and done. It is also not clear on what basis the Claimant alleges that the Respondent knew or could have known that she was disabled before 16 September 2016, when she claims she told Mr Moyer-Lee that she suffered from depression. The Respondent knows the bare bones of the Claimant’s case. The details will only emerge in the witness statements. It is also very likely from a number of things that the Claimant said in the hearing before me that she will seek to amend or alter the basis on which she is putting her case.[47]The named Respondents (employees and former employees of the First Respondent) have had this matter hanging over them for six years. Accusations of race and disability discrimination are serious. They are serious for those who make them and for those against whom they are made. They are serious for a trade union like the First Respondent which holds itself out as fighting against discrimination. Everyone is entitled to a fair hearing within a reasonable time. Prolonged hearings, adjourning hearings, failure to comply with the Tribunals’ orders are all things that lead to the costs of the Respondent escalating.[48]In conclusion, there has already been a considerable delay in this case and I consider that it is not possible to have a fair hearing even if the matter could be heard in July 2022. However, on the basis of the medical evidence before me and the history of this case, I consider it very likely that the matter will not be heard and concluded in July 2022. I do not consider that a further delay in a case that is already so old to be a “reasonable” adjustment. I accept that striking out a claim is serious because it deprives the Claimant of a hearing in this case. However, both parties have a right to a fair hearing within a reasonable time. Having taken into account all the above factors, I consider that it is no longer possible to have a fair hearing.[49]If I had not come to that conclusion, I would have struck out the claims against the named Respondents. They can only be liable in respect of the race and disability discrimination claims and the complaint of failure to make reasonable adjustments. The complaints against Mr Moyer-Lee and Ms Castillo Calle are made on the basis that the allegations that they made were false and acts of race and disability discrimination. There is, however, no complaint before the Tribunal about the making of the allegations. The only complaints of discrimination are about the dismissal. The decision to dismiss was made by Ms Morrissey, but it is not at all clear on what basis it is being said that she discriminated against the Claimant. In the absence of clear complaints (which are live complaints) of race and disability discrimination against the named Respondents, I would have struck out the complaints against them.
Conclusions
[1]I have taken into account all the grounds put forward by the Claimant. I set out below briefly my response to the main points raised by the Claimant in her application for reconsideration.[2]I did not find that the Respondent had made a “significant contribution to the delay of the case.” I found that the delay in dealing with the case in the EAT was not attributable to the Claimant (see paragraphs 20, 21 and 40 of my decision). I did not find that the Respondent had “instigated an unlawful strike out” or that the delay caused by the appeal was attributable to the Respondent. I found that it was attributable to the EAT taking a long time to determine the appeal.[3]I did conclude that some of the delays had been caused by the Tribunal making adjustments (see paragraph 43).[4]I do not accept that the Respondent’s applications to strike out all or parts of the claim have been an abuse of process.[5]I took into account that race and disability discrimination claims are serious and that striking out such claims is serious because it deprives the claimant of a hearing (see paragraphs 47 and 48). The Respondent was not applying to strike out the claims in the grounds that they had no reasonable prospect of success. It was Case No: 2200786/2017 applying on the grounds that it was no longer to have a fair hearing. I considered the impact that the lapse of time would have on the hearing (see paragraphs 45 and 46). I did not conclude that the lapse of time was “not an issue.” On the contrary, I concluded that it posed a number of serious problems which meant that a fair hearing was no longer possible.[6]Having considered the Claimant’s application, I concluded that there is no reasonable prospect of the original decision being varied or revoked.