Ms G Xhaferi v RBC Europe Ltd and Mr E Jordanov: 2201929/2024
JUDGMENT
[1]The Claimant’s application for a variation, suspension or setting aside of its case management order dated 9 June 2025 refusing her application for a postponement of the hearing is refused in accordance with Rule 30 (3) of the Employment Tribunal Procedure Rules 2024 (the Rules). The Tribunal does not consider that it would be in the interests of justice to vary, suspend or set aside its refusal of the postponement application and specifically does not consider that the material circumstances have changed.[2]The Claimant’s further application for a postponement of the hearing is refused.[3]The Claimant did not attend the hearing and the Tribunal considers that is appropriate to dismiss the claim having first considered all information provided to it by the Claimant as to the reasons for her absence.REASONS
[4]Whilst the claimant did not expressly apply for written reasons I have exercised my discretion to interpret her various applications for reconsideration and setting aside of the judgment as constituting a request for a written reasons. As this constitutes a judgment as defined pursuant to Rule 2 it is subject to an application for reconsideration, but any such application should be based on these written reasons, and the 14 day period for applying for reconsideration applies from the date upon which these reasons are sent to the parties. Events prior to the commencement ofThe hearing
[5]Following the Tribunal’s ruling the previous day to refuse the Claimant’s postponement application the Claimant submitted further emails overnight. First in an email of 23:46 on 9 June 2025 she indicated that her health had deteriorated further due to what she contended was the ongoing conduct of the Respondents which continues to cause harm and procedural fairness. She further notified the Tribunal that she is medically unwell and suffering from severe panic attacks which got worse since learning of the refusal of her adjournment application. She said that throughout the day she had experienced persistent chest pain, shortness of breath, sweating, choking sensation, dizziness, hot flashes or chills and vomiting. The Tribunal’s ruling had been sent to the parties at approximately 4pm on the afternoon of 9 June 2025.[6]The Claimant said that she had requested further documentation from her treating psychiatrist to confirm her current medical state for the Tribunal in addition to the medical information already in the bundle and her recent GP fit note. She said she would file this additional evidence as soon as it was received. She said she was medically unfit to represent herself in the hearing in its current state.[7]The Claimant was advised by the Judge overnight that the hearing would be continuing at 10am. He did, however, indicate to her that as an adjustment a CVP link would be provided. Further she was advised that if she considered that the written reasons for the previous day’s ruling dismissing her postponement application would be her would be beneficial he would be willing to consider deferment of the hearing until 2pm so that these could be provided in advance of the hearing commencing. The Claimant declined both requests and in an email of 9:02 on 10 June reiterated that she was not in a position to attend and that she was going to attend her GP and follow up with treating psychiatrist and update the Tribunal as soon as possible. She said that it was not appropriate or possible for her to engage with any part of the hearing process today. The hearing[8]The hearing commenced at 10am and Ms Bell made various representations on behalf of the Respondents and I will refer to those after I have addressed the further material submitted by the Claimant in an email of 10:43. The Claimant said that she had now obtained a letter from her treating psychiatrist, Dr Jonathan Ornstein. She reiterated that she was medically unfit to participate in the hearing and said that her condition has deteriorated further as result of the legal process and her employer’s conduct. She contended that proceeding with the hearing at this stage would be detrimental to her health and would deny her a fair opportunity to represent herself. Dr Ornstein’s letter[9]It is not clear whether he had an in person meeting, online or telephone consultation with the Claimant. He said that she suffers from depression, anxiety and underlying ADHD. He referred to a brief review today and you are clear that you are suffering from a worsening of your symptoms including severe mental anxiety, recent insomnia, chest pains, nausea, dizziness, choking, hot flushes and a feeling of overwhelm and you feel completely unable to function or engage with this process. In view of this it is imperative for your wellbeing and to allow you to have a fair opportunity to appropriately represent yourself in the Tribunal that this is delayed as to not to do so would be detrimental for your health and your case. We will look to organise a review soon to explore when and how you can continue with the process.[10]The conditions referred to by Dr Ornstein are pre-existing and form a significant part of his previous reports on the Claimant to include the letter of 24 May 2024 when he referred to the Claimant having severe anxiety when anything comes up over her legal case, “but as we discussed hopefully this will improve once that finishes or you do get another job it becomes less of a focus”. Ms Bell’s submissions[11]Ms Bell made submissions as to the approach we should take. Her initial submissions were prior to the Tribunal’s receipt of the letter of Dr Ornstein. She says there has been no material change since yesterday’s ruling and that pursuant to Rule 33, in accordance with Serco v Wells UKEAT/0330/15/RN that it is not a wide discretion as to whether there has been a material change of circumstances. She says that case management orders are not varied lightly otherwise that would be providing a party with two bites of the cherry and she says that would undermine the proper process of appeals. She refers to the requirement for finality and certainty in the administration of justice. She says that there are various circumstances where in the interest of justice it may be appropriate to vary a case management order in accordance with Serco v Wells where there has been a material change in circumstances since the order was made, where the order was based on incomplete or erroneous materials and some out of the ordinary circumstance. She says none of these criteria are made out with the only potentially applicable grounds being a material change in circumstances and she disputes that this has been engaged.[12]She repeats what in effect were her submissions from the previous day that Dr Ornstein has not provided any indication as to when the Claimant would be in a position to properly and fully engage in the litigation process and as such she says that the application to postpone remains defective as it does not address the question of prognosis in accordance with the Presidential Guidance.[13]She says there is no basis for a stay. She says that the appropriate course is the dismissal of the claim pursuant to Rule 47 and that the alternative to that would be that the hearing should take place in the Claimant’s absence with the burden being on the Claimant to provide evidence as to why the burden of proof should shift to the Respondent. She accepts that there are public policy and cost implications of the Tribunal’s time being engaged in such a process.[14]She dismisses the Tribunal’s suggestion that there should be a deferral of a Rule 47 determination to a future Open Preliminary Hearing at which if Rule 47 did not apply there may be an argument as to whether a Rule 38 strike out would be appropriate on the basis that the claim was not being actively pursued. She says in effect that would entail granting an adjournment or postponement in circumstances where that had already been refused. She says any a deferral of a determination on the Rule 47 application would be contrary to the Rules.[15]Ms Bell confirmed that this was not a strike out application and therefore there was no requirement for 14 days’ notice to be given. The relevant law The RulesThe relevant law
[16]Yesterday’s ruling did not constitute a judgment in accordance with Rule 2 and as such the Claimant does not have the right to request a reconsideration. However it was possible for the Claimant to request a variation of the case management order on the basis that there had been a material change of circumstances.[17]Rule 47 provides that 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 enquiries that may be practicable about the reasons for the party’s absence. Conclusions Has there been a material change in circumstances from the previous day’s ruling?Conclusions
[18]We do not consider there has been a material change of circumstances pursuant to Rule 33, taking account of the guidance in Serco v Wells which would justify us varying yesterday’s case management order to refuse the Claimant’s postponement application. That case management order therefore remains extant. Today’s further postponement application[19]We then go on to consider whether a postponement should be granted on the basis that this is day one of what would have been the in person hearing and the Claimant has submitted medical evidence that she is not in a position to attend. We have given that careful consideration and reached the unanimous decision to reject that postponement application for the following reasons.[20]First, the Claimant has not complied with the Presidential Guidance as there remains a serious concern as to when she would be in a position to actively engage in the Tribunal process. During the adjournment the judge made enquiries of the listing clerks as to when the earliest date for an alternative nine day hearing would be and was advised that it would not be before October 2026 and therefore would result in a significant further delay with the incumbent risk of prejudice to the corporate Respondent, and possibly more significantly Mr Jordan the individual Respondent. Further based on the currently submitted medical evidence in the bundle, but read in conjunction with the reports from Dr Ornstein, there is no indication as to when the Claimant would be in a fit position to actively participate in the proceedings. Dr Ornstein has specifically referred to the ongoing situation with her employer coupled with the litigation as being an impediment to the Claimant’s recovery. It is difficult to envisage exactly when and in what circumstances that situation is likely to change. We consider that granting a postponement would cause significant potential prejudice to the Respondents. Change in the Claimant’s position[21]We consider that the Claimant’s position has shifted from what was previously set out as she initially opposed the Respondents’ application for a postponement when there was uncertainty about the service of her witness statement and at that point she did not say that she was not well enough to participate in the Tribunal process. The first reference to her medical situation was not until a fit note sent to the Respondent on 6 June 2025, the Friday before a nine day hearing scheduled to commence on Monday 9 June. That fit note solely referred to anxiety which constituted an ongoing condition for which the Claimant is currently signed off work. There was no indication at that point that the Claimant had suffered a serious deterioration in her medical condition.[22]The Tribunal acknowledges that the commencement of a multi-day hearing with significant documentation and witness statements is an inherently stressful process. Nevertheless the Tribunal, without questioning the medical evidence, has to carefully consider a situation where an applicant’s medical situation changes from a postponement application based on anxiety, to an application, literally within a matter of hours given that yesterday’s postponement application ruling was sent to the parties at about 4pm, to the Claimant referring to a range of conditions to include insomnia, chest pains, nausea, dizziness, choking, hot flushes and a feeling of overwhelm. It is not specified as to exactly when these various conditions started or exacerbated. Given that the Claimant in her email of 23:46 on 9 June referred to these conditions it cannot sensibly be seen that conditions such as recent insomnia were ones which had literally arisen that day. As such the Tribunal considers that the circumstances are different from a hypothetical situation we considered of the Claimant having physically attended the hearing and been taken unwell whilst giving evidence. In those circumstances it would have been appropriate to adjourn as the Tribunal would have sight of the condition as opposed to relying on what has in effect been self-reported by the Claimant.[23]We consider that whilst the postponement applications are in part based on medical evidence that the overwhelming overarching grounds for our based on multiple factors to include what the Claimant considered to be the Respondents’ unsatisfactory conduct of the case to include the size of the bundle, its structure, the alleged duplication of documents, her inability to instruct counsel, alleged issues not included in the list of issues, her criticism of the chronology, list of key documents and so on. We have to consider the totality and chronology of the grounds for the postponement application in that wider context as opposed to this being a specific and inclusive application based on medical grounds. Our decision[24]We have decided that having refused the further postponement application that the appropriate course is to dismiss the claim pursuant Rule 47. Whilst we considered an alternative of having the hearing in absentia we consider that would be wholly unsatisfactory. It would involve upwards of five or six days of Tribunal time together with considerable judicial time providing a written judgment given that if an oral judgment was given the Claimant would inevitably and understandably request the written reasons. In circumstances where the Claimant would have to shift the burden of proof in the discrimination claims we consider that would be an illogical course to take. It would be disproportionate contrary to the overriding objective and would involve the significant utilisation of Tribunal time, resources and cost to the detriment of other Tribunal users. For those reason we have dismissed that as an appropriate course of action.[25]We have considered whether any other appropriate course would exist but we agree with Ms Bell that not either hearing the claim in absentia or dismissing it pursuant to Rule 47 would in effect be granting the Claimant a postponement or an adjournment via the back door when we had already refused to postponement application.[26]So, for all of those reasons we consider the most appropriate course is the dismissal of the claim pursuant to Rule 47. EMPLOYMENT TRIBUNALS Claimant: Ms G Xhaferi 1st Respondent: RBC Europe Ltd 2nd Respondent: Mr E Jordanov Before: Employment Judge Nicolle in Chambers JudgmentConclusions
[1]The Claimant’s application dated 5 August 2025 for reconsideration of the Tribunal’s judgment dated 10 June 2025 (the Judgment), and sent to the parties on 23 July 2025, is refused. The parties are advised that the reconsideration application was only forwarded to me by the Tribunal administrative staff on 29 August 2025 and I apologise for the delay this has caused.[2]I have considered the application by the Claimant dated 23 July 2025 for a reconsideration of the Judgment (the Reconsideration Application).[3]I have considered the Reconsideration Application in accordance with the provisions set out in Rule 68 of the Employment Tribunal Procedure Rules 2024 (the Rules), which provides that reconsideration is only appropriate where it is necessary in the interests of justice, and under Rule 70 that there is a reasonable prospect of the original decision being varied or revoked.[4]Reconsiderations are limited exceptions to the general rule that employment Tribunal decisions should not be reopened and relitigated. It is not a method by which a disappointed party to proceedings can get a second bite of the cherry. 1 of 3[5]Reconsideration is 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 adduced, which was available before.[6]A Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ in accordance with Rule 3.[7]In considering the application regard needs to be given to not only the interests of the party seeking the reconsideration, but also to the interests of other parties to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[8]I do not consider that the various matters referred to in the Reconsideration Application would, in accordance with the interests of justice, make it appropriate for there to be a detailed reconsideration of the Judgment.[9]I have reached this decision for the following reasons. The Claimant’s contention that the Tribunal was improperly constituted[10]The Claimant’s assertion that the Tribunal was improperly constituted is misconceived. Unfortunately given the number of cases in the list, the substantial backlog of cases and judicial and non-legal member availability it will on occasion be necessary for cases to proceed with a shorter duration than had originally been intended or with a judge sitting alone without non-legal members. These decisions are made by the Regional Employment Judge with the intention to optimise the use of judicial resources and to efficiently manage the case list. Notwithstanding the shorter listing I considered that there remained a good prospect that the evidence and submissions could be heard in the available time and if necessary the Tribunal would consider its judgment in Chambers with the written reasons then been promulgated. The constitution of the Tribunal was entirely proper and a shorter listing than originally anticipated did not give rise to any issue regarding its proper constitution. The Claimant’s assertion that the dismissal of her claim pursuant to Rule 47 of the Employment Tribunal Procedure Rules 2024 was ultra varies and a nullity is mistaken. Written reasons in respect of the Tribunal’s ruling on 9 June 2025 to refuse the Claimant’s initial postponement application[11]My offer at 01:59 on 10 June 2025 to delay the hearing until 2 PM so that I could provide written reasons for the previous day’s refusal of the Claimant’s postponement application was predicated on the Claimant agreeing that she would participate that afternoon. The offer to provide written reasons was made on a discretionary basis as there is no entitlement to written reasons as the ruling on 9 June 2025 was a case management decision and not a judgment disposing of any issues in the case and thereby entitling a party to request written reasons. The Claimant made it clear that there were no circumstances, whether by attending in person or by CVP, that she was going to participate that day and as such the offer to provide written reasons was obviated. 2 of 3 The Claimant’s contention that the reasons given for the dismissal of her claim were misleading and contained omissions and errors of fact[12]I do not consider that Claimant has legitimate grounds to contend that there were material inaccuracies in the reasons given and that they read as a post hoc justification for the dismissal of her claim. The Claimant is reminded that the reasons given orally on 10 June 2025 and subsequently transcribed by Dragon software. Whilst the reasons would have been tidied up by me they were not materially changed. The earliest available listing date[13]I made enquiries of the listing team as to what the earliest available listing date would be and was informed that it would be November 2026. Whilst in an earlier email I had indicated that the earliest available alternative listing date would be November 2025 this was without recourse to the listings team and in any event I indicated that it could well be much later. The basis upon which the claim was dismissed[14]The Claimant erroneously asserts that the claim was dismissed on “procedural” grounds. This incorrectly characterises the circumstances of the Tribunal’s refusal of the postponement application on 9 June and the dismissal of the claim pursuant to Rule 47 on 10 June 2025. In reaching this decision the Tribunal took account of all relevant circumstances, to include the respective prejudice to the Claimant and the Respondent, of a postponement being granted/refused and reached a unanimous decision based on the overall chronology and its assessment of that balance of prejudice.