Mr Z Sokolik v Kobre & Kim (UK) LLP: 2202529/2019
JUDGMENT
The Claim of indirect sex discrimination is dismissed on withdrawal EMPLOYMENT TRIBUNALS Claimant: And Respondent: Mr Z Sokolik Kobre & Kim (UK) LLP Heard by: CVP On: 13 April 2021 Before: Employment Judge Nicolle Nonlegal members: Mr D Schofield and Ms C James Representation: Claimant: Did not attend and was not represented Respondent: Mr J Crozier, of Counsel Judgement The claims for direct sex discrimination and victimisation are dismissed under Rule 47 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations (the Rules).REASONS
[1]This was scheduled to be the first day of a four-day full merits hearing. The Claimant did not join the CVP hearing at the appointed hour of 11:30am. The Respondent’s position[2]Mr Crozier on behalf of the Respondent made an application that first the Claimant’s postponement request should be refused and secondly that the claim should be dismissed under Rule 47 or struck out under Rule 37. He referred to the possibility that under Rule 47 that the hearing could proceed in the Claimant’s absence and the Tribunal reach its findings, but he argued that this was unnecessary and would simply arrive at the same result on the basis that the Claimant would not have been able to satisfy the burden of proof thereby necessitating an explanation to be provided for any less favourable treatment by the Respondent. Procedural historyThe Hearing
[3]The Claimant commenced employment on a temporary fixed term contract with the Respondent, an international law firm, on 4 March 2019. He was assigned to a project being undertaken on behalf of a client of the Respondent’s in Luxembourg. His employment was of short duration with it being terminated on 8 March 2019. He was paid in lieu of one week’s notice. He subsequently contended that he had been subject to sex discrimination. He also claimed that he had been subjected to victimisation. He initiated Employment Tribunal proceedings on 30 June 2019. There was a case management hearing before Employment Judge Taylor on 5 March 2020, during which the claim for indirect sex discrimination was withdrawn and dismissed. The Respondent served amended grounds of resistance on 19 March 2020.[4]There was a further case management hearing before Employment Judge Burns on 15 July 2020. This would have been the commencement of the original full merits hearing but that was postponed because of the pandemic and the case relisted for a four-day hearing scheduled to commence 13 April 2021. The Claimant’s health and postponement application[5]The Claimant was diagnosed with ADHD in 2015. He made an application for the postponement of the hearing in an email of 7 April 2021. He referred to his inability to concentrate for long periods being impaired and he wished the Tribunal to order that he would not be subject to cross examination by the Respondent. He variously referred to conditions to include his ADHD, depression and distress and contends that his stress has been exacerbated because of what he contends to be the threatening and aggressive litigation tactics deployed by the Respondent.[6]An email was sent to the Tribunal in an email of 2:53 PM on 8 April 2021 from a Dr Noor. He had assessed the Claimant on 8 April and advised that he suffers from ADHD and anxiety. He said that the Claimant has had several appointment reviews for his mental health especially in the last 3 months. His anxiety is impacting on his ability to concentrate and he said that he would be grateful if the Tribunal could please take the Claimant’s circumstances into consideration.[7]The Respondent’s solicitors opposed the Claimant’s postponement request setting out its reasons in detail in an email of 8 April 2021. This outlines some of the procedural history and in relation to the Claimant’s disability says the Respondent was first aware of this on the exchange of witness statements. The Respondent opposed the Claimant’s request not to be cross examined by the Respondent’s representative. The Respondent rebutted the contention that its conduct had in any way been responsible for exacerbating the Claimant’s mental health condition. The Respondent says that it would suffer significant prejudice if an already stale claim from a short period of employment in March 2019 were to be further postponed. There are various other applications which need not concern the Tribunal in the context of this application.[8]In an email from the Claimant of 20:40 on 12 April 2021 to Employment Judge Nicolle’s Skype email address, but not copied to the Respondent, he advised that he was unable to attend the following day’s hearing. Employment Judge Nicolle had taken the relatively unusual step of communicating directly with the parties from his Skype email address given the short notice of the hearing and the Tribunal’s current limited administrative staff. In this email the Claimant referred to various matters to include what he considered to be aggressive correspondence pertaining to costs from the Respondent’s solicitors.Background
[9]In an email from Employment judge Nicolle to the parties at 07:51 on 13 April 2021 he advised the Claimant that he had received a total of 5 emails from him the previous evening, but not copied to the Respondent in accordance with Rule 92. He advised the Claimant that it would be inappropriate for him to consider this correspondence given that it had not been sent to the Respondent but advised the parties that no decisions would be made on any element of the claim, or applications in relation thereto, prior to the commencement of the hearing at 1130 that day.[10]In an email of 08:26 on 13 April 2021 the Claimant said that since January 2021 he had been treated for depression and distress, acutely with sleeping tablets and antidepressants.[11]A further doctor’s note dated 13 April 2021 was produced by the Claimant on the morning of the hearing. This was from a Dr Lutterodt and referred to the Claimant’s worsening mental health symptoms and recommended a period of two weeks off work and his hearing until his mental health has improved.Relevant law
[12]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 inquiries that may be practicable about the reasons for the party’s absence.[13]Rule 37(1) (a) provides that where there is no reasonable prospect of success and (d) the claim is not being actively pursued and (e) that a fair hearing is no longer considered possible the Tribunal may strike it out. Attempts to communicate with the Claimant[14]On initially being assigned to the case late on the afternoon of 12 April 2021 Employment Judge Nicolle wrote to both parties notifying them of his involvement and asking them to provide him with a copy of the bundle. The Claimant subsequently sent a plethora of emails relating to his postponement application and what he contends to be the bullying behaviour of the Respondent. Employment Judge Nicolle made it clear to the parties that no decision would be made on the application to postpone prior to the hearing which was scheduled for an 11:30am start the following day. The Claimant continued to communicate with the Tribunal, and directly with Employment Judge Nicolle, and in many of emails did not copy the Respondent in accordance with Rule 92.[15]The Claimant did not join the CVP hearing at the allotted time of 11:30. Employment Judge Nicolle sent him an email reminding him that the hearing was underway, and the Tribunal Clerk phoned and left a voicemail message to this effect and a text message. She reported that the Claimant responded by saying that he asked the Tribunal to consider his medical evidence and rule appropriately. No indication was given he was experiencing any technical difficulties logging in to the CVP hearing. It is therefore apparent that he had decided that he could not, or would not, participate.Conclusions
[16]The Tribunal decided that on the evidence provided in advance of the hearing that it would not be appropriate to grant a postponement.[17]The Tribunal carefully considered the medical evidence. The evidence produced whilst confirming that the Claimant has ADHD and suffers from depression and stress did not provide any specific reliable time in which he would make a recovery. The medical evidence, whilst arguably appointing to a deterioration in the Claimant’s mental health since January 2021, did not involve a significant and sudden deterioration in his health but rather his having very long-standing mental health conditions.[18]Further, the Tribunal did not consider that the evidence provided was such that it provided justification for the Claimant’s failure to attend the hearing to make an application for a postponement in person. It is apparent from the Claimant’s voluminous email correspondence in the preceding days that he could communicate coherently, and the Tribunal took this into account in reaching its decision. The Tribunal was also mindful of the fact that the Claimant had been advised that his application for a postponement would not be considered in writing and would be considered at the commencement of the hearing.[19]Given this the Tribunal is concerned that if the case were to be postponed and relisted for a further four days probably later in 2021, or possibly early 2022, the situation could be repeated. This would be unsatisfactory and whilst there is inevitably prejudice of dismissing a claim that must be balanced against prejudice to the Respondent.[20]The Tribunal decided that the most appropriate course was that the entirety of the claim should be dismissed because of the Claimant’s non-attendance pursuant to Rule 47. It would not in the Tribunal’s view be an effective use of its time, or indeed that of the Respondent and its witnesses, to have a hearing in absentia particularly given the Tribunal’s preliminary view of the substantive merits of the claim. Having read the pleadings and witness statements the Tribunal’s provisional view is that any hearing in absentia was unlikely to provide any basis to infer that the dismissal of the Claimant was related to his sex.[21]Further, the Tribunal does not consider that any basis exists for the Claimant’s contentions that he has been subject to bullying or harassing behaviour by the Respondent in the conduct of the litigation. Rule 37Conclusions
[22]The Tribunal further considered whether it be appropriate to strike the claim out on the basis that it had no reasonable prospect of success.[23]The Tribunal reminded itself of the well-established principles in relation to strike out under Rule 37(1) on the basis that a case has no reasonable prospect of success. Mechkarov v Citibank NA [2016] ICR 1121 is authority for it should only being in the clearest case that a discrimination case should be struck out and that a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[24]In Anyanwu v South Bank Students’ Union [2001) IRLR305, HL per Lord Steyn at para 24 to the effect that it should be only in the most obvious and plainest cases that a discrimination claim should be struck out and that such cases are generally fact sensitive.[25]Tribunals should be reluctant to strike claims out other than in the clearest cases and as set out in Citibank a claimant’s case must ordinarily be taken at its highest. Reconsideration by the Tribunal[26]Whilst in its oral judgement the Tribunal was of the view that the striking out of the claim on the basis that it had no reasonable prospect of a success was appropriate the Tribunal subsequently reconsidered this of its own initiative under Rule 73 on the basis that the Respondent had not given prior written notice of an application to strike out under Rule 37 and nor under Rule 37 (2) had the Claimant being given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. Under Rule 72 (1) the Respondent is given 7 days from this judgement being sent to the parties to give any response to the Tribunal’s proposed reconsideration of this element of its judgement. \ EMPLOYMENT TRIBUNALS Claimant: And Respondent: Nr Z Sokolik Kobre & Kim (UK) LLP Heard by: CVP On: 13 April 2021 Before: Employment Judge Nicolle Members: Mr D Schofield Ms C James Representation: Claimant: In person Respondents: Ms G Hirsh, of Counsel Judgement The judgement promulgated on 14 April 2021 (the Judgement) is confirmed on reconsideration.[1]Oral reasons were given to the parties but the Claimant subsequently requested written reasons.[2]This is an application made by the Claimant for reconsideration of the Judgment following the early cessation of a four-day full merits hearing which had been scheduled to commence on 13 April 2021 (the Hearing). The Hearing[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[4]In accordance with Rule 46, the Tribunal ensured that members of the public could attend and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended the hearing.[5]The parties were able to hear what the Tribunal heard.[6]The participants were told that it is an offence to record the proceedings.[7]From a technical perspective, there were no major difficulties.[8]The Claimant produced further documents many of which the Tribunal had previously seen together with a witness statement and written representations. Background[9]The Claimant did not join the Hearing. He says that he was unable to do so due to his health situation at that time and also what he refers to as intimidation by the Respondent which relates to a cost warning letter he had been sent by the Respondent’s solicitors. The Tribunal previously found that that did not constitute intimidation and therefore not in itself a reason to justify the Claimant’s non participation.[10]The Claimant sent a plethora of correspondence to me on the evening prior to the Hearing. He had been advised that that correspondence should in accordance with Rule 92 be copied to the Respondent’s legal representatives. Correspondence continued from the Claimant on the morning of the Hearing to include a letter from a Dr Lutterodt, a so called Push Doctor, following a consultation which would appear to have been an online with the Claimant at 07:20 that morning. We took that letter together with earlier medical evidence into account in reaching our decision to dismiss the claim under Rule 47.[11]We consider that the letter from Dr Lutterodt put the Claimant’s position at its highest in that he referred to worsening mental health symptoms and recommended a period of two weeks off work and his hearing until his mental health has improved. It is significant that the letter referred to “his hearing” which at that time would have been the intended four day Full Merits Hearing. What the Claimant was required to attend remotely, in accordance with the directions I had given, was a short hearing to consider his postponement request. That had been made clear to the Claimant in emails from me both on the evening of 12 April and reiterated in an email from the 08:26 on the morning of 13 April 2021. In that email I advised the year Claimant but I had received a total of five emails from him the previous evening, but not copied to the Respondent in accordance with Rule 92. I further advised him that it would be inappropriate for me to consider this correspondence given that it not been sent to the Respondent but advised the parties that no decisions would be made on any element of the claim, or applications in relation thereto, prior to the commencement of the Hearing at 11:30 that day.[12]The Tribunal made exhaustive efforts to facilitate the Claimant’s participation, and we can think of no further efforts which could have been made to communicate to the Claimant that the Hearing was taking place and the possible consequences of his non participation. That included a telephone call from the Tribunal Clerk and an email sent by me as the Employment Judge. The Claimant decided that he would not participate. He says he was not well enough to be able to make appropriate submissions.[13]The Tribunal unanimously decided that the consequence of the Claimant’s nonparticipation was that his claim in its entirety should be dismissed under Rule 47. Prior to having reached this the decision the Tribunal had considered all information available to it, after making the above enquiries to ascertain the reasons for the Claimant’s absence.[14]Whilst the original extempore decision made reference to strike out under Rule 37, in addition to dismissal under Rule 47, this was reconsidered at the Tribunal’s own volition given that the Claimant had not been given the required 14 days’ notice under Rule 54. It was confirmed to the parties that the claim had solely been dismissed pursuant to the Claimant’s non-attendance under Rule 47. For the avoidance of doubt the claim was not struck out under Rule 37, and regardless of any consideration given to whether the substantive claim had any reasonable prospects of success, the decision to dismiss was based solely on the Claimant’s non-attendance. The reconsideration application[15]Later that day, prior to the decision being promulgated, the Claimant applied for reconsideration under Rule 71.[16]I advised the parties that the reconsideration application would most appropriately be considered at a further hearing.[17]The Claimant was given the opportunity to set out any material considerations in relation to his ability to participate in the Hearing which the Tribunal had failed to take into account. He was unable to point to anything we had missed but in effect argued that we should revisit and vary our previous decision.[18]Ms Hirsch succinctly stated that our decision was the correct one and that there were no grounds for it being revoked or varied. Approach taken[19]We considered carefully the scope of Rule 71 reconsideration applications and the discretion which a tribunal has where it is in the interest of justice to reconsider an earlier decision. We have also taken account of the fact that reconsideration should only apply where there has been some change in the evidence or circumstances.[20]We assessed and weighed the significance for the Respondent of the possibility of the Judgement being reversed and took into account the prejudice to the Claimant of it being confirmed. We took account of the representations made by the Claimant as to why reconsideration should be granted in his emails of 14 and 29 April 2021 and the Respondent’s solicitors’ arguments as to why it would be inappropriate in their letter dated 28 April 2021. We also took account of the submissions made by the Claimant and Ms Hirsh.[21]We referred ourselves to the guidance in Phelan v Richardson Rogers Ltd and ANOR EAT 12 March 2021 (0169/19).Conclusions
[22]Having carefully scrutinised the documentation before us, and listened to what the Claimant has said by way of submissions, we do not consider that the position has materially changed. In effect he is asking us to revisit our earlier decision on the basis that he says he was as a matter of fact ill for a period of six weeks afterwards. We remain of the opinion that our decision to dismiss the claim under Rule 47 was the correct one, it was based on the material before us. It was done after careful consideration. The fact that the Claimant may have been seriously ill for a period afterwards does not directly impact on that decision.[23]The requirement was for him to join the Hearing. It may have only been for a matter of minutes. His ability or otherwise to make submissions would have been a factor to take into account. It may well have been we would have granted the postponement request. The Claimant took the risk of not joining and thereby disobeying a clear Order from the Tribunal as to the appropriate sequence of events.[24]We are mindful of the fact that the Claimant had by his own actions demonstrated an ability to communicate cogently and with significant frequency. On the evening before and morning of the Hearing, and indeed in the preceding days and weeks, he was sending multiple emails and making various applications to include under Rule 37 and Rule 50. His application for reconsideration was made within hours of the Hearing. These are factors which indicate to us that the Claimant’s failure to participate was not one which was as a result overwhelming prohibiting medical circumstances but rather a choice he had made. That may well have been from his subjective perception understandable. Nevertheless, it was contrary to the clear instruction of the Tribunal and we remain of the view that the decision to dismiss the claim under Rule 47 was the correct one. Therefore the decision of the Tribunal is that the Judgement dismissing the claim under Rule 47 is reconfirmed and will not be varied.[25]In exercising our general case management powers, we considered that the overall balance justified upholding our original decision. Claimant’s subsequent email[26]Further to the hearing the Claimant sent me an email (copied to the Respondent) at 22:35 on 4 October 2021. Whilst it is not my intention to provide a detailed response to this I will for completeness clarify a contention raised.[27]The Claimant sought clarification as to the position was in respect of his various applications under Rule 37 (29 March 2021), for reasonable adjustments (7 April 2021) and Rule 50 (8 April 2021).[28]The Claimant is advised that these applications were not considered at the Hearing in his absence. The applications would have been considered had the Claimant attended. The Claimant was directed to attend the Hearing at which his postponement application, and any other applications he wished to pursue, would have been considered. He chose not to do so. It was on this basis that the claim was dismissed under Rule 47 and which decision the Tribunal has upheld on reconsideration.