Miss N Mirabdolhagh Hezaveh v Headmasters Salons Ltd: 2203117/2019
JUDGMENT
The claimant’s claim is struck out pursuant to Rule 37 on the grounds of her repeated failure to comply with case management orders and the tribunal considers that it is no longer possible to have a fair hearing. The hearing dates on 12, 13, 14, 15 and 18 October 2021 are therefore vacated.REASONS
[1]The claimant worked for the respondent from 24 January (alternatively from 11 February) 2019 to 28 May 2019 as a Salon Trainee Manager.[2]On 21 August 2019 she filed a claim in the employment tribunal alleging direct discrimination and/or harassment related to race and/or religion and/or sexual orientation and victimisation. She also claimed arrears of wages.[3]The respondent disputed the claims. At the time the response was lodged on 12 November 2019, the respondent was represented by Xact Group Ltd.[4]On 8 July 2020, there was a telephone preliminary hearing before EJ Clark. The case was listed for 4 days from 15-18 February 2021. At that hearing the claimant was represented by Miss Iqbal, lay representative, and the respondent was represented by Ms K McManus of Xact Group Ltd. A List of Issues was drafted with a number of elements requiring further details from the claimant. Various case management orders were made at the hearing including orders for disclosure of documents and exchange of witness statements.[5]By an Order dated 30 September 2020, EJ Clark suspended the orders made on 8 July 2020 pending a further case management hearing to be held on 21 October 2020.[6]At this hearing, also before EJ Clark, the hearing dates in February 2021 were vacated to be re-listed after 1 September 2021. (The hearing was subsequently listed to start on 12 October 2021.) During the hearing, the claims were clarified and the issues were set out in the order of 21 October. EJ Clark went on to make case management orders. These included an order for a schedule of loss by 12 January 2021, disclosure of documents on or before 12 January 2021 and exchange of witness statements by 26 February 2021.[7]On 17 November 2021, there was a case management hearing in respect of a Judicial Mediation hearing. This required a schedule of loss to be prepared and the preparation of a limited bundle of documents which was to be sent to the tribunal by 7 December 2020.[8]By January 2021, the contract between Xact Group Ltd and the respondent had come to an end and the respondent had instructed Ms C Gurevitz of AvloHR Ltd to represent it. Ms Gurevitz obtained the documents from her clients which were in their possession. She was unable to get hold of the previous representatives for documents as Xact Group was taken over and many of the people who had worked there, including Ms McManus, moved on.[9]The respondent sent its list and documents by ‘We transfer’ on 12 January 2021. In response, Miss Iqbal stated that she had made disclosure to the previous representatives but that she would go through the respondent’s disclosure and would be in touch. The respondent had sight of the index of the bundle for the judicial mediation, which appears to have been wider in scope than that ordered by EJ Clark, and this comprised 27 documents. Of these 27 documents, Ms Gurevitz believes there are approximately 15 she has not seen, most of these being Whastapp messages. She asked Miss Iqbal to forward to her the relevant emails from her Sent Items mailbox that had been sent to Ms McManus. Miss Iqbal confirmed that she would send whatever was missing.[10]In January 2021, both the claimant (who was expecting twins) and Miss Iqbal were unwell. Miss Iqbal requested an extension of time to comply with the orders.[11]The claimant’s twins were born on 13 February 2021. Ms Gurevitz asked if Miss Iqbal required more time to comply with the order but she did not respond.[12]On 13 March 2021, Ms Gurevitz emailed Miss Iqbal to follow up. Miss Iqbal said she was ready to exchange two witness statements but one was not ready as the witness was abroad. She did not respond to queries about the documents.[13]On 8 April 2021 the respondent applied for a strike out on the basis of noncompliance with orders. The claimant maintained that she had provided the documents to the previous representatives and asked for an extension of time until 12 April for exchange of witness statements but did not comply with that deadline.[14]The respondent repeated the strike out request by email dated 19 May 2021. Miss Iqbal replied with the schedule of loss, the index of the JM bundle and confirmation that the claimant’s twins had been delivered on 13 February.[15]In June 2012 Miss Iqbal said that the claimant, the twins and she were all unwell. On 30 June she requested an extension of time to comply with the orders to 31 July. The respondent did not object but asked for the medical evidence relied on by the claimant.[16]The claimant did not comply with the 31 July deadline.[17]On 13 August 2021, EJ Grewal directed that there would be a preliminary hearing to consider the respondent’s strike out application. She went on to say that if the claimant wishes to rely on any medical reasons for not complying with the orders, she should produce medical evidence to support that.[18]On 23 August, Miss Iqbal said she was going through the documents and requested an extension to 30 September for compliance. The respondent considers that this is too close to the hearing on 12 October 2021 and prejudices the ability to have a fair trial.[19]On 25 August 2021, Employment Judge Wade wrote to the parties referencing the difficulties being experienced by the claimant but pointing out that the case must be progressed in the interests of justice as the claim had started in August 2019. She repeated that if the claimant has any medical reasons why she cannot comply with the orders, she must produce medical evidence to support that. She confirmed that the hearing would go ahead on 13 September. Today’s hearing[20]This hearing was listed for today to consider the respondent’s strike out application. In correspondence, the claimant objected to the strike out and said that her emails and telephone calls on the subject had not been responded to. She made further representations confirming she thought the case is ready for hearing although one of her witnesses had not yet provided a statement. She also maintained that the claimant’s documents had been provided to the previous representatives of the respondent and the current representative. Ms Gurevitz states she has still not received the claimant’s documents.[21]Shortly before the hearing was due to start, the tribunal received an email from Miss Iqbal purporting not to have known about the hearing and saying the claimant had not had notice of the hearing. She also referred to a 5 day listing from 1 September which had not taken place, which had caused stress to the claimant. She repeated that she had provided documents to the respondent’s former and current representatives. She did not attend the hearing.[22]The claimant did not provide any medical evidence for failing to attend today’s hearing.[23]I consider that the claimant was given a reasonable opportunity to make representations either in writing or by attending this hearing. I have taken into account any representations made in writing. The respondent’s application[24]The respondent made the application for a strike out on the grounds of the claimant’s failure to comply with orders. The respondent also relied on the claimant’s failure actively to pursue the claim and that her conduct (or that of her representative) has been unreasonable. These matters, taken together, make it no longer possible to have a fair hearing.[25]The respondent relied on the following submissions:a. The claimant has still not provided the missing Whatsapp documents despite Ms Gurevitz informing her in January 2021 that she did not have these and was unable to contact anyone at Xact Group Ltd to ask for them.b. Only one witness statement has been provided (Frederick). The claimant’s own witness statement has not been exchanged despite Miss Iqbal saying in March that it was ready to be exchanged.c. If the claimant complies with the orders on 30 September, as she is proposing, there cannot be a fair hearing on 12 October as the case is complex and seven days is not enough time to prepare after receiving disclosure and witness statements.d. If the orders are not complied with until 30 September, the hearing will have to be postponed and that will prejudice the fairness of the hearing as events by then will be three years old.e. The respondent has no confidence that the claimant would comply with a further deadline as she has failed to meet deadlines in the past without providing satisfactory explanations.f. The claimant has not provided anything since 19 May 2021.g. The claimant is only reactive and has done nothing to pursue her claim actively. When she misses deadlines, she does not provide an explanation and simply waits until the respondent follows up.h. The respondent is being put to expense just in chasing the claimant up.i. Miss Iqbal repeatedly claims to have complied with orders when she has failed to do so.[26]The respondent does not believe that an Unless Order is appropriate because the claimant will simply maintain that she has complied, when this is not the case. She has herself suggested a number of deadlines for compliance, none of which she has kept to.The Law
[27]Rule 37 provides that the tribunal may strike out all or part of a claim on the grounds that the proceedings have been conducted by or on behalf of a party in an unreasonable manner, that a party has failed to comply with the Rules or an order of the tribunal, that the claim is not being actively pursued or if the tribunal considers that it is no longer possible to have a fair hearing.[28]It was unfortunate that Miss Iqbal did not attend the hearing. It is clear from earlier correspondence that she was aware it was taking place, albeit she did not agree that there was a need for a strike out hearing. She failed to provide any evidence to support her reasons for non-attendance, nor did she make an application for a postponement.[29]In the absence of the claimant and her representative, I have had regard to representations made in correspondence which I have seen in the documents before me today.[30]The claimant appears to be under the impression that there was a five day hearing starting on 1 September which has not taken place. I assume that this is a misunderstanding of EJ Clark’s order stating that the case would be re-listed ‘over 5 days after 1 September 2021’. This does not mean 5 days starting on 1 September 2021. The claimant’s comments regarding the failure of that hearing to take place are therefore misconceived.[31]In the light of the pending hearing date, I concluded that the matter had to be dealt with today. I therefore went ahead without the benefit of Miss Iqbal’s input.[32]Looking at the history of this case since January 2021, there is a pattern which appears to repeat itself. The respondent is asking for documents which appear on an Index created by Miss Iqbal which they do not have. Miss Iqbal maintains that these were provided to the previous representatives but has, on several occasions, agreed to provide them. Every deadline that passes is met with a request for an extension, together with an assertion that the documents have been supplied. The reasons for requiring more time are usually medical but no medical evidence has been provided at any stage to support the claimant’s position.[33]Miss Iqbal has failed to explain why the relatively simple task of finding the Sent Items mails to Ms McManus and forwarding these to Ms Gurevitz cannot be done. If she did not sent them to Ms McManus in this way, she has failed to explain this. If she is unsure of what documents are being requested, she can ask for clarification. However, she has not engaged in this process at all.[34]I note that REJ Wade commented “As EJ Grewall said in her direction of 13 August, if the claimant has any medical reasons why she cannot comply with the orders, she must produce medical evidence to support that.” No medical evidence has been produced throughout the case other than a letter to confirm that the claimant delivered twins in February 2021.[35]I have taken into account the magnitude of default and note that the failure to comply is repeated, without evidenced explanation. The claimant seeks to rely on a significant number of Whatsapp messages but her representative has repeatedly failed to provide copies of these, promising to do so while at the same time asserting that she has complied with the obligation. This puts the respondent in an unfair situation. The claimant’s representative has indicated that there will be three witness statements but has only produced one (Frederick) and has provided an explanation in respect of another (that the individual is abroad). No statement has been received in respect of the claimant despite this apparently being ready in March. There is also no explanation why the statement of the witness abroad cannot have been finalised in the months since it was first raised in March 2021 as being problematic.[36]The claimant and her representative have been on notice since 8 April 2021 that the respondent was pursuing a strike out application on the grounds of noncompliance with the orders for disclosure and exchange of witness statements. The application was repeated in May 2021 and the notice of this hearing was sent in August 2021, followed by correspondence about the hearing.[37]I appreciate that striking a claim out is a draconian step but there has been no reasoned explanation or evidenced explanation from the claimant or her representative for the repeated failures. The hearing date is a month away and the respondent is not in a position to finalise its preparation. The claimant asserts that she is ready for a hearing but has not disclosed her witness statement or agreed the contents of the bundle of documents. She has failed to attend today’s hearing.[38]In all these circumstances, I find that the respondent is sufficiently prejudiced by the claimant’s failure to comply with orders as to render the hearing unfair.[39]I therefore conclude that the claimant’s claim should be struck out under Rule 37 on the basis that she has failed to comply with tribunal orders and this has compromised the ability to hold a fair hearing.[1]The issues for today’s hearing were as follows:a. Does the tribunal have jurisdiction to hear the reconsideration application as it was made out of time?b. If it does have jurisdiction, should the original decision be confirmed, varied or revoked?[2]This hearing was listed to consider the claimant’s request for a reconsideration of my decision of 13 September 2021 to strike out her claim. The claimant did not attend and was not represented at that hearing, which is why I considered it in the interests of justice to hold a reconsideration hearing.[3]The respondent’s representative contended that I did not have jurisdiction to entertain the reconsideration as it had been lodged out of time.[4]I took the view that I would give the claimant the opportunity to make representations on the strike out application and I would consider the time point and, if appropriate, the substantive points once I had heard from both parties.[5]Both Ms Gurevitz and Miss Iqbal made articulate representations before me and I appreciated their cooperation. Time point[6]The strike out decision was sent to the parties on 15 September 2021 by email to the email address provided by the claimant. The reconsideration application was received on 26 October 2021, approximately 4 weeks out of time.[7]Miss Iqbal told the tribunal that she never received the email attaching the Judgment and only found out that the case had been struck out when she went to the CAB for advice on 26 October 2021. The CAB checked the online register of judgments and informed her that the case had been struck out at the hearing on 13 September 2021.[8]She then telephoned the tribunal and spoke to one of the staff, MP. He told her to send an email to the tribunal inbox, which she did, on 26 October 2021, setting out her position.[9]Miss Iqbal explained to me that she and the claimant had not attended the hearing on 13 September because they had not received the joining instructions. I checked the email address that they had been sent to and she confirmed that it was the correct email address. She said that there had been issues in the past with email, but it turned out the issue she was referring to was the tribunal sending documents relating to another case to this email address. The only examples of tribunal correspondence not reaching the claimant appear to be the joining instructions for the hearing on 13 September 2021 and the Judgment following that hearing on 15 September 2021.[10]The email Miss Iqbal sent on 13 September 2021 which was before me at the original hearing stated “The claimant is highly stressed out apparently there was a PH today for 10am. Firstly, the claimant didn’t receive any document from the tribunal to state about this hearing.” I understood this to mean that the claimant had not been aware that there was a hearing that day. Miss Iqbal has clarified that she was referring to joining instructions by ‘any document from the tribunal’ and she accepted that they were aware that there was a strike out hearing listed for that day.[11]When asked why she had not taken steps to find out the outcome of the hearing, Miss Iqbal said that she had rung the tribunal on 15 and 16 September 2021 and spoken to staff who did not tell her the case had been struck out. She did not attempt to contact the respondent’s representative.[12]There was a full merits hearing which had been due to start on 12 October 2021. When asked why she made no enquiries relating to that hearing, she said she spoke to a member of the tribunal staff on 8 October 2021. Miss Iqbal first said that they didn’t understand why she was calling as it had been struck out but corrected herself and said that she was told the hearing would be going ahead on 12 October 2021.[13]She does not seem to have followed up with the tribunal or with the respondent’s representative to see whether the hearing was going ahead and, if not, why not. She claims not to have been aware that the case was struck out. No other notification that the full merits hearing was not going ahead was sent. No bundle had been agreed or shared between the parties and there had only been partial exchange of witness statements.[14]It is hard to understand why a claimant, who has waited for the hearing of her complaint since 2019, would do nothing on the dates which had been fixed for a hearing when she had heard nothing from the tribunal or the respondent.[15]I note that in the emails to the tribunal (one of which is 5 pages long) of 26, 27, 29 October and 4, 6, 20 and 26 November 2021, Miss Iqbal makes no reference to having spoken to tribunal staff on 15, 16 September or 8 October. On the contrary, she complained that she had called numerous times and there had been no answer. I therefore found it difficult to rely on her assertion that she had spoken to tribunal staff on those earlier occasions.[16]When asked why she had not emailed the tribunal (which is what she has done in the past and did on 26 October), she said she found it difficult to use email due to her vision impairment disability and, when she does send emails, she asks a friend to help. She said she was unable to find anyone to help her send an email between 15 September and 26 October 2021.[17]The respondent submitted that the tribunal rules of procedure provide that any reconsideration application must be made within 14 days of the decision. The respondent contends that the tribunal has no jurisdiction to consider the reconsideration application due to the 14 day time limit. However, I pointed out that it is open to me to invoke Rule 5 and extend the time limit and this would be something I would consider. Original strike out decision[18]The background to the claim and the reasons for my decision are set out in the original decision. I gave the claimant an opportunity to make the representations she would have made if she had attended the hearing, although I had taken into account representations she had made in correspondence which were before me on that occasion.[19]The underlying issue, which led to the original strike out, was the claimant’s failure to provide disclosure of the documents she was relying on or to exchange two of her three witness statements.[20]She has maintained that the documents were disclosed to the respondent’s previous representatives. The respondent’s current representative explained that the respondent’s previous representatives had never passed on any documents to her client or to her. The person who was dealing with it moved on and nobody was able or willing to assist. Her position is that, without these documents, she cannot prepare for the hearing.[21]Despite her position that disclosure has taken place, Miss Iqbal has, on several occasions, promised to disclose the documents to Ms Gurevitz but has never done so. She confirmed that she had sent the original documents to the previous advisers by email and it was just a question of going to her outbox and forwarding those ‘Sent emails’ to the respondent’s representative. The reasons she gave for not having done this are that it would take her a long time to read through them and ensure there was no duplication as she finds it hard to read on the computer due to her disability. Ms Gurevitz has offered to sort through the disclosure to put it into a bundle so there would be no need for Miss Iqbal to look through the attachments to the sent items. Presumably, if she was happy in sending them to the previous advisers, she should be happy to send them to the new advisers without rechecking.[22]In correspondence (email of 10 September 2021), Miss Iqbal said that ‘all the documentation that has been listed in my index of documents has been provided to previous respondent’s solicitors and current one’ although she accepted at the hearing that there were documents that Ms Gurevitz had not seen.[23]I also took note that these requests have been going on since January 2021. The claimant and Miss Iqbal have both had health and other personal issues, including various bereavements and other family problems, which have had a significant impact on their ability to deal with this, for which I am sympathetic and I have taken these matters into account. However, I consider that the orders could have been complied with at some time since January 2021. In that time, Miss Iqbal has made eloquent submissions by email and, to the extent she has had help with these, she could have asked to help in forwarding the sent items to the respondent’s new representatives, which is a relatively simple task for somebody familiar with using email.[24]The lack of compliance with orders also relates to the failure to exchange witness statements. The claimant states she has two witnesses other than herself. One witness statement (of Frederick) has been sent to the respondent. The respondent’s representative states that she has not received the claimant’s witness statement. Miss Iqbal said she had sent it but was unable to say when. In any event, she has not explained why she could not simply send it again. She accepted that the claimant’s witness statement makes reference to documents which Ms Gurevitz has not seen although she states that they had been disclosed to the respondent’s former advisers.[25]At all stages, the claimant and her representative have been reactive in progressing with the claim. It is the claimant’s claim and it is surprising that she does not appear keen to pursue it by pushing for preparation to continue in order to be ready for the hearing date.[26]I also note that no medical evidence had been supplied until this hearing, despite two Employment Judges previously informing the claimant of the need to provide evidence of any medical issues to explain non-compliance with orders. The evidence provided partly relates to the period in question but does not, in my view, explain a failure to comply with the orders over such a long period.[27]Miss Iqbal accepts that she has not sent the third witness statement. She was initially reluctant to identify the witness but subsequently told the tribunal that the witness was Chloe. Chloe has had personal issues and has been abroad so they have not been able to finalise and serve her witness statement. This is now ready to be served.[28]The respondent’s position is that a fair trial is no longer possible since the events being complained of took place prior to May 2019. In February 2022, there are still Whatsapp messages and other documents relied on by the claimant which the respondent has not seen. It would be difficult for the respondent to be able to defend the claim in these circumstances. Determination of theIssues
[29]I find that the reconsideration request was made outside the time limit set out in Rule 71. However, I must consider whether to exercise my discretion under Rule 5 to extend time.[30]Taking into account the claimant’s knowledge that a strike out hearing was taking place on 13 September 2021, I find that it was not reasonable for her not to find out whether the hearing went ahead and, if so, the outcome of that hearing,[31]This is made more surprising by the listing of the full merits hearing from 12 October 2021, which the claimant was aware of. If she was unaware that the claim had been struck out, it is not credible that she made no enquiry of the arrangements for the hearing of that case, either with the tribunal or with the respondent. Miss Iqbal claims to have called the tribunal office on 8 October but this is not referred to in any emails and had not been mentioned prior to the reconsideration hearing.[32]Miss Iqbal has communicated with the tribunal and with Ms Gurevitz numerous times by email. Her explanation that she was unable to find anyone to help her in the period before 26 October 2021 is difficult to accept when the claimant herself (whose email address is being used for this correspondence) does not have vision problems and could have helped Miss Iqbal and when Miss Iqbal has managed to find a way to send numerous emails, many of them lengthy, at other times.[33]The claimant and her representative have not explained why, in the light of problems getting through to the tribunal administration, they did not contact the respondent’s representative. If it was difficult to send emails, they could have contacted Ms Gurevitz by telephone.[34]Taking these factors into account, I do not consider it appropriate to extend the time limit set out in Rule 71. I therefore find that the tribunal does not have jurisdiction to hear the reconsideration application as it was lodged out of time.[35]If I am wrong about that, I go on to consider whether I would have changed my original decision if I had allowed the reconsideration request to proceed. Although the claimant and her representative have provided more information at this hearing than they have on previous occasions, the various significant problems they have both had to overcome do not explain the failure to engage in the process of preparation for the hearing of the claimant’s claim.[36]It is not the case that the claimant and her representative have been entirely out of action over the period in question (from January 2021), as they have responded to correspondence on various occasions. Miss Iqbal has requested extensions of time at various times and then not complied with the new deadline or explained the noncompliance until chased. The input required to comply with the orders is relatively straightforward, comprising forwarding emails from the ‘Sent Items’ folder to Ms Gurevitz. Miss Iqbal has not provided an adequate explanation for the failure to do this.[37]I find that these delays have prejudiced the ability to have a fair trial.[38]I find no reason to revoke or vary my original decision.