Ms N Jafry v Primark Stores Ltd: 2204609/2022
JUDGMENT
It is the judgment of the Employment Tribunal that the Claimant’s claims are dismissed pursuant to Rule 47 of the Employment Tribunals Rules of Procedure 2013 (“the Rules”) due to non-attendance at the hearing.REASONS
[1]This was a claim of unfair dismissal arising from the termination of the Claimant’s employment on 22 February 2022 for gross misconduct (unauthorised absence).[2]The issues to be determined were agreed with the parties at a case management hearing on 24 November 2022 by Employment Judge Khan.[3]Employment Judge Khan listed the case for a hearing of 7 days to be heard in person at the Central London Employment Tribunals on 12, 13, 14, 17, 18, 19 and 20 July 2023.[4]The Claimant has asked for written reasons for the dismissal of her claim which are set out in this judgment. THE HEARING 12 July 2023THE HEARING
[5]The Claimant and Respondent were both in their respective waiting rooms for the start of the hearing on 12 July 2023. There was some delay in the Clerks attending the Parties in their respective waiting rooms but the Claimant then refused to come into the hearing.[6]The Clerks asked the Claimant to come into the hearing a number of times but she refused saying that she had thought that Employment Judge Khan, who had held a previous preliminary hearing on the matter, would be hearing her case. She did not want a postponement of the hearing. She wanted Employment Judge Khan to hear the claim and also said she was concerned that employees and former employees of the Respondent were attending the hearing. I was satisfied that the Claimant did not have a valid reason for refusing to come into the hearing. The Claimant and her companion left the Tribunal building after being asked to come into the hearing to discuss their concerns a number of times.[7]I heard submissions from the Respondent but considered that it was in the interests of justice and the overriding objective that I seek to make contact with the Claimant and that we reconvene the next day. On my instructions the Tribunal sent the Claimant an email, explaining the position to her, requiring her to attend the hearing the following day and warning her that if she did not do so then her claim may be struck out.[8]At 15:15 I heard that the Claimant and her companion were back in the building but before the Clerks had been able to speak to them they had left again. 13 July 2023[9]By 10:00am the Claimant had not arrived at the Tribunal and I was not aware of and had not seen correspondence that the Claimant’s companion had sent to the Tribunal on her behalf at 03:49 (not copied to the Respondent).[10]Not having read her correspondence and the Claimant not being in attendance the Clerks called the Claimant at 10:14. The Claimant confirmed that she had received the Tribunal’s email of the previous afternoon and referred to her response of early in the morning which she said explained in detail the reason why she was not in Tribunal today. She said it was over to the Tribunal as far as she was concerned.[11]The Claimant’s email of 03:49 was sent on to me and to the Respondent and I concluded that it did not set out good reason for the Claimant’s failure to attend. Given that we had time in the listing I asked the Tribunal to send correspondence to the Claimant explaining the position, requiring her to attend and giving her a further warning that if she did not do so her claim may be struck out. The Tribunal called the Claimant to draw her attention to the correspondence but she indicated that she would not be attending.[12]At 14:00 the Claimant was not at the Tribunal and I heard submissions from the Respondent on the options of postponing the hearing, hearing the claim in the Claimant’s absence and strike out/dismissal of the claim.[13]I adjourned to consider my decision and the submissions that I had heard. I also reminded myself of the Presidential Guidance on strike out under Rule 37.[14]I concluded that in light of the sequence of events and the reasons given by the Claimant for her non-attendance, it was not appropriate to postpone the hearing to a later date.[15]I considered whether it would be fair and in the interests of justice and the overriding objective to hear the case in her absence but did not consider that was fair in the circumstances.[16]Whilst the Respondent’s arguments in respect of the prospects of success of the Claimant’s claim were persuasive, particularly in the Claimant’s absence, I decided not to strike out on that basis. I also decided not to strike the Claimant’s case out on the basis that she is was not actively pursuing it.[17]However, I decided that the Claimant’s claim should be dismissed under Rule 47 for her failure to attend the hearing and because she had not provided a good reason for not attending, having been given a number of opportunities to do so.[18]I also found that, if I had not dismissed her claim under Rule 47, it would have been appropriate to strike her claim out under Rule 37(b) – her conduct in not attending the hearing being unreasonable in the circumstances and warranting strike out. COSTS JUDGMENT 1. The Tribunal makes an award of costs under Rule 76(1)(a) of the Tribunal Rules 2013 of £400 including VAT against the Claimant and in favour of the Respondent. 2. The costs are payable by the Claimant to the Respondent within 42 days of the date of this judgment.THE LAW
[19]There is also Presidential Guidance on costs (Presidential Guidance; General Case management – Guidance Note 7 Costs) which I have taken into account. ANALYSIS AND CONCLUSIONS Is the jurisdiction to make a costs award is engaged?[20]As I recorded in my Judgment dismissing the claim, the Respondent’s arguments in respect of the prospects of success of the Claimant’s case were ‘persuasive’. I also now note that the Claimant was made a without prejudice save as to costs offer of settlement which she rejected and that she had sought an unreasonable level of compensation for “Damage, Hurt, Stress, Upset, Pain, Suffering” which she could not have recovered with the claim she brought (ordinary unfair dismissal). However, not having heard the case I have put little weight on this aspect of the Respondent’s application.[21]I do however consider that her conduct in respect of the hearing in July 2023 which led to her claim being struck out under Rule 47 does amount to unreasonable conduct in the way she conducted the proceedings. As highlighted by the Respondent in its application I recorded: “I was satisfied that the Claimant did not have a valid reason for refusing to come into the hearing” - paragraph 4 Judgment Reasons “I decided that the Claimant’s claim should be dismissed under Rule 47 for her failure to attend the hearing because she had not provided a good reason for not attending, having been given a number of opportunities to do so.” - paragraph 17 Judgment Reasons. “I had made allowances for the Claimant’s concerns and the reasons she had given for not attending, I had explained the position to her in correspondence and had given her a number of opportunities to attend and warned her that if she did not then her claim might be struck out. She had refused to attend for two days during which time the Respondent and its witnesses had been at the Tribunal. Whilst there remained 4 days of the listing the following week we had lost 3 days because of the Claimant’s conduct.” - paragraph 7 Case Management Orders[22]I therefore find that the jurisdiction to make a costs award is engaged. If there is jurisdiction should I exercise my discretion to do so?[23]Whether I should exercise my discretion to make a costs award is far less clear and of course I do not have the benefit of knowing what the Claimant would say about this.[24]I conclude that the high threshold is met for a costs award to be made and that I should exercise my discretion to award costs against the Claimant. I have taken into account that the Claimant is a litigant in person and that, as the Respondent 5 of 7 alludes to in its application, the Claimant appeared to have an unreasonably distorted perception of matters at the hearing in July.[25]However, given the extent of the opportunities I gave her to participate in the hearing (and the impact it had on the Respondent, albeit the Respondent is a large employer with substantial resources) I consider that her conduct was sufficiently unreasonable to warrant a costs award. If I exercise my discretion how much should I award?[26]I can only take into account the Claimant’s ability to pay to the extent that I am aware. The bundle I was provided with in July 2023 for the merits hearing included a December 2022 schedule of loss which suggested that she had anticipated getting a new job by the date of the schedule but did not make clear whether she had been successful and another document suggested that a trial for a new job in December 2022 had not been successful (203-205, 218).[27]A payslip in the bundle dated 11 March 2022 (192) suggested she earnt £9.45 per hour working 20 hours per week. The Claimant does not appear to have significant earning power (having been a retail worker) and having, on her claim form, indicated that she earnt £771.33 per month in take home pay.[28]On the balance of probabilities I consider that the Claimant is now in new employment, does not earn significantly more in hourly than she did in the Respondent’s employment (albeit I anticipate that rates of pay will have increase) and that she could now be working more than 20 hours per week.[29]I have taken into account that the Presidential Guidance (referred to above), provides: 21. When considering the amount of an order, information about a person’s ability to pay may be considered. The Tribunal may make a substantial order even where a person has no means of payment. Examples of relevant information are: the person’s earnings, savings, other sources of income, debts, bills and necessary monthly outgoings.[30]I do not doubt the level of the Respondent’s legal fees but taking into account my assessment of the Claimant’s ability to pay, I consider that a much lower award is appropriate here. I consider that an award of £400 (including VAT) is in the interests of justice in the circumstances. I will give the Claimant longer to pay these costs than I might otherwise give (42 days rather than 28 days).