Miss E James v The Secretary of State for Justice: 2205230/2019

EMPLOYMENT TRIBUNALS

Case No 2205230/2019

Between

Miss E JamesClaimant

The Secretary of State for JusticeRespondent

Before

Employment Judge Ms A Stewart

Date 13 June 2024

JUDGMENT

[2]It is also Ordered that, by 6 February 2023, the parties will inform each other and the Tribunal whether or not they are willing to take part in a Judicial Mediation as a means of settling this dispute without the need for a Full Merits Hearing.

[3]It is Ordered that on or before 20 February 2023 the parties mutually exchange witness statements. UNLESS the Claimant sends her witness statement to the Respondent on or before 20 February 2023, her entire claim will be struck out, without further consideration or hearing.

[4]The Claimant’s witness statement should contain all of the evidence which she wishes the Tribunal to hear. It should be set out in chronological order, double spaced, in short numbered paragraphs, and be dated and signed. Any documents referred to in the statement must give their page numbers in the agreed Bundle of documents.

[5]A Full Merits Hearing of this case will take place over 7 days, from 18 to 26 July 2023, inclusive, before a full Tribunal panel.

[6]Tribunal directions for the preparation of this case for a Full Merits Hearing have already been carried out, as ordered at previous Preliminary Hearings, except for service of the Claimant’s witness statement, as ordered above. Signed: Employment Judge A Stewart Employment Judge Date 25 January 2023 _______________________________________ Judgment sent to the parties on ……...................................................................................................... FOR THE TRIBUNAL OFFICE Case Number: 2205230/2019 3 THE EMPLOYMENT TRIBUNALS Claimant Miss E James, in person. Respondent The Secretary of State for Justice Represented by Mr T Kirk of Counsel

REASONS

[1]This litigation has an unfortunate history, including 4 previous Case Management Preliminary Hearings (28 September 2020, 18 October 2021, 5 January 2022 and 13 June 2022, followed by amended Tribunal Orders dated 28 June 2022) and a twice vacated 7 day Full Merits Hearing (18 October 2021 and 13 June 2022) the latter having been converted to a PH partly due to the Claimant’s indisposition and partly because there was a lack of Judicial resources for the hearing, in any event.

[2]Since the last PH in June 2022, the Respondent, commendably, has desisted from further steps in order to allow the Claimant time to recover, until today’s hearing. However, the Respondent’s application for strike out of the Claimant’s claims argued before me today was in fact lodged with the Tribunal on 23 May 2022. Strike-out application

[3]The application to strike out is made under Rule 37 of the Tribunal Rules on the following alternative grounds:(i) that the Claimant has deliberately and persistently conducted these proceedings in an unreasonable manner;

(ii) that there has been inordinate and inexcusable failure on the Claimant’s part to actively pursue her claim, entailing a substantial risk to a fair trial of this case within a realistic trial window, or at the very least causing substantial prejudice to the Respondent;

(iii) the Claimant’s continual failure to comply with Tribunal Orders at times even when she was well enough to do so.

[4]Alternatively, the Respondent seeks an unless order, compelling the Claimant to fulfil the final Tribunal Order with which she has not yet complied, Case Number: 2205230/2019 4 namely; to serve/exchange her witness statement. Otherwise, this case is trial-ready.

[5]The Claimant, who is a litigant in person, today apologised for her failure to comply with Tribunal Orders in the past but resisted the application to strike out her case, on the basis that she had suffered a long three year period of ill-health, entailing three periods of hospitalisation (in November 2020, October 2021 and May 2022) which entailed traumatic events in her personal life as well as serious illness. She states that she has been suffering from periods of stress-induced psychosis and mental health issues which she was, during that long period, unable to control. She says that she still has PTSD, is suffering from stress and remains on medication, but is in a much better frame of mind now than she has been for a long time. The Respondent has already conceded that the Claimant is disabled by virtue of her mental condition, within the terms of section 6 of the Equality Act 2010.

[6]I concluded, on all the material before me today, that it would be a draconian step, unwarranted in all the circumstances, to strike out the Claimant’s claim today, despite the delay of 3 years and 9 months between the events which are the subject matter of the claim, and the Full Merits Hearing listed above, for the following reasons:6.1.1 I was satisfied that the Claimant’s incapacity through illness had not been limited to the periods which she spent in hospital but had extended through periods of build up and recovery, both before and after these hospitalisations. A hospital Consultant, for example, certified that the Claimant would be unable to conduct litigation or work for a period of at least 2 months after leaving hospital on the last occasion. I was also satisfied that the Claimant’s illness had affected her ability to function, prioritise and make strategic decisions regarding her litigation over an extended period, not limited to her periods in hospital, and that she had therefore felt herself overwhelmed by life circumstances during considerable periods of time. It was also clear, however, that she had managed to engage at various times, when well enough to do so, and had managed to comply with a number of Tribunal Orders, albeit often late, and had sporadically at those times shown a determination to pursue her case.

6.1.2 I was therefore not satisfied that the Claimant’s conduct of her case had been deliberately unreasonable, nor that her failure to pursue her claim at times had been inexcusable nor that her failure to comply with Tribunal Orders had been contumelious. I formed the view that the Claimant’s capacity to conduct this litigation has been affected by the state of her mental health, which the Respondent concedes constitutes a disability under the Equality Act 2010.

6.1.3 I was satisfied from today’s hearing that the Claimant has now reached a much more stable and improved frame of mind. She showed considerable insight into the potential unfairness to the Respondent of such a long period of delay during this case and a clear intention and determination to act accordingly. Case Number: 2205230/2019 5

6.1.4 The case is now trial-ready, with disclosure, bundle and the Respondent’s witness statements already prepared and lodged with the Tribunal. The Respondent does not therefore suffer the prejudice of having to review documents and prepare witness statements over 3 years after the events in question. It remains only for the Claimant to serve her own witness statement. She has not had the unfair advantage of having seen the Respondent’s witness statements before preparing her own. The chances of a fair hearing, listed for July 2023, are therefore good.

6.1.5 On balance, the prejudice which would be suffered by the Claimant in being struck out and unable to pursue her claim, far outweighs the prejudice caused to the Respondent by the delay in bringing this matter to trial, especially given the state of preparation set out in 6.1.4 above.

[7]Accordingly I refused the Strike out application. Unless Order

[8]The Claimant did not object to the Respondent’s application for an unless order today, having had its meaning and consequences explained to her. In fact she said that she would welcome it, as such a strict deadline would help her to comply and to face the realities of the situation. She offered a period of 2 weeks for compliance. However, counsel for the Respondent wisely proposed 4 weeks, in order to allow time for the Claimant to receive and consider the final Response and List of Issues to be sent in 2 weeks time.

[9]Accordingly, an unless order was made as set out above. Amendment of the Claim

[10]The Claimant’s proposed amendment by the addition of a claim under section 15 of the Equality Act 2010 was firmly grounded in the factual matrix set out in the Claimant’s original pleadings in relation to disability discrimination in general and the alleged failure to make adjustments for her disability, although legal labels were not specified, this being a narrative claim lodged by a litigant in person without legal knowledge.

[11]The Respondent resisted the amendment on the grounds that it was a new claim and out of time. It was accepted by the Respondent, however, that the main facts were there, but contended that a causal relationship had not been pleaded.

[12]I concluded that this was largely no more than a relabeling exercise; that all of the factual ingredients were there and that the Respondent was not taken by surprise by new factual allegations. It is not to be expected that a litigant in person will formulate their claim as would a lawyer. The state of mind of those acting on behalf of the Respondent at the material time will be under scrutiny in relation to the existing complaint of direct discrimination, in Case Number: 2205230/2019 6 any event, to which may be added the alternatively alleged state of mind relevant to section 15.

[13]Accordingly, the amendment relating to section 15 is allowed.

[14]The proposed section 19 indirect discrimination amendment is a different matter. As the Respondent pointed out, it entails pleading an alleged provision, criterion or practice on the Respondent’s part, the particular and general disadvantage caused to the Claimant and those of the relevant disabled class and the Respondent would need to show that the PCP was a proportionate means of achieving a legitimate aim. None of those elements were contained in the original pleadings. Further, the Respondent strongly resisted it as being an entirely new claim, one that would entail considerably more work to prepare and one that was being proposed more than three years outside the normal time limit for bringing such a claim.

[15]The Claimant, having had the legal meaning of indirect discrimination explained to her and having understood the matters set out in paragraph 14 above, said that she did not wish to pursue it and withdrew her amendment application as it related to section 19. Judicial Mediation

[16]The Claimant said that she had always wanted to try to settle this claim but that in the earlier stages the Respondent had said that it was not willing to partake in a Judicial Mediation.

[17]I suggested that it would be advantageous for both parties if this matter could be resolved without further delay and without recourse to a trial on the merits. Counsel for the Respondent said that he would take further instructions, in this current situation. The above order was accordingly made, by consent. Employment Judge - Stewart Date 25 January 2023 Reasons sent to the parties on 26/01/2023 FOR THE TRIBUNAL OFFICE _____________________________________________________________ NOTES(1) Any person who without reasonable excuse fails to comply with this Order shall be liable on summary conviction to a fine of £1,000. Case Number: 2205230/2019 7

(2) Further, if this Order is not complied with, the Tribunal, may (a) make an Order for costs or preparation time against the defaulting party under Rule 76(1) or (2), or (b) strike out the whole or part of the claim, or, as the case may be, the response, and, where appropriate, direct that the Respondent be debarred from responding to the claim altogether.

(3) You may make an application, upon notice to the other parties, for this Order to be varied or revoked. Case Number: 2205230/2019 1 THE EMPLOYMENT TRIBUNALS Claimant Respondent Miss E James v Secretary of State for Justice Heard at: London Central On: 18 July 2023 Before: Employment Judge Glennie Ms Z Darmas Mr F Benson Representation: Claimant: Neither present nor represented Respondent: Mr T Kirk (Counsel)

[1]The full merits hearing in this case has been listed and postponed on 2 previous occasions. In 2021 the hearing was postponed because of the Claimant’s non-compliance with case management orders. In 2022 it was postponed because of the Claimant’s ill health.

[2]On 12 July 2023 the Claimant applied for a postponement of this hearing, stating that she had been detained in hospital and remained in hospital. She said that she had asked her clinician to provide a supporting letter, that she should be in receipt of this by Friday (14 July) and that she would forward it to the Tribunal.

[3]On 17 July 2023 the Claimant’s application was referred to Employment Judge Gidney, who decided that, in the absence of any medical evidence, it should be refused. Case Number: 2205230/2019 2

[4]When the case was called on for hearing (by video) at 10.00 this morning, the Claimant was not present. The Tribunal’s clerk sent the Claimant an email at 10.00 which read: “You have a hearing starting this morning – scheduled for 6-7 days – and would be grateful if can log in. “Please reply to this message so that the Tribunal are aware of any difficulties you may be experiencing.”

[5]The Tribunal’s clerk also checked the Tribunal’s general in box and at 10.45 confirmed that no reply had been received to his email at 10.00 and no further correspondence had been received from the Claimant since her email of 12 July.

[6]Rule 47 of the Rules of Procedure provides as follows: If a party fails to attend or 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 that party’s absence.

[7]The Tribunal has explained above the enquiries that were made and the information that was available to it about the reasons for the Claimant’s absence.

[8]Rule 47 does not require the Tribunal to chose between dismissing the claim and proceeding in the party’s absence. The Tribunal could decide to do neither of these, and to postpone the hearing. In the present case, the Tribunal considered that it was not open to it to postpone the hearing, as EJ Gidney had refused the Claimant’s application and there had been no material change of circumstances since then.

[9]Even if the Tribunal is wrong about that, it would not postpone the hearing in the circumstances. The hearing has already been postponed twice. The Claimant has stated that she is in hospital, but has supplied no supporting evidence of this, in spite of saying that she was expecting to receive this by 14 July at the latest. She has not replied to the clerk’s email.

[10]Mr Kirk sought the dismissal of the claim. The Tribunal concluded that this was what should be done in the circumstances. All of the complaints in the claim place an initial burden of proof on the Claimant. Proceeding with the hearing in the absence of the Claimant would inevitably lead to the dismissal of the claim, but after a longer hearing which would involve greater use of the Tribunal’s resources.

[11]The Tribunal also took on board Mr Kirk’s observation that it would be open to the Claimant to seek a reconsideration of a decision to dismiss the claim if circumstances arose that would justify this. Case Number: 2205230/2019 3

[12]The Tribunal therefore gave an oral judgment dismissing the claim and closed the hearing at around 11.00 am.

[13]Following this, the Tribunal’s clerk received a reply to his email to the Claimant sent at 10.00 am. The Claimant’s reply, timed at 11.47 am, read as follows: “I have been informed that the Tribunal is in receipt of my medical evidence. Please can you confirm whether this has been received. “There is a doctor’s strike so I have had difficulty in obtaining this evidence to provide to the Tribunal timely. “I will forward a copy of this once received. “Just to confirm, I am presently unable to attend the hearing due to being detained in hospital.”

[14]This email was referred to the Employment Judge on receipt. The Employment Judge instructed that a reply should be sent stating that the decision to dismiss the claim had been made before this email was sent, and that it had not therefore been taken into account by the Tribunal when making its decision. Employment Judge Glennie