Employment Judge HeathNot represented for claimantMs E Wheeler (instructed by Counsel) for respondentDate 28 March 2022
JUDGMENT
The claimant’s claims are dismissed on his failure to attend, pursuant to Rule 47 of the Employment Tribunal Rules of Procedure 2013 (“the Rules”).
REASONS
Factual background
[1]This matter has been listed for final hearing on two occasions prior to today, and it has been postponed twice for lack of judicial resources (reasons for which the claimant bears no responsibility). This particular hearing was listed by a Notice of Hearing dated 8 October 2021 following, we were told by Ms Wheeler, both parties having provided dates to avoid.[2]On 9 March 2022 the claimant applied for a postponement of the hearing by email in the following terms: “I have recently started full time work and will be on a probation period till end of May 2022. Due to being on probation I’m unable to take time off for the hearing commencing this month 28th March. I am asking for this hearing to be postponed to a later date after May 2022 as would be able to take time off for attendance.”[3]The respondent resisted this application, and it came before Employment Judge Spencer, who refused it on 21 March 2022 saying: - “The Claimant’s application to postpone the hearing listed to begin on 28th March 2022 is refused. The case has been listed on the above dates, and with the agreement of the parties, since 8th October, and the parties are expected to give priority to their litigation. The Claimant should have discussed his need to take those dates as leave with his employer in good time. It is not clear that the Claimant has sought, and been refused, permission to attend this hearing. Further the claim is already over 2 years old and has already been postponed twice. It is not in the interests of justice for there to be any further delay.”[4]At 7.57 am on the morning of this hearing the claimant emailed the tribunal as follows: - “I write in response to the objection of a postponement request to the final hearing which is due to take place today 28th March 2022 – 1st April 2022 by CVP. I apologise for my attendance and any inconvenience caused. I strongly request again for a postponement of the final hearing due to take place today. As stated briefly in my previous email I was unable to take this week off work due to being on probation period till end of May 2022 as well as other personal reasons. I have and still am committed to seeing this case through to the end. I have paid a deposit after the second hearing to the Tribunal in order to carry forward the allegation of discrimination against the respondent. Furthermore, I have also been fully cooperative towards the case from the beginning and this is the only time I’ve requested for a postponement as previous two postponements were carried forward by the Tribunal. The first postponement was notified to both parties literally on the day 14th April 2021 hours after the fixed start time due to lack of judicial resources. I was further notified a day before of the second postponement of the hearing which was re-listed for 22nd – 28th September 2021 again due to lack of judicial resources. I have been suffering immense stress and anxiety on and off from the day I was unfairly dismissed from my position at Tesco September 2019. I therefore strongly request the Tribunal for a postponement of the hearing commencing today 28th March 2022 and to kindly re-list the hearing for a future date convenient for all parties.”[5]The claimant did not attend the hearing when it was due to start at 10am. Our clerk made attempts to telephone the claimant twice, but both calls were unanswered.[6]At 10.30 the respondent’s counsel and its witnesses were admitted to the CVP room. Ms Wheeler, for the respondent said that she was aware of the claimant’s email earlier that morning. She made an application under Rule 47 of the Rules for the tribunal to dismiss the claimant’s claims following his nonattendance. She submitted: -a. The claimant’s reason for not attending was that he was unable to take time off work. He has been aware of the hearing since 10 October 2021.b. There had been two previous postponements in April and September of 2021, albeit for lack of judicial resources which was not the claimant’s fault.c. If the matter were postponed, it was unlikely that the final hearing would be listed for a long time and the cogency of the respondent’s witnesses evidence is likely to be affected. They would be giving evidence about what had taken place possibly 3 ½ to 4 years previously.d. One of the respondent’s witnesses (Ms Stephenson) no longer worked for the respondent. Also, having this matter hanging over them was stressful for the respondent’s witnesses.e. The respondent had already incurred 3 brief fees in this matter, as well as other legal expenses.f. These are claims with little merit. The discrimination claims are subject to deposits, and the dismissal was after the claimant’s admitted breach of the respondent’s policies (which constituted gross misconduct under the respondent’s disciplinary policy), and in the face of witness statements showing that the claimant had urged colleagues to make false statements.g. The respondent’s primary position was that the matter should be dismissed, but in the alternative the respondent’s evidence could be tested if the tribunal proceeded to hear the case in the claimant’s absence.[7]The tribunal did not grant the application to postpone, but considered that it would be appropriate to give the claimant a final chance to participate in the hearing. We decided that we would take the morning to read into the case and would return at 2pm. We asked the clerk to email the claimant to let him know that his application to postpone had not been granted, and that the tribunal would resume at 2pm when the hearing would continue, and that the tribunal would proceed to hear evidence from the respondent, or consider an application to dismiss the claims. An email was sent as follows at 11.11am: - “The application to Postpone today hearing is not granted. The Tribunal has decided to resume the hearing at 2 PM. If the Claimant does not join the hearing will continue and the Tribunal will be hearing evidence from the Respondent and also applications to dismiss the Claim”.[8]At 12.26pm the claimant emailed our clerk to say: - “I regret to inform I would not be able to join at 2pm as will be still at work. However if a postponement is granted after May 2022 I will be able take time off. My wife and I are expecting our baby this year so it’s imperative I hold on to my current job least until my probation period is over. Once again I apologise for any inconvenience caused and stay hopeful for a postponement.”[9]We resumed the hearing at 2pm having read the witness statements in the case, and we updated the respondent on the claimant’s communication with the tribunal. Ms Wheeler observed that the claimant had made it clear that he did not intend to attend the hearing despite twice being told it would not be adjourned. She reiterated her previous submissions and urged the tribunal to dismiss the claims.
The law
[10]Rule 47 of the Rules provides: - “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”.[11]Ms Wheeler referred us to Mason v Hamer EAT/161/81 in which the EAT observed that there is no duty on the tribunal to “enter the arena” turn itself into an investigating forum when a party did not attend. We also referred to Roberts v Skelmersdale College [2004] IRLR 69 in which the Court of Appeal held that as long as a tribunal exercises its discretion properly and fairly under the predecessor to Rule 47, then it is a matter for the tribunal as to whether it dismisses a claim, or proceeds to hear evidence in the absence of a party.
Conclusions
[12]The claimant’s application for postponement made on 9 March 2022 was refused by Employment Judge Spencer on 21 March 2022. She made it clear that the claim was old, and she set out observations that the claimant should have discussed these matters with his employer in good time and that had not indicated that he had sought and been refused time off. The claimant, in renewing his application to postpone by email at 7.57am on the day of the hearing, essentially repeated the application that had not persuaded Employment Judge Spencer to postpone, adding that there were other unspecified “personal reasons”, that he intermittently experienced stress and anxiety, and pointing out that the previous adjournments were not his responsibility.[13]What the claimant did not do is set out any attempts he had made to seek leave, or any refusals by his employer. The reference to the reasons for previous postponements does not really add anything, as Employment Judge Spencer had not attributed these to the claimant. His references to personal reasons and stress and anxiety are vague and not evidenced and cannot advance his application to postpone.[14]The claimant was warned by email at 11.11am by the tribunal clerk that his application for a postponed was refused and he was clearly warned that the tribunal would either hear the claim in his absence or dismiss it.[15]The claimant’s email to the clerk at 12.26 did not take matters further, beyond indicating that the claimant and his wife were expecting a baby at some point this year. This was advanced as a reason why he wishes to stay in employment rather than as a reason for not attendance today.[16]If this matter were adjourned it would not be relisted before November 2022 at the very earliest. This is an old matter which has already been postponed twice (albeit that the claimant was not responsible for this) and further postponement would cause further delay and cost to the respondent, difficulties in terms of calling one of their witnesses and continued anxiety for those with serious allegations levelled against them. The claimant has not really added anything of substance to the application he made on 9 March 2022, and has, in particular, not sought to address the issues about what attempts he may have made to discuss leave for the hearing dates which had been listed since 8 October 2022. In all the circumstances the tribunal concluded that it was not in the interests of justice to postpone the case further.[17]The tribunal caused further inquiries (by telephone and email) to be made on the claimant’s non-attendance this morning. It considered the information he provided by email. The claimant was informed on 21 March 2022 that his application to postpone had not been successful. He has not informed the tribunal of any attempts he has made, at any stage, to seek or agree leave. If the consequence of not attending the tribunal was not clear to him having received the decision of 21 March 2022, it would have been crystal clear following the email from our clerk at 11.11am. The claimant indicated that he would not attend, and simply gave the option of granting him a further adjournment.[18]In the light of this information, and in the light of the history of this matter as set out above, the tribunal dismisses the claimant’s claims. The claimant made the decision following the refusal of his application to postpone on 21 March 2022 not to attend the hearing. He chose to make another application to postpone by email at 7.57am on the morning of the hearing. He chose not to attend the hearing. After he was emailed by our clerk, and having been warned clearly of the consequences of not attending, he chose again not to attend the hearing. Although it is right to say that the choices he was making today not to attend may well have been difficult ones, we have been presented no evidence of steps the claimant could have taken either prior to his new employment, or at an earlier stage, to seek leave to attend the tribunal.
Introduction
[1]This is the Judgment in relation to the respondent’s application for costs following the dismissal of the claimant’s claim on 28 March 2022.[2]This Judgment and Reasons are to be read in conjunction with the Judgment and Reasons dismissing the claimant claims pursuant to Rule 47 of the Employment Tribunal Rules of Procedure 2013 (“the Rules”) sent to the parties on 29 March 2022 (“the dismissal judgment”).[3]Following the dismissal of the claimant’s claim, the respondent’s solicitors applied for an order for costs against the claimant by email of 14 April 2022. On 27 April 2022 the tribunal wrote to the claimant informing him of the respondent’s application and inviting him to make representations to indicate whether you wish the matter to be dealt with at a hearing.[4]Nothing was heard back from the claimant. The respondent’s solicitors sent a chasing email to the tribunal on 17 August 2022, but regrettably this matter seems to have fallen between the administrative cracks and has not been actioned. I apologise to the parties for the delay. The application[5]The Respondent applies for an order under rule 76(1)(a) of the Rules that the Claimant pays its costs incurred in the period between 22 September 2021 and the date of its application, on the basis that he has acted vexatiously, abusively, disruptively or otherwise unreasonably in conducting the proceedings in that period.[6]The respondent supports its application with reasons set out in paragraph 2 of its application which largely mirror the facts set out in the Factual Background section of the dismissal judgment. These facts will not be repeated, but in essence the claimant applied for a postponement of the 28 March 2022 hearing on 29 March 2022. This was refused on 21 March 2022 by Employment Judge Spencer. The claimant renewed his application for a postponement at 7.57am on the morning of the hearing. The respondent and its witnesses and counsel attended the CVP hearing, while the claimant did not. A further email was sent to the claimant advising him that his latest application to postpone the hearing was not granted, and that the hearing would resume at 2 pm. The claimant sent a further email indicating that he would not be able to join the hearing at 2 pm.[7]The respondent applied for the claimant’s claims to be dismissed under Rule 47, and the tribunal dismissed the claims.[8]In its application, the respondent observed the effect the claimant’s conduct have had on it, causing it to incur costs for preparing for the hearing on 28 March 2022 which the claimant failed to attend, and further counsel’s fees and costs for preparation of a cost application. The respondent observed that the claimant was warned through correspondence that unreasonable and disruptive conduct could lead to an application for costs being made against him. The respondent indicated that it would be content for the matter to be dealt with on the papers without a hearing.
The law
[9]Rule 75 ET Rules provides: (1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;[10]The power to make a costs order is in Rule 76 which provides: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success;[11]Rule 84 ET Rules provides: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[12]Costs orders are the exception rather than the rule in employment tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[13]Such awards can be made against unrepresented litigants, including where there is no deposit order in place or costs warning (Vaughan v London Borough of Lewisham UKEAT/0533/120). However, a litigant in person should not be judged against the same standards as professional representative (AQ Ltd v Holden [2012] IRLR 648).[14]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[15]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing unreasonable conduct: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”.[16]The tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).
Conclusions
[17]I do not find that the respondent has established that the claimant’s conduct reached the threshold of unreasonable and disruptive conduct which would then have allowed me to consider whether to exercise my discretion to award costs, and if so, in what amount.[18]The claimant was a litigant in person, and I do not judge him by the standards of a professional representative. The impression I gained of the whole of the claimant’s conduct was that he applied, unsuccessfully, for a postponement, which he sought to renew once more on the day of the hearing. A competent legal adviser would almost certainly have advised against such a tactic. It is understandable, however, that a litigant in person who was in the probationary period a new job, which he needed to keep to provide for his family might not take the sensible approach. A litigant in person almost certainly does not know that tribunals will not revisit a case management decision unless there has been a change of circumstances or the interests of justice demand it. A litigant in person might think they could chance their arm and have another bite at the cherry. While I find the claimant was imprudent, his conduct did not cross the threshold to warrant making an order for costs.[19]In the circumstances I make no order for costs against the claimant.