Mr M Sarwar v Clermont Hotel Management Ltd: 2212117/2023
EMPLOYMENT TRIBUNALS
Case No 2212117/2023
Between
Mr M SarwarClaimantClermont Hotel Management LtdRespondent
Before
Employment Judge P KlimovMr M Foster (instructed by solicitor) for respondentDate 9 September 2024
JUDGMENT
The unanimous judgment of the Tribunal is that the claimant’s claim is dismissed.
REASONS
JUDGMENT having been sent to the parties on 13 September 2024 and written reasons having been requested by the claimant on 21 September 2024, in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
Introduction
[1]By a claim form dated 13 July 2023 the claimant presented complaints of unfair dismissal, discrimination because of religion or belief, race and sex, and for holiday pay.[2]The respondent presented a response resisting all the complaints.[3]On 9 October 2023, the claim came for a case management preliminary hearing before Employment Judge Hutchings. The claim was listed for a final hearing in person in London Central Employment Tribunal over 10 days, starting on 9 September 2024. A comprehensive list of issues was settled at the hearing. The usual case management orders were issued, including for exchange of documents, preparation of the hearing bundle, and exchange of witness statements.[4]The case management orders were sent to the parties on 10 October 2023. The notice of final hearing was sent to the parties 14 October 2023.[5]Although the claimant represented himself at the preliminary hearing, he had a firm solicitors (Sherfields Solicitors) acting for him on this matter.[6]On 6 November 2023, pursuant to EJ Hutchings orders, the claimant’s solicitors submitted a schedule of loss on behalf of the claimant. There was further correspondence from his solicitors with respect to the list of issues and other procedural matters.[7]On 23 April 2024, the Tribunal issued a revised list of issues, removing the complaint of “ordinary” unfair dismissal, as the claimant did not have two years of continuous service with the respondent to acquire the right not to be unfairly dismissed under s.94 of the Employment Rights Act 1996. His complaint that his dismissal was discriminatory was recorded as a complaint of direct race discrimination under s.13 of the Equality Act 2010.[8]On 9 July 2024, the respondent’s solicitors applied for an unless order on the grounds that the claimant was in default of the Tribunal’s case management order to disclose his documents.[9]On 16 July 2024, Employment Judge Keogh issued an unless order in the following terms: “Unless by 23 July 2024 the Claimant either:(i) Provides copies of all documents he is reasonably able to obtain which are relevant to the issues set out in the Case Management Summary dated 9 October 2023 and which have not already been disclosed by the Respondent; or(ii) Confirms that he has no further documents in addition to those already disclosed by the Respondent; or(iii) Writes to the Tribunal and the Respondent to explain the delay in providing his documents and applies for the hearing to be adjourned; then his claim will stand dismissed without further order. Consideration will only be given to adjourning the hearing if there is an exceptional reason why the Claimant has been unable to comply with the Tribunal's orders.”[10]At the same time the Judge varied the earlier orders with respect to the bundle and exchange of witnesses statements, if the claimant complies with orders at paragraphs 1(i) or (ii).[11]The Unless Order contained a further warning: “The Claimant is warned that should he fail to comply with any of the revised directions then the Tribunal may consider at the commencement of the final hearing whether his claim should be struck out for noncompliance with orders or because it has not actively been pursued.”[12]It appears the claimant’s solicitors wrote to the Tribunal on 22 July 2024. The Tribunal panel did not have that letter available at the final hearing. The claimant’s solicitors eventually disclosed the claimant’s documents on 9 August 2024. In any event, no judgment dismissing the claim was made by the Tribunal pursuant to the Unless Order.[13]On 23 August 2024, the claimant’s solicitors sent to the Tribunal a witness statement of the claimant, dated 22 August 2024, together with a witness statement from the claimant’s former colleague – the claimant’s second witness. In his witness statement, the claimant was explaining his noncompliance with the disclosure order by reason of him being “stuck” in Pakistan, to where he had travelled on 21 May 2024 to attend on matters concerning his late father’s pension (he said his father passed away on 16 February 2023). He said that he had booked a return flight for 13th June 2024, but had to stay in Pakistan to attend on other family matters. He said that all his documents were in London and he could not gain access to them, because his landlord would not allow anyone to enter his room without him being there. He said that he was hoping to be back in the UK in “few week of time”. The rest of his statement was him challenging various substantive matters in the respondent’s Grounds of Resistance.[14]On 29 August 2024, the claimant wrote to his solicitors saying that due to “the heavy cost of travel” he would not be able to come to London for the hearing, and that if the hearing were to be adjourned “for a couple of months” he hoped he would be “in better circumstances to proceed further”.[15]On 4 September 2024, the claimant’s solicitors applied for a postponement of the final hearing.[16]On Friday, 6 September 2024, Employment Judge Gidney refused the postponement application, but converted the hearing to video (CVP).[17]Later that date, on my instructions, the Tribunal wrote to the claimant and his solicitors as follows: “Dear Sir, Employment Judge Klimov has asked me to write to you as follows. The hearing in your case is due to start on Monday, 9 September 2024 at 10am (by video). The claimant's application to postpone the hearing has been refused by EJ Gidney. It appears that the claimant is currently in Pakistan. The Tribunal file indicates that no permission to give evidence from Pakistan was obtained or sought by the claimant. The claimant is referred to the Presidential Guidance on Taking Oral Evidence by Video or Telephone from Persons Located Abroad https://www.judiciary.uk/wp-content/uploads/2015/03/Presidential-guidance-evidence-from- abroad-April-2022.pdf The claimant is expected to be giving his oral evidence first, starting either on Monday afternoon or Tuesday morning. The claimant must write to the Tribunal by return to confirm whether he will be returning to the UK for the start of the hearing, and if not - whether he proposes his claim to be heard without him giving oral evidence.”[18]On Sunday, 8 September 2024, the claimant’s solicitors replied to confirm that the claimant would not be able to return to the UK for the hearing. They also said that the claimant did not wish to give oral evidence, but wished to be given “a chance to persuade the court based on the documentary evidence that he already disclosed to the respondent and the court”. They confirmed that the claimant would be attending the hearing by video.
The hearing
[19]The joining instructions were emailed to the parties on Friday, 6 September 2024 at 4pm.[20]The respondent joined the hearing before 10am. The claimant did not join the hearing. Through his solicitors the claimant communicated to the Tribunal that he was having technical difficulties with joining the hearing. The claimant’s solicitors did not join the hearing. Instead, they were emailing the Tribunal with information they were receiving from the claimant, also via email. The claimant’s second witness did not join the hearing, either.[21]The Tribunal’s clerk emailed the claimant advising on how to join the hearing and explaining that his technical difficulties appeared to be arising from the claimant trying to join CVP using the testing link, rather than the actual hearing room link. The claimant did not reply.[22]The clerk tried to call the claimant several times, but her calls went to voicemail. The clerk left a message for the claimant to call back. The claimant did not return the call.[23]At 11:05, on my instructions, the clerk emailed the claimant as follows: “The claimant must join the hearing using Chrome browser and the following link: https://join.meet.video.justice.gov.uk/HMCTS/#/?conference=hmcts1212@meet.video.justice.gov.uk The Tribunal has been trying to call the claimant to help him to join the hearing, but the claimant did not take or return our calls. If the claimant has technical difficulties with joining the hearing he must call the Tribunal 0207 273 8603. If the claimant does not join the hearing or call the Tribunal by 11:15am, the hearing will start in his absence. The Tribunal may dismiss the claim or proceed with the hearing in the claimant's absence. The claimant is referred to Rule 47 of the Employment Tribunal's Rules of Procedure.”[24]The claimant did not join the hearing or replied to that email. The Tribunal waited until 11:30am before starting the hearing. Neither the claimant, nor his solicitors joined the hearing.[25]The Tribunal asked Mr Foster, who appeared for the respondent, to make any representations on a way to proceed. Mr Foster asked the Tribunal to dismiss the claim under Rule 47 of the Employment Tribunals Rules of Procedure 2013 (“the ET Rules”).[26]Mr Foster argued that the claimant was given every opportunity to attend the hearing; if there were any connectivity issues, it appeared that the claimant was still able to correspond with his solicitors via email, therefore it was not clear why he did not try to contact the Tribunal, as directed; there was no evidence that he ever tried to do so; the reason the claimant was facing these issues was his decision to travel to Pakistan and not return for the hearing; the hearing was listed 11 months ago; the claimant’s application to postpone the hearing was extremely late and refused by the Tribunal.[27]Furthermore, Mr Foster argued, considering the claimant being in Pakistan and no able to give oral evidence for lack of permission to give evidence from abroad, and him electing not to give evidence, but rely on documentary evidence, and considering that the initial burden of proof was on the claimant, the claimant’s prospect of success was really poor. The option of adjourning the hearing until day 2 for Tribunal’s reading into the case is unlikely to change these circumstances.[28]The Tribunal adjourned the hearing for deliberation. The Tribunal unanimously decided to dismiss the claim under Rule 47 of the ET Rules for the following reasons.
The Law
[29]Rule 47 of the ET Rules states: Non-attendance 47. 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.[30]In Emuemukoro v Croma Vigilant (Scotland) Ltd 2022 ICR 327, EAT, considering the matter in the context of the employment tribunal’s decision to strike out the response for unreasonable conduct by the respondent, the EAT held that the question of whether a fair trial is possible must be determined not in absolute term, that is to say, by considering whether a fair trial is possible at all, but, whether a fair trial is possible within the allocated trial window. At [18,19], Choudhury J said:18. In my judgment, Ms Hunt's submissions are to be preferred. There is nothing in any of the authorities providing support for Mr Kohanzad's proposition that the question of whether a fair trial is possible is to be determined in absolute terms; that is to say by considering whether a fair trial is possible at all and not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where an application to strike-out is considered on the first day of trial, it is clearly a highly relevant consideration as to whether a fair trial is possible within that trial window. In my judgment, where a party's unreasonable conduct has resulted in a fair trial not being possible within that window, the power to strike-out is triggered. Whether or not the power ought to be exercised would depend on whether or not it is proportionate to do so.19. I do not accept Mr Kohanzad's proposition that the power can only be triggered where a D fair trial is rendered impossible in an absolute sense. That approach would not take account of all the factors that are relevant to a fair trial which the Court of Appeal in Arrow Nominees set out. These include, as I have already mentioned, the undue expenditure of time and money; the demands of other litigants; and the finite resources of the court. These are factors which are consistent with taking into account the overriding objective. If Mr Kohanzad's proposition were correct, then these considerations would all be subordinated to the feasibility of conducting a trial whilst the memories of witnesses remain sufficiently intact to deal with the issues. In my judgment, the question of fairness in this context is not confined to that issue alone, albeit that it is an important one to take into account. It would almost always be possible to have a trial of the issues if enough time and resources are thrown at it and if scant regard were paid to the consequences of delay and costs for the other parties. However, it would clearly be inconsistent with the notion of fairness generally, and the overriding objective, if the fairness question had to be considered without regard to such matters. (emphasis added)[31]S.136 of the Equality Act 2010 states: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[32]This means that the initial burden of proof is on the claimant to establish (on the balance of probabilities) facts from which the Tribunal could (as opposed to definitely would) conclude that the alleged treatment was discriminatory on the ground of one of the protected characteristics (sex, race, and religion or belief in the present case). Only if the claimant meets this initial burden, often referred to as establishing a prima facie case, the burden then shifts to the respondent to show that the protected characteristic played no part whatsoever in the reason for the treatment complained of - Igen Ltd v Wong [2005] EWCA Civ 142; [2005] IRLR 258, Madarassy v Nomura International plc [2007] IRLR 246, CA.[33]The burden of establishing a fact relied upon is on the party that relies on that fact. The standard of proof is on the balance of probabilities. Analysis and Conclusions[34]The Tribunal first considered whether the claimant had a good reason for nonattendance and concluded that he did not. The claimant was aware of the dates of the final hearing since it had been listed on 9 October 2023, 11 months ago.[35]He travelled to Pakistan in May 2024, intending to return on 13 June 2024. He chose to remain in Pakistan for family related reasons. On 22 August 2024, he prepared a witness statement, in which he confirmed that he was hoping to come back in few weeks, knowing that the hearing of his claim was due to start in 2.5 weeks’ time. He did not seek a postponement of the hearing at that time.[36]His application for a postponement was made extremely late, less than a week before the start of the hearing. It was rejected by the Tribunal. The reason the claimant gave for not returning to the UK for the hearing was that the flight fares were too expensive and he was hoping that they might become cheaper in a couple of months.[37]At no time did the claimant apply to have the hearing converted to video. That was done by the Tribunal, on its own initiative, in an attempt to rescue this 10- day hearing. The claimant did not join the hearing. When the clerk tried to assist the claimant with his apparent technical difficulties in joining the hearing room, he did not respond to the Tribunal’s emails or calls. At the same time, he was able to communicate via email with his solicitors. His solicitors, who remained on record, did not join the hearing to make any representations on behalf of the claimant.[38]In short, the Tribunal concluded that the claimant, having decided not to return to the UK for the hearing, essentially chose not to attend the hearing. The claimant had access and assistance of his solicitors. Therefore, it should have been apparent to him (with the benefit of legal advice) the likely consequences of that decision. It should have been equally apparent to him (with the benefit of legal advice) that his extremely late application to postpone the hearing on the cost of travel ground had very little (if any) chances of success.[39]Furthermore, despite the Tribunal trying to accommodate the claimant’s physical absence by converting the hearing to video, neither the claimant nor his solicitors made any real attempt to join the hearing or to properly engage with the Tribunal.[40]The Tribunal then moved to consider whether the claim can be considered on its merits in the claimant’s absence. The Tribunal concluded that it would make little (if any) sense to proceed with the hearing in the claimant’s absence. With respect to the discrimination complaints, the initial burden of proof was on the claimant. With respect to the holiday pay claim, the burden of proving facts that the claimant had not been paid for his accrued but not taken holidays (which was disputed by the respondent) was on the claimant. Therefore, in the absence of the claimant giving evidence on these issues, or otherwise presenting his positive case, his claim was bound to fail, without the respondent having to open its case. Accordingly, proceeding with the substantive hearing would essentially be going through the motions, where there was only one realistic outcome - the claim would have to be dismissed as not proven.[41]Finally, the Tribunal considered whether the hearing should be adjourned until the morning of day 2 for the Tribunal’s reading time. The Tribunal decided against that because:(i) the claimant indicated that he would be able to come back to the UK before November – December 2024, provided the airfare became cheaper;(ii) neither he, nor his solicitors said that he would be able to join the video hearing on day 2;(iii) if the claimant experienced genuine technical difficulties due to him being in a remote location in Pakistan, these were likely to persist in subsequent days of the hearing;(iv) even if the claimant were able to join the hearing on day 2 (or any subsequent day), as no permission was sought or granted for him to give evidence from Pakistan, the Tribunal would not be able to hear the claimant’s oral evidence, which in turn would mean that it would be extremely unlikely that he would be able to establish a prima facie case of discrimination or prove relevant facts for the purposes of his holiday pay claim. Furthermore, the claimant himself stated in his earlier correspondence that he was not planning on giving oral evidence.[42]For these reasons, the Tribunal concluded that adjourning the hearing for reading time and re-starting on the morning of day 2 would be a fruitless exercise, which would only result in extra costs to the respondent and wasting Tribunal’s time and limited resources.[43]The Tribunal was satisfied that the claimant was given every opportunity to have a fair hearing of his claim in the allocated trial window. For personal reasons he chose to forgo that opportunity.[44]Having duly considered all these factors, the Tribunal decided that in the circumstances the just and fair course of action was to dismiss the claim pursuant to Rule 47 of the ET Rules.