Mr O W Okandju v TSS Total Support Services: 2300606/2022 and 2300842/2022
JUDGMENT
These claims are struck out under rule 38 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (as amended), in accordance with the Unless Order of EJ Clarke dated 17 March 2024.REASONS
[1]The Claimant was employed as a cleaner by the Respondent, a company that provides cleaning services, between 21 April 2021 and 19 December 2022.[2]The nature of the claims have been and remain impossible to understand, as set out in more detail below. History of the claim[3]Following early conciliation, the Claimant submitted two ET1 Forms to the Tribunal. The first was presented on 16 February 2022 and assigned the claim number 2300606/2022. The second was presented on 2 March 2022 and was assigned claim number 2300842/2022. The two claims (‘the claims’) were consolidated on 11 August 2023.[4]As well as the ET1 Forms, the Claimant provided two documents, entitled ‘Skeleton’ and ‘Further and Better Particulars’.[5]EJ Cawthray examined these documents at a case management hearing on 5 September 2023 and described them as “not understandable”. He concluded that “the factual and legal basis of the claim was far from clear” and that “the priority was to understand the claimant’s claim”. Unfortunately EJ Cawthray’s attempts at understanding the claim were not assisted by oral submissions from the Claimant and Mr Lamina. EJ Cawthray said that as a result of those submissions “The claim became further unclear and confusing”.[6]EJ Cawthray, in a case management order dated 7 September 2023, set out the complaints that the Claimant purported to have made. EJ Cawthray set out, in over three pages, a detailed list of the information that was needed in order for the claims to be understood.[7]In response to EJ Cawthray’s order, the Claimant submitted two further documents entitled ‘New Further and Better Particulars’ and ‘New Skeleton Argument.’[8]A preliminary public hearing took place on 13 March 2023 before EJ Clarke. The Respondent applied to strike out the claims on the basis that the Claimant had failed to particularise his claims or comply with the order of EJ Cawthray.[9]EJ Clarke found that the Claimant had failed to comply with the order of EJ Cawthray and that “the claim as currently formulated was incoherent, incomprehensible, lacked factual material to explain what the case is about and could not be fairly heard.”[10]EJ Clarke said that “The Tribunal narrowly considered that it would not further the overriding objective to strike out the claim (or any part of it) at this stage. However, further information was required to allow the claim to progress and an unless order was a proportionate way to balance the interests of both parties and ensure a fair use of the Tribunal’s resources.” (emphasis in original)[11]EJ Clarke directed (in paragraph 11 of the Case Management Order dated 17 March 2024) that the Claimant write to the Tribunal by 17 May with a single document of no more than 5 pages in length, typed in 12-point font, with 1.5 line spacing, containing the information required by paragraph 12. EJ Clarke directed that “the information in the document must be clear, factual, and must not include argument” and that the information must appear under subheadings as set out in paragraph 12.[12]EJ Clarke then set out a list of very specific directions of the required information, covering over three pages and 13 subheadings, in paragraph 12.[13]EJ Clarke made an order at paragraph 13 in the following terms: “If the Claimant does not provide the factual information required by the directions below in the stated format, his claim will be automatically struck out without further order”. (‘the Unless Order’)[14]EJ Clarke recorded that the Claimant was explicitly told, via an interpreter, that he had failed to provide enough information about his claims to enable his case to progress. He was told that he must do so. He was told that his failure to do so to that point was unhelpful and prejudicial to his case. He was told that it was unfair to the Respondent, who had been put to additional expense, and that the Respondent could not reply to his claims until it was clear what they are. He was told that this was his final opportunity to enable his claims to be understood and that if he did not comply fully with the Case Management Order then his claims may be struck out.[15]EJ Clarke listed a further public preliminary hearing, to consider three issues (set out in paragraph 3):(1) First, to decide whether the Claimant had complied with the terms of the Unless Order (‘the first issue’).(2) Second, to consider whether any of the claims that had been brought should be struck out or subjected to a deposit order (‘the second issue’).(3) Third, to settle the list of issues, make case management directions, and schedule a hearing date (‘the third issue’).[16]The Claimant provided a document entitled ‘Detailing of Material Facts’ and dated 29 April 2024. This was supplied to the Tribunal by email on 14 may 2024.[17]The public preliminary hearing was listed to take place on 18 June 2024.[18]On 7 June 2024, Mr O’Toole submitted that the Claimant had failed to comply with the Unless Order and requested that the Claim should be automatically struck out.[19]On or around 13 June 2024, Mr Lamina made an application for the hearing listed for 18 June 2024 be adjourned on the basis that the Claimant was unwell. This application was resisted by Mr O’Toole. The public preliminary hearing of 18 June 2024[20]The Claimant attended the hearing via video link. He was assisted by Mr Ilunga, a Lingala interpreter. Aside from a part of the hearing which was spent with the representatives trying to identify documents, the submissions and my decisions were summarised to him, and he had the opportunity to respond to them.[21]The Claimant attended the hearing from his bed. He was in obvious discomfort at some points during the hearing. However he remained throughout the hearing and was able to engage with the Tribunal via the interpreter.[22]Mr Lamina attended the hearing some 20 minutes late. He said that he had technical difficulty accessing the CVP link. Adjournment[23]Mr Lamina said that the Claimant was too unwell to participate in the hearing. I made it clear to him that he needed to show me evidence that the Claimant would not be able to participate in today’s hearing. He put forward the following evidence:(a) A print out of medical notes dated September 2023.(b) A letter dated 21 May 2024 saying that the Claimant had a telephone appointment on 7 June 2024, before scheduled surgery.(c) A letter dated 31 May 2024 saying that the Claimant had an appointment with a physiotherapist on 10 July 2024.(d) Six photographs of the Claimant in a wheel chair wearing a hospital gown. The Claimant confirmed that these were taken on 4 June 2024. He had been discharged from hospital on 5 June 2024.(e) A photograph of medication that the Claimant had been prescribed by the hospital. The label read “This medication can make you sleepy. Do not drive while taking this medication”.[24]Mr Lamina said that the Claimant was suffering from a hernia, which remained untreated and was causing him significant pain. The medical notes included notes indicating that the Claimant had a hernia. The Claimant was taking medication and unable to articulate his thoughts. The Claimant would remain unwell until he had surgery to address his hernia. He did not know when that would be.[25]Mr Lamina also said that the Claimant was suffering from depression. This would be recorded in notes held by his GP but not before the Tribunal. He said that the Claimant was dying.[26]The Claimant said that he was feeling unwell. He had been admitted to hospital on 4 June 2024 after a fall. He was prescribed painkillers and discharged. He was waiting for a follow up appointment. He had a persistent cough.[27]Mr O’Toole resisted the application for adjournment. He expressed sympathy for the Claimant. He drew attention to the way that the facts as presented by the Claimant had changed – for example, the Tribunal was told the Claimant was still at hospital on the day of the hearing when he plainly was not. In any event, it was a question of fact whether or not the Unless Order had been complied with and that did not need the Claimant to be able to give detailed instruction.[28]Having considered the evidence and submissions, I concluded as follows:(a) There was no medical evidence in front of me to show that the Claimant was suffering from depression or any fatal condition.(b) It may well be the case that the Claimant has a hernia which causes him pain and has not yet been addressed by surgery. But this of itself does not mean that he was unfit to participate in the hearing.(c) The Claimant had however showed me evidence that he was taking medication that might affect his concentration.[29]I reminded myself that there were three issues to be considered today. The first issue was that of compliance with the Unless Order. This was a matter of fact which I could decide without requiring detailed input from the Claimant. The Claimant had the assistance of Mr Lamina who could help me with this question.[30]I said that I was narrowly persuaded, by the evidence relating to the medication only, that we would not be able to fairly consider the second and third issues today. This was because the Claimant may need to give detailed responses and it was possible that his medication might affect his ability to respond. I indicated that should we progress to those issues, I would adjourn the hearing at that point. But we would continue to deal with the first issue. Compliance with the Unless Order[31]Mr O’Toole noted his 7 June 2024 application for a strike out. He did not feel it was necessary as the Unless Order had already been made by EJ Clarke. The Claimant had been clearly told what was required and had failed to provide it, against all 13 subheadings set out by EJ Clarke. The information required by EJ Clarke was clearly missing. The Claimant had not complied with it and so the claim could be struck out with no need for any further order. This was the third hearing and the Claimant had still not identified his claims. It was unfair to the Respondent to bear the costs of repeated hearings while the matter was no closer to resolution. The route towards resolution had been identified by EJ Clarke and the Claimant had failed to follow it. The Claimant had come within a whisker of having the claims struck out at two previous hearings and there was no reason not to do so now.[32]Mr O’Toole said that in the alternative he would like a decision on his application to strike out, and would like to make an application for deposit orders if that was not successful. I reminded him that I was considering the first issue and that if we moved past that issue that I had indicated I would adjourn the hearing rather than deal with the second issue today.[33]Mr Lamina stated that the Unless Order had been complied with by submission of the ‘Detailing of Material Facts’ document. He appreciated that the Claimant could not shy away from what was required by the Unless Order. The Claimant had been told by EJ Clarke that he should use simple language. He is a layman and does not understand the technical language of the Tribunal. He has used layman’s terms in his document and should not be penalised for that. These are not vexatious or trivial claims. The penalty of strike out is a last resort and should be used sparingly. The Claimant is ill and that should be taken into account. It was unfair to the Claimant for the Respondent to focus upon the costs of this claim.[34]The Claimant confirmed, via the interpreter, that he was aware of the Unless Order, that he had a copy, and he was aware of the consequences of failing to comply with it. He was also aware of the ‘Detailing of Material Facts’ document and was familiar with its contents.[35]As the hearing had reached the end of the allotted time, I reserved judgment on the first issue. I explained to the Claimant that he would reach a decision in writing and that:(a) if I concluded he had failed to comply with the Unless Order, the claims would be struck out;(b) if I concluded that he had complied, the case would be listed for a further public preliminary hearing to discuss the second and third issues. Compliance with the Unless Order[36]I remind myself that:(a) I am not concerned with revisiting the terms of the Unless Order. The only question for me to determine is whether there has been material compliance with the Unless Order: Minnoch v Interserve FM Ltd [2023] IRLR 491. In doing so I remind myself that the test is qualitative rather than quantitative, that my approach should be facilitative rather than punitive, and that any ambiguity should be resolved in favour of the Claimant.(b) Compliance does not have to be precise or exact: Johnson v Oldham MBC [2013] 4 WLUK 386.(c) Partial compliance is not sufficient: Royal Bank of Scotland v Abraham [2009] 8 WLUK 259.[37]The parties were on notice that I would consider this issue, and I have had the benefit of submissions from both parties.[38]The ‘Detailing of Material Facts document’ was not in the format directed by EJ Clarke. It was longer than 7 pages, the typeface and spacing were too large, it did not contain the mandatory sub-headings. This does not of itself indicate material non-compliance.[39]The Unless Order required very specific information which is simply not present in the ‘Detailing of Material Facts’ document. To give three examples:(a) The Unless Order required that the Claimant should state whether he is withdrawing his complaint of unfair dismissal or not. I asked Mr Lamina where in the ‘Detailing of Material Facts’ document I could find the answer to this question. I was taken to paragraph 1, which states “I am writing to formally appealing the decision regarding my recent dismissal from my position at VIP Club House at Wimbledon Tennis Stadium. I believe my dismissal was not only unjust but also in breach of our contractual agreement and employment laws that protect workers rights.” This text does not indicate whether or not the Claimant wishes to withdraw his claim for unfair dismissal. I could not find the answer to this question anywhere else in the ‘Detailing of Material Facts’ document. It simply fails to comply with this requirement of the Unless Order at all.(b) The Unless Order required that the Claimant must confirm whether or not he was seeking to bring a claim of automatically unfair dismissal on the basis that he had made a protected disclosure. I asked Mr Lamina where in the ‘Detailing of Material Facts’ document I could find the answer to this question. I was taken to paragraphs 3, 5, 12, and 13. Paragraph 3 says “Firstly, it is important to address that my contract as a permanent employee was not honoured. Despite my status, I was treated as a zero-hour contracted employee, which is inconsistent with the terms agreed upon at the start of my employment. This treatment began notably after I returned from medical leave, which was necessitated due to an illness I contracted under hazardous working conditions – a situation that already highlights a failure to maintain a safe working environment as per regulatory standards.” Paragraph 5 says “During the championship period, there was an incentive offered wherein employees who worked 21 consecutive days without a break would receive a bonus in addition to their regular pay. Motivated by this incentive, I worked continuously from June 19, 2021, to July 16, 2021. However, despite meeting these requirements, the promised bonus was not provided, only a certificate acknowledging the achievement.” Paragraph 12 reads “Shortly after I discovered that my name was no longer on the shift list, and I would have to add myself to the list to sign in this went on for a while.” Paragraph 13 reads “On September 21st, Tamara Sanchez assigned me to work at Centre Court with a group of employees tasked with different responsibilities and training than mine. I was tasked with handling chemical products, specifically Teepol degreaser and vanquish, using incorrect equipment, which resulted in burns to my hands. This lack of proper equipment, including a mask to prevent inhalation of fumes, was concerning and displayed a lack of professionalism.” None of these paragraphs touch upon dismissal at all, they deal with events during employment instead. They do not identify any disclosure which is said to be a protected disclosure. They do not answer the question of whether the Claimant was seeking to bring a claim of automatic unfair dismissal on the basis that he had made a protected disclosure. They simply fail to comply with this requirement of the Unless Order at all.(c) The Unless Order required that the Claimant identify which public interest reason applies to the disclosure. It sets out the six public interest factors. I asked Mr Lamina where in the ‘Detailing of Material Facts’ document I could find the public interest factor on which the Claimant seeks to rely. I was taken to paragraphs 14 and 16-20. Paragraph 14 reads “Additionally, I was informed of a sudden change in my working location to Salisbury, which was outside of London and not previously discussed or acknowledged by me. This decision, orchestrated by Tamara and Danny, involved instructing a supervisor at the new location to transport me via a Fiat van. Upon arrival, I found myself working in a dark, dusty tunnel which I could barely see, without the appropriate uniform or mask once again. The change of work location became consistent, in positions I had no training on and they didn’t provide training.” It is impossible to ascertain any public interest reason from this text. Paragraphs 16-20 read “16. Since returning from leave, I have been sent to various locations, an apparent strategy to induce my resignation prematurely. This sequence of actions suggests a disregard for my welfare and rights as an employee, which I find deeply concerning and contrary to the values VIP Clubhouse of the Wimbledon Tennis Stadium claims to uphold. 17. I request a thorough review of my case, taking into consideration the health risks posed by the assigned duties, the deviation from the contractual employment terms, and the treatment I received upon my return from sickness leave. I believe that upon review, VIP Clubhouse of the Wimbledon Tennis Stadium will find that my dismissal does not align with fair employment practices. 18. I am prepared to discuss this matter at your earliest convenience and am hopeful got a resolution that considers the severity of the oversight and its impacts on my professional and personal life. 19. Thank you for addressing this matter with the seriousness it deserves. I look forward to your response. 20. I am still under medical treatments and medications in severe pain and stress including Hania from undertaking lots of work through punishing me for telling the manager about the wrong and bad practice at work and I am under doctor supervision for medical anxiety.” Again, it is impossible to identify any specific public interest factor from this text. One paragraph (16) sets out treatment which is said to be unfair but makes no comment on its cause. Three paragraphs (17-19) are not on point at all. The reference to “wrong and ad practice at work” in the final paragraph (20) could variously be interpreted as being a reference to criminal conduct, failure to comply with a legal obligation, health and safety being endangered, or environmental damage. It is impossible to say which. They simply fail to comply with this requirement of the Unless Order at all.[40]It is similarly impossible to find the rest of the information directed by EJ Clarke. Without going through the three pages of EJ Clarke’s directions in detail, I note the following:(a) No act is identified as being an act of discrimination, or an act of harassment.(b) It is not said at all how any conduct relates to race.(c) The details of the sums the Claimant claims he is owed, nor how they have been calculated, do not appear.(d) The Claimant does not say what his notice period was.(e) The Claimant does not say how much holiday he had accrued.(f) The Claimant does not identify the legal basis on which the Tribunal may consider any claim relating to health and safety.[41]It is clear to me for these reasons that there is no material compliance with the Order. The Claimant has not even partially complied with it. I accordingly find that the Claimant has failed to materially comply with the Unless Order.[42]I did consider whether I should use my discretion to set aside the Unless Order.[43]I remind myself of the overriding objective of dealing with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable:(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.[44]I bear in mind that EJ Clarke was only narrowly persuaded that the claims should not have been struck out in March 2023.[45]The Claimant has now had three opportunities to present a coherent claim and still has not done so. He has had the benefit of assistance from both EJ Cawthray and EJ Clarke, who have told him what he needs to explain and why. EJ Clarke could not have been clearer in her order what information was required, and what the consequences of failing to provide it would be. The Claimant was made well aware in March 2023 of the consequences of failure to comply with the Unless Order. He confirmed to me that he understood that. Nevertheless, we are no nearer any resolution of that issue than we were in September 2023 and I have little confidence that the Claimant will be any more successful in explaining his claim on a fourth attempt than he has been to date.[46]The only way that the Respondent could possibly respond to this claim would be to speculate from the facts what breaches may have arisen. This is deeply unfair to the Respondent and wholly disproportionate. It is also unfair to the Respondent to have to keep attending the Tribunal, at cost to them, to respond to a claim that they cannot understand.[47]It is not a proportionate use of the Tribunal’s time to try and tease out the Claimant’s claims on his behalf. The Claimant has had three case management hearings and has been aware from the start that he needed to properly set out the claims. EJ Clarke explained to him in March 2023 that he had been given a last chance, and he understood that. Yet he still has not given the necessary information to enable the Tribunal or the Respondent to understand his claims. He cannot be surprised at the consequences of failing to do so.[48]For these reasons, it is wholly inappropriate for me to use my discretion to set aside the Unless Order.[49]The claims must accordingly be struck out in line with the Unless Order, and the Claimant is so notified in line with rule 38(1). Employment Judge Atkins 21 June 2024 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions.