Miss A McQuilkin v National Probation Service: 2302444/2018
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claim for Disability Discrimination succeeds and the remedy to which the claimant is entitled will be determined at a Remedy Hearing. Employment Judge Martin Date: 04 April 2019 Case No: 2302444/2018 1 EMPLOYMENT TRIBUNALS BETWEEN CLAIMANT V RESPONDENT Miss A McQuilkin London Probation Service Heard at: London South Employment Tribunal On: 6 November 2020 Before: Employment Judge Hyams-Parish Representation: For the Claimant: Did not attend For the Respondent: Ms G Hirsch (Counsel)REASONS
Claim
[1]By a claim form presented to the Tribunal on 17 August 2014 the Claimant brings claims of disability discrimination.[2]In the absence of any response received by the Respondent to the claim, a Judgment pursuant to Rule 21 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Tribunal Rules”) was entered by Employment Judge Martin and sent out to the parties on 13 April Case No: 2302444/2018 2 2019.[3]The Respondent seeks a reconsideration of the above Judgment and asks that it be set aside so that it is able to defend the claim.Background
[4]The Claimant was, according to her claim form, employed by the London Probation Trust from 13 October 2003 to 20 December 2013.[5]She presented her claim form in the Employment Tribunal on 17 August 2014. At that point, Tribunal fees were in place. It appears that she did not apply for a fee exemption, despite the fact that she was unemployed at the date of presenting her claim.[6]In October 2017, the Claimant issued further proceedings at London East Employment Tribunal against the National Probation Service, allegedly arising out of the same employment and its termination in 2013. I have not made any determination whether it is in fact the same claim as that lodged at this Employment Tribunal. That claim is referred to here as the London East case. A response to that claim was filed by the Respondent.[7]On 24 November 2017, HMCTS wrote to the Claimant following the Supreme Court Judgment in the Unison case regarding Tribunal fees, to ask the Claimant if she wished to have her claim considered for reinstatement. That letter gave the Claimant a three-month deadline to respond, i.e. by 23 February 2017. I am informed by Ms Hirsch that the Claimant did not respond by the deadline.[8]A preliminary hearing in the London East case was held on 5 January 2018. During that hearing the Claimant did mention that she had issued another claim previously but not that the HMCTS had written to her asking whether she would like to reinstate her claim.[9]Three days after the above preliminary hearing in London East, the Claimant was sent a form and letter asking again whether she wished to reinstate the claim issued in 2014. The signed page of the form that I have seen shows that the Claimant did not sign that form until 11 June 2018, and did not send it until 12 June 2018, over three months after the deadline. She makes no mention of the London East claim.[10]The Claimant did not inform the Respondent of the developments at paragraph 9 above. Therefore, it proceeded with a lengthy and complex preliminary hearing against multiple parties of which the Respondent was one. Had they known of the current claim, Ms Hirsch says that the Respondent may well have applied for a stay in the London East case.[11]On 29 June 2018, a notice of claim in the current case was sent to the Case No: 2302444/2018 3 London Probation Trust.[12]On 24 July 2018, a judgment was sent to the parties in the London East case striking out the claims in their entirety.[13]On 3 September 2018, this Employment Tribunal wrote to the Claimant to clarify which successor organisation was the correct Respondent for her current claim, given that she had named a Respondent, London Probation Trust, that no longer existed.[14]The Claimant appealed against the London East judgment to the Employment Appeal Tribunal, which included an allegation of bias against Employment Judge Pritchard. This appeal subsequently failed.[15]On 20 December 2018, it appears that this Employment Tribunal sent the National Probation Service a substituted service of claim letter stating that “a claim as been made against the Respondent”. It is not, however, clear whether that letter was ever received by the Respondent. Ms Hirsch informs me that the Respondent has no record of having received it.[16]A Rule 21 judgment was sent to the parties on 13 April 2019 but did not come to the Respondent's attention until 2 May 2019. The judgment came as a surprise to the Respondent given that they had already successfully defended the London East case.[17]The Respondent contacted the Tribunal and was sent a copy of the claim form on 22 May 2019. It sent a detailed application to set aside the judgment, together with a draft response, on 28 May 2019.Law
[18]Rule 70 of the Tribunal Rules provides that a Tribunal may reconsider a judgment where it is necessary in the interests of justice to do so. In considering whether to set aside a Rule 21 judgment, a Tribunal will take into account a number of factors, such as the Respondent's explanation as to their failure to present a response within the applicable time limits, the merits of any response, and the balance of prejudice between the parties.Preliminary matters
[19]Following the application by the Respondent to reconsider the Rule 21 judgment, this matter was listed before Employment Judge Martin on 14 May 2020. Employment Judge Martin listed today’s hearing to consider(i) whether the Rule 21 Judgment should be set aside(ii) and if it was set aside, whether to strike out the claim on the grounds that the claim has already been determined by Employment Judge Pritchard at London East Employment Tribunal. Case No: 2302444/2018 4[20]The Respondent was ordered to send to the Claimant its submissions in relation to both matters at paragraph 19 above by 11 June 2020. The Claimant was ordered to provide any reply by 9 October 2020. The Claimant was in attendance at the above hearing.[21]The Claimant did not appear at today’s hearing. On 8 October 2020, she wrote to the Tribunal by email stating that she was experiencing poor mental health and other health issues. She referred to being subjected to a sustained campaign of harassment on social media. She said that she had been unable to prepare her case. Whilst she had spoken to the Disability Law Service, who she said had agreed to represent her, the representative was not available to attend today. Looking through the file, there is no correspondence from the Disability Law Service suggesting that they are now representing the Claimant.[22]Attached to her email on 8 October 2020 was an email from the Claimant's GP saying: I can confirm that the above patient has a diagnosis of Schizophrenia and takes regular medication for this. She is currently reporting mental health concerns and is worried that she will not be able to prepare and be ready for the upcoming Employment Tribunal hearing on November 6th 2020.[23]Prior to today’s hearing, the clerk telephoned the Claimant to ask her whether she would be attending and asked her whether she had submitted any reply to the Respondent's application. She referred to the email and the letter from the doctor referred to above.[24]I asked Ms Hirsch how she was inviting me to proceed today. She said she was inviting me to proceed in the Claimant's absence on the reconsideration issue. She said that the Claimant had been given ample opportunity to respond. There was no indication when the Claimant would be in a position to attend and it was reasonable for the Respondent to expect progress in their case. She said it was unlikely that the Claimant could add much more by way of response, given that much of this rested on the Respondent's reasons for the delay. She said that it was in accordance with the overriding objective, in particular to avoid further delay and saving expense, to proceed on that point. She accepted that consideration would need to be given to postponing the application to strike out but invited me to make an unless order if I chose to postpone.[25]In reaching my decision on this issue, I considered the medical evidence supplied by the Claimant. It was very brief and did not state that the Claimant could not attend today or that she could not provide the response to the Respondent's application as requested by Employment Judge Martin. The letter simply stated that the Claimant was worried that she would not be able to attend. Finally, the letter gave no indication when the Claimant Case No: 2302444/2018 5 would be in a position to attend or provide the information ordered. I concluded that it was in the interests of the overriding objective to proceed in the Claimant's absence on the reconsideration application only. I was concerned about the age of this case and the further delay that would follow. I concluded that the Respondent should receive a determination on this application.[26]I decided not to proceed with the strike out application in the circumstances but to provide the Claimant with a further opportunity to provide the necessary information requested. I was also conscious that I did not have before me today, a copy of the London East claim form. I concluded that an unless order was appropriate. This is annexed to this judgment. Reconsideration application[27]I consider this case to be rather exceptional. The Claimant having left the Respondent's employment in 2013, and having already defended a claim in London East, it was not expecting a further claim to be lodged by the Claimant. During the period between the termination of the Claimant's employment and the reinstatement of the claim form, the name of the Respondent had changed. I accept the Respondent's evidence that they checked their records to ascertain whether a claim form had been received from the Claimant in 2018 and they did not receive it. It is not a case where the Respondent has sat on a claim form and done nothing about it. Had they received it, they would have responded.[28]I am further persuaded by the merits of the response and consider that there is a reasonable chance that this claim is the same as the London East case. I cannot be certain of that but I have looked at a detailed judgment by Employment Judge Pritchard in which he refers to the London East claim and the facts that support it. If that is right and the claims are the same, the res judicata principle would prevent the Claimant from pursuing the claim at this Tribunal and consideration would need to be given whether the Tribunal has jurisdiction to hear it. It is clearly in the interests of justice to allow the claim to be defended so that the above res judicata point can be resolved. I have considered the balance of prejudice and concluded that there is greater prejudice to the Respondent in not allowing them to defend theclaim.
[29]For the above reasons, I have concluded that the Rule 21 judgment should be set aside. ……………………………………………… Employment Judge Hyams-Parish 06 November 2020 Case No: 2302444/2018 6 UNLESS ORDER Rule 38 of the Employment Tribunals Rules of Procedure 2013 Having heard representations by Counsel for the Respondent at a hearing on 6 November 2020, at which the Claimant did not attend, Employment Judge Hyams-Parish ORDERS that: Case No: 2302444/2018 7 Unless by 4pm on 5 February 2021 the Claimant complies with either orders at (a) or (b) below, all of the claims under the above case number shall stand as dismissed without further order.(a) The Claimant shall write to the Respondent and the Tribunal clearly setting out how her current claim is different to the one that was struck out by Employment Judge Pritchard at London East Employment Tribunal (Claim Number 3201082/2017);(b) If due to her mental health, the Claimant is unable to comply with (a) she must, by the same date, provide to the Respondent and the Tribunal a letter from her GP or other treating practitioner, confirming that due to her mental health she is unable to comply, the reasons which support the above conclusion, and a clear indication when it would be anticipated that the Claimant will be in a position to comply. Should there be compliance with either (a) or (b) above, the parties will be required to attend an open preliminary hearing on 18 February 2021 at 10am to consider whether the claim should be struck out on any of the following grounds provided by Rule 37 of the Employment Tribunal Rules, namely: ▪ that the claim is scandalous or vexatious or has no reasonable prospect of success (because the Tribunal has no jurisdiction to hear it as the claim has already been determined by London East Employment Tribunal) ▪ that the manner in which the proceedings have been conducted by or on behalf of the Claimant (as the case may be) has been scandalous, unreasonable or vexatious; ▪ for non-compliance with any of these Rules or with an order of the Tribunal; ▪ that the claim has not been actively pursued; or ▪ that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim. Case Number: 2302444/2018 (CVP) THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE HARRINGTON (sitting alone) ON: 3 March 2021 BETWEEN: Miss A McQuilkin Claimant and National Probation Service Respondent Appearances: For the Claimant: In person For the Respondent: Miss G Hirsch, CounselIntroduction
[30]Miss Hirsch further submitted that the Claimant’s claims have no reasonable prospects of success. Neither party has a copy of the Claimant’s resignation letter and there is nothing in the response to the resignation letter to suggest that the Claimant referred to alleged harassment when resigning. It was also argued that the information provided with the ET1 [18] lacks specifics such as relevant dates, times and witnesses. The Respondent submits that the drafting of the complaint suggests that ‘even the Claimant herself is not sure exactly what was said or done, by whom, and when, sufficient to found a case which is capable of discharging the burden of proof of a prima facie case’.[31]With reference to the Claimant’s Statement submitted for this hearing, Miss Hirsch noted that there seemed to be an upsurge of allegations around 2007 when the Claimant says she suffered a psychotic episode. Miss Hirsch submitted that this was likely to make it more difficult for the Claimant to prove that her allegations around this time were true. Further, she identified that many of the allegations were extremely vague and that, if there had been further evidence which supported the points made, that evidence should have been produced or identified by the Claimant. Unreasonable Conduct[32]The Respondent submits that the Claimant should have alerted the London East Tribunal to the rejuvenation of the London South claim. In particular, reference is made to the fact that the Claimant signed and returned the letter of 8 January 2018 three days before the second hearing in the London East claim. It is said that by delaying her response to the letter of 8 January 2018 and failing to inform the London East Tribunal of the rejuvenation of the London South claim, the Claimant was acting unreasonably such that this claim should be struck out. The Respondent contends that the Claimant was unreasonably trying to keep her options open with both claims. Claimant’s submissions[33]The Claimant confirmed that this claim relates to matters from 2007 until her resignation in November 2013.[34]The Claimant told me that she was admitted to hospital and sectioned in February 2014. She recollects that she was discharged from section in April 2014. Following this and in May 2014, the Claimant began volunteering two days a week at an employment club. This voluntary Case Number: 2302444/2018 (CVP) work included assisting those with mental health issues / drafting applications for courses and job searches. In addition at this time, and as a condition of receiving Employment and Support Allowance, the Claimant was actively looking for work herself, including registering with job agencies. This culminated in the Claimant being offered work as a temporary probation officer in Watford. The Claimant says that she started this work for Watford Probation Service in August 2014.[35]With regards to the prospects of her claim succeeding, the Claimant said that her recording of matters during the years of 2007 – 2013 was not very specific as she had mental health problems. She had not kept an exact, detailed account. She told me that she knows that she has ‘bits and pieces all over the place’ but she doesn’t have a diary. The Claimant referred to having ‘boxes and boxes of papers, things just chucked in and left’ but that she would make every effort to try to pull it together. The Claimant referred to having a psychotic episode in 2007 and that she had been sectioned in 2000, 2002, 2004, 2010 and 2013-2014.[36]In respect of the argument of unreasonable conduct, the Claimant stated that she had told EJ Pritchard about the London South claim in January 2018 and he had said that she should go ahead and reinstate it. The Claimant says that she was unaware that she had to inform the London South Tribunal about the London East claim. The Claimant said that she may not have told EJ Pritchard about sending the letter on 11 June 2018 but that he had known she was going to seek to reinstate the claim. The Claimant considered it to be a separate matter.Conclusions
[37]I have considered the entirety of the documentary materials provided to the Tribunal and the submissions made by both parties.[38]It is my Judgment that the claim has been brought outside of the primary limitation period and it is not just and equitable to extend time. Further, the claim has no reasonable prospects of success pursuant to Rule 37 of the ETs (Constitution & Rules of Procedure) Regulations 2013, Schedule 1. Accordingly the entirety of the claim is dismissed.[39]I accept the Respondent’s submission that the Claimant’s claim was presented outside the primary limitation period. This is clear, even taking account of early conciliation. In those circumstances, I must then consider whether to exercise my discretion to extend time by such period as I think is just and equitable.[40]The Claimant has had a full opportunity to provide her response to the Respondent’s application for her claim to be struck out. This included my specific direction in the Case Management Order dated 21 February 2021 for her to provide written submissions focusing on the arguments set out in Miss Hirsch’s skeleton argument. Despite this, Case Number: 2302444/2018 (CVP) the Claimant has not sought to address why her claim was presented late to the Tribunal. Nor has she provided any evidence to support her response to the Respondent’s application – for example, medical evidence.[41]The Claimant told me that she had a period of illness following her dismissal but that by May 2014 she was volunteering at an employment club. This volunteering comprised her actively helping the club’s members in administrative tasks and correspondence for applying for courses and jobs. She was able to undertake this work at this time. Further, the Claimant was able to carry out her own job search at this time including registering with employment agencies. The Claimant did not provide any explanation as to why she was able to carry out these tasks but was not able to present her claim for, approximately, a further three months.[42]I also accept that the delay in presenting the claim did negatively affect the Respondent’s ability to investigate the claim while matters were reasonably fresh. This is particularly significant as the claim appears to indicate the involvement of a wide number of personnel over a lengthy period of time.[43]Accordingly, I am not satisfied that it is just and equitable to extend time for bringing the claim.[44]I also accept the Respondent’s submission that the Claimant’s claim has no reasonable prospects of success. In reaching this conclusion, I have read the entirety of the Statement produced for today’s hearing and the documents to which I have been referred to in the bundle. I have concluded that the claim, as this stage, is not capable of meaningful understanding. The Claimant has provided pages of narrative in her Statement but it remains difficult to place, with any certainty, the allegations she makes both in terms of time and identity of those said to be involved. During the hearing today, this issue was explored with the Claimant. She tells me about her ongoing mental ill health and says that she will try to piece together the large volume of evidence that she says she has in ‘boxes and boxes’ of papers and other bits and pieces.[45]In short, the position at this stage is that the claim is not sufficiently particularised with the necessary clarity so as to be capable of meaningful understanding. It is for that reason that the claim has no reasonable prospects of success. For the avoidance of doubt, I am not satisfied that, even if the Tribunal was persuaded to give the Claimant more time to seek to provide the necessary clarity, that the Claimant would be able to do this. Most recently, I required her to provide any written submissions she had in respect of Miss Hirsch’s written argument for this application and the very lengthy Statement produced by the Claimant did not do this. Case Number: 2302444/2018 (CVP)[46]Accordingly, I am satisfied that the claim should be struck out, as it has no reasonable prospects of success.[47]The Respondent makes a further argument that the manner in which the Claimant has conducted the proceedings has been unreasonable. The Claimant did delay for a significant period of time in responding to the letter from HMCTS dated 8 January 2018. In the event, she responded just prior to the second hearing in the London East claim. However I have taken into account the fact that the Claimant did refer EJ Pritchard to the London South claim at the first hearing in London East. There was therefore some knowledge of there being two claims and the prospect of the Claimant reinstating the London South claim. I am not satisfied that the Claimant, representing herself, was aware of any ongoing obligation to update the London East tribunal with regards to her London South claim, following her initial mention of the claim. I accept the Claimant’s explanation that she thought it was a separate matter and in those circumstances, I am not satisfied that her conduct was unreasonable as submitted by the Respondent.[48]As the Respondent’s first two arguments are well founded, the Respondent’s application succeeds and the Claimant’s claim shall proceed no further.