Mr S Wakeman v Boys & Maughan and Mr A Baker: 2303980/2019
JUDGMENT
FROM A PRELIMINARY HEARING It is the judgment of the Tribunal that the Respondents’ application to strike out the Claimant’s claims is unsuccessful and the Respondent’s application for a deposit order is successful with regard to the Claimant’s claims of age discrimination both direct age discrimination and age harassment and also the claim of a refusal to provide a rest break contrary to Regulation 10(1) of the Working Time Regulations 1998.REASONS
[1]The Claimant was employed as a Solicitor by the First Respondent from 23 October 2017 until 16 May 2019 when he was dismissed. The Claimant brought a claim on 13 September 2019 for automatic unfair dismissal, age and sex discrimination or harassment, notice pay, holiday pay and “other payments”.The hearing
[2]This one day Preliminary Hearing was listed by EJ Manley during a Preliminary Hearing held on 18 October 2021 to decide:(i) (I) Whether the unless order of EJ Wright of 5 May 2021 should be varied or set aside;(ii) (II) If not, whether to grant relief from sanction to the claimant to allow the claim to proceed;(iii) (III) If the claim is allowed to proceed, whether the claimant’s application of 4 June 2021 to strike out the response should be granted; and(iv) (IV) If the claim is allowed to proceed, what case management orders should be made. These include an outstanding request for specific disclosure, a final list of issues to be agreed and the usual orders to prepare and list for final hearing.[3]By letter dated 8 January 2022 the Claimant had also made an application for an anonymisation order under Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”).[4]I heard witness evidence and submissions on issues I and II. The Claimant provided two witness statements with annexes and a bundle of 351 pages. The Respondent provided three witness statements with annexes and a bundle of 382 pages. The Claimant gave evidence on his own behalf and Matthew Champ (Partner at the First Respondent) gave evidence on behalf of the Respondents. I am grateful to both Ms Banton and Mr Brown for the comprehensive skeleton arguments and oral submissions on issues I and II. Ms Banton provided 5 authorities. Counsel also provided oral submissions in relation to the Rule 50 application.Findings of Fact
[5]The Claimant is an experienced Solicitor who worked for the First Respondent as a Civil Litigator. He also had conduct of Employment Tribunal proceedings.[6]The Claimant did not allow the Respondents to communicate with him via email.[7]At a Preliminary Hearing on 5 March 2020 where both parties were present and represented by Counsel, Employment Judge Freer agreed the dates of the final hearing with the parties (14 – 18 September 2020) and gave Case Management Orders including that: Case Number: 2303980/2019 3 of 10 “On or before 17 April 2020, the parties shall prepare and exchange a list of all documents which are or have been in their respective power, possession or control…”; and “On or before 01 May 2020, a party may make any request of the other party for the production of documents on that party’s list and those documents shall be supplied by a way of copies within seven days of the request.”.[8]EJ Freer also Ordered that by 3 July 2020, there “shall be a simultaneous exchange of witness statements”. The written Order was not sent out to the parties until 1 September 2020 (the “Case Management Order”).[9]The covid pandemic began towards the end of March 2020. The Claimant and Respondents’ ability to scan and copy documents was adversely affected. The Claimant gave evidence that he had made a number of telephone enquiries about scanning/copying but had been unable to get through. The Tribunal rejects this evidence as unlikely that over the course of the year the Claimant would have been unable to secure assistance from reprographics companies.[10]The parties exchanged lists of documents on 24/25 April 2020. The Respondents provided most of the copies of the documents contained in its list of documents but did not provide those documents that the Claimant already had possession of. There were some other documents that the Claimant wanted the Respondents to disclose. The Claimant did not provide any copies of his disclosure documents, despite being repeatedly asked to do so by the Respondents. The Claimant gave evidence to the Tribunal that he had understood their requests for copies of their disclosure to mean copies of the list itself (that he had already given them). This is not credible from an experienced civil litigator who undertook employment litigation.[11]On 20 May 2020 the First Respondent made an application to the Tribunal for an unless order as the Claimant had failed to provide copies of the documents contained in his disclosure list. In the emailed application the First Respondent said that as the Claimant did not have an email address a hard copy of the application would be sent to him.[12]On 23 June 2020 the Claimant applied for an extension of time for exchange of witness statements to 21 days before the final hearing. On 24 June 2020 the Respondents replied that they were content for exchange of witness statement to be postponed to 3 August 2020.[13]In August 2020 the Respondents filed their witness statements with the Tribunal.[14]The 14 – 18 September 2020 hearing dates were vacated due to lack of judicial resource.[15]From May 2020 to December 2020 the Respondents chased the Tribunal for an unless order. Mr Champ accepted in cross examination that some of the chasing emails were not copied to the Claimant as they should have been by virtue of Rule 92. Case Number: 2303980/2019 4 of 10[16]On 7 December 2020 EJ Balogun made an unless order that in accordance with the 1 September 2020 Case Management Order, unless by 30 December 2020 the Claimant sends to the Respondents disclosure of documents and witness statements all claims will stand dismissed without further order (the “First Unless Order”).[17]On 28 December 2020 the Claimant made an application for the First Unless Order to be set aside as, in summary, it was delivered late and he had not had sight of the Respondents’ application requesting it.[18]On 11 March 2021 EJ Wright gave judgment that as the Claimant had failed to comply with the First Unless Order the claims stood as struck out.[19]On 15 April 2021 the Claimant made an application that the 11 March 2021 Judgment be revoked as the Tribunal had not considered his application dated 28 December 2020. On 7 May 2021 the Tribunal rescinded the Judgment and re-made the Unless Order. In this “Second Unless Order” EJ Wright ordered that unless by 21 May 2021 the Claimant sent the Respondents disclosure of documents and witness statements in accordance with the case management order sent to the parties on 1 September 2020, all claims would stand dismissed without further order.[20]On 19 May 2021, two days prior to the deadline, the Claimant provided the Respondent with his disclosure by CD.[21]On 21 May 2021 the Claimant applied to the Tribunal for the Second Unless Order to be set aside, require the Respondents to give specific disclosure and to regularise the position between the parties in relation to witness statements. The basis on which the Claimant sought for the Second Unless Order to be set aside was that the Respondents had previously failed to comply with their obligation to copy him in under Rule 92, he had not had an opportunity to make representations, it was in the interests of justice as the Respondents’ disclosure was not complete. The Claimant said that the requirement for him to provide witness statements was an error of law because he had made an application on 23 June 2020 requesting an extension of time to submit his witness statement and that it was contrary to the overriding objective to order that witness statements be provided when the Respondents had agreed to an extension of time, the Respondents had not served witness statements, the Respondents had not prepared the final bundle and he would need to refer to page numbers in the bundle.[22]On 4 June 2021 the Claimant applied for the Respondents’ response to be struck out on the grounds that its disclosure was incomplete.[23]The parties have, throughout these proceedings, engaged in acrimonious correspondence. They did not agree on the documents to be used at this hearing and so each produced their own bundle.[24]The Claimant did not, and still has not, provided the Tribunal or the Respondents with his witness statement. The Law Case Number: 2303980/2019 5 of 10The Law
[25]The Rules provide: “Unless orders 38.—(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations. (3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.”[26]In Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA Underhill J observed at paragraph 14: “The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.”[27]Mr Brown referred the Tribunal to Enamejewa v British Gas Trading Ltd and Centrica PLC EAT 0347/14 wherein it was held that nothing in rule 38 prohibits an