Employment Judge CorriganNo appearance for claimantMiss K Davis (instructed by Counsel) for respondentDate 30 November 2020
JUDGMENT
[1]The Claimant has not shown he was disabled at the relevant time.[2]The Claimant’s disability discrimination claim is therefore dismissed.
REASONS
[1]The Claimant had applied for a postponement of today’s hearing. The matter had already been postponed once in circumstances where the Claimant had attended Ashford instead of Croydon, and upon being notifed of the error was not prepared to travel to Croydon.[2]It is correct that he had previously given a number of dates to avoid in respect of listing the final hearing in this matter, though it is not clear from his email that he meant he would not be available for the whole month of November 2019. There is no suggestion that this was brought to the Employment Judge Balogun’s attention at the hearing on 31 July 2019 when she re-listed the Preliminary Hearing on 15 November 2019. The Claimant was not given any expectation his previous dates to avoid would be considered in re-listing the perliminary hearing.[3]The Claimant then applied for an adjournment on 6 August 2019 on the basis that he was not available, without giving any reason other than to refer back to his dates to avoid. On 29 October 2019 Employment Judge Wright responded explaining he would need to evidence his unavailability, referring him to the Presidential Guidance on requesting a postponement and requesting a response in 7 days. The Respondent then objected to the request. All the Claimant did in response was to refer back to the original dates to avoid. Still no explanation for the unavailability was provided. The Respondent continued to object. The Claimant wrote further on 13 November 2019 saying prior to his email of 6 August 2019 a Clerk had told him the Tribunal would change the date. He still gave no reason for his unavailability.[4]The postponement request was refused by myself on 14 November 2019 as the Claimant had not said why he was unavailable. The decision was relayed by the Tribunal Clerk to the Claimant by phone. Still the Claimant did not offer a reason why he was unable to attend.[5]I reconsidered the matter at the outset when the Claimant did not attend. For the reasons above I decided to hear the matter in the Claimant’s absence. I also note that there is no entitlement to have a hearing listed at the parties’ convenience, even where parties have provided dates to avoid. I noted that in the Claimant’s original dates provided there are long periods when he said he was unavailable which does raise the question as to what the reason is for the unavailability as routine commitments are not normally a reason for a postponement. The reason needs to be something more signficant preventing attendance. The Respondent was not aware of any such reason.[6]The Respondent sought dismissal of the whole claim due to the Claimant’s failure to attend under rule 47 Employment Tribunals Rules of Procedure but I considered this would be an excessive response in the circumstances. The Claimant had originally provided dates to avoid (albeit for the final hearing) which he had intended to mean that he was unavailable throughout November. He has made numerous applications for a postponement. He has been under the erroneous assumption that he is entitled to have a postponement because he had provided those dates to avoid. It would be going too far to dismiss the case completely. I considered the appropriate response was to hear the case in his absence. Issue of disability[7]The preliminary hearing was listed to consider whether or not the Claimant was disabled at the relevant time. The alleged disability relied on is stress and anxiety (not the Claimant‘s hernia).[8]The Claimant has provided a schedule of allegations dating from May 2017. He was dismissed on 29 June 2018. He mentions one further allegation in July 2018. The relevant period at its longest is therefore May 2017-July 2018 (as set out in the Respondent’s skeleton).[9]The definition of disability is in section 6 Equality Act 2010: “(1) A person (P) has a disability if-(a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.[10]Substantial is defined as more than minor or trivial. Long-term means it has lasted or is likely to last for at least 12 months. The burden of establishing that he meets the statutory test is on the Claimant.[11]The Respondent provided a skeleton argument. There was a bundle of documents including the Claimant’s disability impact statement dated 31 May 2019 (pp27-28), Occupational Health reports dated 20 February 2018 (pp33- 36) and 23 April 2018 (pp 50-54), GP letters dated 5 June 2018 (p63) 14 May 2019 (p98), sick note for 28 June 2018 p 65, anxiety and depression questionnaire dated 2 July 2019 (p99-100).[12]In his claim form the Claimant says the stress and anxiety started “around January 2018” however in the first Occupational Health report dated 20 February 2018 about the Claimant’s hernia it states that he has no other relevant past medical history and that the Equality Act is unlikely to apply. Stress and anxiety is not mentioned.[13]Stress and anxiety is mentioned in the OH report dated 23 April 2018. It states: “He does indeed report that he has experienced stress with the perception of the meeting being a disciplinary matter from his perspective... [He] in my opinion is experiencing reactive stress and anxiety due to perceived adverse circumstances in relation to his work....Although the stress appears to be related to his perceived adverse work circumstances and should resolve once these circumstances have also resolved.” No further review was recommended. Although there is mention of the Claimant being covered by the Equality Act this is in respect of his hernia. The reference to the meeting is likely to be a reference to the meeting or meetings referenced in the letter dated 26 March 2018 (p41). The only sick certificate in respect of stress was dated 28 June 2018 backdated to cover 17 May 2018- 15 June 2018 and was not based on a contemporaneous examination. The Respondent says this was produced to address the Claimant’s absence without authorisation.[14]The Claimant has also produced the letter from his GP dated 14 May 2019 which appears therefore to have been prepared with this hearing in mind. It says that the Claimant had approached the GP for confirmation he had been seen at the surgery for work related stress. It says: “[The Claimant] was seen on the 22/5/18 when he felt ready to return to work... On the 28/6/18 [the Claimant] attended surgery to report a dispute with his employer regarding his absence from work and that he had not returned to work because of a dispute regarding work related stress”. The letter explains what the Claimant told the GP about the Occupational Health assessment on 23 April 2018. He requested and was provided a sick note for 17/5/18-15/6/18. It says a further medical certificate was issued for stress at work on 4/7/18 again backdated to cover the period 17/6/18-21/7/18. In my view it is notable, given that it is prepared with this hearing in mind, that it does not provide the GP’s own assessment of ongoing and/or longterm stress and anxiety.[15]The Claimant has provided a short impact statement about the effects of stress and anxiety on his life. There are no dates and it reads as a description of the Claimant’s current experience at the time of writing the report (signed 31 May 2019). It does not cover the relevant period. This is despite the Claimant having the Respondent’s skeleton argument (a previous version) since 30 July 2019 and the fact that some guidance was given about the definition of disability and sources of information in the preliminary hearing dated 2 April 2019 and subsequent Case Management Order.[16]I agree that insufficient evidence has been provided by the Claimant to show that he meets the statutory test. At the time he had not had stress and anxiety for 12 months on his own case and there is no evidence provided that at that time he was likely to have it for 12 months or more.[17]Outstanding matters shall be addressed in a separate Case Management Order. .................................................[19]The second issue is therefore the claimant's failure to particularise the claims which he did plead in his ET1 and which he seeks to advance. The claimant has repeatedly refused to engage with the details of the claim which he has presented… This is the claimant's claim and he is to actively pursue it; based upon his own knowledge of his own allegations. There is no one better placed than him to particularise his claims and he does not need information from the respondent in order to do so. What is required from the claimant is set out above. The question is, how many more opportunities is the claimant to be given to comply with the Tribunal's Orders? The Tribunal cannot keep giving the claimant opportunity after opportunity to particularise his claims. Time is of the essence as final hearing is now over four months away. The respondent is prejudiced as it is not able to respond to the claims as it is not clear what they are…[21]The claimant has been given numerous opportunities to set out the further particulars of his claim and he has failed to do so.[22]In view of the claimant’s repeated lack of engagement with the Tribunal and the breaches of previous Orders, the Tribunal is considering of its own motion striking out the claimant’s claim under the EQA for failure to actively pursue the claim and for a failure to comply with the Orders of 28/3/2019, 29/10/2019 and 15/11/2019. The claimant therefore has 14 days from the date of this order to provide particulars as per the guidance above. 15. On 28/7/20, the Claimant sent a short document headed “Particulars of Claim”. It failed to provide any of the particulars he was ordered to provide in respect of the five allegations set out at paragraph 10 of EJ Wright’s Order, but instead, contained generalised assertions. This is an important finding, because the judge could not have been clearer(a) as to what was required and(b) that the Claimant was at what Mr Rajgopaul described as “the last chance saloon”. 16. There was further fruitless correspondence with the Claimant, including a letter from the Claimant of 23/9/20 in which he made insulting remarks about EJ Wright, impliedly accusing her of racism. 17. That is the procedural history that led to this PH. The Tribunal was therefore considering of its own motion whether to strike out the Equality Act claims. The Respondent argued in favour of that striking out. Striking out claims 18. The tribunal has power to strike out claims for non-compliance with its Orders (Rule 37(1)(c)). In his written submissions, Mr Rajgopaul referred to this helpful summary from Harvey (at Division P §387-388). The guiding consideration, when deciding whether to strike out for non-compliance with an order, is the overriding objective (Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, EAT…). This requires the judge or tribunal to consider all the circumstances, including 'the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is possible' (ibid at para 17, per Judge Richardson). Whether a fair hearing is still possible is to be judged objectively by the judge or tribunal, and the feeling of unfairness of one or other of the parties is not in itself a decisive factor. The EAT made it clear in Armitage that striking out should not always be the result of disobedience to an order (para 17), and that tribunals should consider whether a lesser sanction might be appropriate in the circumstances (see para 33)… In earlier cases it had been held that, as the purpose of the rule is to achieve compliance with the order, the basic question to be asked is whether there is a real or substantial or serious risk that, as a result of the default, a fair trial will no longer be possible (Landauer Ltd v Comins & Co (1991) Times, 7 August, CA; National Grid Co Ltd v Virdee [1992] IRLR 555, EAT). 19. It is relevant also to refer to Barton v Wright Hassall LLP [2018] 1 WLR 1119, SC, which held that litigants in person are not entitled to any greater indulgence in complying with court rules than represented parties. That is because a repeated response from the Claimant has been to say that he is self-representing. It should be noted, however, that in the current case, the Claimant has been given a degree of latitude that a legally represented party would be unlikely to receive. Submissions 20. For the Respondent, Mr Rajgopaul submitted that this was a paradigm case in which the claim should be struck out for repeated failure to comply with the Tribunal’s Orders and warnings. In terms of the Overriding Objective, he said that:a. The parties were not on an equal footing because more than two years after the claim was issued and as a result of the Claimant’s breaches, the Respondent still did not know what claim(s) it had to meet.b. It would be wholly disproportionate to the complexity and importance of this case (said by the Claimant to be worth just over £21,000) to permit the Claimant to continue to waste tribunal time and put the Respondent to the cost and expense of dealing with a claim which, in breach of four Orders from the Tribunal, he has still failed to particularise.c. The delays in this case as a result of the Claimant’s conduct have been extraordinary and unless the Equality Act claims are struck out, would certainly continue.d. The Respondent has been put to exceptional cost and expense in dealing with the Claimant’s breaches, his correspondence and the repeated PHs that have taken place.[28]The only reason that C has given for repeatedly breaching the Tribunal’s Orders properly to particularise his claim was that he was a litigant in person, but Mr Rajgopaul relied upon Barton. He said it rang particularly hollow in circumstances where the Claimant was an educated professional, teaching A Level students. As EJ Wright said in her Order there is no one better placed than the Claimant to particularise his claim, and he has not done so.[29]He submitted that this was clearly a case in which there could be no fair trial of the allegations of discrimination because of the breaches of the Tribunal’s Orders. EJ Wright’s Order made clear that this was the Claimant’s last chance, but the Respondent remained none the wiser as to the precise allegations made against it. Mr Rajgopaul pointed out that there was a 5 day hearing due to start on 7/12/20, but the Respondent was not able to respond to the claims, no disclosure had taken place - let alone exchange of witness evidence - and accordingly the hearing from 7/12/20 could not proceed.[30]The Claimant had also produced written submissions, which he developed in his oral submissions. A flavour of those submissions can be seen from the opening line of his skeleton argument: “The Respondent is not telling the truth and they are acting maliciously and disingenuously”.[31]The thrust of his arguments was that the Respondent was to blame for the Claimant’s failure to comply with the Tribunal’s Orders, because(a) they had not sent him information he required and(b) in any event, they understood what his case was, so it did not require particularisation. He was again critical of the tribunal generally and EJ Wright in particular (although his criticisms were milder than before), although when asked, said he had understood her Orders.[32]Strikingly, at no stage did the Claimant accept any responsibility for his failures to comply with the Tribunal’s Orders. Rather, his focus was more on complaining about how he had allegedly been mistreated by the Respondent, both during and subsequent to his employment. When asked, the Claimant agreed that the hearing listed for 7 December could not proceed, although he blamed the Respondent for that.
Conclusion
[33]The discrimination claim as set out in the ET1 is insufficiently particularised. It remains so after 2 years, despite repeated Orders from the Tribunal requiring the Claimant to provide those particulars, as well as detailed guidance as to what those particulars should include. I have gone through the Orders and the responses to those Orders from the Claimant and it is quite clear that there has been material non-compliance.[34]The Claimant does not appear to dispute this, perhaps because his preoccupations lie elsewhere, as his skeleton argument and oral submissions demonstrate. For reasons best known to himself, he clearly feels let down by both the Respondent and the Tribunal, but he has not begun to explain why he has not complied with the Orders, nor given any encouragement that he would do so if given any further opportunities. Even if I were minded to extend time once again, the Claimant has said nothing that would suggest he would then comply with the Order to provide particulars.[35]In these circumstances, the conclusion has to be that the discrimination claims should be struck out. There has been an extensive failure to comply with those Orders, the Claimant has provided no adequate explanation and there cannot be a fair trial. There comes a point where a line must be drawn and the Claimant has gone well beyond that line.[36]That leaves the Claimant’s wrongful dismissal claim, which he values at £3,047 (see ET1). I have provided a separate case management order dealing with that claim.