Mr J KuczaraClaimantTransport for LondonRespondent
Before
Employment Judge Braganza KCNot represented for claimantMiss C Urquhart (instructed by Counsel) for respondentDate 31 January 2023
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is struck out under rule 37(1)(b), (c) and (d) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. JUDGMENT[2]The Claimant’s claim of unfair dismissal is struck out under rule 37(1)(b), (c) and (d) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
REASONS
[1]On 12 September 2022 at an Open Preliminary Hearing attended only by the Respondent, the Claimant’s claim for unfair dismissal was struck out. Reasons for the judgment were given orally at the hearing. The Judgment was sent out on 3 October 2022.[2]The Claimant wrote to the Tribunal on 5 October 2022 asking for reasons why his claim was struck out. There was some delay in the Claimant’s request being passed on to me on 25 November 2022. I apologise for the further delay in providing these reasons. Application to strike out the claim 1 of 9[3]The hearing on 12 September 2022 was listed as an Open Preliminary Hearing to determine the Respondent’s application to strike out the Claimant’s claim under Rule 37(1)(b), (c) and (d) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the basis that the Claimant was acting unreasonably, he had not complied with the Tribunal’s orders and was not actively pursuing his claim. The hearing was also listed to determine the Claimant’s application to amend his claim and any further case management. Hearing on 10 August 2022[4]There had been a previous hearing on 10 August 2022 in this matter, which was originally listed as a full merits hearing to determine the claim but was converted to a case management hearing to consider the Claimant’s application to amend his claim and to make directions for a future full merits hearing, as appropriate.[5]Prior to notification of the conversion of the hearing the Claimant emailed the Tribunal early the day before the hearing on 10 August 2022 to say that he would not be attending the hearing as he had not heard from the Tribunal regarding the complaints he had made. He also set out a number of concerns he had about the Tribunal’s handling of his claim. The hearing on 10 August 2022 was attended by the Respondent alone, represented by Miss Urquhart.[6]Employment Judge Andrews reviewed the file in preparation for the hearing on 10 August 2022. In her Order of the same date she referred to correspondence from the Claimant to the Tribunal not always having been processed or responded to as it should have been. She set out as follows:- “Notwithstanding that it is disappointing that the claimant chose not to attend today as it would have been a very good opportunity for me to discuss the current position and the extent of his claims with him and get matters back on track for efficient disposal. I have also noted from the claimant’s correspondence that he refers to mental health issues that he has had, he is a litigant in person and it appears that, although his English is very good, it is not his first language. 3. In addition to the claimant’s application to amend his claim, the respondent has also applied for his claim to be struck out on the basis that he has not complied with the orders already made by the tribunal and has refused to meaningfully engage with them on preparation for the final hearing.”[7]Employment Judge Andrews continued:- “5. Taking all the circumstances into account, I consider it appropriate to give the claimant one more opportunity to attend a preliminary hearing so that his application to amend his claim can be properly dealt with and we can have a discussion about the scope of his claims and the matters that the tribunal does and does not have jurisdiction to deal with. If appropriate, the respondent’s application to strike out the claim - which 2 of 9 has not yet been determined - will also be considered at the postponed hearing. [emphasis added] 6. Details of the postponed hearing, which has been listed as quickly as possible, are set out below. The claimant must note that if he chooses not to attend that hearing, regardless of any application by the respondent, the tribunal will consider of its own motion whether to strike out the claim on the basis that it is not being actively pursued. [emphasis not added] 7. Finally, I note that the complaints the claimant has raised have been progressed separately by the Regional Employment Judge. The handling of those complaints does not interfere with the orders set out below.”[8]The Order listed the case management hearing for 12 September 2022, by video link, to start at 10am for a maximum of 3 hours. The Order set out that the preliminary hearing would consider: “a. The claimant’s application to amend his claim as set out in his emails dated 3 March 2022, 7 April 2022 and 25 May 2022. b. Clarification of the claims brought/other matters referred to by the claimant and whether the Tribunal has jurisdiction to hear them. c. Whether the parties have complied with the case management orders previously made by the Tribunal and if not, why not. d. If appropriate, the respondent’s application to strike out the claim as set out in the email dated 6 May 2022. e. If appropriate, list the matter for a final hearing and set a new case management timetable.” Hearing on 12 September 2022[9]On the morning of 12 September 2022 at 10.26am, when the hearing was due to start at 10am, the Claimant emailed the Tribunal and the Respondent as follows:- “Please refer to my previous conversations. I am not attending this hearing of [sic] any further hearing held by South London ET as I stated last week due to reasons I also mentioned many times previously. I consider South London ET not fit to rule in my claim and I intend to raise it higher for investigation along with my original claim against my former employer and their conducts. [emphasis added][10]Miss Urquhart, representing the Respondent, confirmed at the hearing that there was no reason to think that the Claimant was not aware of the hearing. She also referred to two emails of 9 September 2022 from the Claimant to the Respondent 3 of 9 and copying in the Tribunal, the first at 15.11 and the second at 16.46, both of which were in similar terms to the e-mail received on 12 September 2022.[11]It was clear from the Order of Employment Judge Andrews listing the hearing for 12 September, and the emails from the Claimant of 9 and 12 September that the Claimant knew about the hearing. He had been provided with the login details and had informed the Respondent and Tribunal that he would not be attending. The Order of Employment Judge Andrews also made clear that if he did not attend, the Tribunal may consider striking out his claim on the basis he was not actively pursuing it. There was no application to adjourn the hearing. In those circumstances, I decided to proceed with the hearing. Documents for use at the hearing[12]In support of the Respondent’s application, the Tribunal was provided with a helpful note from Miss Urquhart, which was dated 10 August 2022 and was the same note before Employment Judge Andrews. I have also been provided with a short bundle of attachments to the note of some 30 pages, containing various correspondence between the parties and the Tribunal, and a bundle of 62 pages, containing the previous Orders and further correspondence.
Background
[13]The background is as follows. The Claimant was employed as a track technician from 29 June 2015 until 19 May 2021 when he resigned with immediate effect. ACAS early conciliation notification was on 22 June 2021 and the ACAS early conciliation certificate issued on 22 July 2021. The Claimant’s claim for unfair dismissal was received by the Tribunal on 15 September 2021. The Respondent’s ET3 response to the claim was received on 25 October 2021.[14]On 13 December 2021 the Tribunal sent out Orders for the case management of the claim which set out “The claimant and respondent must comply with these Orders”. These included that the Claimant send a document setting out his losses, a Schedule of Loss, by 24 January 2022. By 7 February 2022 the parties were required to exchange copies of the documents they relied on. By 21 February 2022 the parties were to agree which documents would go into the final hearing bundle, which the Respondent would compile. By 7 March 2022 the parties were to send each other their witness statements.[15]On 27 January 2022 the Claimant sent an email estimating his losses in general terms, without providing any breakdown. On 7 February 2022 the Respondent confirmed that it was ready to disclose its documents in accordance with the orders and asked the Claimant to confirm that he was able to do the same. The Respondent also attached a proposed list of issues to the e-mail, to be agreed.[16]On 15 February 2022, in response to the Respondent asking him to comply with the case management orders, the Claimant emailed the Respondent, copying the Tribunal, that: 4 of 9 “I expressed this already so let me do it again. I will not look into documentations provided I will not participate in this in any way unless I will receive appropriate response from Employment Tribunal to which I will response in appropriate manners. I strongly believe alleged criminal offence has been committed and as a result of that judge order has been issued based on allegedly false statements and does not include most crucial and incriminating informations.”[17]On 23 February 2022 the Respondent contacted the Tribunal to set out that the Claimant had refused to engage with it in progressing the claim and failed to comply with the Case Management Orders of 13 December 2021. It requested a hearing to clarify the scope of the Claimant’s claim and provide further case management. It set out: 1. The Claimant failed to provide a Schedule of Loss on 24 January 2021. Following an email from the Respondent on 25 January 2022, the Claimant provided an email setting out what he claimed in partial compliance with the Schedule of Loss Order. In particular, the Claimant has still not set out the basis upon which the amount he claims has been calculated. 2. The Respondent wrote to the Claimant on 7 February 2022 to:a. confirm that the Respondent was ready to disclose their relevant documents; andb. provide a proposed agreed List of Issues for the Claimant’s comment. The Claimant’s email response indicated that he was dissatisfied and not willing to comply with the remaining Case Management Orders. The Claimant has since failed to provide his comments in respect of the List of Issues. 3. The Respondent provided the Claimant with a copy of the Respondent’s documents on 15 February 2022. The Claimant has not provided any documents.[18]On 3 March 2022 the Claimant asked the Tribunal to allow him to amend the claim and referred to “allegations regarding false statements and withholding vital and incriminating informations”. On 7 April 2022 the Tribunal replied that the hearing on 10 August 2022 would go ahead. The claim before the Tribunal was of Unfair Dismissal and any complaints reported to the police were not matters for the Tribunal. If the Claimant required specific documents from the Respondent, it should first be asked to provide these. If it refused, the Tribunal could be asked to make an order.[19]On 12 April 2022 the Respondent suggested to the Claimant a variation to the timetable of the Case Management Orders. On 21 April 2022 the Respondent wrote to the Claimant highlighting that he had refused to engage, specifying how he had not complied, with the Orders, and highlighting that he was acting disruptively, or otherwise unreasonably, in failing to comply with the Case Management Orders. He was asked again to engage in the preparation for the hearing and comply. On 26 April the Claimant wrote to the Tribunal saying it was 5 of 9 “impossible” for him to effectively proceed with his claim. He expressed his concerns about how his claim had been handled by the Tribunal and the Respondent. On 6 May 2022 the Respondent applied to strike out the Claimant’s claim on the basis that the Claimant had failed to comply with Case Management Orders and refused to meaningfully engage with the Respondent as to the preparation for the hearing. The Respondent relied on Rule 37 (1) (b) (c) and (d). In the alternative, the Respondent requested an Unless Order requiring the Claimant to comply with the case management deadlines. On 25 May 2022 the Claimant emailed the Tribunal that he sought to amend his claim. On 26 May 2022 the Tribunal wrote to the Claimant that any application to amend could only be considered if the amendment was in writing, and that the Claimant was reminded to copy in the Respondent when making applications to the Tribunal. On 30 May 2022 the Responded objected to the Claimant amending his claim and on the same date the Claimant complained again about the Tribunal’s handling of his claim.[20]On 12 July 2022 the Respondent emailed the Claimant with a link to download a paginated bundle of evidence for the hearing and proposed to exchange witness statements on 27 July 2022. The Claimant did not reply. On 27 July 2022 the Respondent emailed the Claimant again attaching a bundle of documents with additional disclosure and proposing a revised date to exchange witness statements on 1 August 2022. The Claimant did not reply. On 8 August 2022 the Respondent emailed the Claimant its password protected witness statements and asked for the Claimant to reply. There then followed the hearing on 10 August 2022, which was converted to a case management hearing, which the Claimant did not attend. At that hearing the matter was listed for 12 September 2022 and the Claimant given a final opportunity to attend and engage with his claim.
The Law
[21]Rule 37(1)(b),(c) and (d) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides: 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) …(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;[22]In deciding whether to strike out a claim, the Tribunal is required to undertake a two-stage exercise: first, it must consider whether any of the grounds in Rule 6 of 9 37(1) have been made out, and, secondly, if so, it must decide whether to exercise its discretion to strike out the claim Hasan v Tesco Stores Ltd UKEAT/0098/16.[23]The approach to be taken under rule 37(1)(b) on unreasonable conduct was considered by the Court of Appeal in Blockbuster Entertainment Ltd v James [2006] IRLR 630. Sedley LJ held: “This power, as the employment tribunal reminded itself, is a draconic power, not to be readily exercised. It comes into being if… a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response” [paragraph 5].[24]On rule 37(1)(c) in Harris v Academies Enterprise Trust and ors [2015] ICR 617, Langstaff P held that there must be found conduct that was a deliberate and persistent disregard of the required procedural steps, or conduct that made a fair trial impossible. “A party that does not observe an order is at the mercy of the tribunal. Though in many cases an unless order will be granted before there is a strike-out, it is not an essential prerequisite of an application to strike out and is no guarantee that one will not follow in an appropriate case.” And at para 40: “Rules are there to be observed, orders are there to be observed, and breaches are not mere trivial matters; they should result in careful consideration whenever they occur.” [paragraph 35][25]On rule 37(1)(d) Evans v Metropolitan Police Comr [1993] ICR 151 held that cases should not be struck out unless the default by the claimant was intentional or contumelious, or there was an inordinate and inexcusable delay giving a substantial risk that a fair trial will not be possible or lead to serious prejudice to the respondent (at [161A-B]).[26]In Emuemukoro v Croma Vigilant (Scotland) Ltd [2022] ICR 335, Choudhury P reminded tribunals, when considering a strike-out application, to consider all the factors relevant to a fair trial, including “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” [paragraph 19]. 7 of 9 Conclusions and analysis[27]I considered the documents provided to me, including the latest email from the Claimant sent on the morning of 12 September 2022, the Respondent’s note, Miss Urquhart’s oral submissions and the legal framework set out above. For the reasons set out, I decided at the end of the hearing to strike out the claim under Rule 37(1) (b), (c) and (d).[28]The Claimant has persistently and deliberately failed to comply with the various Case Management Orders in this case, other than in his partial compliance with the requirement that he send a Schedule of Loss in his email of 27 January 2022. He has not provided the documents he relies on in disclosure. He has not provided a witness statement. He has not engaged with the Respondent or suggested any change to the repeatedly varied Case Management Orders. In fact, to the contrary, when he has replied, it is to say that he would not be complying and it was “impossible” for him to comply. I accept Miss Urquhart's submission that Employment Judge Andrews effectively issued him with an unless order in the very clear terms of her Order of 10 August 2022: she highlighted to the Claimant that he was to be given “one more opportunity to attend a preliminary hearing” . She underlined in her Order that “The claimant must note” if he chose not to attend that hearing “regardless of any application by the respondent, the tribunal will consider of its own motion whether to strike out the claim on the basis that it is not being actively pursued.”[29]The Claimant chose not to attend the hearing on 10 August 2022 and informed the Tribunal on 12 September 2022 that he would not be attending that hearing either. In his final e-mail of 12 September 2022, which was sent after the hearing was due to start, he set out in explicit terms that “I am not attending this hearing of [sic] any further hearing held by South London ET”.[30]For those reasons, I find that the manner in which the Claimant has conducted these proceedings has been unreasonable under Rule 37(1)(b). I find that he has not complied with the various Case Management Orders, including in deliberately not attending the hearing on 12 September 2022, under Rule 37(1)(c). Finally, for the same reasons, in accordance with Rule 37(1)(d) he has not actively pursued his claim.[31]I then went on to consider the second part of the test in respect of each part of the relevant rule. That is whether having regard to all the circumstances, I should exercise my discretion to strike out the claim and whether this would be a proportionate response. I decided that in respect of each part of the Rule relied on, it was a proportionate response. I considered all the circumstances, in particular, the clear warning from EJ Andrews in her Order as to the consequences for the Claimant if he did not attend the hearing on 12 September 2022. Further, the Claimant has taken no steps to comply with the case management Orders and progress his claim in any meaningful way.[32]Finally, I had regard to the overriding objective to deal with cases fairly and justly. 8 of 9[33]I therefore decided to strike out the claim under Rule 37(1)(b), (c) and (d).