Miss G Bailey v Stagecoach London (now amended to South East London & Kent Bus Company Ltd): 2306175/2020
EMPLOYMENT TRIBUNALS
Case No 2306175/2020
Between
Miss G BaileyClaimantStagecoach London (now amended to South East London & Kent Bus Company Ltd)Respondent
Before
Employment Judge C H O’RourkeDate 12 September 2022
JUDGMENT
[1]The Claimant’s claims of constructive unfair dismissal, disability discrimination and for ‘other payments’ are struck out, subject to Rule 37 of the Tribunal’s Rules of Procedure 2013.[2]The Respondent’s title is amended to ‘South East London & Kent Bus Company Limited’.
REASONS
[1]The Claimant was employed by the Respondent as a bus driver, for just over two years, until her resignation with effect 10 August 2020.[2]She brought a claim on 7 October 2020 [7 (PDF numbering in the Respondent’s ‘core’ bundle)], alleging constructive unfair dismissal, disability discrimination and a claim for ‘other payments’. The Respondent filed a response, denying any liability and the claim was listed for a preliminary case management hearing on 6 April 2021, but which was vacated by the Tribunal and re-listed for 8 December 2021.[3]That hearing proceeded, but the Claimant was not in attendance, having emailed the Tribunal on 3 December 2021 (not copied to the Respondent), stating that she could not attend due to being unable to get time off work. The Employment Judge decided, nonetheless, to proceed with the Hearing and made the following orders (of relevance to the matters before me) [S5 (page numbering Respondent’s supplementary bundle)]:a. Today’s open preliminary hearing was listed and the Claimant was ordered to inform the Tribunal within seven days if she could not attend and warned that if she did not do so and did not attend the Hearing, it would proceed in her absence. She was informed that she ‘may also be at risk of having her claim struck out’. No indication was received from the Claimant as to any inability of hers to attend on today’s date.b. The Claimant was ordered to write to the Respondent, by 5 January 2022, confirming the nature of the physical or mental impairments on which she relied, in respect of her claim of disability discrimination and to also provide a disability impact statement. She has not done so.c. She was also ordered to provide to the Respondent, by 8 March 2022, copies of her GP’s or other medical records, relevant to the impairments on which she relied. While it appears that she may have forwarded medical documents to the Tribunal [S20], she has not, despite several requests from the Respondent and directions from the Tribunal, done so to the Respondent, instead stating in an email of 17 July 2022, to the Respondent’s solicitors and the Tribunal that ‘I’m not handing anything over … you have stated the information I have provided isn’t good enough so I spoke to my doctors and they advised me to tell you to get in contact to see if they can help any further with your request … I can’t really see what the relevance of obtaining this is important or the proof how it isn’t enough (sic)’. [S29]. This was in response to a letter from the Tribunal, of 8 July 2022 [S27], stating: ‘This is a final attempt to obtain the information that has been asked of you a number of times. It is not sufficient for you to simply hand this over to your doctors to deal with. By the 22 July 2022 you must write to the Respondent and provide answers to each of the questions at paragraph 11 of the Order by Employment Judge Burge dated 08 December 2021. You must also ensure you have complied fully with the order at paragraph 12. If you fail to fully comply with this order, consideration will be given to whether the entirety of your claim should be struck out.’d. An order was also made that she provide a schedule of loss, by 8 June 2022, with which she has also not complied.e. She was informed in the Case Management Order (paragraph 22) that if any of those orders were not complied with the Tribunal may ‘… strike out the claim …’.[4]On 11 January 2022 she requested an extension of time for compliance with the orders relating to her disability discrimination claim and that was granted, to 28 February and 22 March 2022, respectively. Despite this, however, she still did not comply with the orders.[5]On 25 March 2022 the Respondent solicitors notified both the Tribunal and the Claimant of this non-compliance and requested an ‘Unless’ order [S15] (but which was not made by the Tribunal).[6]Correspondence continued between the parties, with the most recent communication from the Claimant being on 31 July 2022 [S37], to the Respondent and the Tribunal, stating that she was ‘really sorry but I’ve got a lot going on at the moment and I’m trying my best to deal with it all on my own …’.[7]She did not attend today’s hearing, or give any indication of her intentions in that respect. The Tribunal staff phoned and emailed her at 10.00 am, to enquire as to her non-attendance, but got no response. The Tribunal emailed again, at 10.10 am, informing her that the start of the Hearing would be delayed to 10.35 am and that if she did not attend, it would proceed in her absence. No response was received from the Claimant and the Hearing therefore proceeded.[8]The only substantive issue before me, therefore, was to decide whether, subject to Rule 37, the Claimant’s claims should be struck out. (Subsequent to my decision to do so, the Respondent made a costs application, which is considered separately.)
The Law
[9]Rule 37 states: Striking out 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) that it is scandalous or vexatious or has no reasonable prospect of success; (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; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[10]In deciding whether to strike out a party’s case for non-compliance with an order under rule 37(1)(c), a tribunal will have regard to the overriding objective set out in rule 2 of seeking to deal with cases fairly and justly. This requires a tribunal to consider all relevant factors, including:• the magnitude of the non-compliance;• whether the default was the responsibility of the party or his or her representative;• what disruption, unfairness or prejudice has been caused;• whether a fair hearing would still be possible, and• whether striking out or some lesser remedy would be an appropriate response to the disobedience (Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, UKEAT).[11]For a tribunal to strike out for unreasonable conduct, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response — Blockbuster Entertainment Ltd v James [2006] IRLR 630, EWCA.
Conclusion
[12]I heard submissions from Mr Ludlow, on behalf of the Respondent, as well as having had the opportunity to read the correspondence between the parties and the Respondent’s application for strike out [S32]. The Claimant had provided no written submissions in response to the Respondent’s application.[13]I concluded that the Claimant’s claims should be struck out, for the following reasons:a. She had failed, repeatedly and without adequate explanation to comply with the Tribunal’s orders, over a period of some nine months, both in respect of evidence required to support her claim of disability discrimination and to provide a schedule of loss. This was despite several warnings from the Tribunal that continued failure to do so may result in her claims being struck out (and also emphasised in the Respondent’s correspondence to her).b. In her email of 17 July 2022, it is quite clear that she has no intention of complying with the order to disclose medical documents to the Respondent.c. This is a substantive non-compliance, preventing the Respondent from deciding whether or not it disputes the issue as to whether or not the Claimant is disabled, itself determining what evidence or submissions the Respondent may need to adduce at any final hearing and also the length of that hearing. This clearly prejudices the Respondent in the preparation of their case and if permitted to continue would mean that they would not know the nature of the claim they have to face at final hearing, or perhaps only at the last minute. This failure on the Claimant’s part also disrupts both the Respondent’s ability to respond in a timely and proportionate way to the claims, instead incurring unnecessary costs, but also wastes the Tribunal’s resources.d. While I note that the Claimant is a litigant-in-person, many such litigants manage to comply with such orders. The default is clearly her responsibility alone.e. A fair hearing is not currently possible, as the Respondent is unable to assess the discrimination claim against it, knows no detail of the alleged fundamental breaches of contract relied upon in respect of the constructive dismissal claim and has no feel for the amount of any financial award that might be made against it. The Respondent contended (correctly) in their response to the claim [32] that the Claimant had failed entirely to identify any alleged repudiatory breaches of contract by them, justifying her resignation and it appears from the response that the Claimant resigned because she had received the disciplinary sanction of a final written warning, against which she did not appeal and which it would seem would be unlikely to amount to a fundamental breach without proof of malice on the Respondent’s part, which the Claimant has not alleged. As to the claim for ‘other payments’ these are completely unparticularised, thus rendering it impossible for the Respondent to counter it.f. I see no lesser sanction that could be appropriately applied that might rectify this situation. The Claimant has been left in no doubt as to the requirements upon her and has consistently ignored, or even refused to comply with them. In view of her non-attendance now at two hearings, today’s without any explanation offered, I see no prospects of any further orders being complied with.g. For similar reasons, in respect of unreasonable conduct of the proceedings by the Claimant, I consider that it has been deliberate and consistent, rendering, currently, a fair trial impossible and in respect of which I have no confidence that the Claimant would rectify the situation in the future. I consider, therefore, the decision to strike out proportionate. Judgment[14]For these reasons, therefore, the Claimant’s claims of disability discrimination, constructive unfair dismissal and for ‘other payments’ are struck out.