Mr D Deamer v Littlefair Care Home Ltd and Mr N Sherrard: 2308207/2020
JUDGMENT
[1]The response of both respondents are struck out under Employment Tribunal Rule 37(1)(c) because the respondents have not complied with the Tribunal Rules or a Tribunal order.[2]The matter remains listed for the final hearing.[3]The question of the costs of today’s hearing be reserved to the final hearing.REASONS
[1]Following the hearing on 21 November 2024 the Respondents requested written reasons. This request was in time.[2]The matter was listed to determine whether or not the response should be struck out under rules 37(1)(c) and/or 37(1)(d) for alleged non-compliance with directions.[3]I was referred to a number of authorities by both counsel, for which I am grateful. Although they referred to different authorities, it was common ground that I have a two-stage test. Firstly, I have to determine whether or not the gateway under 37(1)(c) or (d) is open, and if it is open, I then have to exercise my discretion and to determine whether strikeout is a proportionate way of dealing with the non-compliance.[4]I deal first with 37(1)(d), which is that the respondents are not pursuing the defence of the claim. It would appear that there were some errors on the Tribunal side in terms of documents being sent to an incorrect email address following a change of case handler. I can see that the tribunal were told about this and did not action the change on the system. This meant that for a period documents were being sent to the wrong place.[5]I also note that the respondents attended the hearing, putting up a robust argument in order to carry on defending this claim, and I'm satisfied that the respondents are pursuing the claim.[6]Mr. Howell argued that if I find that the respondents have not provided the disclosure that that is tantamount to them not pursuing the claim, but I am not with him on that point. That would be a matter to be considered under 37(1)(c). In relation to 37(1)(d), I find that that gateway is not open and that the respondents are pursuing their defence of the claim.[7]The bulk of the arguments before the Tribunal were more in relation to 37 (1)(c). This is a claim that has been going on since December 2020 when it was issued. It was originally listed for a five-day hearing with a panel starting on the 28th of November 2022, but unfortunately it had to be adjourned.[8]It is clear from EJ V Wright's order (and when I refer to Judge Wright in this judgment, is to her that I refer and not to myself) that there were issues at that hearing over the contents of the bundle. In fact, no bundle was ready and no witness statements were prepared.[9]Judge Wright was quite critical of the respondents at this point, and said that had the claimant attended, (his non-attendance being due to a misunderstanding of whether he was needed to attend or not) she would have been minded to strike out the claim in light of correspondence between the tribunal and the respondent.[10]I accept Mr. Franklin's argument that this does not mean that it would have been struck out, but it is something that Judge Wright would certainly have been exploring at that point. In any event, the panel at the time determined not to strike out the claim, but the order they made is quite firm in containing warnings to the respondents. For fairness I should note that there were also warnings to the claimant about his non-attendance, and the risk of the claim being struck out if he didn't stand future hearings.[11]Mr. Franklin submitted that the only reason for the adjournment was the disagreement over what was in the bundle. I accept that was one of the main reasons, but it is quite clear that disclosure was a live issue at this point. In paragraph five of Judge Wright's order, she says that the respondents attended the hearing and the claimant did not. The tribunal clerk contacted the claimant, who said that he was not attending. She also notes that the respondents had failed to disclose documents and that the claimant wanted the respondents’ responses to be struck out.[12]On 2 November 2022 the claimant had written, requesting a number of documents, including original electronic copies (photos from mobile phones) and highlighting other issues.[13]On 5 December 2022, the claimant wrote a letter to the respondents again, setting out clear issues around disclosure, and on 16 December, he wrote another letter that, amongst other things, raised inspection of the photographic evidence.[14]We can see that all the way back to 2022 there have been issues raised by the claimant over disclosure. The claimant has not always assisted himself. Some of the letters were not as clear as they could be in requesting disclosure, but what is clear to the parties, or should have been clear to any reasonable respondent, is that there were still ongoing issues, and the claimant was not satisfied that disclosure had been complied with.[15]As such, when the respondent wrote to the tribunal in December 2020 providing the final bundle, saying (or implying) that it was agreed, I find that was rather disingenuous at best.[16]On 3 January 2023 the respondents informed the tribunal that they had complied with case management orders dated 28 November 2022. That case management order was to prepare the bundle, and a bundle was prepared. But it is implicit within that that direction that the bundle should be an agreed bundle with the relevant disclosed documents, as per the case management order made in 2021 which sets out a deadline of 20 August 2021 for disclosure.[17]I find that the respondent has not covered themselves in glory here when they claim to have complied with tribunal orders, even if they can be said to have complied with Judge Wright's order of November 2022, in that they provided a bundle and witness statements to the tribunal. It would appear that there was still some question over disclosure at this point. 18. the claimant now says that a number of documents were not disclosed, and these are set out in Mr. Howell's skeleton argument. He refers to grievance investigation notes, grievance investigation reports, recordings of grievance meetings, separate recordings of the meetings with the claimant and witnesses, inspection of evidence (namely photographs relied upon to assert the claimant was underperforming), the applicable grievance policy and terms of employment.[19]In relation to terms of employment, Mr. Howell, in the hearing, conceded that they were not really relevant to the facts before the tribunal for determining the claim. He says it's just another example of documents being requested but not provided.[20]A large part of Mr Franklin’s argument was that the claimant has been raising disproportionate and unreasonable requests for disclosure, and it may well be that request in terms of employment, when they're not directly relevant to the to the final matters could fall in that bracket. In relation to the failure to provide those terms, which are probably not relevant to the proceedings, I find no failing on that point.[21]In relation to the other points, the respondent has produced a letter to the tribunal with a helpful table on page six of eight, as well as Mr. Franklin’s submissions and I would go through these.[22]The first one is at line one. The investigation notes and complete investigation reports allegedly produced by Miss Sharon Fox relating to the claimant's grievances which preceded the dismissal, and interrelated communications and responses from Mr. Nick Sherrard, which are referred to within contemporaneous notes.[23]The respondents’ response to this point was that the hearing bundle contains these documents and gives and example of pages 387 to 391 and 447 to 460. I note that this is not an exhaustive list. In the hearing, Mr Franklin also took me to page 400 in the bundle.[24]I did not have the final trial bundle before me, but I had the benefit of both parties talking me through what's in these documents. Page 400 appears to be the outcome of the grievance proceedings. Mr. Howell says that that's not the investigation report, that there would have been an interim report before the outcome letter was sent.[25]Mr. Franklin says that this is clearly a matter of semantics and that these are the same thing by a different name. The difficulty the respondent has here is that at no point, have they said that there is no separate report, they simply said that the documents were contained in the bundle in their response back in 2023.[26]Mr Franklin argued that they have been provided, and that it is disingenuous of the claimant to suggest otherwise. I find that it is not disingenuous to say that something is not in the bundle when it is not in the bundle.[27]There is a question there over whether the report exists. I had no evidence at the hearing on whether or not it does, but that's a matter to take into consideration. I find that the respondents’ response seems to suggest that it does exist.[28]The next part of the table is line two which refers to recordings that were taken of the above grievance meetings, as directed by the second respondent. The respondents’ response back in 2023 was that “this is not an issue of disclosure. The claimant already possesses a recording of the second of June 2020 grievance meeting, having recorded it himself”. The claimant accepts that he has a recording of the meeting between himself and the respondent. What he is seeking is recordings of the grievance meetings with witnesses. He has been provided with summaries of those meetings, but he wishes to compare those to the recording.[29]Mr. Franklin, on instructions, informed me that there were no recordings made and that the claimant knows that. He referred to the minutes, or summary, of the 2 June meeting between the claimant and the respondent, where it says that in the agenda that they were to inform the claimant that the meeting will be recorded and/or minuted. He says that minuted is underlined, and therefore it should be clear, by inference, that the choice for the meeting was minutes rather than recording.[30]Unfortunately, I was not taken to anything in relation to the other meetings, and I am not convinced that you can necessarily infer from a word being underlined on a form that there was no recording.[31]When coming to this conclusion I note that the respondents’ position back in 2023 wasn't that the recordings did not exist, it was that this was not an issue of disclosure. To my mind this is certainly suggesting that the recordings do exist, but they just don't believe they're disclosable.[32]If the respondents’ position at that point was there was no recording, then they should have said there was no recording. I note that the respondent was legally represented and it is highly likely that this approach would have been taken if the recordings did not exist.[33]Line three deals with communications/instructions as to who was subsequently assigned the responsibility of undertaking the deep clean of all kitchen fridges/freezers prior during or after the deep clean. The respondents do not really see the relevance of this to legal issues set out, as they refer to events that happened after the claimant’s dismissal. I accept this argument and place little, if any, weight on this point.[34]We then had a question of which grievance policy was in force at the time. There was a dispute over whether it was a QCS one or an RBS Mentor one.[35]Back in 2023 the respondent said that they don't see how the requested documentation is pertinent to the legal issues and highlight that the respondent’s employee handbook and associated policies do not form part of its employees’ contracts of employment. In the hearing, however, they take a slightly different approach. They said that the policies have been provided.[36]I was informed that there were in the region of 150 pages of QCS policies in the bundle, and that it must it must be in the QCS policy and not an RBS Mentor one. Mr Franklin was not able to take me to or give a page reference for where that policy in particular was but the claimant accepted that there are a number of QCS policies included in the bundle. Despite this, he says the grievance policy is not in there.[37]Reference was made to the index of the bundle, where there was only one mention of a grievance policy. And if you go to it, it takes you to a short document which doesn't say if it was a QCS or an RBS Mentor policy, and it's but it was unclear. Mr. Franklin was unable to say with certainty which company produced this policy, but he said it looks like an RBS Mentor policy. In any event, his instructions were that the respondent had complied fully in disclosing all policies. I find in light of the respondents’’ inability to direct me to where the other policy is in the bundle that it was not provided. Therefore, regardless of who produced this short policy, there is only one policy in the bundle, and I find that there's been a clear failure of disclosure on that point as both policies are relevant to the issues in this case.[38]I also find that there has been a failure of disclosure in relation to the recordings, the suggestion prior to now at all times, has been that it's just not an issue of disclosure and that they don't need to disclose it, not that they don't exist.[39]In relation to the investigation reports, the suggestion was that it has been provided but I find that there would have been a report and it's not been provided. But even if I'm wrong, that these documents exist, the respondents’ approach, I would say, amounts to a failure of disclosure.[40]They have not said that these documents don't exist. They have essentially buried their heads in the sand and said, “we don't quite know what the claimant wants here, so we're just going to ignore it, rather than actively engaging to try and resolve any disclosure issues”.[41]From a professionally represented company that's an unacceptable failure to comply with the overriding objective when I look at whether they are complying with their disclosure obligations.[42]There is also an application for inspection. The claimant, as part of his disciplinary process, was shown a number of photos which were being relied upon by the respondent. It would appear that a number of these photos are in relation to food hygiene issues. For instance, there was a tub of mayonnaise with a label used by the 14 April 2020, which I am told was taken on 17 April. It is not explicit what year, but it almost certainly would have been 2020. It would appear that these photos are being relied upon, but the claimant has been provided with screenshots from a mobile phone of these photos and has been consistently asking since at least 2 November 2022 for original electronic copies to be made available to him.[43]Mr Franklin says that the respondents do not understand in what world the screenshot is not an original electronic copy. I don't accept that. I find that it is entirely clear that when you ask for the original electronic copy, you want somebody to forward you the photograph rather than a photo of the photograph.[44]I accept that the claimant had not explicitly said that he wanted to analyze the metadata, but he is a litigant in person, and it is clear throughout his constant requests for the original copies of the photographs that that is what he's after.[45]Once again, I find that the respondents have just buried their heads in the sand and said, “we don't know what this request is, so we are just not going to do anything with it”. I find that it is incumbent on parties to work together to get these matters ready for trial. If you are being asked for disclosure and you do not understand what it is, you must write to the other party and ask for further clarification.[46]If they are still unable to present it in a way that you understand then you should write to the tribunal and inform them of the disagreement so that the matter can be resolved. You do not just ignore it. It may well be that once the claimant gets those photos and sees the dates that the photo was created and who created it, that that part of the dispute between the parties could be resolved, but as it stands, the respondents’ constant failure to provide these is just creating more dispute between the parties and making it harder for the matter to settle.[47]Mr. Franklin has suggested that everything that should have been provided has been provided. As I've already said, I'm not satisfied that that is the case. There are certainly documents and recordings which I find, on balance, exist that have not been provided. I find that the duty of disclosure has not been complied within any event by the failure to actively engage and inform the claimant that these do not exist.[48]When I weigh everything in the balance, I find that the gateway under Rule 37(1)(c) open as there have been failures of disclosure. This failure of disclosure means there is a failure to comply with orders of the Tribunal dating back to 20 August 2021 and that is the case before we need to consider whether Judge Wright's order required further disclosure explicitly or not.[49]I therefore then have to move on to the second limb of the test which is a consideration of whether it is proportionate to strike out the response.[50]The final hearing in this matter is now listed for October 2025, so at the time of the hearing there was 11 months or so for the parties to get ready for the final hearing. That is a factor in the respondents’ favour. The hearing as listed was quite some time away, and I could order disclosure, and we could go ahead with it.[51]But I have to look at this in the round and consider the overriding objective. This is a matter that should have been dealt with two years ago at a final hearing, almost two years to the day, but because of the respondents’ actions, which were rightly criticized by Judge Wright, this did not go ahead. There is then their subsequent failure to engage in any meaningful way with the claimant on disclosure which has increased the costs to both parties.[52]It has required an additional hearing to resolve the matter and I find that the claim has taken up more than a fair share of the tribunal’s time to date in terms of dealing with correspondence. I appreciate that the Tribunal has not always acted promptly in response to correspondence, and that is unfortunate but it is where we are, with the current funding situation of the Tribunals. However, conduct such as the respondents’, which leads to more correspondence being sent to the tribunal that shouldn't be required if parties actually work together, adds to that backlog.[53]As such there is only so much weight I can put on the Tribunal’s delay and I find that much of this is of the respondents’ own making. Had the respondents just engaged, then there would have been no need for this additional correspondence through the Tribunal.[54]I find that after the 2022 hearing the respondents were aware, in no uncertain terms that they were on a sticky wicket. I think that many judges would have still struck out the response at that hearing, even without the claimant's attendance, and they were lucky with the panel composition they had.[55]Even when the formal strikeout application was made and the warning letter was sent to the parties, the response that the respondent wrote, with the table that I referred to, was at best disingenuous and verging on being deliberately misleading. I do not make the finding that it was deliberately misleading, but it was certainly starting to veer into the territory where I could be making such a decision. I find that for legal professionals to be writing these documents is not acceptable. It shows a lack of respect to the Tribunal, but more importantly, a lack of respect to the claimant who is a litigant in person.[56]It comes across as an attempt to bury the claimant under technicalities and semantics of word meanings, rather than actually being open and working together to resolve the issues over disclosure.[57]The passage of time impacts both parties who will be affected by the effects on the memory. I accept to a degree, Mr. Howell's submission that it is going to affect the claimant more, because he bears the burden of proof, and although I also remind myself that there may well be some degree of shifting burden here. I also remind myself that although there's not a formal burden on a respondent to prove things, if a respondent can prove something, it certainly assists their case, so that both parties will be affected by the delay and effect on memory.[58]When I weigh everything up in the balance, looking at the historic conduct of the parties, I find that it is a proportionate measure to strike out the response.[59]I then have to look at which respondents I'm striking out the response from as there are two respondents in this claim. There is the company, and then there is Mr. Sherrard, an individual who I'm told is that the owner and directing mind of the First Respondent. I also note from the earlier case management order that the first respondent accepts vicarious liability for the actions of the Second Respondent.[60]If I were to strike out the claim against the first Respondent's response and not the Second Respondent, this matter would still proceed to trial on the same issues with the claimant being hampered by the lack of documents.[61]Mr. Sherrard, the second respondent, is also the directing mind of the First Respondent, and would have the ability to direct them to comply with orders. The First Respondent has indicated that they accept vicarious liability and will indemnify him for any losses. I am minded in that instance to find that both parties have failed to comply with directions. Mr. Sherrod could have provided some of these documents himself, and therefore I strike out the response of both the first and second respondents. Approved by