Mr S Norbury v Network Rail Infrastructure Ltd: 2400095/2019

EMPLOYMENT TRIBUNALS

Case No 2400095/2019

Between

Mr S NorburyClaimant

Network Rail Infrastructure Limited RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Batten

In person for claimant

Mr M Sellwood (instructed by Counsel) for respondent

Date 22 July 2020

EMPLOYMENT TRIBUNALS Claimant: Mr S Norbury Respondent: Network Rail Infrastructure Limited RECORD OF A PRELIMINARY HEARING Heard at: Manchester On: 21 July 2020 Before: Employment Judge Batten (sitting alone) Representatives For the claimant: In person For the respondent: Mr M Sellwood, Counsel PRELIMINARY HEARING Employment Tribunals Rules of Procedure 2013 Introduction(1) This was a public preliminary hearing, convened by notice dated 4 February 2020, and previously postponed, to deal with two principal matters: a) whether or not the claimant had complied with the Unless Order sent to the parties on 28 October 2019; and b) to determine any application by the claimant for the Unless Order to be set aside.

(2) There had been a third matter, namely to consider whether or not the final hearing listed on 17 March 2020 could proceed. However, the final hearing was postponed on 13 March 2020 due to the claimant’s health at the time.

(3) At this hearing I did not hear any oral evidence. I had sight of documents on the Tribunal file and in a bundle provided by the respondent. I heard oral submissions from both sides.

(4) I will summarise the current position in the proceedings before recording what happened at this hearing. 1 of 6 Summary of proceedings

(5) This is a brief summary of the conduct of the claim, to put this preliminary hearing into context.

(6) The claimant applied to the respondent for a job, in September 2018. He says that he met the essential criteria and requirements for the role. The respondent says that he did not. The claimant did not get an interview. It is the claimant’s case that he should have been given an interview and that he was improperly stopped from getting an interview. The claimant believes that he should have had an interview in any event because he is a disabled person.

(7) By his claim form of 6 January 2019, the claimant alleges that the decision not to give him an interview amounted to an act of discrimination because of his disability. The claimant did not say what his disability was.

(8) The response form of 15 March 2019 defended the claim and disputed that the claimant was disabled. It asserted that the claimant had not met the essential criteria for the role.

(9) The parties attended a case management hearing before Employment Judge Robinson on 20 May 2019. The claimant told the hearing that he was disabled following a road traffic accident 18 years ago which had led to PTSD, anxiety and mental health issues. Employment Judge Robinson made Orders for the claimant to provide a disability impact statement together with copies of his medical records to the respondent so that it could consider the issue of whether the claimant was a disabled person in accordance with the definition in the Equality Act 2010. The claimant was also ordered to provide further particulars of the basis of his claim, giving full details and identifying under which section(s) of the Equality Act he wishes to pursue his claim. The respondent was thereafter given time to amend its response form and case management Orders for disclosure of documents and exchange of witness statements were also made. The claim was listed for a final hearing for four days to commence on Tuesday 17 March 2020. The dates which were agreed verbally at the hearing were set out in the written case management Orders sent to the parties on 28 June 2019.

(10) The Case Management Order records that Employment Judge Robinson asked the claimant to take legal advice, which he said he would be doing in any event, and for the claimant to produce his further particulars of his case to the Tribunal and to the respondent.

(11) The claimant failed to comply with the Case Management Orders of Employment Judge Robinson. Whilst he sent copies of his medical records to the respondent, he did not provide a disability impact statement nor did he provide further particulars of his claim by 10 June 2019.

(12) The respondent wrote to the Tribunal on 1 July 2019 seeking an “unless” order to compel the claimant to comply with the Orders. That application was listed for a preliminary hearing on 8 October 2019. In the interim, the respondent 2 of 6 applied on 11 July 2019, for strikeout of the claim and wrote to the Tribunal on 9 August 2019 to report that it had not heard from the claimant in 3 months. When the Tribunal asked the claimant for his comments on the respondent’s correspondence to the Tribunal, he said that he would be “forwarding on the additional information” before the preliminary hearing date. As a result, the preliminary hearing was postponed. However, on 18 October 2019, the respondent reported that the claimant had still not provided a disability impact statement nor any further particulars of his claim as ordered.

(13) On 28 October 2019, Employment Judge Allen made an Unless Order, that:

“Unless by Friday 29 November 2019 the claimant has sent to the respondent his impact statement and medical records and confirmed in writing to the Employment Tribunal that he has done so, the complaint will stand dismissed without further order”

The Employment Judge’s reasons for the Unless Order are recorded as being that the claimant had failed to provide this information on a number of occasions and that he indicated at the end of September that he would do so, but had still not provided the information. (14) On 28 November 2019, the claimant emailed the Tribunal to confirm that the respondent’s solicitors had “been issued with the requested medical particulars” and seeking a preliminary hearing on disability, although the Tribunal decided that a preliminary hearing was not required and that the claim should proceed to final hearing. (15) On 6 January 2020, the respondent wrote to the Tribunal to report that the claimant had still not supplied his disability impact witness statement. The Tribunal therefore listed a further preliminary hearing on 6 March 2020, to determine those matters set out at (1) above. (16) On 5 March 2020, the claimant contacted the Tribunal to say that, due to medical advice/illness, he was unable to attend the preliminary hearing on 6 March 2020. The claimant said that he had been diagnosed on Tuesday 3 March 2020 with a virus and told to self-isolate for a minimum of 5 days up to a maximum of 4 weeks. The Tribunal requested evidence of the claimant’s health position, in response to which the claimant said he would need to ring his doctor to request help for this. Later that day the claimant emailed to say that his doctors had “taken [his] email details and are looking into how they can help” The Tribunal therefore postponed the preliminary hearing and asked the claimant to provide his medical evidence in 14 days. The claimant said he would forward a transcript of his conversation with the doctor when he was able to collect it from the surgery. (17) On 9 March 2020, the respondent wrote to the Tribunal to point out that, if the claimant had been advised to self-isolate for up to 4 weeks, the final hearing listed on 17 – 20 March 2020 was unlikely to be able to proceed. The respondent also sought strike out of the claim. The Tribunal therefore postponed the final hearing. The claimant then asked if his medical evidence was still required and was told by a member of the Tribunal staff that it was not. 3 of 6 (18) On 15 May 2020, the respondent wrote in relation to its application, made on 9 March 2020, for strike-out of the claim and to seek listing for a preliminary hearing. The respondent also reported that the claimant had still not complied with the Unless Order. As a result, this preliminary hearing was listed to consider the matters set out at 1 above. The Unless Order (19) The Unless Order from Employment Judge Allen was sent out to the parties on 28 October 2019. The precise wording of the Order is set out above at paragraph (13). (20) The claimant had by then sent to the respondent copies of his medical records, but he did not provide a disability impact witness statement, setting out the disability contended for and its effect on the claimant’s ability to carry out day to day activities. This is an important document which shall assist the respondent in deciding whether to concede disability; alternatively, it shall assist the Tribunal to determine the issue of disability at a preliminary hearing if the issue of disability remains in dispute. The reason for ordering such a statement is that medical records alone do not ordinarily describe the effect of an impairment on day-to-day activities. (21) I asked the claimant to explain what he had done to comply with the case management orders and the Unless Order, including the requirement to serve a disability impact statement. The claimant told me that he had not understood that he needed to write a disability impact witness statement, nor was he aware that he had been ordered to file further and better particulars of his claim identifying which section(s) of the Equality Act he brought his claim under. The claimant accepted that he had not done either of these, and that he had not followed the case management orders, in terms of the requirement to gather documents for disclosure and to write a witness statement. The claimant told me he thought that he just had to attend the hearing and the Judge would decide his case on the day. The claimant also said that he had been struggling with his mental health during the pandemic and that he thought he had done enough to comply with the Unless Order. The claimant told me there had been some confusion with his email address and so he may not have got all the correspondence that had been sent to him by the respondent and/or the Tribunal. However, upon checking the file it was apparent that the email address being used was the one the claimant gave me, save for one instance very recently in 2020, when the Tribunal had sent one document to him. The error had been spotted by the respondent at the time and the email in question was subsequently sent to the correct address. The claimant said that he realised now that he had not fully understood what he had to do and that he wanted to seek legal advice but had not done so yet. He asked for time to do so. (22) Counsel for the respondent submitted that, on the basis of the claimant’s admissions, he had not complied with the terms of the Unless Order, which were clear as to the consequence and so the claim had already been dismissed under that Order. Counsel suggested that, in the circumstances, this 4 of 6 preliminary hearing should address a request by the claimant for the Order to be set aside, the question being whether it was in the interests of justice for the Unless Order to be set aside. The respondent’s position was that the Order should stand. It was submitted that the claimant had had ample opportunity to do what was ordered by Employment Judge Robinson, and had received numerous letters from the respondent and the Tribunal about his being in breach. However, the claimant had failed to take any action. The respondent pointed out that this was the fourth listed hearing, 2 previous hearings having been postponed, that the respondent had already been put to expense in its efforts to progress matters and that the claim has yet to be properly particularised, so the respondent still does not know the case it has to meet. (23) Having heard from Counsel for the respondent, I asked the claimant what he could say to me about setting the Unless Order aside. The claimant was confused and apologetic, and he repeated what he had said before, that he believed he had done everything ordered of him. The claimant again asked for time to get legal advice. Legal Framework (24) The Tribunal’s power to make an Unless Order is contained in rule 38, which provides: (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. My Decision (25) Having considered the factual background as set out above in the summary of proceedings, the oral submissions from the claimant, and the oral submissions from Mr Sellwood for the respondent, I was satisfied that the claimant had not complied with the terms of the Unless Order. There has been a failure by the claimant to supply a disability impact witness statement within the period specified in the Order of Employment Judge Allen. In the circumstances, the claim must stand dismissed in accordance with the wording of the Unless Order. (26) However, I noted that the Tribunal had not yet given written notice of the dismissal of the claim in accordance with rule 38(1). Accordingly, written notice of dismissal of the claim shall be sent out by the Tribunal. 5 of 6 (27) In deciding that the claim must be dismissed, I listened to the explanations provided by the claimant about his default, including that he is unwell, suffering PTSD and mental health issues. Although this was a hearing conducted by telephone, the claimant did not always appear to follow the dialogue and presented at times as confused. I was concerned that there was no evidence before me of the health matters which the claimant relied on in his reasons for not having complied with the Unless Order. This is an important point, since if the claimant’s failure to comply with the Unless Order is genuinely due to difficulties resulting from his health, that is a matter that should be given proper consideration, with evidence as available. (28) I have also taken account of the fact that the notice of preliminary hearing, which set out the matters to be considered, was sent out on 4 February 2020. Since then, whilst the preliminary hearing had been postponed the notices of relisted hearing did not specify what the Tribunal would be dealing with today. I consider that the claimant did not appreciate the possibility that his claim had effectively been dismissed due his failure to comply with the Unless Order. Nor did he appreciate that he should come today prepared to address me as to why the Order might be set aside. However, the operation of rule 38 is such that, once the written notice of dismissal is sent out by the Tribunal, the claimant shall have a further opportunity, under rule 38(2), to apply to the Tribunal within 14 days for the Unless Order to be set aside. (29) Lastly, I note that this is a case with a lengthy history of apparent noncompliance by the claimant with Tribunal orders despite many reminders to him through correspondence from the respondent and from the Tribunal. To date, the claimant has failed to provide any or any meaningful explanation for his lack of action in relation to a number of matters. Further, it is to be remembered that this claim was issued over 18 months ago, and relates to a job application made almost 2 years ago. Should the claimant decide to pursue an application under rule 38(2) he will need to explain his actions/lack of action, in detail and supported by medical or other evidence. Employment Judge Batten Dated: 22 July 2020 ORDER SENT TO THE PARTIES ON 31 July 2020 6 of 6