Dr M Tattersall v Mersey and West Lancashire Teaching Hospitals NHS Trust: 2400367/2022
EMPLOYMENT TRIBUNALS
Case No 2400367/2022
Between
Dr M TattersallClaimantMersey and West Lancashire Teaching Hospitals NHS TrustRespondent
Before
Employment Judge DunlopNot represented for claimantDate 12 January 2024
JUDGMENT
[1]Further to the Unless Order of
REASONS
[1]This claim was presented by Dr Tattersall on 20 January 2022 i.e. almost two years ago. It relates to an application for temporary employment that Dr Tattersall made to the Trust which was unsuccessful.[2]At the time, Dr Tattersall had two other cases on foot in this Tribunal against different NHS respondents:2.1 Claim 2407434/2021 (“the Tameside case”) was against Tameside and Glossop Integrated Care NHS Foundation Trust. That respondent was also represented by Weightmans LLP and, more particularly, by Mr. Williams of that firm, who also acts in this claim.2.2 Claim 2414987/2021 (“the North Cumbria case”) was against North Cumbria Integrated Care NHS Foundation Trust and two other respondents. The respondents in the North Cumbria case were represented by a different law firm, Ward Hadaway LLP.[3]It is also relevant that Dr Tattersall had a previous, concluded, claim against the respondent in this case. Mr Williams, I understand, had also had conduct of that litigation.[4]I do not know the details of Dr Tattersall’s claims in the Tameside case and the North Cumbria case. Suffice to say that they were separate claims arising out of separate events. Both claims predated this claim, and in both there had been difficulties in making progress with case management.[5]I understand that Dr Tattersall has a diagnosis of autism and there are references in his correspondence to other conditions specifically ADHD and depression and anxiety. In this context, Dr Tattersall has proposed that various adjustments and/or restrictions should apply as to how the litigation is conducted.[6]A case management hearing was listed to take place on 16 June 2023 to consider “Ground Rules” in respect of all three extant cases before the Tribunal. The purpose of this hearing was purely to discuss and make arrangements for the conduct of the litigation with regard to Mr Tattersall’s asserted disabilities. It was recognised that substantive case management of the individual cases would have to follow in separate hearings.[7]That hearing was conducted by Employment Judge Leach, who subsequently produced a detailed Record of the Hearing sent to the parties on 29 June 2023. The hearing was also attended by Miss Nina Pike. Miss Pike is a Tribunal-appointed intermediary, who has also been appointed to act as intermediary in family court proceedings involving Dr Tattersall.[8]At paragraph 13 of the Record, Employment Judge Leach set out the matters which he proposed to deal with, the first being “Correspondence in this litigation.”[9]That issue arose because Dr Tattersall had asserted that communicating by email causes him distress and that all communication should be by post. However, he had also asserted that the requirement to sign for (and/or collect from the Post Office) items which are sent by registered or recorded post causes him distress and is unacceptable. The only acceptable form of communication, from Dr Tattersall’s perspective, was standard first-class or second-class post.[10]The respondents considered reliance on the standard postal service to be unsatisfactory. Whilst Mr McKeever for North Cumbria emphasised a concern about entrusting sensitive personal data to the standard postal service, Mr Williams’ primary concern was that (he said) experience showed that Dr Tattersall had a habit of asserting he had not received items of correspondence. It would be disproportionate to require the respondent’s representatives to obtain a certificate of posting for each item of correspondence they wished to send, and therefore reliance on standard post in the particular circumstances of this case was not feasible.[11]There was evidently a great deal of discussion around this impasse and I will not seek to summarise the careful analysis of the Rules, and weighing of the parties’ arguments and interests, which Employment Judge Leach undertook before setting out his conclusions.[12]The decision he reached in respect of correspondence is set out at paragraphs 56-58 of the Record, which I reproduce: 56….. [I] decided that, notwithstanding the terms of Rule 90, Dr Tattersall must take additional steps to ensure the effective delivery of communications. 57.These additional steps are as follows:- 57.1To provide the respondents’ solicitors and the Tribunal office with an email address that accepts incoming emails. He must do this within 28 dates of this hearing (therefore by no later than 14 July 2023); 57.2To cooperate with arrangements for the collection of large files of documents from the solicitors’ offices in Manchester or Liverpool) by prior appointment. 58. I also order the respondents’ solicitors to either: 58.1 deliver correspondence to Dr Tattersall by first class post. Then, to ensure delivery, they may also send a copy by email to the respondent at least 4 days after the date that the correspondence was posted to Dr Tattersall; or58.2 provide Dr Tattersall with a “window” of dates and times when Dr Tattersall may attend their offices to collect documents. The respondents’ solicitors must provide at least 14 days advance notice (by first class post) of the window of dates.[13]Despite a typo in paragraph 58.1 (“respondent” for “claimant”) the scheme that Employment Judge Leech is attempting to set up is clear. The primary means of correspondence (apart from large files which are to be collected) is standard first-class post, as desired by Dr Tattersall. However, to address Mr Williams’ concerns about litigation progress being stymied by documents which Dr Tattersall asserts not to have been received, there is the follow-up email which will act as an ‘insurance policy’ on the postal delivery. The scheme is also explained by Employment Judge Leach in paragraph 46, where he refers to the email as being a “failsafe” and Dr Tattersall being able to simply delete any emails where he had already received the relevant item by post.[14]Although paragraph 57 is not expressed to be an Order in that paragraph itself, it is referred to as an Order in paragraphs 61 and 62. The requirement it places on Mr Tattersall could hardly be more basic – he is required to provide the respondent’s representatives and the Tribunal with an email address that accepts incoming emails by the specified date. Without such an address being provided, the scheme set out by Employment Judge Leach simply cannot work. I refer below to the requirement set out in paragraph 57.1 as “the Order”.[15]Employment Judge Leach goes on to describe that the hearing ended abruptly when he informed the parties of his decision about correspondence. Dr Tattersall talked over Employment Judge Leach and said he was going to appeal. He then said he was suffering from chest pains and needed an ambulance. Employment Judge Leach attempted to reconvene the hearing after a break, but Dr Tattersall was reportedly unable to continue. The hearing did not go on to deal with the other matters Employment Judge Leach had hoped to discuss, although he was able to address these to some extent in the Record, and set out a plan to progress the cases. The Unless Orders[16]Mr Tattersall did nothing to comply with the Order. By email dated 24 July 2023, Mr Williams brought this failure to the attention of the Tribunal and applied for an Unless Order “with regards to the claimant’s ongoing failure to comply with this Order”. That application was copied by post to Dr Tattersall. By email dated 26 July 2023, Mr McKeever, acting for North Cumbria, supported Mr Williams’ application. Again, this correspondence was copied to Dr Tattersall by first class post.[17]The application was not actioned promptly and, on 29 August 2023, Mr Williams sent a chasing email repeating his request. Again, this correspondence was copied to Dr Tattersall by first class post.[18]The application was considered on the papers by Employment Judge Tobin. Employment Judge Tobin was evidently satisfied that an Unless Order was appropriate in the circumstances. On 1 September 2023 he made an Order in the following terms: Unless Order Unless the claimant complies with Employment Judge Leach’s Order at paragraph 57.1 of the Record of Preliminary Hearing of 16th June 2023 within 21 days of this letter (so by no later than 22nd September 2023 then, his cases shall stand as struck out without further order.[19]Employment Judge Tobin went on to give brief written reasons for making the Unless Order. It is apparent from those reasons, and the wording of the Order, that Employment Judge Tobin drew no distinction between the three cases that Employment Judge Leach had had before him. Unfortunately, in error, the Unless Order was headed with the case number and parties in case 2407434/2021 (the Tameside case) only. The Unless Order was sent to Dr Tattersall by first class post.[20]On 1 September 2023, the same date that the Unless Order was sent to the parties in the Tameside case, Mr. Williams wrote to the tribunal by email, copying Mr McKeever, to raise the fact that the application had been made in respect of all three cases before Employment Judge Leach and to ask that the Tribunal to issue Unless Orders in respect of all three of the cases. Again, this correspondence was copied to Dr Tattersall by first class post.[21]By email dated 5 September 2023, Mr McKeever wrote to support that application. Again, this correspondence was copied to Dr Tattersall by first class post.[22]On 13 September 2023 the Tribunal wrote to both the respondents by email. A new version of Employment Judge Tobin’s Unless Order was attached, referencing the case numbers and parties in the North Cumbria case and the present case. The Unless Order was substantively the same as the previous Order. The date for compliance had been changed to 4 October 2023, reflecting the delayed service of the Order. Further, Employment Judge Tobin had added a sentence art the end of his Reasons stating “This order is in addition to the order made in case number 2407434/2021. These two cases were inadvertently omitted from that order.” This Unless Order was sent to Dr Tattersall by first class post. Possible compliance[23]Dr Tattersall took no steps to attempt to comply with the Unless Order prior to the 22 September 2023 deadline in the first Unless Order, which related to the Tameside case only.[24]On 3 October 2023, Dr Tattersall sent an email to the Tribunal copied to Mr Williams (but not to Mr McKeever, nor anyone else associated with either Ward Hadaway or North Cumbria) enclosing a letter erroneously dated 9 August 2022.[25]The email came from an email address which included the phrase “noreply” as its first part. (I shall not set out the email address in full given that this Judgment will be made public). It contained a footer stating “This email has been sent from an account which does not accept incoming email. Any replies sent to it will not be read. Any response to this email should be sent via an alternative method of communication.” I note here that this is an email address that Dr Tattersall has used to communicate with the Tribunal and the respondents’ representatives on other occasions. His position is that he can communicate by email in respect of sending emails, it is the receipt of emails which he objects to.[26]The letter extended to just over two pages and acknowledged receipt of both Unless Orders. It asserted that Dr Tattersall had not received Employment Judge Leach’s Record of Hearing and therefore was unaware of the requirements of paragraph 57.1. There is no mention of the numerous letters copied to him by the respondent’s representatives referring to the Record of Hearing. He does assert that he had unsuccessfully attempted to contact the Tribunal by phone.[27]Going on, Dr Tattersall objects to Employment Judge Tobin having made the Unless Orders and sets out lengthy criticism of Mr Williams. It is relevant to note that Dr Tattersall also states “it is not the technical ability to use a computer to send and receive an email that is my issue, but that my executive function difficulties (a common difficulty for people with ADHD) cause me difficulties in ensuring that all correspondence is appropriately actioned and responded to, which I have found is greatly improved by the insistence that important communication is sent in hard copy.” Something of this nature might have been inferred from Dr Tattersall’s own use of email and, indeed, the suggestion in the letter is that this point is something that Mr Williams is already well aware of. It may be inferred that Employment Judge Leach was told something along these lines as it fits well with the scheme he alighted on whereby the email would be a failsafe to sunre receipt, with the primary means of communication still being hard copy letter. I set out the excerpt here because it is the only specific reference in the documents that I have seen to the precise nature of Dr Tattersall’s difficulties with email and, in particular, the distinction between sending and receiving emails.[28]Following this preamble, the letter states: “I believe it most likely that the purported non-compliance being taken issue with by Mr. Williams, regards an order requiring me to communicate with him by email and no doubt then provide him with an email address, I reiterate that I believe Mr Williams already has my email address and has previously emailed me. In any event I state that my email address is [address omitted].” The address provided was a different one to the “noreply” email address the Dr Tattersall was using. It is not an email address from one of the widely-known public email services (such as gmail) but appears to be an email address provided by an organisation providing serves to doctors. It also appears to be an email address that is personal to Dr Tattersall.[29]Mr Williams candidly accepted today that if Dr Tattersall’s letter had ended at that point, then he would have complied with the second Unless Order as it relates to this respondent. However, Mr. Williams argues that the points made by Dr Tattersall subsequently, in the same paragraph, undermine his provision of the email address and that, in view of those points, Dr Tattersall has not materially complied with the second Unless Order. The points are set out in the letter as part of one long paragraph. I set them out below as a numbered list for ease of discussion and understanding.29.1 However, I wish to make it clear that I disclosed this email address only in the event that I have been ordered to do so and would request that it is not retained by any party or the Tribunal in the event that I have not been required to provide it.29.2 Furthermore, I wish to emphasise that this is not a secure email address and that I consider email communication to this address to be susceptible to interception and there is a risk that emails can not be received due to technical reasons or the malicious acts of others.29.3 I wish to reiterate that I do not give consent to this email address to be used in any way by any party or the tribunal for service or communication unless the need for such consent has been overridden by a valid order of the tribunal.[30]I finally note that the letter purported to make an application to set aside the Unless Order, and for relief from sanctions, in the event that there had been non-compliance. Subsequent Matters[31]A further joint hearing had been due to take place, scheduled by Employment Judge Leach, on 6 October 2023. There was correspondence between the Tribunal and the respondent’s representatives about the status of the claims and a successful application by Dr Tattersall to postpone that hearing for other reasons.[32]The upshot of this correspondence was a letter dated 9 November sent on the direction of Regional Employment Judge Franey to the parties on 9 November 2023. The letter stated that Dr Tattersall had wholly failed to comply with the first Unless Order (in the Tameside case) and that that claim was dismissed. REJ Franey noted that Dr Tattersall had indicated an intention to apply for relief from sanction and that the time had now started to run for him to do so. REJ Franey extended the time limit provided for by Rule 38(2) to 21 days from the date of the letter.[33]Similarly, REJ Franey’s letter confirmed that Dr Tattersall had failed to comply with the second Unless Order in respect of the North Cumbria case. (On the basis that the 3 October email did not copy in Mr McKeever, and no email address had been supplied to North Cumbria’s representatives by Dr Tattersall at any point). Similar provisions were made in respect of an anticipated application for relief from sanctions. Notices of dismissal of both claims, set out in standard form, were sent alongside the letter.[34]In respect of this case, REJ Franey stated that the question of whether the Dr Tattersall had materially complied with the Unless Order would be determined at the preliminary hearing (which had already been listed) on 12 January 2024 (i.e. today). It was envisaged that any application for relief from sanction in the other claims would also be dealt with today.[35]No application for relief from sanction in the two other claims was received from Dr Tattersall, nor was any other correspondence received prior to this hearing. By letter dated 20 December 2023, sent on the direction of REJ Franey, the Tribunal confirmed to the parties that neither the Tameside case, nor the North Cumbria case, would be considered today, and that Ward Hadaway LLP need not attend. The only matter for consideration today would be whether Dr Tattersall had materially complied with the Unless Order in respect of this claim. Today’s Hearing[36]The Tribunal booked Miss Pike to attend the hearing, acting as an intermediary, at public expense. Miss Pike attended the hearing. Mr Williams attended the hearing by CVP, along with an observer from the Trust. Dr Tattersall did not attend the hearing.[37]Rule 47 provides: “If a party fails to attend or be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to its, after any inquiries that may be practicable, about the reasons for the party's absence.”[38]I invited Miss Pike into the hearing room as I considered it appropriate to make inquiries of her as to any information she could provide about Dr Tattersall's absence. She had no information to provide. We canvassed whether it was appropriate for her to stay in the hearing (I was mindful that Dr Tattersall may arrive late). Given that her role is to facilitate communication with a litigant, Miss Pike appeared uncomfortable with the idea of staying in a hearing where that litigant is not present. She explained that relaying the content of a hearing to Mr Tattersall in those circumstances would be outside the scope of her role. She could facilitate the participation of a litigant who attended the building but was unable to appear in the Tribunal room (for example due to anxiety), but that was not the case here. In the circumstances, I agreed that Miss Pike should leave the hearing but asked her to remain available in the building in case Dr Tattersall arrived late.[39]I noted that Dr Tattersall has not provided a phone number to the Tribunal. I did not consider it practicable to make enquiries about his absence by email. In the circumstances, I considered there were no other inquiries I could make and that I had no information as to the reasons for Dr Tattersall’s absence.[40]Mr Williams initially suggested that I should simply dismiss the claim. I was reluctant to do so as I considered that I could make a decision on the key issue of material compliance in his absence, that issue being almost entirely dependent on my interpretation of Dr Tattersall’s letter. My view was that it was in accordance with the overriding objective to reach a decision either way. I noted that if I found that there had been compliance with the Unless Order then it would be appropriate to require Mr Tattersall to explain his non-attendance and to issue a strike out warning on the basis that the claim was not being actively pursued. Mr Williams had no objection the Tribunal proceeding on that basis. Mr Williams’ Submissions[41]Mr Williams made oral submissions on the question of material noncompliance. He talked through the history of the case and the factors which had led to Employment Judge Leach making an Order in the form that he had. He emphasised that the Order did not require Dr Tattersall to “communicate” by email, it merely required him to provide an email address which accepts incoming mail, in order to provide the “failsafe” or “insurance” that would allow the Tribunal and the respondents to communicate with Dr Tattersall in confidence that such communication would be received. He stressed that the ability to do so was an essential foundation stone of any litigation progress.[42]Mr Williams submitted that the additional points, or caveats, included in Dr Tattersall’s letter undermined his purported compliance. He said “what Dr Tattersall gives with one hand, he takes away with the other” by providing an email address, yet stating that it should not be retained, that the other parties do not have his consent to use it, and that there is a risk that emails cannot be received. Mr Williams emphasised that compliance must be qualitative and not merely formal. On that basis, there was no material compliance by Dr Tattersall.
The Law
[43]Issues relating to Unless Orders generally, and non-compliance specifically, have given rise to a significant body of appellant authority. Generally, problems arise where an Order requires a significant task to be performed – the provision of further particulars, or evidence, for example – and a question arises as to whether a sub-standard attempt to perform the task is sufficient to discharge the Order.[44]One might have thought that there could be no question of incomplete, partial or sub-standard performance of a requirement to provide an email address, yet here we are. There is, so far as I am aware, no authority dealing with alleged non-compliance in comparable circumstances to this case, a point I kept in mind when reviewing the principles to be taken from the jurisprudence on this subject.[45]I had regard in particular to the recent EAT case of Minnoch v Interservefm Ltd [2023] IRLR 492 in which the legal principles related to non-compliance with Unless Orders are helpfully summarised.[46]The starting point is Wentworth-Wood v Maritime Transport Ltd (2016) UKEAT 0316/15/JOJ which makes clear that the Unless Order process comprises three separate decisions: the decision to impose the Order (including its terms), the decision whether to give notice under Rule 38(1) (which requires the Tribunal to form a view as to whether there has been material non-compliance) and, thirdly, the decision on any application under Rule 38(2) whether it is in the interests of justice to set aside the Unless Order. These are “separate decisions taken at different times under different legal criteria”.[47]At stage 2, i.e. this stage, the Tribunal is not concerned with whether the Unless Order ought to have been made. Rather, “that task is to consider the terms of the Order itself and whether what has happened complies with the Order or not.” Uwhubetine v NHS Commission Board England UKEAT/264/18. The Judgment explains that this will require careful construction of the Order and its effect, and that, in the case of ambiguity, the approach should be facilitative rather than punitive. It is confirmed that the test to be applied is whether there has been material non-compliance, to be assessed in a qualitative, rather than quantitative, sense.[48]I also had regard to the case of Leeks v Brighton & Sussex University Hospital NHS Trust [2022] EAT 153. In that case the claimant was required to serve a witness statement and served a statement described as an “interim” statement which did little more than reproduce her particulars of claim. The Tribunal’s decision that this amounted to material noncompliance was overturned. The claimant herself had not described the statement as “interim” – that was the Tribunal’s interpretation. The fact that the statement left gaps or weaknesses did not mean that there had been non-compliance.
Conclusion
[49]The requirement of the Unless Order was that the claimant provide “an email address that accepts incoming emails”. Dr Tattersall’s letter criticises Employment Judge Tobin for setting out that requirement by reference to another document, rather than in the body of the Unless Order. That is not a relevant criticism for this stage 2 enquiry – the requirement is, in my Judgment, more than clear enough for me to ascertain whether Mr Tattersall has complied.[50]I agree with Mr Williams that, if Dr Tattersall’s letter had ended at the point where he sets out his email address, he would have complied with the Unless Order.[51]In considering whether any of the three points added by Dr Tattersall changes this position, it is helpful to set them out again and take them in turn. Mr Williams asserts that each is fatally undermining to the purported compliance. However, I wish to make it clear that I disclosed this email address only in the event that I have been ordered to do so and would request that it is not retained by any party or the Tribunal in the event that I have not been required to provide it.[52]I disagree with Mr Williams that there is anything in this statement which changes the position. This first point must be read in the context of his assertion that he did not receive Employment Judge Leach’s Record of Hearing, and therefore does not know what he has been ordered to do. The respondent may well be sceptical of this assertion, and points out that the order was made orally in the hearing in any event. The fact that Dr Tattersall (grudgingly) provides an email address may be seen as proof that he knew very well all along what he needed to do. If, and when, Mr Tattersall applies for the Unless Order to be set aside under Rule 38(2), it may be necessary for the Tribunal to make definitive findings on all of these matters. It is neither necessary nor appropriate for me to do so now.[53]Against the backdrop of this claim, however, I conclude that this comment is no more than “window dressing” designed to bolster Dr Tattersall’s primary position, that he does not concede that any Order is in place.[54]For an Unless Order to be discharged, Dr Tattersall is not required to agree with the original Order, to comply with it in good grace nor even, in my Judgment, to acknowledge that it exists. He is simply required to provide an email address that accepts incoming emails by the required date. Nothing in that first comment undermines the presumption that he has provided a valid address for the purpose of the order. Furthermore, I wish to emphasise that this is not a secure email address and that I consider email communication to this address to be susceptible to interception and there is a risk that emails can not be received due to technical reasons or the malicious acts of others.[55]In view of the comments I have just made, it is the second part of Dr Tattersall’s commentary that causes me significant concern. By stating that “there is a risk that emails can not [sic] be received” Dr Tattersall is making a statement which conflicts with the fundamental purpose, as well as the express wording, of Employment Judge Leach’s Order.[56]In my Judgment these is an implicit risk with email communication that, very rarely, some emails may not be received for various technical reasons that we are all familiar with. I find that Dr Tattersall’s letter cannot reasonably be construed as referring to those circumstances, particularly due to the references to outside interference. The most obvious reading is that the address he has provided is specifically vulnerable to receipt failures for “technical reasons” or “malicious acts of others”, in which case another address ought to have been provided (and set up, if necessary) in compliance with the Order.[57]An alternative explanation, in the context of this case, is that Dr Tattersall is seeking to set up an expectation that (as with his post) the respondent and the Tribunal must expect that he will fail to receive communications at a level which is far, far in excess of anything that would be expected in dayto-day use of this form of communication. This is Mr Williams’ belief and understanding from reading the letter, and I accept that it is his genuine view. In the words of one of Mr Williams’ letters “the Claimant has not, therefore, provided an email address which accepts incoming emails. Rather, he has provided an address which he states may well not receive incoming emails.” If the email address provided does not reliably accept incoming mail (either because it is deficient in this regard compared to other email addresses, or because Dr Tattersall ‘hides behind’ incorrect but unprovable assertions of non-receipt, whether as a result of disability or otherwise) then the failsafe envisaged by Employment Judge Leach is rendered useless.[58]Taking a qualitative view, and set against the backdrop of the unusual and very careful steps taken by Employment Judge Leach to try to facilitate the progress of this litigation, I accept the respondent’s submission that Dr Tattersall’s letter does not represent material compliance with the Unless Order. The Order was not expansive, it was minimalist. Dr Tattersall’s letter indicates, in my Judgment, that he will not comply with the Tribunal’s expectation that he cooperate in the use of email, even as a “failsafe”, because it is unacceptable to him. He has not provided an email address which, in reality, will accept incoming mail, and has therefore not complied. I wish to reiterate that I do not give consent to this email address to be used in any way by any party or the tribunal for service or communication unless the need for such consent has been overridden by a valid order of the tribunal.[59]In respect of the third point, I repeat the comments made about the first point. I do not consider that this comment supports the proposition that there has been material non-compliance. Application under Rule 38(2) 3. Although Dr Tattersall’s letter intimates a relief from sanction application, I did not consider it would be appropriate for me to assume that he wishes to proceed with such an application, nor the grounds for it, in his absence today. I adopt the approach taken by REJ Franey in respect of the other cases, where Rule 38(1) notices were issued by the Tribunal, of extending the time for such an application to be made to 21 days from the date of the Notices. No separate Notice will be sent in this case in view of the fact that a Judgment has been issued following a hearing. Any such application must be made within 21 days of the date this Judgment is sent to the parties.