Miss R Grzondziela v St Barnabus and St Paul’s Church of England School and Mrs Carla Martini: 2401724/2016
EMPLOYMENT TRIBUNALS
Case No 2401724/2016
Between
Miss R GrzondzielaClaimantSt Barnabus and St Paul’s Church of England School and Mrs Carla MartiniRespondent
Before
Employment Judge FeeneyIn person for claimantMr K McNerney for respondentDate 3 June 2019
JUDGMENT
ON RECONSIDERATION The judgment of the Tribunal is that:[1]The decision to accept the claimant's claim on 29 June 2016 is revoked.[2]The decision is varied to the effect that the claimant’s claim is rejected.
REASONS
[1]The claimant presented her claim on 14 June 2016 claiming unfair dismissal, race discrimination, disability discrimination and harassment following her dismissal by the respondent on 3 March 2016 and citing some instances which she stated were evidence of race discrimination. The claimant's claim of unfair dismissal was struck out as she did not have two years’ service.[2]In the claim form the claimant named as respondent at box 2.1 Carla Martini, the Head Teacher of the school, and put the school “St Barnabus & St Paul’s C of E” and its address as the address of Mrs Martini. It should be said box 2.1 says, “give the name of your employer or person or organisation you are claiming against”.[3]The claimant obtained an ACAS certification form in the name of the school only which showed that the claimant entered into conciliation on 9 May 2016 and the certificate was discharged on 31 May 2016. The claim was referred to me as Duty Judge on 29 June 2016 on the basis that the named respondent in the ACAS certificate was different from the named respondent in the claim form. I accepted it under rule 12 which enables minor errors to be corrected (legislation is set out in full below), as I assumed, wrongly as it transpired, that the claimant intended to proceed against the school rather than the individual, that she was misled by the box description (as experience has shown this can be the case) and as she had included the name of the school in the address that was sufficient to describe it as a minor error. However, this may also have been an incorrect application of rule 12 as rule 12 arguably applies in respect of the certificate being incorrect rather than the claim form.[4]A preliminary hearing (management discussion) was first held by Employment Judge T Ryan on 6 September 2016. For various reasons, including the fact that an interpreter had not been arranged, no progress was made at that hearing. A second preliminary hearing (case management) was held on 27 October 2016 by Employment Judge Horne and at that hearing the claimant made clear that she intended to sue Carla Martini and she did not want to sue the school.[5]The respondent at that case management discussion raised an objection to the acceptance of the form in the first place. They had raised this at the previous case management discussion before Employment Judge Ryan and reiterated this at the hearing, stating that this was not a minor error particularly in the light of the fact that the claimant had emphatically stated that she wished to sue Mrs Martini and therefore the ACAS certification form should be in Mrs Martini’s name.[6]The parties and the Employment Judge, at that preliminary hearing, agreed that as I had made the decision to accept the form it was my role to consider whether or not I should reconsider by earlier decision and if necessary hold a hearing to determine this matter. I decided I did need to reconsider the point and listed a reconsideration of my own motion with the parties attending.[7]The claimant has confirmed today, as she did at the previous preliminary hearing, that she only wishes to proceed against Mrs Martini. The claimant argues, but did not give evidence as it was not necessary at this juncture, that ACAS had made a mistake in issuing the certificate in the school’s name and that she had sought to have one issued in the individual name. The claimant has since obtained a further conciliation certificate in the name of Carla Martini but she did not have it with her and the Tribunal was unable to obtain a copy (although it was subsequently located). The respondent did not have a copy either. It seems likely as a result that the claim will be out of time and a further preliminary hearing will be necessary to deal with the out of time point.[8]The Employment Judge canvassed with the parties, and as far as she could with the claimant (who was having to deal with some extremely technical matters), whether this hearing could also be a rule 13 hearing (again, described below) but, as the respondent indicated, they would want to challenge the claimant’s reliance on ACAS having made a mistake and that rule 13 required an application in writing that this would not be a sensible course to take, although suggested by the Employment Judge in an effort to reduce costs. Rule 13 only arises if the claim is rejected, which of course was not yet the case, but I was attempting to consider all relevant points at one hearing.[9]I should note that the hearing was quite difficult as the claimant understandably wanted to put her points quite quickly which made it difficult for the interpreter, as also did the respondent’s representative. Both parties had to be slowed down on numerous occasions.[10]I also requested the interpreter to read to the claimant, in public but quietly, the provisions of Harvey’s relevant to one of the points I had to consider, although I fully accepted it might be difficult for the claimant to absorb all this information.[11]The parties then made their submissions and requested that the decision be in writing in order that they could consider it at length for reasons which become apparent below.
The Law
[12]Rule 12 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 schedule 1 states that: “(1) The staff of the Tribunal office shall refer a claim form to an Employment Judge if they consider that the claim or part of it may be –(a) One which the Tribunal has no jurisdiction to consider;(b) In a form which cannot sensibly be responded to or is otherwise an abuse of process;(c) One which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies;(d) One which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies and an early conciliation exemption does not apply;(e) One which institutes relevant proceedings and the name of the claimant on the claim form is not the same as the name of the prospective claimant on the early conciliation certificate to which the early conciliation number relates; or(f) One which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the early conciliation certificate to which the early conciliation number relates. (2) The claim or part of it shall be rejected if the Judge considers that the claim of part of it is of a kind described in subparagraphs (a), (b), (c) or (d) of paragraph (1): (a) The claim or part of it shall be rejected if the Judge considers that the claim or part of it is of a kind described in subparagraph (e) or (f) of paragraph (1) unless the Judge considers that the claimant made a minor error in relation to a name or address and that it would not be in the interests of justice to reject the claim. (3) If the claim is rejected the form shall be returned to the claimant together with the notice of rejection giving the Judge’s reasons for rejecting it or part of it. The notice shall contain information about how to apply for a reconsideration of the rejection.”[13]Rule 13 deals with reconsideration of the rejection and says that: “(1) A claimant whose claim has been rejected (in whole or in part) under rule 10 or rule 12 may apply for a reconsideration on the basis that –(a) The decision to reject was wrong; or(b) The notified defect can be rectified. (2) The application shall be in writing and presented to the Tribunal within 14 days of the date that the notice of rejection was sent. It shall explain why the decision is said to have been wrong or rectify the defects and if the claimant wishes to request a hearing this shall be requested in the application. (3) If the claimant does not request a hearing or an Employment Judge decides on considering the application that the claim shall be accepted in full, the Judge shall determine the application without hearing otherwise the application shall be considered at a hearing attended only by the claimant. (4) If the Judge decides the original rejection was correct but that the defect has been rectified the claim shall be treated as presented on the day that the defect was rectified.”[14]For reasons that will become apparent, rule 27 may also be relevant. Rule 27 refers to the dismissal of a claim or part and states that: “(1) If the Employment Judge considers either that the Tribunal has no jurisdiction to consider the claim or part of it, or that the claim or part of it has no reasonable prospect of success the Tribunal shall send a notice to the parties –(a) Setting out the Judge’s views and the reasons for it; and(b) Ordering that the claim or part in question shall be dismissed on such date as is specified in the notice unless before that date the claimant has presented written representations to the Tribunal explaining why the claim or part should not be dismissed. (2) If no such representations are received the claim shall be dismissed from the date specified without further order (although the Tribunal should write to the parties to confirm what has occurred). (3) If representations are received within the specified time they shall be considered by an Employment Judge who shall either permit the claim or part to proceed or fix a hearing for the purpose of deciding whether it should be permitted to do so. The respondent may but need not attend and participate in the hearing. (4) If any part of the claim is permitted to proceed the Judge shall make a Case Management Order.”[15]In respect of reconsideration of hearings in general rule 70 applies which states that: “A Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the decision (the original decision) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[16]Rule 72 under “process” says: “(1) An Employment Tribunal shall consider any application made under rule 71 if it considers there is no reasonable prospect of the original decision being varied or revoked. The application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. (2) If the application has not been refused under paragraph (1) the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. (3) Where practicable the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full Tribunal which made it, and any reconsideration under paragraph (2) shall be made by the Judge, or as the case may be the full Tribunal which made the original decision.”[17]Rule 73 states: “Where the Tribunal proposes to reconsider a decision on its own initiative it shall inform the parties of the reason why the decision has been reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).”[18]In respect of a situation regarding rejection of claims under rules 10, 11 and 12 they have proceeded on the understanding that the rules were lawfully made within the powers granted by the Secretary of State under the Employment Tribunals Act 1996 section 7. However, in the Trustees of Williams Jones’s Schools Foundation v Parry [2006] EAT, Laing J held: “With specific reference to the procedure in rule 12(2) for rejecting a claim under rule 12(1)(b) (the claim is in a form which cannot sensibly be responded to or is otherwise an abuse of process). The power to reject such a claim without a hearing is not authorised by the Employment Tribunals Act 1996 section 7(3A), and (3AA), and is accordingly ultra vires and unlawful. “[19]It was germane to that decision that the rejection of a claim under rule 12 was a “determination of proceedings” and that that could not take place just on the papers as the relevant provisions of the Employment Tribunals Act 1996 could not authorise such a procedure (i.e. a papers only procedure)[20]The Parry case focussed on rule 12(1)(b) but Laing J held that: “The only provision in rule 12 which is authorised by section 7 is rule 12(1)(a) [no jurisdiction].”[21]Therefore it would seem logical that the same reasoning applies to the other grounds in rule 12 cited above at (c)-(f) and (possibly also to 10 and 11 although I did not have to consider that today). I note that Judge Horne in his case management discussion also referred to his understanding that the decision would apply to the other parts of rule 12.[22]On the basis of having found that a rejection without a hearing under rule 12(2) is unlawful the solution according to Laing J lies in Tribunals dealing with such cases under rule 27.[23]My understanding of rule 27 was that it was a new provision introduced so that a Judge could challenge at an early point (for example, when considering a file on duty probably at the point a response form had been received) in a proactive way the basis of a claim which appeared to be, for example, unsustainable in law or in fact rather than having any connection with rule 12. This was with a view to weeding out early weak claims which at the time it was felt were unnecessarily taking up respondents’ and tribunals’ time.[24]In Parry the claimant's solicitors drafted a claim form and sent it to the Tribunal saying in box 8.2 “please see attached” but attached the details referring to a different case. When the matter was referred to a Judge on the basis that “it was in a form that could not sensibly be responded to”, an Employment Judge decided to accept it rather than reject it. The respondent applied for a reconsideration of that decision under rule 70 but this was refused on the grounds that the decision to accept the claimant was not a judgment within the meaning of rule 1(3)(b) as it did not finally determine the claim.[25]The EAT, although accepting that under the terms of rule 12(1)(b) and (2) the claim should have been rejected nevertheless dismissed the respondent’s appeal on the basis that it was right the claim should proceed as there was no power to reject it.[26]The decision was based on, and I quote from Harvey’s here: “The assumption that the rejection of a claim under SI 2013/1237 schedule 1 rule 12(2) comes within the purview of ‘determination of proceedings’ in the Employment Tribunals Act 1996 section 7(3A) and (3AA).”[27]Harvey’s goes on to say that: It is, however, difficult with respect to see how the rejection of a claim in limine for compliance with the formal requirements for making it can be said to equate to the determination of the proceedings within the meaning of those subsections. If the claim is rejected there is no claim at all and there are no proceedings to be determined, whether with or without a hearing. If this is correct it follows that neither the permissive provisions of section 7(3A) nor the restricting provisions of section 7(3AA) apply to a rule 12(2) rejection at all, in which case there is no question of procedure contained in that paragraph being ultra vires to those subsections.”[28]Further Harvey’s states that: “It was acknowledged in Parry that there was power in the ETA 1996 section 7(3ZA)(a) to make regulations prescribing the form and contents of a claim for instituting proceedings and thus that there was a power to impose the requirements set out in rule 12(1). However, Laing J did not accept an argument that the power to make requirements implied a power to provide sanctions for non compliance stating that in any event rule 27 provided a mechanism for enforcing rule 12(1) requirements. It is submitted with respect that it would be strange if Parliament had not impliedly authorised the making of regulations to provide for the consequences of non compliance. If an essential requirement for making a claim has been lawfully imposed but has not been complied with the natural consequence is that the claim will not be accepted. It is doubtful whether it is necessary for the enabling power to spell this out expressly. If this is correct then the mechanism for dealing with rejections in rule 12(2), (2A) and (3) the procedure for enabling the claimant to apply for a reconsideration in rule 13 are properly intra vires section 7(3ZA)(a) of the ETA 1996. There would thus be no need to have recourse to rule 27 at all. Indeed rule 27 would not seem to be an appropriate vehicle for dealing with any of the grounds for rejection in rule 12(1) other than rule 12(1)(a). Rule 27 specifically sets out the procedure for dismissing a claim on the grounds on that Tribunal has no jurisdiction or the claim has no reasonable prospect of success. It is not designed to deal with the procedure for rejecting claims at the outset for non compliance with the formal requirements. The procedure for dealing with this is contained in rule 13 which affords the claimant the opportunity, albeit after rejection, to argue why the rejection was wrong, to rectify the defect and to request a hearing.”[29]Harvey’s goes on to say: “Notwithstanding this, however, it would seem that as long as the judgment in Parry stands Tribunals will have to adapt their procedures to ensure that claims are not rejected for non compliance with the formal requirements unless and until the claimant has had an opportunity to make representations and to attend a hearing.” Respondent’s Submissions[30]The respondent submitted firstly that the decision to reject a claim was not a decision to end proceedings within the meaning of the ETA echoing some of the argument in Harvey’s above. The proceedings had not started. Secondly, that the objection in Parry was that the decision was made on the papers. However, we were now having a hearing where the claimant could make any representations regarding rejection and the respondent regarding acceptance, and therefore the objection in Parry was disposed of. Finally, that my decision to reject for a minor error was, in the light of all the information now available, incorrect as it was clear that the Acas certificate did name the incorrect respondent and that could not be a minor error. Claimant’s Submissions[31]The claimant stated that she had not made an error but that ACAS had put down the name of the school rather than the name of the head teacher and that was not her fault and that she should not be held responsible for that. She reiterated that she wished to proceed against Mrs Martini and not against the school.
Conclusions
[32]I have reconsidered my decision of 29 June to accept the claimant's claim on the basis that there was a minor error in her ACAS certificate. I revoke that decision and on revoking my decision I have decided to reject the claimant's claim. I make this decision on the following grounds:(1) That in light of the claimant's clear and emphatic submissions that she only wishes to pursue a claim against Carla Martini and not against the school, St Barnabus and St Paul’s Church of England School, the ACAS certificate which I considered on 29 June is in the name of the incorrect respondent. That is not a minor error as it may have been if there was a spelling error or if the claimant had simply put Carla Martini on the ET1 form in error alongside the name of the school, believing that there needed to be a named person or figurehead on the ET1 as I had originally assumed.(2) That as a hearing has now taken place, albeit under regulation 70, where the claimant has had an opportunity to explain her full intentions, the decision to reject has not been made “on the papers” and therefore is not caught by the Parry decision.[33]In addition, having quote Harvey in full above, the points made in that critique in respect of the Parry decision appear attractive. However, I am bound by the judgment of the EAT which has the effect of vitiating the whole of rule 12 save 12(1)(a). I cannot see how the part of rule 12 I am concerned with here – 12(1)(f) - can be distinguished from the part at issue in the Parry case. However as I have indicated above I am satisfied that by holding a hearing this judgment is Parry compliant. Future Case Management[34]As I have now rejected the claimant’s claim form may now challenge that decision under rule 13 which I have set out above. If so, I suggest any hearing required under rule 13 is held in conjunction with a hearing to decide whether as the claimant has now obtained a second ACAS certificate on 4 November her claim should be allowed to proceed in the light of the relevant time limits. A copy of the certificate has now been sent to the respondent and an indication that the claimant's defect has been corrected as of 4 November.[35]I have instructed the out of time issue to be listed. If the claimant makes any application under rule 13 that can be joined with the out of time issue and further Case Management Orders, including the clarification of the claimant's claims which is urgently needed, can take place at the same time, subject to the claimant's claim surviving the preliminary issues. RECONSIDERATION JUDGMENT The judgment of the Tribunal is that: 1. The decision to strike out the claimant's claim is reconsidered in the interests of justice. 2. The claimant’s claims are reinstated. Further case management orders are made at the end of this judgment.
Conclusions
[1]The claimant applies for the striking out of her claim when she did not comply with an Unless Order to be set aside and her claim reinstated. Preamble[2]The claimant and the respondent agreed the matter could be dealt with in chambers, although following making my decision in this case I was advised by Tribunal staff that the claimant had in fact attended and brought with her a letter dated 28 May asking for a Polish interpreter for today’s hearing. She was advised that the hearing was in chambers. She also included a sick note covering the period 23 May 2019 to 23 June 2019 saying that she had a “chronic ****/stress ongoing Tribunal”. Findings of Fact My findings of fact are as follows:
Findings of Fact
[3]The claimant’s case has a convoluted history which it is not necessary to go into in full for the purposes of this Judgment.[4]The claimant brings race discrimination claims, her unfair dismissal claim having been struck out because she did not have the requisite service.[5]Following a preliminary hearing to determine numerous jurisdictional points I gave further directions for the preparation of the case for hearing. I set out in these directions my understanding of the claimant's claims and asked her to agree whether those were her claims by 10 July 2017; to provide further particulars including dates regarding comments made, identify who was responsible for the actions complained of, and indicate when she raised these as complaints. The claimant was advised she must set out and apply to amend if any of the claims she believed she had were not included in that list.[6]The claimant was ordered to serve a Schedule of Loss by 24 July 2017. Orders were made requiring the parties to exchange lists of documents on which they intended to rely by 31 July and provide any requested copies of those documents by 14 August 2017. The respondent was to be responsible for the bundle and to have completed the bundle and served it on the claimant by 11 September[7]Witness statements were to be sent to the other party by 4.00pm on 9 October 2017, and more details were given regarding the content and layout of the witness statements. The matter was listed for four days on 13-16 November 2017.[8]On 18 July 2017 the respondents wrote to the Tribunal and stated that the claimant had failed to confirm whether the claims set out in the previous Order were correct, had failed to provide any dates or personnel and had failed to indicate whether or not there were further claims not listed for which she applied to amend. The respondents therefore said they were unable to respond to the claim by way of an amended response without that further information, and they requested an Unless Order.[9]On 18 July 2017 the claimant wrote to the Tribunal a letter regarding the exclusion of her son from the school, even though I had advised her that issues regarding her son would generally not be within the jurisdiction of the Tribunal.[10]On 17 July 2017 the claimant provided a complaint regarding a social worker and she provided various other documents in relation to that dispute., again not within the tribunal’s jurisdiction.[11]On 21 July 2017 the Tribunal wrote to the claimant to remind her of the orders issued on 28 June 2017 (this was a typing error for the 19 June) following the hearing on 14 June 2017 and which referred to a childcare issue in relation to her son which had not been resolved (the claimant had advised she would have to leave the tribunal in time to pick up her son and the school had offered to provide free after school care but then this was withdrawn).[12]The claimant failed to comply with the orders. An Unless Order was then issued on 26 July 2017 ordering the claimant to comply by 7 August 2017 with Case Management Orders 48 and 50 made on 19 July 2017. These orders concerned further particulars of her claim and any amendment request.[13]On 21 August 2017 the respondents had confirmed it was their view that the claimant had not complied with the Order. The claimant had provided copious documentation regarding her son’s situation, however nothing of relevance to constitute compliance with the relevant orders. Accordingly, on 23 August 2017 a letter was sent to the claimant stating that her claim was struck out, advising her she could apply for relief from sanction and asking her to include in such an application the information originally required by orders 48 and 50, and the reasons why she had been unable to comply with the Unless Order by 7 August 2017.[14]On 14 September 2017 the claimant wrote in stating she wanted the Tribunal to reconsider their decision. She said she had sent relevant information on 7 August 2017 by post to the Tribunal and the respondents’ representative.[15]A hearing was then held on 10 November 2017, the outcome of which was that the claimant's claims were reinstated. She based her case on the fact that she understood 7 August 2017 was the date she had to comply with the matter and that by sending the information on 7 August this was compliance, that she had considerable language difficulties, no legal representation and that she was absent in Poland for medical reasons in the crucial period. It was also observed she was only one day late.[16]Further orders were then promulgated on 23 November 2017 referring back to the seven issues set out in paragraph 47 of the 19 June Case Management Orders, and in the new Order at paragraph 27 she was advised that by 14 December 2017 she had to state:(1) Who was responsible for the matters complained of?(2) When they occurred;(3) Whether there were any witnesses; and(4) What were the precise words spoken or any other relevant details?[17]At paragraph 28, in respect of the new claims which would require amendment the claimant within 21 days, i.e. by 14 December 2017, was ordered to state whether she agreed that the following were additional claims that she had raised, and then three additional claims were set out.[18]At paragraph 29, the claimant also by 14 December 2017 to state in relation to her claims “listed above”:(1) When the matters occurred;(2) Whether she was arguing direct race discrimination and/or victimisation in respect of each one; and(3) If victimisation, what was the protected act?[19]The claimant then wrote in around 13 December 2017 to state that she was too ill to attend a consecutive five day hearing. She sent in a sick note and a doctor’s letter describing her illness and stating that she struggled to go out and found it difficult to face people.[20]On 26 January 2018 I replied making new Case Management Orders. I stated that I proposed to list the matter for two sets of three days in consecutive weeks sitting 10.00am-12.00noon and then 12.30pm-2.30pm.[21]The further Case Management Orders were:(1) The respondent to send to the claimant by 5 March 2018 a list of all documents relevant to the issues in the case.(2) By 19 March 2018 the claimant to send to the respondent all additional documents she wishes to be included in the bundle, the respondent to prepare the bundle and send a copy to the claimant by 9 April,(3) the claimant’s witness statement and any additional witnesses to be served on the respondent by 4.00pm on 14 May 2018, the respondent to serve their witness statements on the claimant by 11 June 2018. New dates would be found for the hearing.[22]By a letter of 30 May 2018 the respondent asked for amendments to the timetable and confirmed that they had sent a list of documents and a bundle of their documents to the claimant which she had signed for on 26 April. They advised that the claimant had failed to provide her documents. The claimant had said she wanted to bring her documents to the hearing and not provide them in advance.[23]They suggested new orders and on 26 June I ordered the claimant to exchange her documents by 8 July and stated that she could not produce them on the day of the hearing and advised that an Unless Order may be issued if she failed to comply with the order. On 17 June the respondent applied for the claim to be struck out as the claimant had not served her documents and not complied with other Case Management Orders.[24]On 23 July 2018 the claimant wrote to the Tribunal stating the respondent had not sent her their documents.[25]By a letter of 7 August 2018 the respondent stated that the claimant had received all of the respondent’s documents sent in two ring-binders in a clear and sensible order, sent by recorded delivery with proof of receipt from the claimant on 26 April 2018. The claimant had not provided the respondent with her documents and they were concerned that the claimant intended to attend to Tribunal hearing bringing documents along with her without prior disclosure as she had indicated this was her intention[26]They were also concerned that the claimant did not intend to properly conduct the hearing or attend at all, as she had stated in correspondence, “I do not agree to interrogate the respondents for several days in court, it is unnecessary.”[27]The claimant was also intimating that she may be too unwell to attend the hearing and the respondent request that medical evidence be provided to clarify whether the claimant was in a fit state to attend the Tribunal.[28]The respondent applied for a further Unless Order or that she be struck out as of their application of 17 July for non compliance with the 26 January orders regarding providing her documents.[29]In respect of her illness, the claimant was asked whether she was too sick to attend and to obtain medical evidence stating:(1) Whether she was unable to attend the hearing and if not, why not;(2) Confirming that her GP or consultant had reached this view after hearing the adjustment to the times and dates of the hearing brought to his/her attention; and(3) When she would be fit to attend a hearing or if in fact it is unlikely she will be in the foreseeable future.[30]The claimant had written to the Tribunal on 7 August also stating: “I am unable to send all documents before this date because I do not have them in hand.” She asked, as she had done before and been advised this was inappropriate, for the Tribunal to obtain police reports regarding the discrimination, persecution and harassment of herself and her family. The claimant copied with that letter numerous documents comprising party to party correspondence, Tribunal correspondence and medical information.[31]An Unless Order was then issued on 19 September 2018 requiring the claimant to provide all her relevant documents to the respondent by 4.00pm on 4 October 2018.[32]On 3 October 2018 the claimant emailed to say she would be sending her documents by post on 4 October 2018 as a postscript, although in the same letter she said she was bringing the documents to the hearing. By a letter dated 4 October 2018 the claimant advised that because of the weight of the documents she could not afford to send them.[33]The claimant did not comply with the unless Order, and on 24 October 2018 the Tribunal confirmed that her claim was struck out. The letter said: “Employment Judge Feeney directs that the claimant has requested that she be allowed to submit documents on the day. Whilst this is unacceptable in itself it also demonstrates that there are documents on which the claimant wishes to rely but has continually failed to disclose.”[34]The claimant repeated this request i.e. to bring her documents on the day, by a letter of 6 November 2018. It was treated as a request under rule 38(2) for the striking out to be varied or set aside. She also stated that the respondent had not sent her their various letters and applications.[35]The respondent by a letter of 19 November 2018 replied that as far as they could see the claimant was relying on:(1) Extenuating circumstances for why she had not complied with the Order, namely her health; and(2) That the respondents’ representative had not provided her with copies of their application.[36]They set out a chronology:• On 28 June the Tribunal ordered the claimant to disclose to the respondent all the documents she wished to rely on by 8 July 2018. A strike out application or an Unless Order application was made on 17 July 2018 by the respondent. She was copied into that using the email address which she had corresponded throughout with the respondent and the Tribunal. She provided her comments on 23 July and the Tribunal asked the respondents for their comments.• On 7 August the respondents clarified their position, that she had still not provided the documents, and requested an Unless Order. Again the claimant was copied into this.• A further application was made on 6 September that the claim be struck or an Unless Order served on the basis that the claimant's disclosure had still not been received. Again, the claimant was copied into these applications.• An Unless Order was issued on 19 September: documents were to be served by 4 October.• On 3 October the claimant provided some documents, namely medical evidence, however there was no substantial disclosure.• On 8 October the respondents applied for the claim to be struck out for non compliance with the Unless Order and that was granted.[37]The respondents stated that whilst it was unfortunate the claimant was in poor health the chronology highlighted that: “The issue of her refusal to provide disclosure has been ongoing for a number of months. The claimant has had more than ample time to seek advice or assistance to provide disclosure she has been ordered to provide. In any regard it appears the claimant still has no intention to provide the disclosure as within her application of 6 November she states, ‘I am asking the court to allow me to bring my documents to court’.”[38]The respondents pointed out that the email address had been the same throughout and the claimant had used that email address to email the respondents. It was obvious from the claimant's own correspondence that she had received correspondence from the respondents and the Tribunal.[39]On 3 December 2018 I asked the parties whether they would agree to the matter proceeding by way of written representations. The claimant said: “I would like to personally attend court hearings but I know that is impossible at this time because of finances and health.” The claimant provided representations by a letter of 16 December 2018.[40]On 17 December 2018 the respondents agreed for the matter to be decided in chambers.[41]On 18 January 2019 I wrote again to the parties saying the following: “The Judge has considered the claimant's letter of 16 December 2018 and notes that the claimant agrees to the matter being dealt with by way of written representations. Some representations are already included in the claimant’s letter but if she wishes to make such representations and if the respondent wishes to make representations the Judge makes the following orders:(1) The claimant to provide any representations by 25 January 2019 to the respondent and to the Tribunal.(2) The respondent to provide any written representations by 8 February 2019 to the claimant and the Tribunal.(3) The claimant's comments and the respondent’s representations, should they wish to make them, to be served on the respondent and the Tribunal by 15 February 2019. The Judge will make her decision on relief from sanction after 15 February.”[42]Unfortunately, the Employment Judge was then absent from the Tribunal until the beginning of May, of which the parties were advised on 7 March 2019.[43]On 4 April 2019 the claimant sent correspondence to the tribunal which concerned matters at Burnley County Court unconnected with the tribunal proceedings. This was acknowledged and ultimately the parties were informed that the matter was listed for an “in Chambers” decision on 30 May 2019 and the parties were advised not to attend.[44]Correspondence from the claimant was received on 13 May 2019 which again was directed to Burnley County Court but copied to the Tribunal, regarding other proceedings against the claimant which it is not necessarily appropriate to detail save that it did exemplify that the claimant was in a difficult situation. We acknowledged that correspondence on 21 May 2019.[45]A further email was sent on 28 May 2019 to the claimant and the respondent advising that the parties were not required to attend and therefore an interpreter was not required. As mentioned above, the claimant did attend the Tribunal today. I was unaware of this until after I had made my decision, and she was advised that the matter to be decided in chambers.
The Law
[46]Rule 38 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 states that: “(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 should give 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 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. Where a response is dismissed under this rule the effect shall be as if no response has been presented as set out in rule 21.”[47]Where there is non compliance with an Unless Order in any material respect the Tribunal has no discretion as to whether or not the claim or response should be struck out. It is automatically struck out as the date of non compliance and there is no requirement for a further order to be addressed to a party against whom the Unless Order was made (Markham Shipping (London) Ltd v Kefalas & Another [2007] Court of Appeal), although in many circumstances as a matter of courtesy and to assist an unrepresented claimant or respondent the Tribunal will advise them of the situation and also intimate what actions they can take in response to it.[48]Compliance need not be precise and exact (Markham Shipping above) and in Johnson v Oldham Metropolitan Borough Council EAT [2013] Mr Justice Langstaff held that the test of “substantial compliance” adopted by the Employment Judge was in accordance with the law but stated that “material” is a better word than “substantial” because it draws attention to the purpose for which compliance with the order is sought.[49]Before the date for compliance with the Unless Order expires the Order can be revisited under rule 29 and varied, suspended or set aside if necessary in the interests of justice.[50]However, once dismissal for non compliance has taken effect the relevant party has the right to apply to the Tribunal in writing within 14 days of the date the notice of dismissal was sent to the parties to have the Order set aside on the basis that it is in the interests of justice to do so (rule 38(2)). Factors to be considered include the reason for the default, the seriousness of the default, the prejudice to the other party and whether a fair trial remains possible. This matter can be determined on the basis of written representations only unless a party requests a hearing.
Conclusion
[51]Having considered the parties’ representations in this matter it appears that the claimant provides reasons for not complying with the requests to serve her documents on the respondent. Initially she “did not have them to hand”, and secondly because they weighed so much that the cost would be prohibitive giving her limited means. I have no doubt the claimant has limited means. However I find her reference to not having the documents to hand evidences a disregard for the tribunal’s procedures and exemplifies an unwillingness to comply to ensure the proper preparation of the case for hearing.[52]Regarding the postage issue in a case of this nature it is inconceivable that the relevant documents would weigh anything like one kilogram. One suspects that the claimant will submit documents relating to her son’s situation, his expulsion from school, her housing situation, her benefits situation and her ill health. These are not all matters that are relevant. Certainly the claimant's ill health has from time to time been relevant to her failure to comply with orders, however she brings a claim of race discrimination not disability discrimination however the medical records may have some relevance. However it is not clear why, on any understanding of her claims, the claimant would need to disclose so many documents.[53]In any event she has sent all these documents to the respondent and the tribunal and the fact the claimant still wishes to attend on the day with documents suggests there are other relevant documents to be disclosed.[54]Neither has the claimant proposed any other way of conveying the documents other than posting them. However I have also observed that the claimant has managed to send a considerable number of documents to the Tribunal and the respondent over the course of these proceedings and therefore she could send them in more manageable amounts but has not proposed doing so but continued to request she brings her documents on the day of the hearing. The claimant has clearly a preference to bring them along to a hearing, which it has been pointed out to her more than once is unacceptable. It would be entirely prejudicial to the respondent for the case to continue on the basis that the claimant would arrive at the hearing with her documents.[55]In addition, while the claimant has said she was ill she has been in a position to write copious letters to the Tribunal and the Burnley County Court and copy the same letters to the Tribunal throughout these proceedings. She has managed to attend four hearings already: on 6 April 2016, 27 October 2016, 6 March 2017 and 14 June 2017. On this evidence her illness has not prevented her from complying with the order, indeed she was given considerable time to comply in any event.[56]I have considered whether the claimant simply has no relevant documents but this seems unlikely on the balance of probabilities in a discrimination claim. I have also considered whether she is incapable of distinguishing what are relevant documents, and whether in the light of that the order should be varied. Therefore I have considered whether I should vary the order to require the claimant to bring copies of her documents to the Tribunal as she has demonstrated an ability to attend the Tribunal. The Tribunal will then send those documents to the respondent. However it is likely those documents will include a large number of irrelevant documents and in that case a disproportionate amount of time and cost simply adding the claimant’s irrelevant documents to the bundle would result. It is outwith the overriding objective to require the respondent to copy copious amounts of irrelevant documents. Further it is outwith the overriding objective to list the matter for a further preliminary hearing where the documents could be considered one by one. there have been several preliminary hearings in the case and the claimant has continually been advised about case management throughout but continues to raise irrelevant matters.[57]I further considered ordering the claimant to simply provide her own bundle and copies thereof but if she states that she cannot afford to send the documents she has she will not be in a position to produce and send a bundle to the respondent and certainly not to provide 5 copies to the Tribunal.[58]Further it is clearly the claimant’s preferred option to bring her documents on the day, whilst it may not be the claimant’s intention to frustrate the hearing that would be the effect as the hearing would undoubtedly have to be adjoined and relisted to give the respondent time to prepare and take instructions. Of course the witness statements may then be redundant or may require amending or new witnesses may be required. There cannot be a fair hearing in these circumstances.[59]In addition, due to the claimant's ill health the hearing had actually been truncated into two sessions per day comprising four hours in totality, (although I note the claimant has declined this offer and wishes to attend one day per week on the limited hours originally proposed), which is a considerably shorter day than is normal for the Tribunal, and it would be highly unlikely to conclude unless all the preparations for hearing were done properly and in a timely fashion, which obviously would not be the case if the claimant’s documents were not disclosed until the hearing date.[60]I have also taken into account the fact that there has been an ongoing failure to comply with orders in this case, the claimant has already been struck out on the basis of an Unless Order once and in that case her claims were reinstated.[61]Accordingly, as there is evidence that the claimant is unable without good cause and unwilling to comply with the tribunal’s orders given the claimant's failure to comply with the original orders, her previous failure to comply with an Unless Order, and her continual refusal to provide the respondents with the documents, the fact that she has been able to send many documents to the tribunal and the respondent yet now cannot and the claimant's repeated request to bring documents to the Tribunal ; the fact this causes the respondent severe prejudice in preparing for the case, in costs and in there being any certainty that any listed hearing will go ahead, the claimant’s application to have the judgment to strike out the claim varied or set aside is refused.
Conclusion
[1]There is no reasonable prospect of the original decision being varied or revoked, because the claimant has not provided any grounds for challenging the conclusions of the Judgment of 3 June 2019.[2]Further, the claimant relies on her poor health but this was taken into consideration in that the claimant was allowed to provide written representations on a number of occasions and given ample time to compile her written representations.