Employment Judge CooksonIn person for claimantMr Searle (instructed by counsel) for respondentDate 16 January 2025
JUDGMENT
[1]The Claimant has no reasonable prospect of establishing that alleged following alleged discriminatory acts of the Respondent were part of a course of conduct over a period that ended with the decision on the Claimant’s appeal :a. Factual allegation 1: The Respondent did not provide a large screen to meet the needs of the Claimant’s visual impairment for a period of about 8 months from October 2017 to about June 2018.b. Factual allegation 2: The Claimant was subjected to an absence management process in 2018. 1 of 24c. Factual allegation 3: The Respondent failed to provide a minute taker for “looked after children” meetings from August 2018 to March 2019.d. Factual allegation 4: The Claimant was subjected to an informal capability process in January 2019.e. Factual allegation 8: The Claimant’s grievance being heard in her absence in March 2019, which the Claimant states occurred because she required an in-person hearing (rather than one by video link) and the Respondent was not able to accommodate such a hearing.[2]In consequence the following complaints under the Equality Act are struck out under Employment Tribunal Rule 37(1)(a):a. Th factual allegation 1 was a failure to make reasonable adjustments;b. That factual allegation 2 was an act discrimination because of something arising in consequence of disability and victimisation;c. That factual allegation 3 was a failure of make a reasonable adjustment;d. That factual allegation 4 was an act of victimisation;e. That factual allegation 8 was an act of discrimination because of something arising in consequence of disability and a failure to make a reasonable adjustment.[3]The tribunal does not uphold the remaining grounds on which the Respondent sought to have the complaints under the Equality Act dismissed.
REASONS
[4]This was a public preliminary hearing listed at the direction of Regional Employment Franey to consider the following grounds on which the Respondent sought to have complaints brought by the Claimant struck out under Rule 37 of the Equality Act 2 of 24a. Equality Act time limits: whether those allegations identified in the first section of the List of Issues as items (1)-(4) and (6)-(9) should be struck out under rule 37(1)(a) on the basis that the Claimant has no reasonable prospect of success in showing either that they formed part of conduct extending over a period of time under section 123(3)(a) ending with the rejection of the Claimant’s disciplinary appeal, or in the alternative that under section 123(1)(b) it would be just and equitable to allow the Claimant a longer period for presenting her complaint about these matters.b. Fair hearing: In relation to all claims, whether the passage of time means that a fair hearing in October 2024 is no longer possible, so that the claims should be struck out under rule 37(1)(e).[5]At the outset of the hearing Mr Searle informed the Tribunal that strike out on ground (b) was not being pursued. That ground was not considered further.[6]In reaching my decision I considered the documents contained in a small bundle of documents provided by the Respondent and its written and oral submissions, oral submissions from the claimant, the pleadings and such information from the Tribunal file that was available to me in terms of case management orders. Objections raised by the claimant[7]The Claimant objected to the strike out of her claims being considered at all and told me that she had not prepared for this issue to be considered. At one stage she told me that these matters have already been determined by Employment Judge Humble. She says that she is disadvantaged because she is disabled litigant in-person, and she does not have legal representation. She also objected to this hearing because it is so close to the final hearing and appeared to suggest she had not known that this application would be considered today. One of the difficulties I faced was that the Claimant’s focus seemed to be on persuading me I should not consider these matters at all rather than addressing the issues which I was tasked with considering.[8]This hearing was listed by another judge, Regional Employment Judge (REJ) Franey. I am aware the Claimant has written to him at 3 of 24 various times about this hearing and other matters, but he has not decided to vary or set aside the listing of this hearing. I could not decide that is as not going to consider the application listed for this preliminary unless there was a material change in circumstances.[9]In terms of the timing of the hearing, one of the reasons why this hearing is so close to the final hearing is that the original hearing in June was postponed on the application of the claimant. However, one consequence of the timing of the hearing is that the parties have now exchanged witness statements. The Claimant has therefore prepared her evidence for the final hearing which must set out her evidence that she has been subject to discrimination which amounts to conduct extending over a period of time. I did not consider it to be unreasonable to expect the Claimant to be able to tell me in some meaningful way what evidence she has included in her witness statement which she intends to rely upon to show that the factual allegations are all part of a discriminatory act extending over time or the evidence and submissions she intends to give and make to show that it would be just and equitable to extend time.[10]In terms of the Claimant’s lack of preparation for today’s hearing, the Claimant was informed by the tribunal of the issue to be decided today in correspondence from REJ Franey and also in notices of hearing, for the originally listed hearing on 21 June 2024 and the notice of hearing for this postponed hearing. On 16 May 2024 REJ Franey wrote to the parties to explain on what basis the Respondent’s application for strike out would be considered, as well as explaining how a case management issue would be decided.[11]In his reasons for listing this preliminary hearing in his letter of 16 May, REJ Franey had said this “Insofar as the Respondent applies to strike out most of the factual allegations in the first part of the List of Issues on the basis that there is no reasonable prospect of the Claimant establishing a continuing act, the Claimant’s observation that this application could have been made at an earlier stage is understood. However, it remains the case that there is an apparent disconnect between allegations which cover the period from October 2017 to 2019, and those allegations which concern the disciplinary procedure which began in March 2020 and which culminated in dismissal and the unsuccessful appeal. There is clearly an argument that the conduct of the appeal hearing forms part of a continuing act of discrimination, if discrimination is proven, with 4 of 24 the other allegations about the disciplinary process. The application will not be listed for a hearing on that point. However, it will be listed for a hearing so that the Respondent can pursue its case that there is no reasonable prospect of the Claimant establishing that the allegations which are not part of the disciplinary process are part of a continuing course of conduct encompassing the disciplinary matters. That means that the allegations enumerated in the first section of the List of Issues which will be the subject of the application to strike out at the next preliminary hearing are the following: (1)-(4) and (6)- (9). It is noted that the protected disclosure detriment complaint and the unfair dismissal complaint relate to the disciplinary process, so in effect the purpose of this hearing will be to decide whether any matters other than those arising out of the disciplinary process can proceed, and whether there can be a fair hearing at all in October 2024 (noting that the final hearing was postponed in December 2022 on the application of the Respondent, and would have been listed in July 2024 had it not been for the unavailability of counsel for the Respondent).”[12]The fact that a strike out application would be considered at this hearing has also been referred to in subsequent correspondence from the tribunal and the Respondent and referred to by the Claimant herself. I was satisfied that the Claimant was aware that today’s hearing would consider the issue of strike out and that care had been taken to explain to her why the hearing was listed. I accept that she objects to it being considered but as already noted REJ Franey had not varied his decision that the preliminary hearing should proceed.[13]The Claimant has referred to her disability and the stress that she has been under, but I had no medical evidence before me to suggest the Claimant was unfit for this hearing or to prepare for it.[14]In terms of preparing for today, it is difficult to see what further could have been done to alert the Claimant to what would be considered at this hearing. I do not accept that the Claimant did not know that the strike out application would be considered as she appeared to seek to suggest. Instead it appears that the Claimant had chosen not to prepare for the hearing, perhaps in the belief that this would mean it could not proceed or she could persuade me not to consider the matter further for that reason. 5 of 24[15]I do not accept that the fact that the Claimant had chosen not to prepare for the hearing is a material change in circumstances which meant that it would be appropriate for me not to determine this preliminary issue in accordance with the orders of REJ Franey. To do so would allow parties to circumvent a judge’s order about a hearing by choosing to ignore it and that cannot be in accordance with the overriding objective.[16]To deal with the issue in a proportionate way I allowed the Claimant time after the initial private case management discussion and then again after counsel for the Respondent had made his oral submissions, to allow her time to consider what submissions she wished to make.[17]In terms of the suggestion that I should not consider the strike out application at all because it had been determined by Employment Judge Humble, I explained to the Claimant at the time that I was not aware of her raising an objection to the listing of the preliminary hearing on this basis. I pointed out to the Claimant that if EJ Humble had decided there had been conduct over a period of time as the Claimant seemed to assert, the jurisdictional issue would not still be recorded in the list of issues. In fact EJ Humble ordered that jurisdictional time issues would be determined at the final hearing (his orders of 22 March 2022 refer). As already noted, in his letter of 16 May 2024, REJ Franey had explained to the Claimant that this hearing would not be deciding the jurisdictional time issue itself, but instead considering the strike out application to determine if the Claimant has no prospect of success of establishing that jurisdiction at the final hearing. I also sought to explain this to the claimant. I remain satisfied that it was, and is, proper for me to determine the strike out application. What happened at the hearing[18]By the time the Claimant finished her submissions we had already overrun into the lunch break. I told the parties I would consider my decision over lunch. A little while later I was informed that by HMCTS staff that the Claimant was upset and had left the building, and I received an email confirming this and that she would not be returning.[19]I informed the Respondent of my decision in the very briefest of terms but recognised that the Claimant would need to see the reasons for my decision. I decided that the appropriate thing was to provide the 6 of 24 full reasons for my decision to the parties in writing as quickly as I could.
Background
[20]The Claimant undertook ACAS early conciliation in accordance with the statutory process on three occasions which resulted in three early conciliation certificates being issued. First between 20 September and 20 October 2020, secondly between 26 November 2020 and 26 December 2020 and finally between 10 February 2021 and 11 February 2021. The claim form was issued on 25 February 2021. It is clear this has caused some confusion and indeed there may need to be further consideration of the jurisdictional implications of this at the final hearing. I note that EJ Humble took the second certificate into account when he allowed the amendment application to include the unfair dismissal and public interest disclosure claims when he reconsidered his earlier case management decision.[21]If the second certificate in relied upon, my preliminary but non-binding calculation, is that anything which happened before 27 October 2020 is potentially out of time unless it was part of conduct continuing over a period of time ending after that date or it is found to be just and equitable to extend time. If the third certificate is relied upon then only the complaint relating the appeal was brought in time.[22]Considerable time has been spent at previous preliminary hearings identifying the complaints contained in the Claimant’s claim, including dealing with amendment applications. In consequence of those efforts a full and updated list of issues was prepared by REJ Franey in June 2023. At this hearing before me the Claimant told me that she was not satisfied with the list of issues and that in, her words, it just complicates matters. However, she did not tell me what is missing from the list or what is included that should not be. I have referred back to her narrative claim form which states her claims in brief terms. It does not identify or plead any legal claims as such. At the previous preliminary hearings, the judges have sought to identify and label the claims set out in the narrative. I cannot see any complaint set out in the claim form which is not included in the list of issues nor has the Claimant identified such complaint.[23]It was necessary for the Claimant’s complaints to be identified in legal terms before I can consider striking out any part of her claim. In light of what the Claimant said to me about the list of issues I considered 7 of 24 whether I should go ahead and determined the strike out application in accordance with REJ Franey orders. In the absence of any application to amend her claim or specific explanation of what is incorrect about the list of issues I could not see how she is disadvantaged by me using the list of issues prepared by EJ Humble and subsequently updated by REJ Franey as the basis for my decision about certain specific complaints. The Respondent’s applications for strike out and the Claimant’s answer to that application[24]In the written submissions from the Respondent, I am reminded of the relevant provisions in the Tribunal Rules of Procedure and relevant case law, including the helpful guidance on dealing with strike out set out in Cox v Adecco [2021] ICR 1307 and in Mechkarov [2016] ICR 1121, Zeb [2018] EWCA Civ 2137 and Ahir v British Airways plc [2017] EWCA Civ 1392. The Respondent’s position is summarised briefly on each of the factual allegations making clear that the Respondent says they are discrete events which have been unconnected.[25]In his brief oral submissions Mr Searle conceded that striking out discrimination complaints is a draconian step but also suggested that such a step may help the Claimant concentrate on the main thread of her claim relating to her dismissal, although he also suggested that has little merit.[26]Mr Searle submitted that the Claimant has not suggested any sufficient nexus between the different complaints to suggest they show conduct existing over a period of time. He suggested that there is nothing to suggest conduct extending over time and highlighted that to deal with the allegations it was necessary for the Respondent to call a large number of witnesses because the various processes and procedures have involved different people. He argued that is inconsistent with a conduct extending over time.[27]He also argued that although the Claimant has submitted a lengthy witness statement she has not addressed at all the question whether it would be just and equitable to extend time.[28]In the alternative if I did not accept that the Claimant had no reasonable prosect of establishing that the factual allegations amount to conduct over time or that it would be just and equitable to extend 8 of 24 time, Mr Searle invited me to make a deposit order on the basis the Claimant has little reasonable prospect of successfully establishing that the tribunal has jurisdiction. These reasons however only deal with the strike out application.[29]In response to the application, the Claimant echoed that strike out is a draconian step. She submitted that strike out is not a step I should take when it would deny her access to justice. She also continued to complain about the timing of this application and pointed out that if the case had come to final hearing earlier this application would never have been considered. She also told that she continues to experience discrimination.[30]It was unfortunate that perhaps the Claimant was perhaps somewhat distracted by Mr Searles’ comments about the merits of her complaints about dismissal, despite my attempts to reassure her that I was not concerned with that, and a suggestion that Mr Searle made that strike out might save the save the Claimant from herself which she clearly took exception to.[31]In terms of her case the Claimant she had been subject to continuing discriminatory treatment from Ms Clark, although her arguments seemed to be about the merits of the individual complaints rather than on what basis this was conduct which was an act of discrimination extending over time The Claimant argued that the reason for her dismissal was not genuine and that everything that had happened had been orchestrated by Ms Clark. The law Striking out[32]A claim or response (or part) can be struck out on the following grounds by an tribunal on a number of grounds including that it is scandalous or vexatious or has no reasonable prospect of success — rule 37(1)(a) The exercise of the discretion to strike out.[33]Establishing one of the specified grounds on which a claim or response can be struck out is not of itself determinative of a strike-out application. Tribunals must take a two-stage approach. First the tribunal must first consider whether any of the grounds set out in rule 9 of 24 37(1)(a)–(e) have been established; and then, having identified any established grounds, it must decide whether to exercise its discretion to order strike-out.[34]Rule 37 allows an employment judge to strike out a claim where one of the five grounds is established, but it does not require a judge to strike out a claim in those circumstances. The Tribunal must still be satisfied that it should exercise its discretion.[35]In deciding whether to order strike-out, tribunals should have regard to the overriding objective of dealing with cases ‘fairly and justly’, set out in rule 2 of the Tribunal Rules. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay. It has to be recognised that strike out is a severe sanction, given that fundamental rights and freedoms concerning access to justice are at stake.[36]In terms of striking out a claim (or a part of it) because it has no reasonable prospect of success, the test is not whether ‘on the balance of probabilities’ the claimant was unlikely to succeed in her claims. Instead, the question is the claimant has no reason prospect of success, in other words only a fanciful prospect of succeeding.[37]It is not for the tribunal to determine questions of fact in deciding a strike out application. The tribunal should take the claimant’s case at its highest, unless contradicted by plainly inconsistent documents, and care must be taken assessing a case from a litigant in person which may be badly or inadequately pleaded. If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike-out will be appropriate and a tribunal must carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding that there is nothing of substance behind it.[38]The strike out application in this instance relates not to an assertion that the claimant’s complaints have no reasonable prospect of success on their merits as such, but rather on the ground that the claimant has no reasonable prospect of persuading the tribunal that the acts complained were part of conduct continuing over time such that her complaint was brought in time or that it would be just and equitable to extend time. 10 of 24[39]To establish whether a complaint of discrimination has been presented in time it is necessary to determine the date of the act complained of, as this sets the time limit running. Where the act complained of is a single act of discrimination, this will not usually give rise to any problems. However, the question of when the time limit starts to run is more difficult to determine where the complaint relates to a continuing act of discrimination, such as harassment, or to a discriminatory omission on the part of the employer, such as a failure to confer a benefit on the employee.[40]S.123(3) EqA makes special provision relating to the date of the act complained of in these situations. It states that:(a) conduct extending over a period is to be treated as done at the end of that period — S.123(3)(a)(b) failure to do something is to be treated as occurring when the person in question decided on it — S.123(3)(b). The meaning of conduct extending over a period of time[41]The starting point in understanding what is conduct extending over time is the case of Barclays Bank plc v Kapur and ors 1991 ICR 208, HL, which drew a distinction between a continuing act and an act that has continuing consequences.[42]In Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, CA, the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicating of ‘an act extending over a period’. The focus should be on the substance of the allegations. The question was whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed. The correctness of this approach was confirmed by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548, CA.[43]The Court of Appeal in Aziz v FDA 2010 EWCA Civ 304, CA found that in considering whether separate incidents form part of an act 11 of 24 extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’.[44]In Worcestershire Health and Care NHS Trust v Allen 2024 EAT 40 the EAT observed that there is no requirement that the ‘conduct’ extending over a period for the purpose of S.123(3) must all relate to the same protected characteristic. The EAT could see nothing in the language of the relevant provisions that would prevent the entire course of the racist and sexist behaviour constituting conduct extending over a period for time limit purposes. There is also no reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination. It may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there was no absolute bar that prevents there being conduct extending over a period in such circumstances. However applying Hendricks, for there to be conduct extending over a period there must have been an ongoing situation or a continuing state of affairs that was discriminatory. Preliminary hearings on time limits in discrimination cases[45]The principles which should be considered when jurisdictional time issues are considered by HHJ Ellenbogen J in E v X, L & Z UKEAT/0079/20/RN and UKEAT/0080/20/RN and previously by HHJ Auerbach in paragraphs 58-66 of Caterham School Limited v Rose [2019] UKEAT/0149/19. These paragraphs were quoted in paragraph 46 of E v X, albeit that Ellenbogen J disagreed with one point.[46]In essence there are two different types of public preliminary hearing about time limits. The first type is a determination of time limits as a preliminary issue under rule 53(1)(b). This will involve hearing evidence, making findings of fact and applying section 123 Equality Act 2010 to determine the issue once and for all. In general such a hearing may be appropriate where the only issue is whether the claimant should be granted a just and equitable extension of time, since the evidence required is unlikely to overlap with the substantive evidence needed at the final hearing. However, if it is reasonably arguable that there was an act extending over a period, the tribunal 12 of 24 must not determine that issue until it has heard all relevant evidence (Aziz v. FDA [2010] EWCA Civ 304). The evidence required to determine that is very likely to overlap with the evidence required at the final hearing.[47]The second type of hearing is consideration under rule 53(1)(c) of striking out under rule 37 on the basis that the claimant has no reasonable prospect of success in establishing that the claim (or relevant part of the claim) has been brought within time. Such consideration may be commonly combined with consideration of a deposit order under rule 39 as an alternative on the basis that the claimant’s time limit contention has little reasonable prospect of success. This type of hearing is more likely to be appropriate for a continuing act argument than a just and equitable extension because rather than determine the issue the tribunal will consider is whether it is reasonably arguable that that the alleged discrimination formed part of an act extending over a period. If it is not, the relevant allegations can be struck out. If it is, the question of time limits and continuing acts is not definitively resolved but is deferred to the final hearing. Although such a hearing can sometimes be dealt with on the basis of the pleaded case alone or it may be appropriate in such strike out applications for the claimant to provide a witness statement and give oral evidence as part of demonstrating that he or she has a prima facie case on the point. It is unlikely, however, that evidence from the respondent will be needed. Just and equitable extensions of time[48]In terms of deciding whether the claimant has a reasonable prospect of establishing that time should be extended it is essential to have regard to the case law on how that discretion must be exercised.[49]In Abertawe Bro Morgannwg University Local Health v Morgan [2018] EWCA CIV 640 Leggett LJ said this “it is plain from the language used (“such other period as the Employment Tribunal thinks just and equitable”) that Parliament has chosen to give the Employment Tribunal the widest possible discretion. Unlike Section 33 of the Limitation Act 1980, Section 123(1) of the Equality Act does not specify a list of factors to which the Tribunal is instructed to have regard, and they will be wrong in those circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list. Although it has been suggested that it may be useful for a Tribunal in exercising its discretion to consider the list of factors 13 of 24 specified in Section 33(3) of the Limitation Act 1980 the Court of Appeal has made it clear that the Tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account. The position is ……………. to that where a Court or Tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under Section 7(5) of the Human Rights Act 1998.[50]In Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5, CA the Court of Appeal set out guidance on how to approach the application of the list of factors referred to in the British Coal Corporation v Keeble case. [1997] IRLR 336. In Adedeji the Court of Appeal cautioned that Keeble does no more than suggest that a comparison with S.33 might help ‘illuminate’ the task of the tribunal by setting out a checklist of potentially relevant factors; it certainly did not say that that list should be used as a framework for any decision. The Court of Appeal emphasised that the “Keeble” factors should not be taken as the starting point for tribunals’ approach to ‘just and equitable’ extensions and that rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, these may well include factors considered in Keeble – for example the length of, and the reasons for, the delay is always likely to be a relevant consideration but ultimately the question is what is just and equitable.[51]This means the exercise of the discretion to extend time because it is just and equitable to do so involves a multi factual approach, taking into account all the circumstances of the case in which no single factor is determinative of the starting point. In addition to the length of the delay, the extent to which the weight of evidence is likely to be affected by the delay, the merits, and the balance of prejudice; other factors which may be relevant include the promptness with which a claimant acted once he or she knew factors giving rise to the course of action and the steps taken by the claimant to obtain the appropriate legal advice once the possibility of taking action is known.[52]In terms of relevant factors, as well as the length of delay and the reasons for it, other relevant factors will usually include the balance of prejudice between the claimant and the respondent. The prejudice 14 of 24 to a claimant is perhaps obvious. They are not able to pursue their complaint. In Miller and ors v Ministry of Justice and ors and another EAT 0003/15 Mrs Justice Elisabeth Laing set out five key points derived from case law on the ‘just and equitable’ discretion. In terms of the balance of prejudice, she explained that the prejudice that a respondent will suffer from facing a claim which would otherwise be time-barred is ‘customarily’ relevant. Elisabeth Laing J elaborated that there are two types of prejudice that a respondent may suffer if the limitation period is extended:(i) the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence, and(ii) the forensic prejudice that a respondent may suffer if the limitation period is extended by many months or years, which is caused by such things as fading memories, loss of documents, and losing touch with witnesses.[53]The EAT provided important further clarification on this issue in Concentrix CVG Intelligent Contact Ltd v Obi 2023 ICR 1, EAT. The employment tribunal found that the claimant had been sexually harassed by her line manager on three separate occasions. It went on to find that these three incidents amounted together to conduct extending over a period, and accordingly time for presenting a complaint to the tribunal in respect of all of them ran from the date of the last incident. Calculating limitation in that way, these complaints had been presented one day out of time. The tribunal decided it was just and equitable to extend time. The respondent appealed in respect of the decision to extend time. One of the grounds was that the tribunal had erred in its approach to the question of forensic prejudice to the respondent. This ground succeeded. The EAT found that the tribunal had erred by confining its consideration of that question to whether any such prejudice had been occasioned by the complaints being one day out of time, and by failing to take into account its own earlier findings about forensic prejudice when determining a complaint of racial harassment relating to one of the three incidents found to amount to sexual harassment (which was found to be a one off incident and the complaint about that had been submitted 4 months out of time).[54]The EAT in Concentrix also considered whether the tribunal’s approach to extension of time must be ‘all or nothing’ in cases where a series of discrete discriminatory incidents are said to amount to conduct extending over a period, but which is still out of time,. HHJ Auerbach suggested that if the tribunal considers that issues of forensic prejudice render it not just and equitable to extend time in 15 of 24 relation to the whole compendious course of conduct, the tribunal may then need to give further consideration to whether it is alternatively just and equitable to extend time in relation to the most recent incident in its own right, standing alone, on the basis that the same forensic difficulties might not arise, or arise so severely, in relation to it. The EAT reasoned that, just as it is not an error to take ‘real time’ forensic prejudice into account, so, conversely, in a case where there may be an issue of such potential forensic prejudice if time were to be extended, the tribunal would err in principle if it failed to consider that aspect, as it would fail to take into account a relevant consideration.[55]It is well known that in the judgment of the Court of Appeal in Robertson -v- Bexley Community Centre it was said that in relation to the exercise of discretion, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.’ However I have also reminded myself that that does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. In the same judgment Lord Justice Auld said “The Tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision”. The law does not require exceptional circumstances, it simply requires, that an extension of time should be just and equitable – Pathan -v- London South Islamic Centre EAT 0312/13. The approach I adopt is that what Robertson reminds tribunals, is that if a party seeks the exercise of judicial discretion it is for them to show that the discretion should be exercised in their favour. In other words, the onus is on the claimant to convince the tribunal that it is just and equitable to extend the time limit and the extension must be justifiable.
DISCUSSION AND CONCLUSIONS
[56]The Claimant’s lack of any specific explanation about the evidence which she will offer in this case presented me with significant difficulties. I appreciate that the Claimant is disabled and that she is a litigant in person, but if the Claimant is to succeed in her case, which is now only a matters of weeks away, it is for her to persuade the tribunal at that final hearing that it has jurisdiction in relation to the 16 of 24 complaints based on evidence the Claimant has already provided to the Respondent. In particular in relation to whether there is conduct extending over a period of time, that requires her to show on the balance of probabilities that there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts. I did not (of course) expect the Claimant to prove her case to me at this hearing, but I did expect her to be able to explain to me what her case would be, not so I could decide a dispute of fact about whether there was conduct over a period time, but to determine if the Claimant is putting forward any evidence which could lead to finding of that because if she is not offering any evidence she can have no reasonable prospect of establishing jurisdiction in that regard and if that is the case I agree with Mr Searle it would be sensible for all concerned to concentrate on the issues relating to the disciplinary proceedings as set out by REJ Franey in his letter of 16 May 2024.[57]The Claimant told me she has been subject to continuing conduct by her manager Ms Clark and that she believes that it has been hostility from Ms Clark that has underpinned what has happened to her up to dismissal. She told this also relates to the failure to make reasonable adjustments, but she did not explain what evidence she intends to rely on to meet the burden of proof on her as set out in the Equality Act and she did not suggest any connection except that it is her belief that this is all tied to or connected towards her from Ms Clarke.[58]I considered the contents of the claim form to see if that could help me understand what the Claimant’s case is on the issue of jurisdiction. A claim form does not need to plead the facts the Claimant intends to rely upon in this regard but in the absence of any explanation from the Claimant in her submissions I looked to see if this may clarify matters for me. The Claimant says this “I believe that I was subjected to disciplinary processes in any attempt to get me to leave as I raised concerns about practice at the council which was part of my role but which the council chose to ignore. My first disciplinary process commenced following illness caused by me not being provided [with] the appropriate reasonable adjustments. Occupational health and my consultant both told my employer that the way I was being managed resulted in workplace stress, I am now aware that a team manager at the council took her own life a few months before my employment started and that this was due to the 17 of 24 way in she was being managed, I believe that the organisational culture in the council is toxic for anyone who questions practice. The grounds on which the LA relied in my dismissal are based upon false claims made against me by a barrister for the previous authority where we lived, The police have closed my case with no further action as have Social Work England who do not believe that my practice has been impaired. Believe that I have been subject to direct discrimination and victimization for addressing discrimination against others.”[59]I can see from this that the Claimant makes some connection between events over time but even taking that at its highest the bare facts as put forward by the Respondent in its submissions which the Claimant seemed not to disagree with, appear to be inconsistent with some sort of continuing effort to force the Claimant out.[60]Allegation (1) is that the Respondent did not provide a large screen to meet the needs of the Claimant’s visual impairment for a period of about 8 months from October 2017 to about June 2018. This is alleged to be failure to make a reasonable adjustment and an act of victimisation related to an alleged protected act in December 2017.[61]The Respondent says that “this situation was ongoing from on/slightly before 16 January 2018 (when the Claimant requested a bigger computer screen) until on/around 24 July 2018 (when the Claimant collected the bigger computer screen). It is undisputed that the complaint was resolved by the provision of the larger screen. It is entirely unrelated to any of the Claimant’s other allegations and, even if it is regarded as an act continuing over an extended period of time, it came to an end on/around 24 July 2018, approximately 31 months before the Claimant lodged her ET1.”[62]In terms of protected acts, the protected acts are also the alleged protected disclosures referred to in the list of issues for child A and child B (although in relation to the protected act for child A the list of issues notes that it is not clear on what basis there is said to be an act of discrimination). The claims about protected disclosures note other concerns being raised but it appears those are not said to be protected acts under the Equality Act, 18 of 24[63]The Claimant has not suggested to me what evidence she intends to rely upon to show that this failure to provide a computer screen in a timely way is connected to the disciplinary proceedings or indeed to the concerns related to what happened to the children in the alleged protected acts and how that could be related to the reasons for dismissal. In terms of the protected acts and the provision of the computer screen clearly there is some overlap of time, although the Claimant’s allegation about the start of the period of time when the reasonable adjustment should have been made (October 2017) predates the protected acts alleged to have occurred in December 2017 and January 2018. The Claimant did not explain how this is connected to the alleged failure to make a reasonable adjustment except in the very vaguest of terms through a connection with Ms Clarke. I do not accept what I was told suggests the Claimant has evidence to suggest conduct extending over time, simply because the Claimant refers in vague terms to her line manager, especially when on the face of the allegation the failure to make the adjustment was addressed by July 2018.[64]Allegation (2): the Claimant was subjected to an absence management process in 2018. This is said to be an act of discrimination because of something arising in consequence of disability and victimisation.[65]The Respondent in its submissions says “that the Claimant attended a Positive Attendance Support Meeting on 24 July 2018. The outcome was delivered on 14 August 2018 and the process did not progress any further. The purpose of the absence management process was to discuss the Claimant’s wellbeing and to look at how the Respondent could help and support her moving forward. She did not face any formal action or warnings. The process concluded in August 2018 and is entirely unrelated to any of the Claimant’s other allegations.”[66]In terms of what the Client says her case will be about that, I understand it to be, at its highest, that Ms Clark was involved in some way because she was the line manager and that is the common thread which links this allegation to the others to mean it is conduct extending over time. In terms of the s15 complaints, the “something arising” set out in the list of issues did not help me understand the evidence the Claimant intends to offer. The Claimant did not suggest to me that she disputes the Respondent’s description of what happened in terms of the factual background. 19 of 24[67]I do not accept what I was told suggests the Claimant has evidence to suggest that this was conduct extending over simply because the Claimant refers in vague terms to her line manager, especially when on the face of the allegation, the failure to make the adjustment was addressed by July 2018.[68]Allegation 3 is that the Respondent failed to provide a minute taker for “looked after children” meetings from August 2018 to March 2019. The Respondent’s basis for strike out: is that “so far as the Respondent is aware, the Claimant didn’t ever raise this as an issue. Even if it had been raised, this alleged detriment does not form part of a continuing act extending beyond March 2019, almost two years before the Claimant lodged her ET1.” This is alleged to be a failure to make a reasonable adjustment. The Claimant has not explained to me what evidence she will rely on to show this was conduct extending over a period of time. Again her case to be that Ms Clark was involved in some way, but I do not accept that is enough to suggest that the Claimant has any reasonable prospect of stalking conduct extending over time which ended with the Claimant’s dismissal such that it can be said the Claimant has a reasonable prosect of establishing that the tribunal has jurisdiction.[69]Allegation (4): the Claimant was subjected to an informal capability process in January 2019. The Respondent’s basis for strike out is that “the Claimant attended a Capability Meeting on 13 February 2019 and she was invited to attend a further meeting on 20 March 2019. The second meeting didn’t take place and the process did not continue beyond 20 March 2019”.[70]This is said to be an act of victimisation. In addition to the protected acts referred to above, the Claimant has referred additionally to a protected act in March 2019, that is her grievance. A grievance in March 2019 cannot be the reason for a protected act in February 2019 so the Claimant’s case must be that the reason for this alleged detriment is the earlier protected acts, but what that case is unclear. More significantly in terms of the issue of jurisdiction, the Claimant has not explained what evidence she intends to rely upon to explain how a process which was not continued past March 2019 was an act of discrimination which continued over time though a connection to the later disciplinary case. 20 of 24[71]Allegation (8): the Claimant’s grievance being heard in her absence in March 2019, which the Claimant states occurred because she required an in-person hearing (rather than one by video link) and the Respondent was not able to accommodate such a hearing. The Respondent’s basis for strike out is that the Claimant submitted her grievance in March 2019 and the grievance hearing took place on 17 April 2019. Contrary to the Claimant’s assertion, she attended in person, along with her Union representative. In any event, the grievance hearing took place in April 2019 and the alleged requirement for her to attend in person was a disputed one-off incident and does not form part of a continuing act. This allegation is said to be a complaint of an act of discrimination because of something arising in consequence of disability and a failure to make a reasonable adjustment.[72]I understand the Claimant’s case at its highest to be that her allegation is evidence of underlying hostility towards her by Ms Clarke but as complaint about a failure to make a reasonable adjustment I do not see how it anything other than an allegation of a one-off failure and I do not accept that the Claimant has shown has any reasonable prospect of establishing that this was conduct extending over time.[73]In terms of the Claimant’s allegations at (6) (7) and (9): Allegation (6): is that in about November 2020, the Respondent required that the Claimant have the same manager, Kim Clark (from whom the Claimant inherited her caseload), despite a recommendation from Occupational Health and a consultant to the effect that the Claimant’s manager should be changed to reduce workplace stress.[74]I am unsure whether this is issue can be correctly fixed in time given that the Claimant was dismissed on 3 November 2020. The Respondent in its submissions suggest that at an Occupational Health Appointment on 27 November 2018, the Claimant made a request for her line manager to be changed. The reasoning for this request was discussed with the Claimant at length. At the Grievance Hearing on 17 April 2019, it was decided that Mark Casey would replace Kim Clark as the Claimant’s line manager.[75]I found the Claimant’s case about to be somewhat confusing. I understand her to dispute that version of events and her to assert that she was managed by Ms Clark throughout and I understand the Claimant’s case to be Ms Clark’s continued line management of her is connected to the disciplinary procedure in some way. I remain 21 of 24 uncertain how the recorded allegation is conduct linked to the disciplinary proceedings. However, given the apparent nexus to the decision to dismiss, at least in terms of the recorded allegation in the list of issues, I cannot reach a conclusion that this complaint has no reasonably prospect of success even given the limited explanation of her case offered to me by the claimant.[76]In preparing these reason is note that if the allegation made by the Claimant is correct in terms of date, if she is able to rely on the second early conciliation certificate it would not be out of time but I have not examined that legal issue because the parties had not had the opportunity to make submissions about that.[77]Allegation (7): the instruction to the Claimant, from Kim Clark on about 13 March 2019, to the effect that the Claimant was not to drive to work after the Claimant raised concerns about her eye condition and medication, until she could “prove she was fit to drive”.[78]In explaining her case to me about that I understand the Claimant to say that this is essence hostile management which continued to her dismissal. I am not sure that explanation is consistent with the complaint identified, but at it highest this allegation does seem to suggestion there may be some connection or nexus to the disciplinary action which should be resolved through the tribunal such that it would be appropriate to conclude that there is no reasonable prospect of establishing conduct extending over a period of time.[79]Finally allegation 9 is that Allegation (9): the Respondent’s Human Resources adviser made a safeguarding referral in respect of the Claimant and her son during 2019, and claimed that the Claimant had sent “numerous messages saying that [she] was going to end her life when there were in fact none”. I found the Claimant’s submissions somewhat hard to follow. I understand her to suggest there is connection between her son and safeguarding concerns and the disciplinary action which is said to be an act of unlawful harassment and victimisation. Whilst the relevance of that is not entirely clear to me, I decided that it would not be appropriate to conclude that the Claimant has no reasonable prospect of establishing jurisdiction in relation to this complaint.[80]In relation to 6, 7 and 9 I do have concerns about whether the Claimant has any meaningful case in support of her contention that 22 of 24 there was conduct extending over time, but I have taken a cautious approach.[81]In terms of the Claimant’s prosects of persuading the tribunal to extend time for complaints which were not brought within the primary statutory time limit, the Claimant did not dispute that her witness statement contains no reference to why her claim was not presented in time or any evidence which might be relevant to the question of whether it is just and equitable to extend time. Although an individual does not to give a good reason for not submitting their claim, or indeed any reason or at all, it is almost always relevant to consider why a claim has not been presented in time and it is difficult to imagine a case where a tribunal could find it is just and equitable to extend time but without being to making a finding about why that has happened. The Claimant has not suggested to me that there is any evidence available to the tribunal about that nor she did suggest any submission she intends to make in that regard. It will be for the Claimant to persuade the tribunal to exercise its discretion in her favour. In the absence of any suggestion from her to me about how she would do that I conclude that she has not reasonable prospect of persuading the tribunal at the final hearing to exercise its discretion.
DISCUSSION AND CONCLUSIONS
[1]This hearing was listed for 7 days for a final hearing. The claimant’s application to postpone the hearing[2]The claimant had recently made an application to postpone this hearing, which the Employment Judge refused at that time and gave reasons. The claimant’s renewed and clarified her application at the outset of the hearing.
The Law
[3]The claimant said that the IBS and anxiety/depression that she suffered from at the last hearing was largely under control. She said she felt well but was very anxious about her mother-inlaw and her son. The claimant’s identified 3 close relatives with substantial medical problems which was currently causing her significant stress. As this document will go on the public register, I have not included the detail of the medical position of the claimant’s relatives.[4]The claimant said that it was difficult to provide the medical records of others, and we discussed confidentiality and the Employment Judge’s previous correspondence regarding privacy orders and other arrangements. He reiterated that the Tribunal only wants to see the medical records of relatives to the extent that these confirm the precise nature of the problem at this time, i.e. that what the claimant said is confirmed, we understand the seriousness of the situation and the impact the claimant contends these issues have upon our hearing. So, we do need to see clear authoritative collaborative information about relatives’ relevant medical conditions and that is largely absent here.[5]On behalf of the respondent, Mr Searle, said that he opposed the application to postpone. He said that this hearing was previously described as the “last chance saloon”, that this was and should remain an accurate description, and that if the hearing did not proceed today then a fair hearing was no longer possible. He said that the postponement application ought to consider his consequential application to strike out, which the claimant replied to and both of which we took into account. The respondent’s points were as follows.a. The respondent had 10 out of 11 witnesses available for this reconvened hearing and that all but one of these witnesses was still an employee of the respondent. He said that the respondent was worried that witnesses would withdraw and no longer agree to attend. He described previously the upset and toll these accusations had taken on the respondent’s witnesses. Even if the respondent or the Tribunal, could compel their attendance again at a reconvened hearing then such was the delays that we have encountered, the evidence of everyone concerned has now reached the stage where their evidence is so significantly and fatally diminished that a fair hearing is no longer possible. The allegations went back to 2019, although some of the factual dispute might go back as far as 2017. If the case is heard next year, then a delay of between 5 years to 7 years or 9 years is so long that we can no longer view the evidence as sufficiently reliable, particularly as the claimant’s witness evidence is so vague that the facts will have to be explored in great detail at the hearing.b. A substantial number of respondent’s employee/officers had discrimination and whistleblowing retaliation allegations hanging over them for 4 years now. These are serious allegations, and these individuals are entitled to a prompt determination.c. We have had 5 abandoned hearings [June 2022, December 2022, a Preliminary Hearing in 2024, March 2024 and October 2024], and it had come to the point that enough was enough and that we needed to press on with this last chance.d. The Tribunal had been very clear at the last occasion that this case needed to be concluded at the next sitting, yet here we were again facing another application to postpone on incomplete, unsubstantiated medical assertions and without any clear indication that these matters will be resolved by the next hearing.e. The costs of this case have been considerable, and the costs occasioned by another adjournment would be significant also. These additional costs would be unnecessary and have to be borne by a case strapped local authority and council tax payers and that is now unjustifiable.f. Mr Searle contended that we should proceed in any event and that if the claimant’s circumstances changed substantially, we could effectively cross that bridge, if it arose. He said the alternative was that he would need to again apply to strike out the claimant’s claim.[6]The Tribunal broke to consider our determination. As previously advised to the parties, the relisting of this case for 3 months at the last hearing was exceptional and could not be relied upon in future. The previous indication from the Employment Tribunal listing team was that we could not accommodate a 7-day hearing until next year, although there was a slight chance of an opening in November 2025.[7]We refused the claimant’s application to postpone. The claimant’s son was unlikely to have the surgery he required within the next 1½ weeks. We were not satisfied, on the information presented, that the claimant’s mother is likely to pass away during the hearing and we are hopeful that this will not happen for some time. There have been 4 postponements of the final hearing so far, with considerable costs and disruption already incurred in dealing with adjournments, both for the respondent and the Tribunal, which like other sectors of the public service are expected to do more for less resources. The Tribunal was particularly concerned about the effects any further delay would have on the memories of those concerned, particularly for the witnesses who have retired and/or moved out of the geographical and occupational area. Memories of a workplace or around 5 to 7/9 years previously are obviously likely to be rendered less reliable.[8]The Employment Judge was very clear at the last hearing as to what the claimant needed to produce if any future postponement is to be granted. The independent corroboration and detail we require has largely been ignored.[9]Of crucial importance was the fact that if we adjourn now, we could not be sure that we would not confront exactly the same, or substantially similar, problems at any reconvened hearing. We were committed to proceed with the hearing. Case management[10]We then spent the rest of the morning session in case management discussions. Of particular note, the Judge expressed his concern with dealing with the case in the time available. Day-1 was to proceed as a case management/reading day. We set a timetable, which provided for the claimant’s evidence on day-2 and set appropriate slots for the respondent’s witnesses.[11]The claimant resisted going first with her evidence. Mr Searle said that the claimant statement was not detailed, and he needed to spend some time in cross-examination to properly identify and explore matters pertaining to the list of issues. The Judge insisted on the claimant going first, so that any ambiguity in the claimant’s case can be explored and then those clarified allegations can be put to the respondent’s witnesses. If the claimant was going to go last, then her allegations might not be adequately dealt with. The Judge explained to the claimant that this would benefit her as a self-representing litigant as it afforded the opportunity to explore her case in more detail so that the respondent witnesses would be aware of the precise allegations/case they need to address. We spent around an hour compiling the witness timetable and the Judge advised both parties that he would potentially guillotine witnesses so that we could be able to provide an oral judgement on day-7, because this was within the overriding objective.[12]At the end of the case management discussion, the claimant produced some further bundles of documents and said that she had an application to adduce further evidence. The respondent objected to any further documents being added to the hearing bundle. The claimant confirmed that she had not provided the documents to the respondent yet because the respondent’s solicitor declined to deal with any late disclosure. The claimant said the respondent’s solicitor had told her that the respondent had run out of money for this case and they would not pay for additional preparation.[13]The Tribunal conferred and made a unanimous decision to refuse to accept additional documents. Such late disclosure would breach the overriding objective. Whilst we have scope for flexibility there must be some degree of certainty in litigation. We have had 6 preliminary hearings/case management hearings. This is the fourth attempt at a final hearing, yet we faced an application to include further documents. If the case proceeded on each occasion or, at least, 3 months ago then these documents would not have featured. The claimant should have made a written application, with appropriate notice to the respondent, prior to this hearing. Our timetable is tight but additional documentation may derail this hearing. The respondents might seek to adduce further rebuttal or clarifying documents. If not, there might be delays for the respondent to seek additional instructions and also additional witness time to deal with this late documentation. The Judge explored the issue of documentation at the last hearing and said that bundles were settled.[14]The Tribunal refused claimant’s application, whereupon she stood up and walked out. When asked where she was going, the claimant he said she was ill. The court manager spoke to the claimant shortly afterwards and ascertained that her diabetes was okay, and the claimant seemed able to depart without needing medical assistance.[15]During the hearing claimant said that she should be treated as a vulnerable party. I take vulnerable to mean someone requiring special measures to assist them giving evidence because of their own circumstances or those relating to the case. The judge said that there had been no determination by the Tribunal that she was vulnerable. The claimant, nor anyone else, has suggested that safeguarding issues arise for her. The claimant had full capacity and did not have any learning difficulties. The claimant had held a responsible and demanding job and was, we believe, a registered social worker. She had capacity and was able to fully argue her case. She clearly had some health issues, which the Tribunal had recognised. The Judge had made it very clear that, within the overriding objective and so far as possible, we would seek to accommodate the claimant’s needs and make adjustments accordingly. That is largely unproblematic and was explored previously, including at the recent hearing. The Judge had previously explained that his role was to provide for a level playing field, as much as possible, and to ensure a fair hearing in accordance with the overriding objective.[16]At around 12.50pm the Tribunal retired to read the witness evidence and key documents identified by the respondent. Day 2 – the claimant’s non-attendance[17]The Tribunal received 2 emails from the claimant by the outset of day-2, both of which confirmed that she was too ill to attend that day. On the Tribunal’s instructions, the Tribunal clerk, tried to contact the claimant. Unfortunately, we did not have the claimant’s mobile telephone number and, upon enquiry, neither did the respondent. We thereupon wrote to the claimant to ask her if she intended to attend the following day and if she was able to attend. The claimant’s reply was equivocal, in effect, it was unclear whether she would be able to attend the next day. Proceeding in the claimant’s absence[18]The Tribunal then mooted with the respondent whether it was possible to start hearing evidence with the respondent’s witnesses first; the Tribunal putting forward the claimant’s case neutrally. The Tribunal was informed that the respondent’s witnesses were not present at the hearing that morning, and Mr Searle could not be certain when we could start hearing evidence that day, if indeed, it was practical for the respondents to now go first. That said, following our reading of the claimant’s evidence, it seemed to the Tribunal even more imperative that we start with the claimant’s evidence, rather than begin with the respondent’s witnesses because the claimant’s case on disability discrimination and whistleblowing was unclear. Her statement, although lengthy, was high in accusations and criticism of the respondent but surprisingly light on factual detail. Mr Searle maintained it was not feasible to change the running order that the Tribunal carefully determined yesterday merely because of the claimant did not attend today. The claimant had appeared sufficiently well yesterday to continue; however, when she did not get her way on the order of evidence and on submitting additional documents that was why she walked out. Whether or not we accept the claimant was recalcitrant, we concur with the respondent’s contention that the claimant must go first.[19]Mr Searle contended that we needed clarity from the claimant that she would be able to commence the hearing the next day (at the very latest) and that was clearly lacking. He said that the non-attendance today made the hearing as timetabled impossible to conclude in 7-days. He renewed his application to strike out the claim.[20]Even if we were able to now complete the evidence by day7, we would need to come back for deliberation and with the Tribunal members’ other commitments that looks likely to delay us for months. Today’s non-attendance has forfeited this whole session.[21]The Judge mooted hearing the respondent’s application, say, next Monday which would be on day-6. This would give the claimant the chance of attending although it is not clear whether the claimant would in fact be able to, or choose to attend, on this day. Mr Searle said that that might have been within the overriding objective if the claimant had indicated that she would be better and able to attend in future but, frankly, the claimant was so fragile that it was nothing other than wishful thinking or speculation as to whether she might turn up next week or any other date. The claimant had a pattern of avoidance. She did not attend the hearing where she was dismissed. She has made great efforts to avoid 5 now 6 Employment Tribunal hearings. Mr Searle contended that the claimant had a pattern of running away from difficult hearings and if the past is anything to go by then it would be largely pointless delaying further and not to resolve this issue today.[22]He said that the respondent’s application regarding the striking out the case had been well trailed in both correspondence and at the last hearing. He said the claimant could be in little doubt as to the consequence of her nonattendance today and that, indeed, that she said she only attended on day-1 because the respondent had intimated that they would pursue striking out her claim. As well as forewarning of this consequence, he said that the arguments had been well rehearsed both from the last hearing, prior to this hearing and yesterday.[23]The claimant’s condition changed as now she says she had nosebleeds and she is ill. This suggests different condition from her described medical condition yesterday. She may well have significant medical problems but these could arise from trying to avoid this type of hearing. .[24]The Tribunal considered hearing the application to strike out today and we unanimously decided to proceed with the respondent’s application, notwithstanding the claimant was absent. We accepted Mr Searle’s submissions. The claimant did not attend today, and we could not be satisfied that she would attend on day-3, day-6 or any other day. Under the circumstances, we determined that it was within the overriding objective to determine the respondent’s application to strike out today.[25]The claimant could not be described as being taken by surprise that the respondent would apply to strike out her claim nor could it be said that she would be unaware of their arguments or that we have not heard her response. The respondent’s reply to the claimant’s application yesterday (and on previous occasions) was a strike out application in the alternative (see Collins v Ultimate Finance Group Ltd EA 2019 001272 00). Indeed, the Tribunal was satisfied that we have heard the claimant’s response to these arguments at the last hearing and yesterday. If we were in any doubt then we would not have proceeded at this stage.[26]We are in this position entirely due to the claimant’s illhealth, and while that is unfortunate for the claimant and she should not be blamed, it cannot be attributed to the Tribunal or the respondent’s behaviour. It is within the overriding objective to determine this application today. We cannot be satisfied that the claimant would attend tomorrow, the day after or next week, or even at all. The respondent’s application to strike out the claimant’s claim[27]Under rule 38(1)(e) of the Tribunal Rules 2024 (formerly rule 37(1)(e) of the Tribunal Rules 2013) an Employment Tribunal may strike out a claim or response (or part thereof) where it considers that it is no longer possible to have a fair hearing.[28]The case of Leeks v University College London Hospitals NHS Foundation Trust 2024 EAT 134 determined that a claim could be struck out under the old rule 37(1)(e) (now rule 38(1)(e)) even where the party against whom the application is made has done nothing wrong. For example, the ill health of a party could mean that it is no longer possible to have a fair hearing even though a party cannot be criticised for being unwell.[29]Peixoto v British Telecommunications plc EAT 0222/07 was described as “a truly extraordinary” case. The Employment Appeals Tribunal (“EAT”) held that an Employment Tribunal had not erred in striking out claims of unfair dismissal and disability discrimination made by a claimant suffering from chronic fatigue syndrome on the basis that it was no longer possible to have a fair hearing. P had asserted that she would not be physically able to give oral evidence, the case could not be decided on the documents alone and there was no prospect of P being able to proceed at any time in the future, particularly given the nature of the medical evidence, which had persistently predicted a sufficient recovery that did not in fact materialise. In the absence of any prognosis for recovery, the Tribunal was unable to establish any point in the foreseeable or even distant future when a trial could take place and concluded that a fair hearing was no longer possible. This conclusion was rooted in Article 6 of the European Convention on Human Rights, which lays down the right to a fair trial, including the right to have a trial within a reasonable time. The Tribunal had considered less draconian measures but was entitled to strike out the claims on the ground that a fair trial was impossible. Accordingly, the EAT could find no error of law in the Tribunal’s decision and the appeal was dismissed. In reaching its conclusion, the EAT commented that those who know most about whether a fair trial is possible in an Employment Tribunal are those specialist members and Employment Judges who are there day in and day out.[30]Similarly, in Riley v Crown Prosecution Service 2013 IRLR 966, CA, the EAT upheld an Employment Tribunal’s order striking out claims of discrimination and whistleblowing brought by a claimant suffering from depression on the basis that a fair hearing was no longer possible. The Employment Judge had reached this conclusion having taken account of(i) the fact that there was no prognosis of when, if ever, the claimant would be well enough to take part in the proceedings, and(ii) the balance of prejudice in respect of each party. The Court of Appeal found no error of law in this decision and dismissed R’s appeal against the order. There was an agreement between medical experts that, even after two years, the probability was that R would not be well enough to participate in any hearing. In the Court’s view it would be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of hearing time many months before they are due to start, merely in the hope that a claimant’s medical condition will improve. It held that if doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal.[31]In Whelpdale v Moorfields Eye Hospital NHS Foundation Trust ET Case No.2200336/18. The Tribunal acceded to the Trust’s application. It noted that none of the potential witnesses for the Trust remained employed by it, that 5 to 7 years had elapsed since the events in question, and that the Trust was only able to locate a few relevant documents that might assist witnesses to recall events. Given that a key element of the claim related to protected disclosure, the Tribunal was of the view that accuracy and completeness of evidence was key. Looking at the balance of prejudice, if the case continued, the Trust would be unable to examine its potential defence because of a paucity of relevant documents and the fact that witnesses’ recollections of the events would have faded. W’s stated aim was to highlight alleged data protection breaches at the Trust so that lessons could be learned. In financial terms, W had received a very substantial pay-out and made no attempt to mitigate his loss, and any potential compensation he might be awarded was unlikely to be significant. The balance of prejudice therefore lay in favour of the Trust. For these reasons, the Tribunal concluded that it was no longer possible for there to be a fair hearing and struck out W’s claim.[32]Mr Searle said that this application was made on the basis of his arguments made yesterday – see paragraph 5(a) to (e) above, which he repeated. We understood the claimant’s position to be from the earlier discussions.[33]The Tribunal was of the unanimous view that the claimant’s case shall be struck out. We regard this as a truly exceptional case such as to justify taking this draconian measure.a. There appears little or no prospect of the claimant being able to proceed at any time in the future, particularly given the nature of her various medical conditions, which, put simply, we have not been able to properly define. We cannot fully understand the claimant’s impairment to proceeding because we have no clear diagnosis and no clear prognosis. We were told yesterday that the claimant’s anxiety/depression was much better, and her IBS was under control. Yet, we now have a serious of medical conditions arising which make proceeding impossible and preclude any forecast for when these problems or similar problem might be resolved or even might arise again. We are concerned that apparently whenever anything arises that does not go in the claimant’s favour, she seems to seek to avoid the consequence. This might be due to some form of medical reaction, but that might be mere speculation. The point is that there is no medical prognosis that we can seek to accommodate.b. If we are realistically looking to re-start in November 2025 (if possible) or in 2026 (which is more likely), then we need certainty. The claimant told us at the last hearing that she was very confident she would be well enough to attend this hearing. However, she cannot proceed. At this stage we need to look for certainty and expect the claimant to be able to accommodate the ebbs and flow of litigation. Following yesterday’s example, we cannot see that the claimant will be able to withstand any cross-examination, particularly as Mr Searle said yesterday that he needed to press the claimant on clarifying her vague claims. There is no indication of when, if ever, the claimant would be well enough to take part and accommodate the rigour and demands of the final hearing in this factually complex multiday case.c. The Tribunal was unable to establish any point in the foreseeable or even distant future when a trial could take place. So, a fair hearing is no longer possible. Those accused of discrimination and whistleblowing retaliation also have the fight to a fair hearing. Neither the claimant’s rights nor the respondent’s rights are absolute rights, they are qualified by the right to have a trial within a reasonable time. If the past is a clear indicator, we have no confidence that we will ever achieve a full hearing within a reasonable time. Regrettably, we have become convinced that this case will never proceed to trial, there will always be some major obstacle for the claimant.d. Most important, we are satisfied that the point has now arisen, at 6 years after the key events started (with 4 previous attempts at a final hearing) that the further delay means that this type of evidence is now highly likely to be unreliable with the passage of time. This was fully articulated by Mr Searle yesterday. We accepted his point then and we accept it now.e. We considered striking out the disability discrimination and whistleblowing claims only and retaining the unfair dismissal claims because the issues for unfair dismissal are more straightforward. However, the discrimination and whistleblowing claims are so interwoven with the dismissal claim that this would make such a measure arbitrary and unjustifiable.[34]Accordingly, under the circumstances we conclude that it is no longer possible to have a fair hearing, and we strike out the claim under rule 38(1)(e). Approved by
DISCUSSION AND CONCLUSIONS
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claims. I have considered the claimant’s various emails containing information about her medical condition and the Presidential Guidance on vulnerable parties.[2]I am sorry for the delay in responding to the claimant’s application for reconsideration. This was not forwarded to me until the day before yesterday.
The law
[3]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment: rule 68 The Employment Tribunal Procedure Rules 2024.[4]Rule 70(2) empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[5]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not openended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[6]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[7]In Ebury Partners UK Limited v David [2023] EAT 40 the EAT put it this way in paragraph 24: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.”[8]In common with all powers under the Procedure Rules, preliminary consideration under rule 70(2) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Where a party has raised arguments, or had a reasonable opportunity to raise them, it will not generally be in the interests of justice to grant them a second such opportunity. The Application[9]The case was listed for 7 days commencing 13 January 2025. The claimant did not attend on day-2, and it was evident that the case could not be concluded at that 7-day session. The respondent made the application to strike out in the claimant’s absence. We proceeded, in the claimant’s absence, because:(a) we did not know if or when the claimant would attend; and(b) (as explained in paragraphs 25 of the previous Reasons) we had heard all of the arguments and the claimant’s response to those arguments prior to the respondent’s further renewed application. We made a decision to strike out the claimant’s claim under rule 38(1)(e) and written reasons were promulgated on 17 January 2025, the reasons essentially being set out at paragraph 33(a) to (e).[10]Following our determination, the claimant has proffered a number of emails plus inclusions containing additional information:a. I do not dispute the content of the claimant’s emails on her medical condition. Our concern about the lack of medical corroboration centred on ascertaining precisely what were the medical conditions complained of. The genuineness of the claimant’s illnesses has never been in issue for the Tribunal as we did not believe that she had made this up. Our focus was more on trying to understand the various impairments and predict how these would affect the claim and the Employment Tribunal process. It was not our purpose or intention to punish the claimant for her non-attendance although I accept that the consequences of our decision may be seen by the claimant as having a punitive effect.b. Whilst we made no determination that the claimant was a vulnerable party, we accepted that she had some needs and we made adjustments accordingly and within the over-riding objective. That was set out in our decision. The guidance on vulnerably was adhered to and the requirements of the Equal Treatment Bench Book were at the forefront of our consideration, as explained to the claimant at the previous hearing and on day-1 of this hearing.[11]The claimant’s emails and her additional information/evidence do not really address the key factors in our decision that a fair hearing was no longer possible. This information would not have affected our decision had it been supplied by the claimant before her case was struck out. Accordingly, I consider that there are no reasonable prospects of the original decision being varied or revoked.[12]In addition, I would like to correct my previous Written Reasons in respect to the claimant’s health position. I recorded the claimant as having IBS (irritable bowel syndrome); the claimant subsequently informed the Tribunal that she was, in fact, under investigation and/or treatment for IBD (inflammatory bowel disease). I accept that the claimant had (or was likely to have had) IBD instead of IBS. I recorded my understanding at the time and that misunderstanding has now been corrected. I apologise to the claimant for this error in recording her medical condition. Approved by Employment Judge Tobin Dated: 14 March 2025