Ms K Patel v AO World plc: 2402344/2020 and 2404814/2022 Ms K Patel v AO World plc: 2402344/2020 and 2404814/2022

EMPLOYMENT TRIBUNALS

Case No 2402344/2020, 2404814/2022

Between

Ms K PatelClaimant

AO World plcRespondent

Before

Employment Judge Phil Allen

Not represented for claimant

Ms L Kaye (instructed by counsel) for respondent

Date 30 May 2025

JUDGMENT

[1]The claimant’s application for relief from sanctions under rule 39(2), to have the order that the claim is dismissed set aside, is refused.

[2]The hearings listed for 21 July 2025 and 12-23 January 2026 are cancelled.

REASONS

[1]The claimant was employed by the respondent as a Project Consultant from 2 September 2019 until 18 March 2022. She was absent from work from 18 November 2019, having not completed her probationary period. She brought Employment Tribunal claims on 16 March 2021 and 17 June 2022. The claims are for harassment related to disability, harassment related to sex, direct disability discrimination, direct sex discrimination, discrimination arising from disability, breach of the duty to make reasonable adjustments, unfair dismissal, unauthorised deduction from wages, and in respect of holiday pay.

[2]The claims were dismissed without further order under rule 39(1) after the claimant did not comply with an unless order made by Employment Judge Leach at/following a preliminary hearing on 11 July 2024, which required the things ordered to be done by 6 September 2024. This hearing was arranged to consider the claimant’s application under rule 39(2) for the order to be set aside, commonly known as relief from sanctions. The claimant’s application to postpone

[3]This case has a very long procedural history which I will not reproduce in this Judgment.

[4]On 2 December 2024 the Employment Tribunal wrote to the parties on instruction from Employment Judge Leach. He provided written notice that the claim had been dismissed for non-compliance with an Unless Order. This hearing was listed to consider the claimant’s application under rule 39(2) to have the Order set aside on the basis that it was in the interests of justice to do so. The Employment Judge took into account what had been said in a letter from the claimant’s GP which recommended a stay of six months. He therefore listed this hearing for six months plus six weeks from the claimant’s letter of 18 October 2024. He also listed a preliminary hearing to determine various outstanding issues for 21 July 2025.

[5]The claimant made various applications, including for an extension of time to provide written representations for this hearing. She also sought a stay in proceedings. Employment Judge Johnson made a decision or decisions which was/were recorded in a letter from the Tribunal of 13 May 2025. He stated that this hearing needed to go ahead. He provided the claimant an extension of time to provide written representations if she was too unwell to attend. After further correspondence from the claimant, Employment Judge Slater considered the claimant’s letters of 13 May and decided that there had been no material change in circumstances since Employment Judge Johnson’s order. She extended the time for written submissions. Her decision was contained in a letter from the Tribunal of 20 May 2025.

[6]The claimant made a further application of 21 May 2025. Some of what was said in that application was comment upon, or a critique of, the decisions made by Employment Judges Johnson and/or Slater. Where another Judge has made a decision, it is not for me to reconsider or revisit their decision (unless there is a material change in circumstances). I was, therefore, careful to ensure that I only considered anything in the letter of 21 May which was a new application.

[7]In her letter of 21 May, the claimant respectfully confirmed that she would not be attending today’s hearing on medical grounds. She did not do so. Ms Kaye, counsel, attended and represented the respondent. It was conducted by CVP remote video technology.

[8]At the start of the hearing, I raised the possibility that the claimant’s application of 21 May 2025 contained an application to postpone this hearing which had not been considered and determined by either Employment Judge Johnson or Employment Judge Slater. The respondent contended that such an application had already been determined. In summary, the respondent’s counsel highlighted the application for a stay which had been made before Employment Judge Slater’s decision and submitted that an application to postpone was implicit in, or part of, such an application. She also submitted that the claimant’s application for today’s hearing to be addressed entirely on the papers (which had been determined) also precluded me from considering a postponement application.

[9]I found that the claimant’s letter of 21 May contained an application to postpone this hearing which had not previously been determined by Employment Judges Johnson or Slater. I did not consider that the application for the matter to be determined on the papers precluded an application to postpone, as the issues were subtly different. I considered the application for a stay very carefully and considered there to be some merit in the contention that a determined stay application, precluded a subsequent application to postpone. I concluded, however, that the application to postpone differed from the application previously made for a six month stay, and therefore identified that it was one which I could consider.

[10]I then considered the claimant’s application to postpone this hearing. I provided the respondent’s representative with an opportunity to explain why it was the respondent opposed the application to postpone. I will not endeavour to summarise or reproduce in this Judgment the submissions of the respondent’s representative. After hearing those submission and considering the claimant’s application, I decided that the application to postpone should be refused and the hearing should go ahead. I confirmed to the respondent that I would provide reasons for my decision in writing, as I was aware that the claimant was not in attendance at the hearing to hear my reasons. Those reasons are set out below.

[11]The Tribunal has previously ordered more than two postponements of hearings in these proceedings at the application of the claimant. As a result, for this application for a postponement, rule 32(3)(b) applied. That meant I could only order a postponement under rule 32(2) where there were exceptional circumstances (32(2)(c)).

[12]The claimant has previously sought to postpone hearings on a number of occasions in these proceedings due to her health (those are described in more detail below). I decided that what the claimant described in her letter of 21 May, was not an exceptional circumstance. Unfortunately, for the claimant, the need to seek postponements due to health had been a regular occurrence. There was nothing about the current circumstances which rendered the situation exceptional in the context of the claimant’s health issues.

[13]I also found that wishing to postpone a hearing because of health issues, is also not an exceptional circumstance generally. The Tribunal sees many such applications. There was nothing about the claimant’s current circumstances as described, which rendered the circumstances in which the application to postpone was being made, as exceptional in general terms.

[14]I noted what was said in rule 32(4)(b), which is that exceptional circumstances may include ill health relating to an existing long term health condition or disability. I asked the respondent’s counsel how she believed that applied to the current circumstances (I would have asked the claimant the same question, had she attended the hearing). The respondent’s counsel submitted that an example of what was envisaged was where a deterioration in a long-term condition had resulted in the individual being hospitalised. She confirmed that she was not submitting that hospitalisation was required, but that was an example of the type of health issue envisaged. Rule 32(4)(b) was not intended to simply apply to any long-term condition. I accepted that submission and decided that the claimant’s health conditions as described in her letter were not exceptional circumstances, even when rule 32(4)(b) was taken into account.

[15]I decided that what the claimant described in her letter of 21 May 2025 as being the reason for seeking a postponement, were not the exceptional circumstances required for rule 32(2)(c) to apply.

[16]Even had I decided that there were exceptional circumstances for the application, I also would not have granted the application to postpone in this case. Applying the overriding objective, the need to deal with the cases fairly and justly, and the need to avoid delay (so far as compatible with the proper consideration of the issues), I would not have found that the hearing should be postponed. Amongst other things, I took into account the following as supporting that decision:a. the prejudice identified by the respondent of granting the postponement request, including the inevitable need to cancel the hearing listed in July 2025 and potentially/probably the final hearing listed for January 2026 (in the context of witnesses having left and potentially being unwilling to give evidence);

b. the fact that the claimant had been offered the opportunity to provide written submissions, had stated that she would prefer to rely on written submissions, and had not provided the written submissions which she said she had prepared (or largely prepared);

c. in the context of the decisions made by Employment Judges Johnson and Slater in response to the claimant’s other applications made (that the case be stayed and that only written submissions be allowed);

d. the timing of the application (which was very late);

e. the history of the proceedings, the number of postponements granted, and the need to progress the case; and

f. the lack of any short-term positive prognosis for the claimant being able to attend this hearing if re-arranged.

[17]Clearly there were factors which would have supported a postponement, including the prejudice to the claimant in proceeding in her absence, and the reason being health related. The duty to make reasonable adjustments and Article 6 were also matters to be taken into account. However, I concluded that the correct decision when dealing with the case fairly and justly, was not to postpone this hearing, as the factors I have listed at paragraph 16 outweighed those which supported a postponement being granted.

Procedure

[18]After reaching my decision on the postponement application, I proceeded to consider the claimant’s application under rule 39(2).

[19]I was provided with a very significant bundle of documents prepared by the respondent as well as a chronology. I identified the documents which I needed to read to consider the claimant’s application (with the assistance of the respondent’s counsel) and took an adjournment to read and consider those documents. The documents were (with the page numbers in the bundle in brackets):a. The case management order issued following the hearing on 11 July 2024 and, in particular, paragraph (8), and the unless order at part 2A (174/181);

b. The claimant’s email of 15 August 2024 (185);

c. The claimant’s application of 18 October 2024 (314);

d. The claimant’s email of 30 September 2024 (199);

e. The claimant’s second email of 30 September 2024 (257);

f. The undated GP letter (believed to be the one provided on 15 August 2024) (193); and

g. The GP’s letter of 27 September 2024 (258).

[20]I also read the respondent’s objection to the application, dated 9 September 2024 (196).

[21]After I returned, the respondent’s counsel also identified that I should read what was described as the claimant’s witness statement in support of her application for relief from sanctions, and I read that document at the next adjournment before reaching my decision (165).

[22]In her documents, the claimant had said that she had prepared a document containing her submissions for this hearing. There had been a dispute about whether she was willing to provide it without the respondent also being required to provide its written submissions at the same time. That was something considered and determined by Employment Judge Johnson. Unfortunately, that document was not provided for me to consider at this hearing and so I could not consider what the claimant appeared to have prepared as her arguments in advance. I appreciate that, ideally, I would have been provided with that document (even if it had been provided incomplete, in the light of the claimant’s health issues).

[23]I heard the respondent’s counsel’s submissions opposing the application for relief from sanctions. I will not reproduce what was said in this Judgment.

[24]I adjourned the hearing to consider my decision. After doing so, I returned and informed those present of my decision and the reasons for it. Those reasons are confirmed below. As the claimant was not present, I decided that I would provide written reasons, even though no request had been made.

Facts

[25]The Order made by Employment Judge Leach at/following the hearing on 11 July 2024 contained an unless order. Paragraph eight explained what was required (in summary, a letter from the claimant’s GP or a doctor, which addressed five things set out, and medical records from the last six months). Part 2A set out the Unless Order and set out the consequence of non-compliance. The order required the things to be done by 6 September 2024.

[26]On 15 August 2024 the claimant emailed the Tribunal and provided a report from her GP. She sought additional time to comply with the unless Order. The application was not considered before the deadline set by the Unless Order expired.

[27]On 30 September 2024, the claimant provided her GP records and a further report from her GP.

[28]On 18 October 2024 the claimant applied for relied from sanctions.

[29]On 2 December 2024 the Employment Tribunal wrote to the parties arranging this hearing, as I have already described.

[30]The claimant has provided various medical reports, but particularly relevant to my decision were two she provided very shortly before this hearing: a report from her GP of 13 May 2025 (414); and what was described as an addendum letter in support of legal stay proceedings which also appeared to be prepared by the claimant’s GP and was dated 13 May 2025 (418) (albeit, as the respondent’s counsel highlighted, it also contained a date in the future and the date was therefore somewhat unclear).

The Law

[31]Once a claim has been dismissed for non-compliance with an Unless Order, the relevant party has the right to apply to the tribunal in writing, within 14 days of the date that notice of the 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 39(2)). That is known as an application for relief from sanctions.

[32]Cases such as Minnoch v Interserve FM Ltd

2023 ICR 861

and Thind v Salvesen Logistics Ltd EAT 0487/09 have set out the key points to take into account when considering an application for relief from sanctions. Determining such an application involves a broad assessment of what is in the interests of justice. The factors which may be material to that assessment will vary considerably according to the circumstances of the case. Each case will depend on its own facts. The relevant factors generally include the reason for the default (in particular, whether it was deliberate); the seriousness of the default; and the prejudice to the other party.

[33]In certain circumstances, the interests of justice and the overriding objective will best be served by granting relief to the party in default. There does not need to be some compelling explanation or special factor in order to obtain relief from the sanction.

[34]In making my decision, I can focus wider than simply the reason and circumstances prevailing at the time the Unless Order was originally issued. Something that has occurred subsequent to the making of an Unless Order, can be taken into account.

[35]In her submissions, the respondent’s counsel referred me to Neary v St Albans School for Girls Governors

2010 IRLR 124

, a case which confirms that I must take into account all relevant factors.

[36]In her letters (albeit not focussed on the issue I was determining), the claimant referred to what is said in chapter one of the Equal Treatment Bench Book and I reminded myself of that chapter. She also referred to her Article 6 rights, and the duty to make reasonable adjustments. Conclusions – applying the Law to the Facts

[37]What I was dealing with was an application for relief from sanctions, that is an application under Rule 39(2) of the Employment Tribunal Rules of Procedure. That rule says that a party whose claim has been dismissed in whole or in part under rule 39 may apply to the Tribunal in writing within 14 days of the date that the notice was sent to have the order set aside on the basis that it is in the interests of justice to do so. That is the test - in the interests of justice.

[38]I also considered the overriding objective, that includes ensuring that the parties are on an equal footing, avoiding delay so far as is compatible with proper consideration of the issues, and saving expense. The overriding objective is dealing with a case fairly and justly.

[39]I took into account the matters I have referred to in the legal section above, including chapter 1 of the Equal Treatment Bench Book and the claimant’s Article 6 rights. The claimant also referred to the duty to make reasonable adjustments (as more particularly defined in section 20 of the Equality Act 2010), of which I was of course aware and appreciated that it applied to me.

[40]As the respondent’s counsel set out in her submissions, there were two questions that needed to be asked. The first one was: did the claimant fail to comply with the Unless Order in a material way? The answer to that question was yes, she did. That is, she did fail to comply in a material way. The order of Employment Judge Leach made on 11 July 2024 set out at paragraph 8 and at part 2A the things that the claimant was required to do. I will not reproduce them in this Judgment as the parties have them and can read them. The claimant was due to do those things by 6 September 2024. She did not. A medical report was provided, but the report answered only one of the five questions that Employment Judge Leach had said it should address. The medical records ordered were not provided. As a result, there was material non-compliance.

[41]The second question, was should relief be granted? As I have said when detailing the law that applies, I am required to make a broad assessment of whether it is in the interests of justice. In reaching my decision, and in explaining it, I considered each of the factors that were identified by the respondent’s counsel in her submissions.

[42]The first factor she identified was the interests of justice when applying the overriding objective. The respondent submitted that I must make my decision in the context of the history of the proceedings. The history of these proceedings is somewhat unusual. I am not going to recap the entire history in this Judgment, but I would highlight a number of matters/decisions made in that context.a. The first claim was entered on 20 March 2020. It was about employment which the claimant had actively attended for a little over a month in 2019. The claimant’s employment continued much longer after that (it concluded in March 2022) and there was a second claim;

b. A final hearing was listed for 5 to 13 July 2021. That was postponed following an application in June 2021 due to the claimant’s health (there was a second final hearing listed for 13 to 21 March 2023 which was postponed, although the circumstances of that postponement were different in that it was because of the second claim and consolidation of the claims and was supported by the respondent);

c. A Preliminary Hearing case management was listed for 27 November 2023 but that was postponed following the claimant’s application in late October 2023 due to her health;

d. A Preliminary Hearing case management listed for 17 May 2024 was postponed following an application by the claimant on 16 May 2024, in part due to the impact the case was having on her mental health;

e. A Preliminary Hearing on 10 June 2024 went ahead after the claimant’s application to postpone on health grounds was refused, but the final hearing listed for 1 to 12 July 2024 was postponed on that basis;

f. A Preliminary Hearing case management on 11 July 2024 went ahead despite the claimant’s application that it be postponed, but it was then postponed after it began (she attended) due to the claimant’s ill health;

g. A Preliminary Hearing listed for 5 to 6 December 2024 was postponed following an application by the claimant on grounds of ill health made in October 2024; and

h. This hearing proceeded after the claimant didn’t attend and applied for postponement due to ill health. The claimant also applied for a stay.

[43]There is currently a Preliminary Hearing listed in July 2025 and a final hearing listed for ten days in January 2026.

[44]There was one letter which I particularly took into account, which was a letter from the claimant’s GP which I believe was dated 13 May 2025 (418). In that letter, the Doctor says: “in my professional opinion a legal stay of at least six months remains clinically indicated to allow time for stabilisation of her physical and mental health”.

[45]As a result, whilst there is a final hearing listed for January 2026, it appears unlikely that that will be able to go ahead in the light of what is said by the claimant’s GP. Ten-day hearings are currently being listed for late 2026 in Manchester, so if the final hearing was to be postponed and re-listed (and if it went ahead on those dates), the final hearing that would be seven years after the key events (when the claimant was actually in work).

[46]The respondent told me that ten of their proposed fifteen witnesses have left their employment, and they will be unable to persuade them all to attend. That was a factor more relevant to prejudice (see below), but also required some consideration when considering the overriding objective.

[47]When I considered the respondent’s counsel’s first factor, it pointed towards refusing the claimant’s application.

[48]The second factor that the respondent’s counsel highlighted, was the reason for the default. In summary that was both health, and issues in terms of a new GP practice and a change in medication. I agreed with the respondent’s submission that I was not sure why the GP had not addressed all of the required points in the first report that was provided, but he did not. In the document which the claimant provided which she called her witness statement (167) the claimant said that there was insufficient time to provide a medical report due to a change in her GP and a requirement to undertake assessments. I did also think, when considering the reason for default, it was relevant that the claimant applied for an extension of time to comply with the Unless Order before it took effect. I should also highlight, that the respondent confirmed that it was not suggesting that the claimant’s health issues were not genuine, and they acknowledged that the claimant clearly has significant health issues. As a factor, it pointed towards granting the application. The matters set out for this factor, also related to the seriousness of the failure, which supported the relief being sought (when the provision of the things required on 30 September was considered).

[49]The third factor was whether the failure to comply was deliberate. The respondent highlighted the pattern of non-compliance with Orders by the claimant in this case (which I haven’t detailed in this Judgment but is illustrated by the claimant’s ongoing failure to comply with the Orders made regarding the list of issues, which still needs the claimant to agree or indicate what is in dispute). The non-compliance with the Unless Order wasn’t deliberate (in terms of being wilful), but I accepted needed to be seen in the context of the pattern relied upon by the respondent. On that basis, I did not consider that factor as a significant one (either way) when deciding whether I should grant the relief sought.

[50]The fourth issue was prejudice. I have in reality already summarised the respondent’s position on prejudice when dealing with the first factor. The respondent has been put to additional cost, there is time for the respondent, and there is a reduced ability to be able to address the issues in the claim if a final hearing is further delayed. Those are important factors. The prejudice to the claimant is obviously significant, because she won’t be able to pursue her claim unless I grant the relief sought. I noted the point made by the respondent’s counsel that delay also prejudices the claimant as it impacts upon her own ability to remember and evidence what occurred. The respondent’s counsel emphasised to me that I must also take into account the prejudice to the Employment Tribunal’s other users. It was an important point, well made. The history of this case is highly unusual. The Employment Tribunal has scarce resources, which should be available for everybody. Those resources have certainly been significantly used by the claimant in this case (and some of that time/resource has arisen from the claimant’s noncompliance with orders). Whilst I have noted the significance prejudice to the claimant of not granting relief, I decided that the prejudice factors collectively pointed towards the application being refused.

[51]The fifth factor was promptness. The respondent acknowledged the claimant acted promptly. The claimant highlighted that she had done so, in her own witness statement (167). That factor pointed towards the claimant being granted the relief she sought.

[52]I considered this to be a finely balanced decision. It was not an easy one to reach. As I have highlighted, there were factors pointing towards each of the two potential decisions. However, having considered all the things detailed, I decided that it was not in the interests of justice to grant the claimant relief from sanctions, when the history of the case was considered and the prejudice to the respondent of my granting that relief was taken into account. In deciding that I would not grant the application for relief from sanctions, I particularly took into account the medical advice that a stay of six months is clinically indicated, which would mean that if I granted the relief sought a final hearing could not take place until at least late 2026 (if then) with the resultant prejudice which I have explained.

Summary

[53]For the reasons explained above, I decided that the claimant should not be granted relief from sanctions. Employment Judge Phil Allen 30 May 2025