Ms K Westwell v Serco Group plc: 2402650/2020
JUDGMENT
The claim is struck out.REASONS
[1]The claimant did not attend a preliminary hearing on 6 October 2020, did not reply to the tribunal’s letter dated 11 September 2020 and did not provide details of her claim as ordered by the tribunal.[2]Under rule 37 of the Employment Tribunal Rules of Procedure 2013, a tribunal can strike out a claim on the ground that the claimant has not complied with an order of the tribunal and also on the ground that it has not been actively pursued.[3]By notice dated 6 October 2020 the claimant was given an opportunity to make representations or request a hearing as to why her claim should not be struck out.[4]The claimant has not made any such representations or request.[5]The claim is therefore struck out. Employment Judge Horne 25 November 2020 1 of 5 14 December 2020 Note: The “Code P” in the heading to this judgment indicates that the judgment was issued without a hearing. 2 of 5 ANNEX AIntroduction
[1]This was a preliminary hearing listed to consider the respondent’s application, dated 16 April 2020, to strike out the claim because the respondent alleges: that the claimant had failed to provide further meaningful clarification of the acts of discrimination about which she complains; that the claimant had failed to exchange witness statement in compliance with the case management order deadline; and that the respondent considers that the claim is not being actively pursued. This hearing had been listed on what would have been the second day of a previously listed and postponed final hearing.[2]Rule 56 of the Employment Tribunals Rules of Procedure provides that the Tribunal’s determination as to whether a claim (or response) shall be struck out requires a preliminary hearing to be conducted in public.[3]This preliminary hearing had been arranged to take place by way of a private telephone conference call, using a system whereby the Tribunal dials out to the parties’ appointed representatives. This is a system which does not therefore allow the public to observe the preliminary hearing. The error in arrangements and notices to the parties of such was unfortunately only spotted this morning.[4]I raised the difficulty with the parties at the start of this hearing and suggested that the Tribunal might be able to arrange for a video hearing to take place later this morning. Unfortunately, neither party had facilities to conduct the hearing by video platform and in addition the claimant could not afford sufficient time to wait, due to childcare arrangements.[5]In the circumstances, it was not possible to proceed to conduct the consideration of the respondent’s application for strike out in accordance with the Tribunal’s rules today. The preliminary hearing was therefore re-listed as an open preliminary hearing, by attendance. The final haring was also re-listed for 4 days, this time estimate having previously been agreed between the parties. Background and complaints[6]The claimant, who is black, was suspended on 28 May 2019, and dismissed on 4 June 2019. Her appeal was heard on 14 June 2019. She claims race discrimination, specifically that the respondent in dismissing her on 4 June 2019 discriminated against her on the grounds of her race. The claimant also brought claims of unfair dismissal and breach of contract. These were struck out on 4 November 2019 for lack of jurisdiction and lack of prospects.[7]The respondent denies the claim of discrimination, and contends that the claimant was dismissed for gross misconduct. 3 of 5[8]A case management preliminary hearing took place on 18 October 2019. The claimant had prepared a schedule of less favourable treatment, which sets out events from 28 May to 14 June 2019. However, this did not set out what type of race discrimination claims the claimant pursues (e.g. direct, indirect, harassment and/or victimisation). The claimant was therefore ordered to provide further information clarifying matters and identifying any actual comparators or a hypothetical comparator relied upon. The respondent maintains that the claimant has yet to properly particularise her complaints and therefore made its application for strike out.[9]It follows that the parties have as yet been unable to agree a List of Issues for determination at the final hearing. Case preparation[10]The parties told me that a bundle of documents had been prepared and that witness statements had been exchanged.[11]There is an outstanding issue of audio recordings which the claimant seeks to rely upon in evidence. These were raised by the claimant on 3 June 2020, in her response to the respondent’s strike-out application. By the Tribunal’s letter dated 22 June 2020, Employment Judge Holmes told the claimant that she must disclose any evidence upon which she wanted to rely, to the respondent before the hearing.[12]The claimant told me that she had sent the audio recordings to the respondent when witness statements were exchanged on 13 July 2020. Mr O’Callaghan for the respondent was without instructions on the matter and so was unable to comment. The claimant told me that she had not produced transcripts of the recordings but that they were relevant to her claim. It was not possible to take the matter further today. However, depending on the outcome of the respondent’s strike out application, I have directed that the next preliminary hearing should, if appropriate, consider the admissibility of the audio recordings and whether transcripts are going to be necessary. Further Guidance[13]The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’ which incorporates Guidance Notes on a range of matters and which can be found at: www.judiciary.gov.uk/publications/employment-rules-and-legislation-practicedirections/[14]At the same site can be found Presidential Guidance on alternative dispute resolution (including judicial assessment and judicial mediation), on the bands of compensation for injury to feelings (the “Vento” bands), on the principles for compensating pension loss, and on seeking a postponement. 4 of 5[15]In Equality Act cases, Tribunals often have regard to the Equality and Human Rights Commission’s Code of Practice on Employment available at: https://www.equalityhumanrights.com/en/publication-download/employmentstatutory-code-practice[16]The Equal Treatment Bench Book is a guide to courts and tribunals on steps that can be taken to ensure a fair hearing. It is available at: https://www.judiciary.uk/wp-content/uploads/2018/02/equal-treatment-benchbook-february2018-v5-02mar18.pdf 5 of 5