Ms K Smith v The Chief Constable of Greater Manchester Police: 2403429/2023

EMPLOYMENT TRIBUNALS

Case No 2403429/2023

Between

Ms Kerry SmithClaimant

The Chief Constable of Greater Manchester PoliceRespondent

Before

Employment Judge Tobin

Not represented for claimant

Mr C Tinkler (instructed by counsel) for respondent

Date 29 July 2024

JUDGMENT

The claimant’s claims are struck out pursuant to Rule 37(1)(d) and Rule 37(1)(c) of The Employment Tribunals Rules of Procedure, Schedule 1 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.

REASONS

[1]The claimant did not attend the hearing. I was satisfied that the claimant was sent a notice of hearing because I saw the notice of hearing and the case management summary of Employment Judge Aspinall sent 29 April 2024.

[2]The hearing was due to commence at 11.30am and shortly after that I telephoned the claimant her to ascertain her whereabouts and the reason from her nonattendance. The Tribunal Clerk stood by me and witnessed our discussion. After the hearing I read this note back to the Tribunal clerk, and she confirmed her agreement and its completeness. Note of conversation with the claimant and EJ Tobin. 26.07.24 11:34 - I introduced myself and said that I was calling from the Tribunal. I told the claimant that she was due to attend a hearing now. I said that the hearing was due to consider striking out her claim, so her attendance was important. I asked where was she and why couldn’t she be here? Claimant said that she was in bed. She had been off work for 4 months as she had not been well. She said that she had been in bed most of the time; not thinking straight. - Claimant said that she did not receive a notice of hearing from the Tribunal. - I read back her email address and she confirmed that this was correct. I said that I had seen an email from the Tribunal sending her notification of the hearing. Claimant then said that she had problems with her email. I asked if she had notified the Tribunal, or the respondent, of this problem and she said no. - Claimant said that she had problems at work. She was supposed to work with Inspector Price1 and it took a while to be sorted at work. - I asked if the claimant had reported her medical difficulties to the Tribunal. She said that she had asked for an extension. She said that she had to download everything from the GP, and this proved difficult. She was delayed in trying to sort this out2. I asked if she had sent this medical information later and she said not. - I asked why she did not participate at the last hearing and the claimant said that she was not well and was in bed at the time of the last hearing. Claimant apologised for not answering the Tribunal’s telephone call as she said that she was not well. She said that she knew that hearing was cancelled because the Tribunal sent something after3. - I said that the hearing may proceed in her absence, was there anything she wanted to add? She said that she was concentrating on her health and getting better.

[3]I read my above note to Mr Tinkler at the start of the hearing. Hr Tinkler thanked me for contacting the claimant direct, he said that gave a clearer picture of the claimant’s absence. He asked for the hearing to proceed in the claimant’s absence. He said that the claimant was around and was obviously aware of this hearing because she knew the last hearing was cancelled and rescheduled as she must have got the notice of hearing as there was no other reason why she could know that the last hearing was cancelled. He said that the claimant has proffered no medical reasons, information and/or corroborative documents which might establish a medical reason for her inability to attend and participate in the proceedings today. This was specifically ordered for by Judge Aspinall following the last hearing.

[4]I accepted Mr Tinkler’s submission. I determine that, despite her assertion to the contrary, the claimant had received both the case management summary of Judge Aspinall and the separate notice of hearing, because she was aware the last hearing did not proceed. The claimant did not attend the last hearing, nor did she comply with the order 2.1 of Judge Aspinall to provide a written reason for her non- 1 Inspector Price was the main protagonist in the claim. 2 This is reference to the claimant’s email of 2 August last year. 3 This must have been Judge Aspinall’s case management summary and the notice of hearing which the claimant originally said she did not receive. attendance at the last hearing and to provide medical reasons or evidence relevant. That order was designed to ascertain whether there might be medical reasons for the claimant’s non-engagement.

[5]The claimant had not requested that this hearing be adjourned. I could see no reason why this hearing should not proceed because if I were to adjourn the hearing then we would likely face the claimant’s non-attendance in any future hearing. I determined that the claimant had chosen to voluntarily absented herself from this hearing. I determined that it was within the overriding objective of rule 2 of the Employment Tribunal Rules of Procedure to press on with this case and proceed without the claimant’s attendance today. Striking out the claimant’s claim

[6]The claimant’s claim lacked specific for her allegations. At the first hearing on 22 May 2023 Judge Johnson could not understand the prohibited conduct (i.e. the types of discrimination) alleged. He addressed the complaints and issue in detail at paragraphs 21 to 23 of his record of the preliminary hearing. He made orders for the provision of additional information. He drafted a provisional list of issues in order to assist the claimant identify the issues of her claim. The claimant provided some information late, but she did not do what she was told to do so. In order to assist the claimant, the respondent solicitor then drafted a revised list of issue which included the information given and again, at various points, he highlighted the key information required.

[7]I note another hearing set for 5 July 2024 was cancelled by Judge Cookson because the claimant has not complied with case management orders.

[8]By 2 August 2023 the claimant provided her disability impact statement late, but she did not provide the medical evidence in respect of this. I note that fibromyalgia is often a controversial diagnosis, as the symptom may be difficult to establish physiologically, and such symptoms often mask underlying mental health issues. In any even Mr Tinkler tells me that based on the disability impact statement there is not sufficiently clear information for the respondent to accept that, at the material times, the claimant was a disabled person under the Equality Act 2010. He said that this might change with the provision of the claimant’s medical evidence which was ordered to be disclosed by 17 July 2023 (i.e. over a year ago) and which has still not been done (and which the claimant referred to in her telephone conversation of this morning).

[9]Mr Tinkler contended that on 2 August 2023 the claimant sent the respondent a large volume of information which expanded the claim and failed to provide the key information of: when, what, who and why originally asked by Judge Johnson. Judge Dunlop become involved on 12 September 2023; and I gave further guidance and on 17 November 2023 I directed a 1-day video hearing to clarify the issues and draft a finalise list of issues. That was Judge Aspinall’s hearing which the claimant failed to attend and has not given the explanation ordered by Judge Aspinall to date. Mr Tinkler contended that Judge Aspinall direct addressed the claimant and told her what she needed to do and that the Judge could not have been clearer. He said that there could be no justification for this failure to engage.

[10]Mr Tinkler said that because of the claimant incalcitrance 2 hearings have been postponed (7-18 October 2024 and 5 July 2024) and the last preliminary hearing of 1-day has been wasted. This was the third preliminary hearing and in 16 months of proceedings and we are no nearer understanding what this claim is about.

[11]The claimant has refused to engage with both the respondent and the Tribunal since her email of 2 August 2023, which was almost 1-year ago. In the intervening period the respondent has written to the claimant on various occasions up to and including trying to agree a hearing bundle for Judge Aspinall’s hearing and there has been no response.

[12]The hearing set for 29 May 2024, and today, were scheduled to be case management hearings. The purpose of the 29 May 2029 was to review the claims and the defence and to set out the preparation required to bring this case to a final hearing. I note this is a substantial case, previously set for a 10-day hearing. That hearing was lost because of the claimant’s failure to properly particularise her claim.

[13]I am troubled about the claimant’s non-engagement. There is no medical evidence to link this to her medical condition. However, even if there was, both the respondent and the Tribunal are entitled to expect a reasonable degree of cooperation from the claimant. It is wrong to expect Tribunal to adjourn heavy cases indefinitely, particularly those which will take a substantial amount of hearing time, merely in the hope that the claimant either might or might be able to engage sometime in the future. We have no clear prognosis of the substantive underlying condition and no forecast of sufficient improvement that might suggest that the claimant will or might be able to clarify her claim or otherwise engage with these proceedings. If there is no chance of securing the claimant’s co-operation now, then striking out is the only viable option.

[14]From her lack of response to Judge Aspinall’s orders of 29 May 2024 I determine that the claimant is not actively pursuing these proceedings. The claimant has also breached Judge Johnson’s order of 22 May 2023. For completeness, if I did not strike this case under rules 37(1)(c) and 37(1)(d) I would have struck out this case out under rule 47, I consider that a fair hearing is not possible where a party repeatedly fails to attend scheduled hearings and does not comply with the orders of the Employment Tribunal.

[15]The Employment Tribunal faces an unprecedent high volume of claims with limited resources. We cannot indulge recalcitrant parties with no prospect of future cooperation in sight; so, the decision to strike out these proceedings is within the overriding objective.