The claimant’s application dated 16 November 2017 for reconsideration of the judgment sent to the parties on 26 April 2017 is refused. It is made outside the applicable time limit and I decline to grant an extension of time under Rule 5.
REASONS
[1]The claim form was presented on 31 August 2016. The form identified Mr Panton of Artesian Law in London as the claimant’s representative. The box indicating how the representative wished to be contacted was not completed. Correspondence with Mr Panton was therefore conducted by letter, although some letters were also sent by email in response to incoming emails. Mr Panton represented the claimant at a telephone preliminary hearing before Employment Judge Porter on 6 January 2017.[2]On 10 February 2017 he emailed the Tribunal and included as his email signature the postal address of Youngs Solicitors in Sheffield. The Tribunal changed its records and used that address as his address for correspondence. A letter of 23 February 2017 using that address was also emailed to Mr Panton, and he responded by email on 13 March 2017 without seeking to correct the correspondence address. Nor did he ask for communications to be by email rather than by letter.[3]On 20 March 2017 at a preliminary hearing in Manchester I heard an application by the respondent for an order striking out the complaints pursued by the claimant in these proceedings, or in the alternative for an order requiring her to pay a deposit as a condition of pursuing them. The respondent was represented by Counsel. Neither the claimant nor Mr Panton attended, but by email in the early hours of that day Mr Panton had submitted written representations for consideration. His email said: “…[the claimant] is unable to attend the hearing. Further and as noted in the application, she does not have the resources to secure legal representation at the PHR. However as per the correspondence from the Tribunal to the parties and dated 14th March 2017, we attach written representation sent on her behalf. We confirm that the Respondent’s representative has been copied into this email.”[4]I gave oral judgment with reasons at the conclusion of the hearing, and then engaged in case management.[5]Subsequently on 24 March 2017 the Tribunal promulgated the following written documents which I had signed:5.1 Judgment and reasons striking out four complaints;5.2 A deposit order with grounds requiring up to £1,000 to be paid if one or more of the four remaining complaints were to be pursued, and5.3 A case management order effective if the deposit were to be paid, giving directions and confirming that the final hearing remained listed for 13-15 June 2017.[6]Those documents were sent by post to the respondent and to Mr Panton at Youngs Solicitors using the address on the Tribunal file.[7]No deposit was paid. On 24 April 2017 I signed a judgment striking out the claim. That judgment was promulgated by post on 26 April 2017. The Tribunal staff also issued a copy to both representatives by email the same day. The covering letter made clear that time for seeking a reconsideration was 14 days (i.e. by 10 May 2017).[8]On 27 April 2017 the respondent’s solicitor made an application for costs. It was copied to Mr Panton by email.[9]On 3 May 2017 Mr Panton emailed the Tribunal and the respondent. His email bore the Youngs Solicitors postal address in its signature. It said that the costs application would be resisted, and that “a robust appeal/review application will be submitted within the allocated timeframe concerning the Order of the Tribunal. The appeal when submitted will make it clear that neither the Claimant or her representatives were provided with the written judgment of the 24th March 2017. To date this remains the case. We anticipate that the Tribunal will be required to rescind the judgment upon the Claimant formally making her application.”[10]That email was sent a week before the expiry of the 14 days for the claimant to seek reconsideration of the judgment sent to the parties on 26 April 2017. I expected to receive an application for reconsideration in the interests of justice based on the assertion that the deposit order had never been received. If that assertion had been made out, it would have been very likely that the judgment would have been revoked and time for payment of the deposit extended to enable the claimant to pay it if she chose. It would not have been in the interests of justice to have struck out the case if the deposit order had gone astray in the post.[11]The deadline passed. No application for reconsideration was made. By letter of 18 May 2017 the parties were notified that the costs application would be heard on 4 July 2017.[12]On 5 June 2017 Mr Panton contacted the Tribunal by telephone and by email asking for copies of the claim and response forms and the judgment promulgated on 26 April 2017. Copies were supplied by email the same day.[13]On 6 June 2017 the Employment Appeal Tribunal (“EAT”) received Notice of Appeal against the judgment promulgated on 26 April 2017. The Notice gave Mr Panton’s address as Youngs Solicitors. It asserted that the claimant had received no notification of the outcome of the preliminary hearing on 20 March 2017.[14]The Notice of Appeal also claimed in paragraph 7(b) that Mr Panton had ceased to be on the record as the claimant’s representative prior to that hearing.[15]The costs hearing was postponed to await the outcome of the appeal.[16]On 30 October 2017 the EAT sealed an Order by HHJ Martyn Barklem sitting in chambers staying the appeal to enable the claimant to make an application for reconsideration of the judgment of 26 April 2017. Application for Reconsideration[17]The application for reconsideration was made by email from Mr Panton at Youngs Solicitors of 16 November 2017. In summary the application made the following points:17.1 The claimant had not received notification of the outcome of the hearing on 20 March 2017, and nor had Mr Panton;17.2 Mr Panton had come off the record as her representative before that hearing, and (implicitly) the Tribunal should have been corresponding with the claimant direct rather than her representative.[18]The respondent submitted comments on 23 November 2017. It opposed the application. It said the application was well out of time. Mr Panton had always been on record as the claimant’s representative. The three documents recording the outcome of the preliminary hearing on 20 March 2017 (see paragraph 5 above) had been sent out by the Tribunal and received by the respondent on 27 March 2017. If Mr Panton had failed to tell his client of the deadline for the deposit to be paid that was a matter between him and his client.[19]On 27 November 2017 I caused a letter to be sent to Mr Panton inviting the claimant to make further submissions by 5 December 2017 on the time limit issue. I reminded him of the email of 3 May 2017 which made reference to the timeframe for a reconsideration whilst that time limit was still running.[20]Mr Panton responded a day late, on 6 December 2017. He said the claimant had not sought reconsideration within time because she had decided to appeal instead, a decision “heavily linked to the Claimant’s available resources at the material time”. Given the appeal, the Tribunal should allow the reconsideration application.[21]The respondent commented the same day on the that email. It said that the application had no merit. It should be rejected on preliminary consideration. The claimant now lives in Saudi Arabia (where her husband works) and had not attended the hearing on 20 March 2017. It was unlikely she would attend any reconsideration hearing. Rules of Procedure 2013[22]Rule 71 requires an application for reconsideration to be made within 14 days of the date on which the judgment is sent to the parties. That time limit can be extended under Rule 5. The power to grant an extension, in common with all powers granted by the rules, must be exercised in accordance with the overriding objective in Rule 2, namely to deal with cases fairly and justly. This includes avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.
Conclusion
[23]The claimant has not established that it would be in accordance with the overriding objective to extend time to enable this reconsideration application to be considered on its merits.[24]The assertion that Mr Panton ceased to be on the record as her representative, and that the deposit order should have been sent to the claimant direct, is untenable. It is not in accordance with the Employment Tribunal’s records. The email on the morning of the hearing (see paragraph 3 above) had indicated only that the claimant did not have the resources to secure legal representation at that hearing. At no stage was the Tribunal asked to correspond with the claimant direct rather than with Mr Panton. It continued to correspond with him after the hearing without any objection.[25]Consequently, I am satisfied that the Tribunal staff quite properly sent all three of the documents recording the hearing to Mr Panton at the postal address repeatedly provided by his emails. There was no breach of Rule 39(3).[26]Of course, I do not rule out the possibility that they went astray and reached the respondent but not Mr Panton. If that were the case, however, one would have expected a simple application for reconsideration within 14 days of the strike out judgment. Mr Panton by his email of 3 May 2017 promised such an application. He had a week to submit it. It never materialised. I do not understand the contention that resources drove the claimant to appeal instead. The work in preparing a Notice of Appeal must outweigh the cost of a simple email to the Tribunal seeking reconsideration of the judgment.[27]I have taken into account that refusing this application will result in further work for the EAT. Even so, I must act in accordance with the overriding objective and deal with the application as and when it is made.[28]Further, I am conscious that there might have been a mishap here if the deposit order and accompanying documents genuinely went astray. However, the route to put that right was obvious and was open to the claimant for at least a week after her representative first became aware of the issue. There is an expectation that a professionally represented party will comply with time limits set out in the rules unless there is good reason.[29]Finally, I am troubled by the false assertion that Mr Panton came off the record as representative for the claimant prior to the hearing on 20 March 2017. As the representative on the record, it was his responsibility to tell the claimant personally of the deposit order, not the Tribunal’s responsibility. That looks like an attempt to shift blame and it makes me suspicious of the assertion that the deposit order never reached him.[30]Putting these matters together I decline to extend time. The application for reconsideration could and should have been made within time. There are no grounds for an extension. The application is refused.
Introduction
[1]On 31 August 2016 the claimant presented a claim form in which she complained of disability discrimination since being employed by the respondent in November 2015. She alleged that she was a disabled person by reason of depression and anxiety, and set out in her claim form how a colleague she had recruited was promoted over her during her absence on annual leave, how she was bullied and harassed by that colleague and another manager, and how she had a covert recording of a discussion between the two of them on 11 May 2016 (“the May discussion”) in which comments which amounted to harassment were made. A grievance about these matters had been rejected by the respondent’s proprietor, Mr Boyd, on 1 June 2016, and she complained about how Mr Boyd had pressed her General Practitioner for a response to queries despite having had a report from the GP already. The complaints pursued were direct disability discrimination, discrimination arising from disability, harassment and victimisation.[2]The response form of 5 December 2016 resisted the complaints on their merits. The respondent denied that the claimant was a disabled person, and denied any unlawful treatment. The grievance outcome was said to be a proper conclusion against which the claimant had not appealed, and the additional questions to the GP were because the initial report was too vague.[3]The matter came before Employment Judge Porter at a telephone preliminary hearing on 6 January 2017. Case Management Orders were made providing for a final hearing between 13 and 15 June 2017. Whether the claimant was a disabled person was to be determined at that final hearing. Some further particulars of the claim form were to be provided.[4]Those further particulars were provided on 27 January 2017. The claimant confirmed that the matters for which she sought a remedy were restricted to Mr Boyd’s decision to reject her grievance, and to his contact with her GP in August 2016. The treatment about which she complained in that grievance, including the May discussion, was therefore only background to her pleaded complaints.[5]Upon receipt of that information the respondent applied for an order striking out her claims, or in the alternative for a deposit to be required. The application was made by email of 7 February 2017. By a letter of 23 February 2017 the parties were notified that Employment Judge Porter had decided that there should be a preliminary hearing to consider those applications, and that the Case Management Orders were suspended in the meantime. The date of 20 March 2017 was notified.[6]On 13 March 2017 the claimant's solicitors sought a postponement of the preliminary hearing on the basis that the claimant was still in Saudi Arabia with her husband. Because of her disability she would not be able to attend the hearing on her own, and her husband had not been able to secure permission to take annual leave and return to the UK. That application was rejected by Regional Employment Judge Robertson on the basis that no evidence would be required from the claimant; she was legally represented and could make written submissions if so advised.[7]In the early hours of 20 March 2017 her solicitors submitted written representations in the form of a skeleton argument running to 37 paragraphs. Helpfully that skeleton argument was cross referenced with the bundle of documents (see below). There was no renewal of the application for a postponement.
The Hearing
[8]At the hearing the respondent was represented by counsel. I had the benefit of an indexed and page numbered bundle of documents running to 226 pages. I also had the benefit of oral submissions from Ms Gould.[9]From the claimant I had the claim form and further particulars, the correspondence on file and the skeleton argument which was cross referenced with the bundle.[10]I heard no evidence. I proceeded on the basis that the claimant would prove the primary facts asserted in her claim form. Relevant Legal Principles[11]The power to strike out arises under what is now rule 37 of the Employment Tribunals Rules of Procedure 2013. Rule 37 so far as material provides as follows: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds – (a) that it is scandalous or vexatious or has no reasonable prospect of success…”[12]As far as “no reasonable prospect of success” is concerned, a helpful summary of the proper legal approach to an application to strike-out is found in paragraph 30 of Tayside Public Transport Co Ltd v Reilly [2012] CSIH 46, a decision of the Inner House of the Court of Session: “Counsel are agreed that the power conferred by Rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, at para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Mann Liquid Products Ltd v Patel [2003] CP Rep 51, Potter LJ at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Mann Liquid Products Ltd v Patel, supra; Ezsias v North Glamorgan NHS Trust [[2007] ICR 1126]). But in the normal case where there is a “crucial core of disputed facts,” it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at para 29).”[13]There is no blanket ban against there being a strike-out, for instance in particular classes of cases such as discrimination, although in Lockey v East North East Homes Leeds UKEAT/0511/10/DM, a decision of 14 June 2011 before HHJ Richardson sitting alone, the EAT said at paragraph 19: “…In cases of discrimination and whistleblowing there is a particular public interest in examining claims on their merits which should cause a Tribunal to consider with special care whether a claim is truly one where there are no reasonable prospects of success: see Ezsias at paragraph 32, applying Anyanwu v South Bank Student’s Union [2001] IRLR 305. …..The Tribunal is in no position to conduct a mini-trial; issues which depend on disputed facts will not be capable of resolution unless it is clear that there is no real substance in factual assertions made, as it may be if they are contradicted by contemporaneous documents.”[14]In Chandhok v Tirkey [2015] IRLR 195, at paragraph 20 the Employment Appeal Tribunal observed that there were occasions when a claim could properly be struck-out where, for instance, on the case as pleaded, there was really no more than an assertion of a difference of treatment and a difference of protected characteristic, which according to Mummery LJ, at paragraph 56 of his Judgment in Madarassy v Nomura International plc [2007] ICR 867: “… only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”[15]The EAT in Chandok went on to add that the general approach was nonetheless that the exercise of a discretion to strike-out should be sparing and cautious, adding: “… Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”[16]In addition to the above I also took into account the relevant provisions of the Equality Act 2010. Discussion and Conclusions – Grievance Outcome[17]The claimant's grievance of 17 May 2016 appeared at pages 94 and 95 in the bundle. It plainly contained an allegation of disability discrimination by way of harassment. Three matters were raised. They were that the claimant had been ostracised by colleagues in decision making matters in the store, that she had been described as “insensitive” and as someone who needed to “lighten up”, and that in the May discussion she had been described in offensive and derogatory terms relating to excessive alcohol consumption.[18]Mr Boyd met the claimant on two occasions. He interviewed members of staff at the Preston branch. He had a ten page typed statement of events from one of the main protagonists. By a letter of 1 June 2016 he set out his conclusions. It was confirmed that a manager had known that the claimant had clinical depression and was on antidepressants, but he rejected the allegations of disability related harassment. He found that there had been no bullying and harassment in the management of the store, and in relation to the May discussion he found that it was not related to disability. However, he recognised that the terms in which the claimant had been discussed were derogatory, foul mouthed, inappropriate and ugly, and both participants were given disciplinary warnings.[19]The grievance outcome letter invited the claimant to contact him if she wanted to make an appeal, but she did not do so. Direct discrimination[20]In order to have any reasonable prospect of success in a direct discrimination complaint, the claimant must identify something which suggests that there is a link between the protected characteristic and the treatment in question. In my judgment the grounds of claim and the further particulars do not identify any factor which might shift the burden of proof. The suggestion in paragraph 17 of the grounds of claim that it was significant that Mr Boyd was “disappointed” that the claimant had complained of disability discrimination is at best supportive of a victimisation claim, not a direct discrimination complaint. Further, the claimant has not identified any comparable grievance brought by a person without a disability which was treated in a more favourable way. Even assuming that the facts pleaded by the claimant are true, therefore, this complaint in my judgment has no reasonable prospect of success. Discrimination arising from disability[21]The claim form does not identify the “something” required by section 15 which is said to be the reason for the treatment and which itself arose in consequence of disability. If it is the claimant's case is that it was the allegation of disability discrimination which arose in consequence of her disability and was the reason for the rejection of her grievance, that is a victimisation complaint. Effectively all the claimant has done in her pleading is to apply the label of section 15 without analysing the constituent requirements. There is no reasonable prospect of success. Harassment related to disability[22]In my judgment the claimant has reasonable prospects of establishing that the rejection of her grievance was unwanted conduct and that it was related to her disability. However, in my judgment she has no reasonable prospect of success in establishing that the rejection of her grievance violated her dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her. She does not identify any evidence which would support a contention that this was the purpose behind the rejection of her grievance, and whether it had that effect would be decided taking into account the factors in section 26(4). The grievance was properly investigated. It was the subject of a detailed response after two meetings and other interviews. Mr Boyd took pains to explain his conclusion. His reading of the transcript of the May discussion appears entirely sensible. The claim form does not allege that the claimant's consumption of alcohol was something arising in consequence of her disability. The claimant declined to contact Mr Boyd about the possibility of an appeal. In those circumstances it seems to me the claimant has no reasonable prospect of establishing that this rejection of her complaint created the proscribed environment. Discussion and Conclusions – GP Contact[23]In my judgment the complaint that the contact between Mr Boyd and the GP in August 2016 was discrimination arising from disability has no reasonable prospect of success. The claimant has not actually pleaded a case on this. Her case (grounds of claim paragraph 25) is that he took this action to mount a defence against the Employment Tribunal complaint which he believed the claimant was going to bring. That is a victimisation complaint and is best addressed as such. Outcome[24]The complaints set out in the judgment were therefore struck out.
The Hearing
[1]The claimant was ordered to pay a deposit of £500 or £1000 if she wanted to pursue any of her remaining complaints following a preliminary hearing held on 20 March 2017. The Order was sent to the claimant on 24 March 2017.[2]The claimant has failed to pay any deposit. Her remaining complaints are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. The proceedings are at an end.[3]The hearing fixed for 13 - 15 June 2017 will not take place.