Employment Judge SharkettIn person for claimantMrs Swann - solicitor for respondentDate 9 September 2020
JUDGMENT
Rule 38 The judgment of the Tribunal is that the claimant’s application under Rule 38(2) to have the striking out of his claim for non compliance with an unless order varied or set aside fails.
REASONS
This was a Hearing to consider:(1) Whether the Claimant was pursuing an application for re-instatement of his claim of constructive unfair dismissal; if so,(2) Whether the application had been properly made in accordance with the Employment Tribunal Constitution and Rules of Procedure 2013; if so(3) Whether it would be in the interests of Justice to re-instate the claim of constructive unfair dismissal. In preparation for the hearing today the respondent has produced a bundle of documents containing the documents relevant to this application. Background and Findings of Fact[1]The claimant submitted his claim of constructive unfair dismissal on 21 September 2017. Around the same time the claimant issued a personal injury claim against the Respondent who then requested a stay of the claim in the employment tribunal. The claimant did not respond to the requests for his comments from the employment tribunal and on 19 January 2019 REJ Parkin, noting the claimant’s continued failure to respond, subsequently stayed proceedings for 12 months pending the outcome of the personal injury claim.[2]In November 2018 the claimant asked for the stay of his claim for constructive unfair dismissal be lifted so that it could proceed to a hearing. The respondent explained that as a result of the claimant’s failure to engage with the respondent’s insurers the file on the personal injury claim had been closed, although the limitation period had not yet expired.[3]A Preliminary Hearing was held on 25 February 2019 where case management orders were made by Employment Judge Holmes. The claimant was ordered to provide further particulars of his claim and produce a Schedule of loss no later than 15 April 2019.[4]At the preliminary hearing Employment Judge Holmes explained in detail to the claimant, the Tribunal procedure, the claimant’s claim and what the claimant was required to do. In order to assist the claimant in producing the further information needed the Respondent agreed that they would resend the documents already disclosed to the claimant because he had left these documents in a bag that had been stolen.[5]The claimant did not comply with the order to provide further information of his claim or serve a schedule of loss on the respondent or the Tribunal by 15 April 2019.[6]By letter of 30 April 2019, the respondent complained of the claimant’s failure and asked that the Tribunal make an Unless Order requiring the claimant to comply with the orders of the Tribunal or have his claim struck out.[7]The claimant was afforded an opportunity to show reason why an Unless Order should not be made and was given further time to provide the information asked of him. The claimant failed to answer the question asked of him by the Tribunal and an Unless Order was ultimately made requiring him to comply with the order to provide further information of his claim by 12 August 2019.[8]Whilst the claim was automatically struck out on 12 August when the claimant failed to provide the information required, on 16th August the claimant was asked to explain to the Tribunal why he had not complied with the Unless Order. The claimant replied that he had struggled to get help with his claim but was seeing someone on 26 August 2019.[9]The claimant did not provide the further information of his claim and the same was formally notified as being struck out on 21 September 2019. Along with the notification that his claim had been struck out the claimant was also advised that if he wished to apply to have his case re-instated he would need to make an application to the Tribunal. He was told that if he intended to do this he would need to include in his application an explanation of why he had not complied with the orders of the Tribunal; when he would do so and; why his case should be permitted to proceed.[10]Whilst on 27 September 2019 the claimant indicated that he wished to have his case re-instated he did not provide any of the information he was asked to provide in having his application considered.[11]By letter of 24 October 2019, the Tribunal wrote again to the claimant asking if he was applying to have his case re-instated and by letter of 8 January 2020 the Tribunal wrote again to advise him that he would need to prepare a witness statement in support of his application explaining why he had not complied with the case management orders and when he would do so. The tribunal asked for this information by 31 January 2020. The claimant did not provide the information but did inform that Tribunal by email that he had thrown his documents away.[12]A further letter was sent to the claimant on 1 February setting out what the claimant needed to provide. On 6 March 2020, the claimant was again asked to provide a witness statement in support of his application.[13]The file was reviewed by Employment Judge Franey who considered that the communications the claimant had sent to the Tribunal were what the claimant intended to produce in support of his application and a Preliminary Hearing was listed for 1 April 2020 to consider the case on the basis of the limited information provided. This hearing was then postponed by REJ Parkin in light of the Covid 19 pandemic. The Hearing today has been convened by telephone in light of the continuing requirements for social distancing.[14]I have heard submissions from Mrs Swann for the respondent who strongly opposes the claimant’s application on the basis that it is not properly made in accordance with Rule 38(2) and that he had failed to copy the limited information he had provided to the respondent. Mrs Swann submitted that any decision should be based on regard for the interests of both parties and not just the claimant. Mrs Swann reminded me of the chronology of this claim and the many opportunities the claimant had been given to comply with the case management orders and various requests for information. Mrs Swann submits that the claimant knew what the Unless Order meant and that the respondent had reminded the claimant of what he needed to do before the 12th August 2019.[15]Mrs Swann drew my attention to the significant amount of time that had passed since this claim was commenced in 2017; she submitted that the respondent would be significantly disadvantaged if the application was to succeed as the memory of witnesses would surely have faded since 2016 which is when the acts complained of date back to. She further submitted that the reason for the delay lay firmly with the claimant because he had issued a personal injury claim against the respondent that he then failed to pursue. Mrs Swann submits that the Tribunal can have no confidence that the claimant will comply with the requirements of the case management orders or that he will produce a witness statement.[16]The claimant submitted that he did not know what he needed to do, that he had struggled to get help but that he would now be able to borrow money from his new employer in order to get legal advice and pay it back out of his wages. He did not provide any evidence that his employer had agreed to providing such a loan. Alternatively he submitted his car loan was due to be paid off in a few months so he may be able to afford to pay for advice himself. In answer to my question he has not identified a representative and has not sought to take advantage of the 30 minutes free advice he told me he would be able to get. The claimant asked for a chance to take legal advice so that he could prove the disgusting behaviour he had been subjected to
The Law
[17]Rule 38 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 states that: “(1) An order may specify that if it is not complied with by the date specified the claim or response or part of it shall be dismissed without further order. If a claim or response or part of it is dismissed on this basis the Tribunal should give notice to the parties confirming what has occurred. (2) A party whose claim or response has been dismissed in whole or in part as a result of such an order 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 it is in the interests of justice to do so. Unless the application includes a request for a hearing the Tribunal may determine it on the basis of written representations. Where a response is dismissed under this rule the effect shall be as if no response has been presented as set out in rule 21.”[18]Where there is non-compliance with an Unless Order in any material respect the Tribunal has no discretion as to whether or not the claim or response should be struck out. It is automatically struck out as the date of noncompliance and there is no requirement for a further order to be addressed to a party against whom the Unless Order was made (Markham Shipping (London) Ltd v Kefalas & Another [2007] Court of Appeal), although in many circumstances as a matter of courtesy and to assist an unrepresented claimant or respondent the Tribunal will advise them of the situation and also intimate what actions they can take in response to it.[19]Compliance need not be precise and exact (Markham Shipping above) and in Johnson v Oldham Metropolitan Borough Council EAT [2013] Mr Justice Langstaff held that the test of “substantial compliance” adopted by the Employment Judge was in accordance with the law but stated that “material” is a better word than “substantial” because it draws attention to the purpose for which compliance with the order is sought.[20]Before the date for compliance with the Unless Order expires the Order can be revisited under rule 29 and varied, suspended or set aside if necessary in the interests of justice.[21]However, once dismissal for non-compliance has taken effect the relevant party has the right to apply to the Tribunal in writing within 14 days of the date the notice of 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 38(2)). Factors to be considered include the reason for the default, the seriousness of the default, the prejudice to the other party and whether a fair trial remains possible. This matter can be determined on the basis of written representations only unless a party requests a hearing. In this case because of the lack of engagement by the claimant, REJ Parkin decided that a hearing was necessary. Application and secondary findings[22]In reaching my decision I have carefully considered the background to this case and the submissions of both parties. During the course of this hearing I have also explained in detail what the claimant would need to do in respect of complying with the orders of the tribunal and the legal test that would be applied in a case of constructive unfair dismissal. The claimant maintains that he believes that he has done everything required of him and that he was unaware of the need to do more, for example by providing a witness statement in support of the application before the Tribunal today.[23]The claimant has persistently failed to comply with the case management orders which still remain outstanding today. He has made no effort to address his mind to how or when he intends to provide the further information about his claim or comply with any of the other case management orders that were made in February 2019. He has provided no satisfactory explanation for why he has failed to produce the information he was asked for in relation to this hearing, claiming he was unaware that he needed to do anything. I do not accept that to be the case as I find that the correspondence from Employment Tribunal is in the simplest and clearest of terms and has been repeated on more than one occasion. The claimant had also been directed to numerous sources of further advice and guidance but he has clearly not accessed any of the help and guidance available despite him having access to a computer as is evidenced by email correspondence from him.[24]He has said today that he can now afford to obtain legal advice and wants to pursue his claim so that he can show how badly he was treated by the respondent. He mentioned being able to obtain a free 30 minute appointment with a solicitor but was unable to explain why he had not done so before today. He did not seem to take on board any of the procedural and legal matters than I had explained to him in the hearing as had Employment Judge Holmes in the hearing of 25 February 2019.[25]I find that the claimant’s failure to provide the information of his claim has resulted in the respondent being unable to know the case it has to answer and identify and obtain appropriate witness evidence. Despite being aware that this information was needed and his failure to provide it was the reason his claim was struck out, the claimant has still not provided this information nor given any indication of when he will provide it. Indeed he has confirmed to the Tribunal that he has destroyed the papers relating to his claim. He has also confirmed that he has not availed himself of the free legal advice he has identified he is able to obtain nor made any appointment to do so. His submissions about how he now intended to obtain legal advice were vague and lacked any detail. The claimant has a long history of failing to engage in the Tribunal process and that this continues to be the case is evidenced by his failure to acknowledge the need to provide the information that has been requested that he provide for this hearing.[26]In the circumstances I am not satisfied that if the claim was to be re-instated the claimant would engage with the process and comply with orders of the Tribunal. I further find that the claimant’s failure to comply with the case management order to provide further information about his claim has placed the respondent at a significant disadvantage. I make this finding because the basis of the claimant’s claim relates to incidents dating back from 2016. The delay that has been caused as a result of the claimant’s failures has a real potential to impact on the ability of the witnesses to reliably recollect alleged events and thus prejudice the respondent.[27]Whilst I accept that the refusal of the claimant’s application will result in him being unable to pursue his claim, for the reasons set out above I do not consider it is in the interests of justice to allow the application.[28]The application is refused and the claimant’s claim stands struck out.[1]The Respondent has applied for a cost award to be made pursuant to Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules). The application is submitted under Rule 76(1) (a) and (b) on the basis that:a. The claimant throughout the proceedings has acted disruptively and/or unreasonably in the way the proceedings have been conducted, andb. The claimant’s claim for constructive unfair dismissal had no reasonable prospects of success.[2]The application is further made under Rule 76(2) on the basis that the claimant failed on several occasions to comply with case management orders of the Tribunal.[3]The Respondent requested that this application be considered on the papers and the claimant was invited to express his preference but did not reply to communication from the Tribunal. He was informed that if he wished the Tribunal to take his financial means into account when considering whether it was appropriate to make a cost award and if so in what amount. He did not reply to the communication from the Tribunal or provide any evidence of his financial means.[4]The claimant submitted his claim of constructive unfair dismissal by ET1 of 21 September 2017. The basis of his claim was that he had been bullied and harassed for a year and a half. The respondent denied the claims and whilst it accepted that the claimant had previously raised a grievance in 2016 the real reason that the claimant had resigned was because he had been suspended from work from 13 July 2017 pending the outcome of enquiries into allegations of serious misconduct and not in response to an alleged breach on the part of the respondent.[5]In October 2017 the respondent made a request to stay the proceedings before the Employment Tribunal were stayed pending a potential claim for personal injury that had been indicated by the claimant. Attempts were made by the Tribunal to obtain the claimant’s instructions but when no response was received Regional Employment Judge Parkin Ordered that the proceedings be stayed for 12 months from 18 January 2018.[6]In November 2018 the claimant asked for the stay to be lifted. The Respondent’s confirmed to the Tribunal that their insurers had closed the file on the claimant due to the claimant’s repeated failure to respond to requests for information from the insurers but that the requisite limitation date had not yet passed so the claim had not formally concluded.[7]A Preliminary Hearing was held on 25 February 2019 at which Employment Judge Holmes lifted the stay and listed the final hearing for 27-29 November 2019. EJ Holmes noted the need for further information from the claimant and explained the concept of a constructive dismissal and the information he would need to provide in order to succeed in his claim. At that time the claimant expressed some difficulty because his documents relating to his claim had, some three days before, been stolen from his car. This difficulty was acknowledged and the respondent agreed to provide early disclosure of relevant documents to assist the claimant in producing the further details needed. EJ Homes set out in clear terms the information that was needed and he claimant was ordered to provide this by 15 April 2019. The claimant was also required to provide a schedule of loss by the same date and further case management orders were made up to 12 August 2019 when witness statements were to be exchanged. The claimant failed to comply with the order for further information and the respondent made an application for the claimant’s claim to be struck out unless he provided the information ordered. The respondent further sought an order for strike out/deposit on the basis that the claimant’s claim had either no, or little, prospect of success.[8]The Tribunal wrote to the claimant enquiring if there was good reason for his failure to comply with the orders of the Tribunal or why an Unless Order should not be made. He was required to respond by 31 May 2019. In response the claimant sent documentation relevant to his claim which had already been disclosed to the respondent, but did not provide the information ordered by EJ Holmes. The respondent repeated its application to the Tribunal and complained at the further delay in being able to know the claim it had to answer and the additional and unnecessary expense it was put to. EJ Holmes issued an Unless Order on 16 July 2019, and afforded the claimant additional time to provide the necessary information. The time for compliance passed and on 16 August 2019, the claimant was afforded another opportunity to explain the non -compliance, notwithstanding the automatic consequences of an Unless Order. A response was received on 25 August in which the claimant accepted that he had not complied and EJ Homes confirmed his claims were struck out on 12 August 2019. He was informed that he had the right to apply to re-instate his claims but in doing so he would need to explain the reason why he had not complied with the previous order; he would also need to show that he had now provided the information. The claimant’s application to re-instate his claim was allowed to proceed. In his email to the Tribunal of 10 January 2020 he explained that he had thrown all his paperwork away and considered that he had done everything that had been asked of him and did not know what else was wanted. By letter of 6 March EJ Holmes once again reminded the claimant of the information needed and referred him to the relevant correspondence from the Tribunal.[9]The Preliminary Hearing listed for 1 April 2020 was postponed because of the pandemic but by letter of 4 March 2020 the respondent put the claimant on notice of its intention to pursue an application for costs against the claimant should his application for re-instatement not succeed or if his claim was subsequently struck out because it had no reasonable prospect of success.[10]The Preliminary Hearing eventually took place 8 September 2020. Judgment and written reasons were promulgated refusing the claimant’s application for re-instatement.[11]As has been indicated to the claimant the respondent has made an application for a cost award to be made against the claimant and has provided a comprehensive list of the behaviours relied on in making the application. I have had regard to these. I have also had regard to the findings of fact I made in the hearing of 8 September 2020 when I refused the claimant’s application to have his claim re-instated.
The Law
[12]Rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2017 Schedule 1 provides that:(1) A Tribunal may make a costs order or a preparation time order and should consider whether to do so where it considers that: (a) A party (or that party’s representative) has acted vexatiously abusively, disruptively to otherwise unreasonably in either bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[13]Under rule 77 a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the Judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[14]Under rule 78 a Tribunal may:(a) Order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party;(b) Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party with the amount to be determined in England and Wales by way of a detailed assessment carried out by either a County Court in accordance with the Civil Procedure Rules 1998 or by an Employment Judge applying the same principles or, in Scotland, by way of taxation carried out either by Auditor of Court in accordance with Act of Sederunt (fees of solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993, or by an Employment Judge applying the same principles;(c) Order the paying party to pay the receiving party a specified amount as reimbursement of all or part of a Tribunal fee by the receiving party.[15]Under rule 84, in deciding whether to make a cost (preparation time) or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representatives) ability to pay.[16]In Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, [2012] IRLR 78, the Court of Appeal held that when exercising its discretion to order costs a Tribunal must look at the whole picture and ask not only whether the party in question behaved unreasonably in bringing or conducting their case but also identify the relevant conduct, what was unreasonable about it and what effects it had.[17]In accordance with Saka v Fitzroy Robinson Limited UKEAT/0241/00 the EAT held that a Tribunal may take into account previous failed claims when considering whether to make a costs order against the claimant depending upon all the circumstances and the claimant's understanding of his claim.[18]In accordance with Lodwick v Southwark London Borough Council [2004] ICR 884 CA the purpose of an award of costs is to compensate the party in whose favour the order is made and not to punish the paying party. It is therefore necessary to examine what loss has been caused to the receiving party.[19]In Yerrakalva the Court of Appeal held that costs should be limited to those reasonably and necessarily incurred. The Tribunal should have regard to the proportionality and reasonableness of the cost incurred and any award made should be limited to those reasonably and necessarily incurred.[20]Under rule 75(1) an order in respect of costs incurred by the represented party means fees, charges, disbursements and expenses incurred by or on behalf of that party, and the amount of the order must obviously reflect that. In addition, as noted by the EAT in Sunken (UK) Limited and Another v Raghavan EAT 0087/09 the Tribunal must state:(1) On what basis and in accordance with what established principles it is awarding any sum of costs;(2) On what basis it arrives at the sum; and(3) Why costs have been awarded against the party in question. It is not appropriate to just simply pluck a figure out of the air without giving any adequate explanation as to why the Tribunal chose this figure.[21]The case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA expressly recognised that although the standard expected of a lawyer does not apply to unrepresented Claimants; this does not grant them immunity from costs order on account of unreasonable behaviour.[22]In reaching my decision I have carefully considered the background to this case and the fact that there have been factors delaying this case that are wholly unrelated to the claimant before the Tribunal. For example, the claim was initially stayed for one year at the request of the respondent pending the claimant issuing a potential personal injury claim. I have regard to the fact however that the insurer’s file on that matter was closed because of the claimant’s lack of engagement. However, behaviour in the conduct of a claim in a different jurisdiction cannot be relied on as unreasonable conduct in considering this application, notwithstanding the stay in place at the time. The Tribunal reminds itself that when the claimant initially applied for the stay to be lifted the respondent did not support such action. There has also been the pandemic and the effect that has had across all sectors of society. The length of time that has passed has therefore not been a primary factor in my decision making.[23]I also have regard to the respondent’s argument that the claimant’s claim of constructive dismissal had no reasonable prospects of success. In considering this aspect of the application I have regard to the fact that the claimant was a litigant in person who seemed to have difficulty grasping legal concepts. I also have regard to the fact of his previous grievances and his firm belief, whether or not well founded, that he had been badly treated by the respondent. In order to know whether his claim had any prospect of success it would have been necessary to hear evidence of both his complaints and his misconduct and must therefore have had some, if only little, prospect.[24]Turning to the claimant’s continued failure to comply with the Orders of the Tribunal. I find that this amounts not only to non-compliance but unreasonable conduct. The claimant was afforded numerous opportunities to provide this information and was assisted with explanations of the law to enable him to better understand his claim. It may be that the claimant was busy at work or had other demands on his time. This did not relieve him from the duty to comply with the Orders of the Tribunal in order to progress his claim. As a result of his failure the respondent has incurred additional expense in pursuing responses from him and making applications to the Tribunal and in preparing for an additional Preliminary Hearing to consider the re-instatement of his claim.[25]In determining to make an award of costs on the basis of the claimant’s noncompliance with Orders of the Tribunal and his unreasonable conduct in failing to do so, I have had regard to the fact that the claimant has not provided any evidence of his financial means. I have regard however to the information he offered at the Hearing of 8 September 2020 to the effect that he was in gainful employment, any further details of his means are unknown.[26]I have also had regard to the respondent’s schedule of costs, which offers little explanation of the work carried out, although it does give the charge out rates for the fee earners working on the file. I consider that the additional expense the respondent has been put to, relate to the correspondence to the Tribunal following the claimant’s failure to comply with the Orders and the preparation for the hearing of 8 September. I do not consider that the claimant should be required to pay the costs of the preparation for the postponed hearing because the postponement of that hearing was out of his control.[27]In respect of the hearing of 8 September 2020, I have regard to the fact that preparatory work had already been carried out in this case between the period of 1 and 30 March 2020. The Hearing itself lasted less than 2 hours and was not a hearing that was document heavy, not did it require the preparation or attendance of witness evidence. Overall, in reminding myself that an award of costs is not for the purpose of punishing the claimant, (although it may have a punitive effect), I consider a fair award for costs incurred as a result of the claimant’s failure to comply with the Orders of the Tribunal and his unreasonable conduct in doing so is the sum of £1800. This sum is does not include vat which is not chargeable on this award.