C D Evans v The Chief Constable of Lancashire Constabulary: 2408827/2021 and Others
EMPLOYMENT TRIBUNALS
Case No 2408827/2021, 2407185/2022, 2405540/2023, 2400365/2024
Between
Craig David EvansClaimantThe Chief Constable of Lancashire ConstabularyRespondent
Before
Employment Judge ChildeNot represented for claimantMr Beggs (instructed by Counsel, KC) for respondentDate 30 September 2024
JUDGMENT
[1]The claimant’s claims brought under case numbers 2408827/2021, 2407185/2022, 2405540/2023 and 2400365/2024 are dismissed under Employment Tribunal rule 47, as the claimant failed to attend or be represented at the preliminary hearing on 3 July 2024 or the public preliminary hearing on 30 September 2024. Claimant: Craig David Evans Respondent: The Chief Constable of Lancashire Constabulary Heard at: Manchester Employment On: 30 September 2024 Tribunal (by CVP) Before:
REASONS
[1]The claimant brings claims for:a. discrimination arising from disability contrary to sections 15 and 39(2)(d) Equality Act 2010 (EqA 2010);b. failure to make reasonable adjustments contrary to sections 20 and 39(5) EqA 2010;c. Harassment contrary to sections 26 and 39(2)(d) EqA 2010.d. Victimisation contrary to section 27 of EqA 2022.
The Law
[2]The claimant brought four separate claims, as follows:a. The first claim alleges a failure to make reasonable adjustments for his disability, discrimination arising from that disability and harassment related to that disability. This is under case number 2408827/2021.b. The second claim alleges victimisation claim under s.27 EqA. This is under case number 2407185/2022.c. The third claim alleges whistleblowing. This is under case number 2405540/2023.d. The fourth claim alleges whistleblowing. This is under case number 2400354/2024. The four claims have been combined.[4]The relevant factual background of this case is recorded in paragraphs 24 to 33 of the case management order of Employment Judge Ross dated 3 July 2024 (the “July 2024 CMO”). I repeat the relevant parts of those paragraphs here, in paragraphs 5 to 17 below.[5](20) The claimant has brought four claims arising out of similar circumstances.[6](21) Claim 1 (case number 2408827/2021) is a claim for disability discrimination. The claimant brings claims for section 15 discrimination, a failure to make reasonable adjustments pursuant to sections 20-21 Equality Act 2010 and a claim for harassment pursuant to section 26 Equality Act 2010. The respondent admits that the claimant was a disabled person at the relevant time by reason of Obsessive-Compulsive Rumination Disorder but disputes knowledge of disability and knowledge of substantial disadvantage. That case was managed by Employment Judge Horne in November 2021.[7](22) The claimant then brought case number 2407185/2022. That is a claim for victimisation. The case was managed by [Employment Judge Ross] in January 2023.[8](23) Both these claims were presented when the claimant was legally represented. and the List of Issues is as attached to [the Case] Management Order of January 2023.[9](24) The claimant was a Police Sergeant. He has a condition (Obsessive Compulsive Rumination Disorder (“OCRD”)) which it is agreed made him a disabled person at the relevant time. On 19 January 2021 the claimant was notified of three investigations into his conduct. The matters of concern were:a. An incident in which he was reported as having used excessive force against a member of the public with autism;b. Alleged disobedience of a direct instruction to stay away from the Cenotaph on Remembrance Day 2020; andc. His social contact during work time.[10](25) All of this was said to have taken place against a background of alleged insubordination and poor standards of work and appearance. As well as facing a conduct investigation the claimant was transferred from Fleetwood to Blackpool and place on a performance plan. The claimant immediately went on sick leave. The investigation into the third allegation was discontinued as it was established that the claimant had permission to be with his friend as an adjustment for his mental health.[11](26) The second victimisation claim relates to an alleged protected act of the claimant's internal grievance of March 2021 complaining of matters including discrimination, the claimant's existing first Employment Tribunal claim lodged July 2021 and various complaints the claimant made of raising discrimination issues with the IOPC in January 2022. The claimant relies on two detriments.[12](27) The first two claims are disputed by the respondent. The claims and issues are relatively clear and the Tribunal understands both claims. Once the parties have exchanged relevant documents and witness statements the first and second claims will be ready for hearing.
Conclusion
[13](28) The position is completely different with regard to claims 3 (2405540/2023) and claim 4 (2400365/2024). The third claim appears to be a “whistleblowing” claim. It appears to have been presented out of time. It appears to rely on the claimant’s grievance presented in March 2021 as a protected disclosure (instead of a protected act). The detriments listed at paragraph 8.2 are unclear. At a case management hearing before Employment Judge Benson on 5 November 2023 the claimant said that he would not pursue the third claim. However, he has never written to the Tribunal to withdraw it.[14](29) The claimant then presented a fourth claim (2400354/2024). He ticked the box for disability and stated he was making a whistle-blower protected disclosure detriment claim. At box 8.2 he appears once again to rely on the grievance he presented in March 2021 as the protected act. The detriments appear to be matters the Tribunal does not have jurisdiction to consider. The first detriment relates to a different Police Constable, not the claimant. The second detriment appears to relate to a comment made by the respondent in a position statement for judicial mediation in these proceedings. The third and fourth detriments appear to relate to other criminal offences. The fifth detriment is wholly unclear and refers to domestic abuse.[15](30) Usually where there is a litigant in person and presents claim forms which are entirely unclear, a case management hearing is used by the Judge to try to understand the claims the claimant is trying to bring. Unfortunately, the claimant failed to attend this case management hearing.[16](31) There has been no progress with claim 3 since October 2023 when it was stayed at the request of the parties. A judicial mediation took place which was not successful.[17](32) A case management hearing scheduled for 8 March 2024 was adjourned at the claimant's request.[18](33) The claimant requested to adjourn this case management hearing. That request was refused by Employment Judge Batten. The claimant did not renew his application for postponement nor provide any medical evidence as to why he was too unwell to attend the hearing, nor did he contact the Tribunal in any way after the rejection of his postponement application to indicate he was not going to attend.[19]The claimant did not attend the case management hearing on 3 July 2024.[20]Employment Judge Ross made the following relevant case management orders in the July 2024 CMO: 1. Failure to attend hearing1.1 The claimant failed to attend this case management hearing. He had previously made an application for a postponement which was refused by Employment Judge Batten. The claimant gave no explanation for his failure to attend today after his application for a postponement was refused. The clerk telephoned the claimant and emailed him on the morning of the hearing but received no response.1.2 Pursuant to rule 47 Employment Tribunal Rules of Procedure 2013, Employment Judge Ross proposes to dismiss the claimant’s claims for non attendance at this hearing, without explanation.1.3 If the claimant wishes to object to this course of action he must write to the Tribunal within seven days of this Case Management Order being[21]The July 2024 CMO was sent to the parties on 4 July 2024.[22]The claimant did not write to the tribunal within seven days of the July 2024 CMO being sent to him, to object to the strike out of his claim, as provided for in case management order 1.3 of the July 2024 CMO.[23]On 2 July 2024 at 13:24 the claimant had written to the tribunal to say I am sorry to report that I am in a state of mental health crisis and have not been able to read this or correspondence sent by the respondents. The respondents have been aware since 2021 that this is an impossible time of year for me with multiple death anniversaries & that it will also impact on the final hearing next year. I am unable to function in this state and hence cannot attend tomorrow’s hearing. I will reach out to my GP today. I would also ask that the final hearing is moved from the end of June (my dads birthday would be 28th June and his death anniversary is 1st July), as I anticipate being similarly in crisis and hence disadvantaged owing to my disabilities. I would ask for time to seek help. Thank You, Craig[24]On 4 July 2024 at 9:30 AM the claimant wrote to the tribunal to inform them that he had a telephone consultation with a Doctor Rees on 16 July 2024.[25]The tribunal wrote to the claimant on 25 July 2024 to say that if the claimant was applying to postpone the final hearing listed for 15 days commencing 30 June 2025 he needed to “send a letter from his doctor to the Tribunal explaining why the claimant is unable to attend a hearing in June/July because of his medical condition. The doctor should also explain when, given the claimant’s ill health, he will be able to attend and represent himself at a 15-day hearing.”[26]No further correspondence was received from the claimant until 26 September 2024. The claimant sent nine pieces of correspondence to the tribunal on 26 September 2024. In one of the pieces of correspondence the claimant said: “Whilst the Claimant is not physically or Mentally well enough to attend court on 30th September I would ask that the court take this opportunity to bring the Respondent: Chief Constable Hatchett to the court to explain herself and the actions of her officers!.” The claimant provided no further medical evidence of any kind to explain why he was not physically or mentally well enough to attend the public preliminary hearing on 30 September 2024.[27]At the public preliminary hearing on 30 September 2024, I was provided with:a. A tribunal bundle which ran to 303 pages.b. An additional bundle which ran to 41 pages.c. A skeleton argument from the respondent.[28]The claimant did not attend the public preliminary hearing on 30 September 2024. The tribunal clerk attempted to contact the claimant by telephone at 10 AM but was unable to reach the claimant.[29]On 30 September 2024 at 11:21 AM, during the preliminary hearing, the claimant sent an email to the tribunal as follows: I’ve already sent numerous correspondence in relation to my current health… I’ll be dead in the next 2 week to you can all rejoice then! Your help has been awesome!
Relevant law
[30]Rule 47 provides as follows: 47 Non-attendance If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[31]The overriding objective set out two as follows: 2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[32]The Court of Appeal has set out the “standard of medical evidence” required by a Court or Tribunal before considering the grant of any adjournment, see GMC v. Hayat [2018] EWCA Civ 2796 at [37] onwards.
Conclusion
[33]The issue for me is therefore whether to dismiss the entirety of the claimant’s claims because he failed to attend the case management hearing on 3 July 2024 and failed to attend the public preliminary hearing on 30 September 2024.[34]Before I make this decision, I must look at all the information available to me about the reason for the claimant’s absence.[35]The claimant has indicated in correspondence to the tribunal that he is in a state of mental health crisis and was not physically or mentally well enough to attend the tribunal hearings on 3 July 2024 or 30 September 2024.[36]The claimant has provided no medical evidence to support his claim that he is not physically or mentally well enough to attend the tribunal hearings on 3 July 2024 or 30 September 2024. This is despite the claimant telling the tribunal on 4 July 2024 that he had a medical appointment with a Dr Rees on 16 July 2024. If the claimant is as unwell as he says he is, he should have been able to obtain medical evidence from Dr Rees or from another medical practitioner to support his position. The claimant is a former police sergeant and should be aware of the importance of medical evidence to support a position that he is unable to take part in employment tribunal hearings.[37]The case of Hayat sets out the type of medical evidence that is required to explain why an individual is unable to attend a tribunal hearing. This includes evidence that the individual is unfit to participate in the hearing. That evidence must identify with proper particularity the individual's condition and explain why that condition prevents their participation in the hearing.[38]In this case the claimant has provided no such medical evidence to excuse his absence at the tribunal hearings on 3 July 2024 and 30 September 2024. Indeed, he has provided no medical evidence at all.[39]I turn now to look at whether it is appropriate to dismiss the claimant’s case against the respondent due to his non-attendance. The claimant has a history of not attending employment tribunal hearings. As I have found, he did not attend on 3 July 2024 or 30 September 2024 and provided insufficient evidence to support his reason for not attending.[40]The impact of the claimant’s failure to attend these hearings is that the claimant’s third and fourth claims cannot be properly understood, case managed or listed for a final hearing.[41]There is significant doubt that the claimant will prepare for and attend the final hearing that is currently scheduled to take place from 30 June 2025 for 15 days. The claimant has already suggested to the tribunal that he will not be well enough to attend the hearing on this date, in his email dated 4 July 2024. However, the claimant has provided no medical evidence of any kind to support this position, despite being told by the tribunal specifically what medical evidence is required to enable the tribunal to properly consider postponing and relisting the final hearing of this case due to the claimant’s illness, on 25 July 2024.[42]I conclude that there is no rational basis to allow this case to proceed further. The claimant has failed to provide the tribunal with the medical evidence required to excuse his attendance at the tribunal hearings on 3 July 2024 and 30 September 2024. He is not effectively engaging with the tribunal process and has failed to attend important tribunal hearings, without explanation. I conclude, based on the conduct of the claimant to date, that it is highly unlikely he will attend the final hearing scheduled to take place for 15 days in June and July 2025.[43]It is not in accordance with the overriding objective for the respondent to be put to the significant cost and inconvenience in attending tribunal hearings and carrying out the necessary preparation to respond to the claimant’s case. This is due to the unreasonable delay to these proceedings caused by the claimant’s conduct, the unnecessary expense incurred by the respondent in these proceedings because of the claimant’s conduct and the fact that it is unfair and unjust to respondent, for the following reasons.[44]There are several witnesses for the respondent who are engaged in this process. This case is now significantly delayed due to the claimant’s failure to engage with the tribunal or attend preliminary hearings. As I have said, the third and fourth claims are not currently understood and cannot be listed for a final hearing. In any case, the claimant has said he is unlikely to attend the final hearing already listed, without proper explanation. The respondent’s witnesses will be put to the inevitable strain of responding to serious allegations of unlawful discrimination in the form of preparing witness statements and attending tribunal hearings, in circumstances where the claimant, without sufficient medical evidence, is not attending tribunal hearings to progress his case and is extremely unlikely to attend a final 15-day hearing.[45]For these reasons I have decided to dismiss all the claimant’s claims against the respondent under rule 47.[46]The tribunal was concerned to read the comments in the claimant’s emails referred to in paragraph 29 above. The tribunal was careful to provide the ‘local sources of mental health support’ leaflet when sending out the judgement in case this was of assistance to the claimant.[1]I have undertaken a preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims. That application is contained in a 38-page document attached to an email dated 14 October 2024 which also attaches 340 pages of documents, and a further one-page email dated 2 November 2024. References in square brackets (e.g. [25]) are references to paragraph numbers from the reasons promulgated and sent to the parties on 24 October 2024. The Law[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application[7]The points now raised by the claimant were not made at the original hearing as the claimant did not attend. Such arguments have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing.[8]That broad principle disposes of almost all the points made by the claimant. However, there are some points he makes which should be addressed specifically.[9]The claimant says in paragraph 4.2 of his reconsideration application that he was mentally unwell and did not have capacity, by which I assume he means capacity under the Mental Health Act 2005 to make a decision for himself, on 30 September 2024, which was why he did not attend this hearing. The claimant goes on to say that he is not able to provide “the full extent of his mental capability and capacity issues to the Tribunal prior to this Reconsideration application.” In fact, there is no medical evidence provided by the claimant in his reconsideration application to support this assertion.[10]In paragraph [36] I find that the claimant provided no medical evidence to support his claim that he was not physically or mentally well enough to attend the tribunal hearings on 3 July 2024 and 30 September 2024.[11]In paragraphs [37], [38] and [39] I set out the type of medical evidence that is required to explain why an individual is unable to attend a tribunal hearing and explain why, given the claimant has provided no such medical evidence, I deemed it appropriate to dismiss his claim.[12]Given the claimant has provided no further medical evidence to support the reason for his absence at the tribunal hearings on 3 July 2014 and 30 September 2024, there is no reasonable prospect of me varying or revoking the original decision I made to dismiss the claimant’s claims.
Conclusion
[13]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused.