Miss T BrangmanClaimantNCO Europe LimitedRespondentDate 7 October 2021
JUDGMENT
The claims of unfair dismissal and breach of contract are struck out pursuant to rule 37(1)(a) of the 2013 rules of procedure.
REASONS
Introduction
[1]At the preliminary hearing held on 18 October 2019 the Tribunal gave the claimant an opportunity to make representations as to why her claims of unfair dismissal and breach of contract should not be struck out because : The claimant lacks qualifying service to present a claim of unfair dismissal, and,• The claimant was paid notice pay, which is the only type of claim that she can present for breach of contract , and therefore• these claims have no reasonable prospect of success.[2]The claimant has not been able to make any representations , or any sufficient representations, why this should not be done. These claims are therefore struck out.[3]The claimant’s remaining claims are unaffected by this judgment. Case No:2410294/2019[1]The heading to this judgment is marked, “Code P”, which means that the judgment was issued without a hearing.[2]This application has taken over five months to be referred to me for a decision. I apologise for the delay, which was caused by an administrative error.[3]These reasons should not be confused with written reasons for the original judgment sent to the parties on 7 November 2020. Written reasons for that judgment have not been requested. A short summary of those reasons is set out in a separate case management order also sent to the parties on 7 November 2020.
The claim
[4]By a claim form presented on 24 July 2019, the claimant indicated that she was raising the following complaints: 4.1. Unfair dismissal; 4.2. Race discrimination; 4.3. “Failure to adhere to Disciplinary Policies & Procedures” 4.4. wrongful dismissal; and 4.5. “defamation of character” 1 of 7[5]The claim form provided a brief history of events taking place on 28 May 2019 and explained why, in her view, she had been “fired without a valid reason”.[6]The complaint of unfair dismissal and the claim for damages for breach of contract were both struck out by Employment Judge Holmes in a judgment sent to the parties on 19 November 2019. The preliminary hearing[7]Following preliminary hearings on 18 October 2019 and 29 July 2020, the case was listed for a further preliminary hearing in public before me on 30 September 2020. The purpose of the preliminary hearing was to consider whether or not the claim, or any part of it, should be struck out.[8]Prior to the preliminary hearing, the claimant had prepared a schedule of allegations. The respondent’s position was that the schedule lacked essential information so that the respondent could not understand the case it had to meet. The claimant also provided a witness statement dated 12 July 2020. The statement ran to 27 pages, containing 56 densely-typed paragraphs. Amongst those paragraphs were many allegations that did not appear either in the claim form or in her schedule of claims. The oral judgment[9]During the course of the hearing I gave an oral judgment and explained my reasons. I informed the parties that written reasons would not be provided unless a party made a request in writing at the hearing or within 14 days of the date on which the judgment was sent to the parties.[10]My decision was: 10.1. That the claim should not be struck out; 10.2. That various allegations of direct discrimination did not require any amendment to her claim, and should proceed; 10.3. That the claimant had permission to amend her claim to include one complaint of harassment; and 10.4. That certain parts of the claimant’s proposed claim would require an amendment, which I refused.[11]I also made a disputed case management decision for which I also gave reasons. The claimant is also dissatisfied with that decision. I deal with that matter in a separate document. The claimant’s e-mails of 1 and 2 October 2020[12]On 1 and 2 October 2020, before the written judgment was sent to the parties, the claimant sent two e-mails to the tribunal.[13]Attached to the e-mail of 1 October 2020 were four letters, each bearing the date 1 September 2020 (which I presume to be a typographical error). One of the letters related to case management, which I deal with in a separate document. Another letter seeks to “make an appeal” in relation to the judgment striking out her breach of contract claim. That letter will be referred to Employment Judge Holmes. The additions letter 2 of 7[14]The third letter I will call “the additions letter”. Here is a summary of its main points: 14.1. The letter began, “I would like to request reconsiders/appeal on additions to claims.” 14.2. It continued, “I would also like to inform that only Victimisation, Race discrimination and Harassment were discussed during the… Hearing. 14.3. The claimant referred to her attempt to “add to my claims”, complaining that “my attempt to do so was not considered nor allowed”. She added, “I would like to uphold all my claims of Wrongful Dismissal, Discrimination, Victimisation, Harassment, Retaliation and Breach of Contact.”[15]I treated this letter as an application for reconsideration of the judgment refusing permission to amend the claim. The victimization letter[16]I refer to the fourth letter as “the victimization letter”. In summary, the letter made the following points: 16.1. “I would like to make an appeal on the claim of Victimisation that has been stricken out…” 16.2. The letter then set out certain exchanges which, she said, had taken place at the preliminary hearing. Her grounds for wanting to “appeal” appear to be:(a) That her victimization complaint had been struck out because she was unable to give a dictionary definition of victimization;(b) That I had asked questions about her claims “in the manner that caused confusing” and that she had indicated that she did not understand the questions;(c) That there was sufficient evidence in her witness statement to support all her claims; and(d) That the claimant was prevented from making “a second particle attempt” to contest the victimization strike-out at about 5.45pm.[17]At the time of writing the victimization letter, the claimant appeared to have misunderstood the oral judgment that I had given the previous day. I had not struck out any part of her claim. What I had done was to determine that her original claim had not contained a complaint of victimization, so that she would need to amend her claim if she wanted to pursue that complaint. I went on to refuse permission to amend. I treated the victimization letter as putting forward further grounds for reconsidering my amendment decision generally, and my decision on her proposed victimization complaint in particular.[18]One further letter was attached to the e-mail of 2 October 2020. This letter related to a case management order and is dealt with separately. The written judgment[19]The written judgment was sent to the parties on 2 October 2020. Below the signature block, the judgment contained the following notes: … 3 of 7 (2) Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request in writing within 14 days of the date when this judgment is entered onto the tribunal’s online register, which is visible to internet searches. (3) The parties should read the guidance which explains the procedure for appealing to the Employment Appeal Tribunal. Links to that guidance are provided in a document which accompanies this judgment. It is not sufficient to send an e-mail to the tribunal indicating a wish to appeal.
Relevant law
[20]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”.[21]Rule 71 sets out the procedure for reconsideration applications.[22]By rule 72(1), “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked… the application shall be refused…”[23]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.
Discussion
[24]I have examined the contents of all five letters together. I took into account any point that appeared to be relevant to my amendment decision, regardless of which letter it appeared in.[25]I deal with what I understand to be the main grounds of reconsideration in turn. Failure to consider complaints beside discrimination, harassment and victimisation[26]The only complaints to which the claimant had referred, beside discrimination, harassment and victimisation, were “breach of contract”, “wrongful dismissal”, and “retaliation”.[27]The breach of contract claim had been struck out. It would have been wrong for me to consider it.[28]Wrongful dismissal is just another name for a particular type of claim for damages for breach of contract. It was clearly within the scope of the complaint that had been struck out, as the written reasons for the strike-out judgment make clear.[29]I did consider the claimant’s wish to introduce a complaint of retaliation. As an ordinary English word, “retaliation” is easily understood. It is not, however, a recognised name for any complaint that an employment tribunal has the legal power to consider. If it is clear to a tribunal that, by “retaliation”, a claimant is actually referring to a recognisable complaint, it may deal with the substance of the 4 of 7 complaint and disregard the fact that it has not been given the correct legal label. Sometimes an employee takes certain action and the employer retaliates. Whether or not the retaliation breaches the employee’s legal rights will depend on what action the employee took, or was about to take, that motivated the employer to retaliate. In this case, the claimant did not suggest that she had done anything to engage legal protection against retaliation. I did attempt to clarify this point with the claimant, including asking her what her “protected act” was. Even then, the claimant did not mention anything to me that would amount to a protected act. I looked through her witness statement to see if that made her allegation of “retaliation” any clearer. Paragraph 45 referred to a complaint of discrimination in her appeal against dismissal. If that was the reason for the alleged retaliation, it would amount to victimisation. The allegation of “retaliation” appeared to stand or fall with the proposed victimisation complaint and I dealt with it accordingly.[30]There are no grounds here for varying or revoking my amendment decision. “My attempt … was not considered or allowed”[31]The hearing started at 10.10am and lasted until after 5.30pm. Most of that time was spent attempting to clarify the claimant’s claim. We discussed comparators. I attempted a number of different ways of explaining to the claimant what a comparator was. At about 2.30pm, the claimant informed me that her claim was that all her colleagues were treated better than she was. For every allegation, she wanted the tribunal to compare the way in which she was treated with the way each of her colleagues were treated.[32]Shortly afterwards, once the claimant had clarified her allegations of discrimination, she said that she also wanted to pursue complaints of victimisation and harassment. She said that these were part of her claim because they were contained in her witness statement. At 2.38pm I gave her the chance to present oral arguments as to whether or not she should be permitted to proceed with those claims. At about 4.00pm, the claimant said that she wanted to proceed with all her claims, as set out in her witness statement. She added, “I don’t want to accept that they have been taken out.” At 4.56pm, I informed her that I was proposing to allow her to go forward with the complaints that she had listed in her schedule of allegations, and gave her a final opportunity to say why I should allow her to introduce all the allegations that were in her witness statement. She made some further submissions, which included an assertion that victimisation “was part of my claim,” and “What I put in my witness statement went on.”[33]With a view to clarifying the proposed amendment, I asked the claimant what her protected act was. The claimant could not say.[34]The claimant read out a statement. At 5.06pm I attempted to persuade her to focus on the question of whether or not she should be permitted to pursue the additional allegations in her witness statement. She repeated, “I want to stick with all my claims”. She made some further submissions, saying that she “could not cover the law”, as she did not “have professional certification”, but had “documented things on paper” and that everything in her witness statement was relevant to all of her claims.[35]I determined the amendment dispute partly in the claimant’s favour, by allowing her to introduce an allegation of harassment. In relation to the rest of the amendment 5 of 7 dispute the claimant was unsuccessful, but that does not mean that I did not consider her application.[36]The claimant had a fair opportunity to contest the amendment dispute. In any case, now that she has had the chance to put her argument in writing, I do not think that there is any reasonable prospect of my decision being different. Her letters do not really put forward any new argument of substance. Lack of knowledge of legal definitions[37]I did not hold it against the claimant that she did not know the legal definition of victimisation. Her difficulty, when it came to introducing the victimisation allegations, was that she was unable to tell me what facts she was alleging that would support her proposed complaint. I took that into account when deciding on the balance of disadvantage that would be caused by either granting or refusing the amendment. Confusing questions[38]It is true to say that the claimant appeared to have some difficulty in understanding what was meant by a comparator, despite my attempts to explain it in different ways. The victimisation letter gives the impression that she still has not understood the question that I was trying to ask her. I did not ask, as the victimisation letter suggests, “Are the claims based on hypothetical comparators or race?” I repeatedly explained to the claimant that I understood that her case was that she was treated less favourably because of her race. What I was also trying to explain to her was the difference between actual and hypothetical comparators. I did not use that terminology. I asked her whether or not she was saying that she had been treated less favourably than another person was actually treated. I told her that, if that was her case, it was important for her to say who that other person was. In fact, she did eventually provide this information in relation to most of her allegations. I also sought to reassure her that it was not fatal to her claim if she could not name a person who was treated better than she was treated. She can still argue that an imaginary person of a different race would have been treated better than her in the same circumstances.[39]I do not believe that these exchanges had any real impact on the claimant’s ability to contest the amendment issue and there is no reasonable prospect that I would decide it differently were I to reconsider the matter. Supporting evidence in the witness statement[40]This reconsideration ground misses the point. The fact that an allegation is contained in a witness statement does not mean that the tribunal will necessarily adjudicate upon it. Tribunals adjudicate upon issues. The issues are defined by the claim form and the response. The purpose of witness statements is to set out the evidence that is relevant to the issues. The issues are not defined by what is in the witness statement, otherwise there would be no limit on what a witness statement could contain or how many decisions a tribunal could be expected to make. Parties may clarify or seek to amend their claim or response, but that is not done in witness statements for precisely that reason. The claimant must have known this because it had been explained in a previous case management order and she had already produced a schedule of allegations in a document that was entirely different from her witness statement. 6 of 7[41]As it happened, I did read the witness statement to see if would help me understand the claimant’s case as set out in the claim form and schedule of allegations. For example, in my oral reasons, I referred to paragraph 45 which set out something that was capable of being read as a protected act.[42]My reason for refusing the amendment was not that the supporting evidence was missing. It was because the disadvantage to the respondent caused by allowing the amendment would have outweighed the disadvantage caused to the claimant by refusing it. “Second particle attempt”[43]I am not entirely sure what the claimant is referring to here. I have a brief note of the claimant asking, just before the end of the hearing, how she could appeal against my judgment. As the claimant says, it was after 5.30pm by that stage. If what the claimant was seeking was a further opportunity to make submissions on the amendment dispute, I would have refused it, as I had already made my decision and there was insufficient time left to embark upon a reconsideration application.
Conclusion
[44]For the above reasons, my view is that there is no reasonable prospect of the judgment being varied or revoked. The reconsideration application is therefore refused.
Relevant law
[45]There is no reason in principle why covert recordings cannot be admitted into evidence. Before admitting such evidence, the tribunal must decide whether or not it is sufficiently relevant. It is open to a tribunal to conclude (and circumstances similar to this case, unarguably right for the tribunal to conclude) that it is impossible to assess relevance until the claimant has provided a transcript. For these propositions, see Vaughan v. London Borough of Lewisham UKEAT 0534/12 per Underhill J at paragraph 22. Conclusions – amendment decisions Was an amendment required?[46]I decided that the claimant would need an amendment to her claim in order for her to pursue it in the way she wanted to pursue it.[47]I started by looking at the claim form as a whole. Any reasonable reader of that form would have thought that the claimant was saying that the discrimination started on 28 May 2019. The reader would not have detected any complaint of victimization or harassment.[48]I next examined the Schedule of Less Favourable Treatment and the Comparators document. Strictly speaking, these were not part of the claim form and would not help me interpret what complaints the claim form raised. But I considered the possibility that what the claimant was doing in those two documents was providing further detail of the claim, in the manner described in Amin. If that were the case, the claimant would not need an amendment in order to advance allegations set out in those two documents. That analysis does not help the claimant. Just as EJ Holmes did, I took the two documents to be setting out complaints of direct discrimination in relation to treatment that occurred from 28 May 2019 onwards. Should permission to amend be granted?[49]I have considered whether or not to grant the claimant permission to amend. I deal with that question separately by reference to the different ways in which the claimant seeks to expand the claim. Alleged contraventions prior to 28 May 2019[50]The claim in its amended form would involve an expansion of a large order of magnitude. It would introduce well over 40 brand new allegations, each of which would call for new and detailed findings of fact. They would involve Ms Winstanley having to answer a large number of allegations, whereas previously she faced none. Other colleagues would also be accused of discrimination and would need to be called as witnesses. The precise facts that would need to be found would be subtly different, depending on whether the legal complaint was one of discrimination, harassment or victimization. But for all of these complaints, the scale of the fact-finding challenge would be broadly the same.[51]In those circumstances it is particularly important to consider the statutory time limit. These allegations first appeared in the claimant’s witness statement dated 12 July 2020. Even then, it would not have been apparent to the respondent that the claimant was seeking to include each allegation as a separate complaint requiring adjudication from the tribunal. Claimants commonly make witness statements referring to events that form part of the background. References to such events are not legal complaints in themselves. They are included in the 11 of 15 witness statement because, if the tribunal finds that they happened, those events might help the tribunal to find that the actual complaints succeed. It was not until 30 September 2020 that the claimant clarified that she was seeking to have all the matters in her witness statement included as part of the claim. If the claimant were to have presented a new claim form on 30 September 2020 in respect of the pre-28 May 2019 allegations, it would have been over a year out of time.[52]It is unlikely that a tribunal would be persuaded that it would be just and equitable to extend the time limit. The claimant did not give me a good reason for the delay. She just repeatedly asserted that the events stated in her witness statement happened and that she wanted them included in her claim. The delay has made it much harder for a tribunal to be able to determine these complaints fairly. Findings of fact will have to be based on the recollections of witnesses whose memories are bound to have faded.[53]Another way of looking at it is that, if the amendment is allowed, and the time limit is extended, the respondent will be at a very real disadvantage.[54]There is another disadvantage that would be caused in the event of this amendment being granted. This disadvantage would be felt by all parties to this case. Allowing such a large expansion of the claim would inevitably result in the hearing taking much longer. The longer a hearing is, the longer the delay before it can be heard. Tribunals must try to avoid delay where it is practicable.[55]In my view, these disadvantages very considerably outweigh any disadvantage that would be caused to the claimant if the amendment were refused. She can still refer to these events as background evidence, provided that she can demonstrate that they are sufficiently relevant to the complaints that I have allowed to go forward. Harassment – Allegation 6a[56]In my opinion there is only a relatively slight disadvantage to the respondent in allowing the claimant to pursue Allegation 6a as one of harassment. When the claimant delivered her Schedule of Less Favourable Treatment, the respondent was alerted to the fact that the claimant considered that she had been harassed. I do not know precisely when the Schedule was delivered to the respondent, but it was before 18 October 2019. The conduct alleged by the claimant is the same as the allegedly-discriminatory less favourable treatment which was already part of the claim. The alleged connection between the conduct and the claimant’s race is the same as for direct discrimination – namely that Ms Bouzazia allegedly treated the claimant that way because she is Bermudian. Only a small amount of additional fact-finding is required, namely the purpose or effect of Ms Bouzazia’s alleged conduct. I do not consider that this is likely to be particularly hard for the respondent to deal with, bearing in mind that Ms Bouzazia has always known that she might need to explain the purpose of her actions, and the respondent has always known that the claimant would be likely to describe the effect on her feelings of the events of that day.[57]The balance of disadvantage favours allowing this particular allegation of harassment to proceed. Harassment – remaining allegations 12 of 15[58]Under this heading I concentrate on the proposed allegations of harassment occurring on or after 28 May 2019, with the exception of Allegation 6a. In my view, permission ought to be refused. The main reason is that the application is made so late. The respondent would be put at a considerably greater disadvantage than is caused by the inclusion of Allegation 6a, because it could not have been expected to glean from the Schedule of Less Favourable Treatment that anything apart from Allegation 6a would be pursued as a complaint of harassment. Although the respondent knew from about 29 November 2019 that the claimant sought to bring a harassment complaint, it had no way of knowing what the allegations were other than Allegation 6a. It was not until 13 July 2020 that it could have known that all the discrimination allegations in the Schedule of Less Favourable Treatment were to be treated as harassment as well.[59]There is some additional fact-finding in relation to the harassment allegations – in particular in relation to the purpose and effect of the alleged conduct. In my view, the disadvantage to the respondent in having to deal with those factual issues, after such a long delay, outweighs the disadvantage to the claimant that would follow from refusing the amendment. Victimisation[60]Under the heading of victimization, I start by examining the disadvantage that the claimant would suffer if the amendment were refused. At this stage of the analysis it is relevant to consider the merits of the proposed complaint.[61]As the reconsideration judgment makes clear, the claimant had real difficulty in identifying any protected act that she had done. I looked at the claimant’s witness statement for myself. I found one occasion on which the claimant allegedly did something that could come within the definition of a protected act.[62]As I have set out in the reconsideration judgment, and also at paragraph 26 of these reasons, there was nothing in the claimant’s witness statement to suggest that any detrimental action in the handling of the appeal meeting was motivated by the fact that she had complained of discrimination. There was no hint that the respondent had subjected her to any detriment at any time because they believed that the claimant might do a protected act in the future.[63]Taking the claimant’s witness statement at its highest, I thought it very unlikely that the claimant would succeed in her complaint of victimization, even if it were allowed to go forward. There would therefore be little disadvantage to the claimant in refusing the amendment.[64]I also think that there would be considerable disadvantage to the respondent if the complaint of victimization were to be allowed to proceed. Even assuming the claimant were to clarify her case in relation to what the protected act was, there would have to be a finding about whether or not the claimant did that act, and whether or not it motivated Mr Middleton to deal with the appeal in the way that he did.[65]Taking these respective disadvantages into account, my view is that the balance tips in favour of refusing permission to amend. Retaliation 13 of 15[66]As I explained in the reconsideration judgment, the proposed complaint of “retaliation” takes the claim no further than the claimant’s desired claim of victimization, which I have prevented the claimant from introducing. Conclusions – witness decision[67]Before explaining why I made the decision in respect of witnesses, it is important to be clear about what that decision was, and was not. I did not refuse to allow the claimant to call the witnesses. Nor did I say that I would refuse to order the attendance of any witness so that the claimant could call them. What I decided was that I would not order the respondent to call witnesses.[68]There is very little more I need to add. The cases I have cited demonstrate that it is almost always wrong for the tribunal to call a witness whom the parties do not want to call. That being the case, it will only be in a very rare case that a tribunal can permissibly order a party to call a witness whom neither party wants to call.[69]In this case, the respondent does not want to call the witnesses in question. If the claimant wants to call them, she can call them. The respondent has offered to facilitate that process. If the witnesses are still unwilling to give evidence, she can apply to the tribunal for a witness order. Before doing so, she will need to explain, briefly, what evidence they would be likely to give, and how it is relevant to the issues that the tribunal will need to decide at the final hearing. Conclusions – transcript decision[70]The claimant contends that she does not need to provide a transcript. Her argument, as I understand it, is based on EJ Holmes’ letter of 22 June 2020. The claimant says that, in that letter, EJ Holmes gave her permission to rely on the audio recording subject to only one condition. That condition was the disclosure of “the evidence” to the respondent prior to the hearing. She has since disclosed the audio file to the respondent. Therefore, she says, the only condition of admissibility has been fulfilled and she should not be expected to provide a transcript.[71]It is clear to me that the claimant’s argument is based on a fundamental misunderstanding of EJ Holmes’ letter. He was not deciding the question of admissibility. Rather, he was telling the claimant that providing the evidence to the other side was a necessary first step. I interpret the letter in this way for two reasons.[72]First, it is the most natural literal reading. EJ Holmes stated, “If.. the claimant wishes to pursue the admission of this evidence, she must disclose it to the respondent.” Disclosure was a condition of the claimant pursuing admissibility, not the determining criterion for whether admissibility would be granted.[73]Second, the claimant is effectively asking me to read the letter as a decision that is wrong in law. It was not open to EJ Holmes to admit covert recording evidence without first assessing its relevance: see Vaughan, above. As Vaughan also makes clear, a judge can insist that, before relevance can be assessed, the party relying on the recording will need to provide a transcript.[74]In my view, the overriding objective, as well as Vaughan, point clearly in favour of the claimant typing out all the parts of the conversation on which she relies, plus enough of the surrounding conversation to provide a reasonable amount of 14 of 15 context. Only then can the tribunal examine what was allegedly said, and set about deciding whether or not it is sufficiently relevant to the issues.
Introduction
Introduction
[1]This was a preliminary hearing in public held in person. The previous hearing was a four day final hearing starting on 24 August 2021. That hearing was adjourned on the first day and did not proceed.[2]On 27 August 2021 the respondent made an application by email for an order requiring the claimant to provide three documents, and for a public preliminary hearing to consider striking out the claim, if not ordering a deposit, and an order for costs in relation to the adjournment of the hearing on 24 August 2021. That email was copied to the claimant.[3]I decided to list the application for the claim to be struck out to be heard at a public preliminary hearing. Notice of Hearing 7 September 2021[4]Notice that such a hearing would take place on 6 October 2021 was given to the parties by a letter of 7 September 2021, sent by email. That notice confirmed that the issues to be determined would include whether the claim should be struck out because a fair hearing is not possible, and the respondent’s application for costs in relation to the adjournment of the hearing on 24 August 2021.[5]The notice of hearing was accompanied by a note from Ryan Thomas, a member of the Tribunal’s administrative staff, about the claimant’s attendance at the Tribunal on 25-27 August 2021.[6]The notice also included an order that the claimant should provide to the respondent within 21 days three items:(a) Her application of 4 March 2021 for the final hearing commencing 24 August 2021 to be recorded;(b) A communication the claimant said she had received from the Tribunal confirming that this would be done; and(c) Copies of audio recordings and transcripts which had been the subject of previous orders for disclosure but which had still not been supplied to the respondent. Claimant’s response[7]On 29 September 2021 the respondent emailed the Tribunal and the claimant about a bundle of documents for this hearing. The claimant responded by saying that she had already won her case and there was no cause for any additional bundle.[8]In subsequent correspondence with the respondent and the Tribunal the claimant asserted that there was no hearing on 6 October 2021, for example saying in an email on 30 September 2021 at 12:01: “There is no reason or cause for a hearing on 6 October 2021. Furthermore, the Tribunal has not informed me of any hearing on 6 October 2021 for the reason that I have already won.”[9]On 5 October 2021 the Tribunal sent an email to the parties asking for details of who was attending and for confirmation that no COVID-19 symptoms were being experienced. The claimant responded by saying that she had not been provided with any document to state that there was any hearing on 6 October 2021.[10]The Tribunal replied by providing a further copy of the email of 7 September with the notice of hearing attached. The claimant was asked to confirm whether she was attending or would seek a postponement. The email made clear that she was not obliged to attend the hearing but it may proceed in her absence and her case might be struck out.[11]The claimant responded at 14:55 on 5 October 2021. Her email said that the listing notified by the Tribunal was invalid because the claimant had already won her case. She wanted an order requiring the respondent to pay her compensation. She said in her email that because the respondent had offered settlement the Tribunal must consider it as an admission of guilt and find that the claimant had won her case.[12]On behalf of the respondent Miss Nanhoo-Robinson informed the claimant by email later that afternoon that she could make written representations on the applications to be pursued. She was aware of the applications because she had been copied into the written application made on 27 August 2021. Failure to Attend[13]The claimant had not attended the Tribunal by 10.00am when the hearing was due to commence. A further 20 minutes were allowed to see if she was running late. She did not arrive.[14]Rule 47 empowered me to proceed in her absence. I did not consider that any telephone enquiry of the claimant was appropriate. She had indicated that she did not regard the hearing as valid, so it was not a surprise that she had not attended. No application for a postponement had been received, and no written representations responding to the respondent’s application had been received. I had regard to paragraph 21 of the President’s guidance on Good Practice in Employment Tribunal hearings from April 2019, but there were no special circumstances which would justify contacting her. I concluded she just did not want to participate in a hearing she regarded as invalid.[15]The hearing began shortly after 10.20am with the claimant not in attendance. I had read the Tribunal file and the written application of 27 August 2021 prior to the hearing. I heard brief oral submissions from Miss Nanhoo-Robinson. Conscious that the claimant was not present and written reasons would be appropriate, I gave very brief oral reasons for the judgment set out above. These written reasons contain more detail. Summary of the Proceedings[16]This section contains a summary of the proceedings to put my decision into context. Events from 24 August 2021 onwards were of importance and will be recounted in some detail. Claim and Response[17]The claimant is black and of Bermudian origin. She was engaged as a Customer Service Representative by the respondent on 13 May 2019. Following an incident in the office she was suspended on 28 May 2019, and subsequently dismissed with effect from 4 June 2019. An appeal against dismissal was rejected.[18]Having undergone early conciliation, the claimant presented her claim form on 24 July 2019. She claimed unfair dismissal, notice pay and race discrimination. The claim form provided a summary of events on 28 May but did not contain clarity as to the legal claims pursued. The claimant provided a schedule of incidents on 18 August 2019 but the legal basis for the claims was still unclear.[19]The response form of 21 August 2019 said that the claimant had been dismissed for gross misconduct because she had become aggressive and violent in the office. It was alleged that she had pushed a manager on three occasions. It said there had been no allegation of race discrimination until the appeal. Case Management October 2019 – July 2021[20]At a preliminary hearing before Employment Judge Holmes on 18 October 2019 the unfair dismissal complaint was struck out because the claimant had not been employed for two years, and the breach of contract claim was struck out because the claimant had been paid notice pay. The case was listed for a final hearing in July 2020 and Case Management Orders made.[21]An application by the claimant for reconsideration of the Judgment striking out the unfair dismissal and breach of contract claims was unsuccessful.[22]In April 2020 the respondent applied to strike out the claim because there was still no meaningful clarity from the claimant. The claimant resisted that application on 3 June 2020. On 22 June 2020 Employment Judge Holmes wrote to the parties responding to the claimant's points, making reference to her failure to comply with Case Management Orders, and making arrangements for a public preliminary hearing to consider the application to strike out the claim and other matters. The final hearing was replaced by that public preliminary hearing.[23]That preliminary hearing came before Employment Judge Batten on 29 July, but it had been listed as a telephone hearing to which members of the public did not have access. It was therefore adjourned to 30 September 2020. Whilst adjourning the preliminary hearing Employment Judge Batten relisted the final hearing for four days between Tuesday 24 and Friday 27 August 2021.[24]Employment Judge Horne chaired the hearing on 30 September 2020. He set out in his Case Management Summary a schedule of the allegations which were put as direct discrimination and/or harassment related to race. He granted the claimant permission to amend in certain respects but refused it in others, and he made a Case Management Order requiring the claimant to disclose transcripts of recordings which she claimed to possess.[25]Because a Judgment was issued declining to strike out the claim, some of the amendment applications were also recorded in that Judgment. The claimant subsequently sought reconsideration of the Judgment and variation of the Case Management Order.[26]Both of these were refused by Employment Judge Horne. Unfortunately, there was some delay on the part of the Tribunal at that stage due to those matters not having been referred to him promptly by the administrative staff. Employment Judge Horne’s Judgment rejecting the reconsideration application was sent to the parties on 12 March 2021, together with a Case Management Order refusing to vary his earlier Case Management Orders.[27]On 4 March 2021 the claimant emailed the Tribunal. Her email was not copied to the respondent. She attached a letter asking for the final hearing to be recorded. Unfortunately that request was not actioned by HMCTS administrative staff. It was not printed and linked to the Tribunal file, let alone referred to a judge. There are no facilities yet for routinely recording hearings in the Employment Tribunal, and requests for hearings to be recorded are generally referred to me as the Regional Employment Judge. I was not made aware of this request. I can only conclude that this was due to pressure of work on HMCTS staff.[28]On 21 April 2021 the claimant wrote to the Tribunal about problems she was having with her landlord. She was informed that the Tribunal could not get involved in those matters. The claimant raised similar matters and repeatedly chased up a response in a series of emails between 26 April and 24 May 2021. The matters she raised had no apparent connection to the Employment Tribunal proceedings. After extensive correspondence during June and July 2021 she was informed by a letter of 29 July that these were matters for the police. Final Hearing 24 August 2021[29]The four day final hearing began on 24 August 2021. The claimant had refused to participate by CVP. The Tribunal was chaired by Employment Judge Ainscough sitting with non legal members. Judge Ainscough and the claimant were in person in the hearing room. The non legal members, and Miss Nanhoo-Robinson on behalf of the respondent, attended by CVP.[30]At the start of the hearing the claimant queried whether it was being recorded. She said she had applied for that to happen in March 2021 and that the Tribunal had agreed that the hearing would be recorded. There was no such correspondence on the Tribunal file, and nor had the respondent seen that correspondence. The Tribunal hearing the case could not be sure of the position, so the claimant’s assertion was accepted at face value.[31]After enquiries with HMCTS administrative staff it transpired that HMCTS in Manchester was trialling recording of in person hearings using portable recording devices, but that there had been problems with getting transcription of such recordings. Accordingly the Tribunal could not guarantee that an effective recording of the hearing would be made. The claimant protested that she would not regard the hearing as being fair unless it were recorded.[32]The respondent was under the impression that the Tribunal had previously agreed to the hearing being recorded. On that basis it agreed that the hearing should be adjourned and relisted if recording was not possible.[33]The Tribunal took the decision to adjourn the hearing.[34]At that point the claimant changed her position and said she wanted it to proceed. She became agitated and verbally aggressive. She accused Judge Ainscough of being a racist and biased towards the respondent. Judge Ainscough considered it appropriate to leave the hearing room abruptly at this point and the hearing concluded. The claimant was escorted out by the Tribunal security staff.[35]That afternoon the claimant sent an email in which she gave her record of events. She accused Judge Ainscough of “illegally deliberating with the respondent’s representative out of the presence of the claimant” and of discrimination, bias and prejudice against the claimant. Her email concluded by saying that she would resume the hearing in person the following day and for the rest of the week. 25 – 27 August 2021[36]Although the decision to adjourn the hearing had been communicated to the claimant verbally on 24 August by the Tribunal, and confirmed to her by email by the respondent in exchanges that followed later that day, the claimant attended the Tribunal venue on Wednesday 25 August 2021. She was informed that there was no hearing in her case listed that day but she insisted on remaining at the Tribunal venue in reception.[37]That day the written Case Management Order made by the Tribunal chaired by Employment Judge Ainscough was emailed to the parties. It was emailed at 13:02 together with a letter notifying the parties that the final hearing was listed for four days between 6 and 10 June 2022. That day, and during the two days that followed the claimant sent a number of emails to the Tribunal whilst in the Tribunal reception area. She made it clear she expected the hearing to resume. In one email of 26 August at 10:37 she said: “The staff at the Tribunal are refusing to allow me to enquire on my case...”[38]A note of what transpired on those three days was prepared by Ryan Thomas of HMCTS staff. It was sent to the parties with the Tribunal letter of 7 September 2021 notifying them of the hearing today. The note shows that the claimant was told that the hearing had been adjourned and there was no point in her being at the Tribunal building, but that she insisted on staying in the reception area for the rest of the day. In relation to Wednesday 25 August the note recorded the following: “She stayed in the reception area for the rest of the day and kept approaching staff members who went past. On some occasions she accused them of racism when they didn’t engage with her. She also began ringing the office and demanding to speak to the Judge and for her hearing to continue. In each case she was told that she would need to put any complaint in writing and that the hearing was adjourned. Two security personnel from the Crown Court attended to support the security staff and they attempted to explain the situation to her, but to no avail. She left at approximately 4.00pm.”[39]The note went on to record that the claimant attended again on 26 August between 8.00am and 2.00pm, and Friday 27 August between 8.30am and 13.05pm. Respondent’s Application[40]On 27 August 2021 the respondent made an application for the claimant to be ordered to provide the exchange of correspondence in early March 2021 about recording the final hearing, and the transcripts which had been ordered by Employment Judge Horne at the hearing on 30 September 2020.[41]The email was accompanied by a written application of 15 pages which set out in some detail the applications being pursued for the claim to be struck out if a fair hearing was no longer possible, for a deposit to be ordered if the claim was not struck out, and for the costs of the adjourned hearing on 24 August to be paid by the claimant. The sum which the respondent sought in relation to costs was specified as £2,166.00. The costs application was pursued only if the reality was that the claimant had not been informed by the Tribunal that the hearing would be recorded.[42]The written application also had attached to it a signed witness statement from Deborah Nichol, the respondent’s head of Human Resources.[43]The email, the application and the witness statement were copied to the claimant.[44]Having considered these events I directed that a preliminary hearing be listed, resulting in the notification of 7 September 2021.[45]As summarised in paragraphs 7-12 above, above, the claimant did not engage with this hearing. She repeatedly asked the Tribunal for what she described as a “CMO”, by which she later clarified she meant a judgment in her favour ordering the respondent to pay her compensation because she considered that she had won her case. It appeared from her emails that her belief that she had won her case was based on two propositions:(i) The respondent had offered to settle the case and therefore this had to be taken as an admission of guilt; and(ii) Because only the claimant had attended the hearing on days 2, 3 and 4 the case must have been resolved in her favour.[46]Further, the claimant continued to maintain that she had not received any notice of the hearing on 6 October 2021, eventually making clear on 5 October that by this she meant that she did not accept that the hearing on 6 October 2021 was valid or necessary given that (in her view) she had already won the case. Her last communication at 14:52 on 5 October 2021 reiterated this position, and repeated her request for a monetary order requiring the respondent to pay the claimant compensation. Strike Out – Legal Framework[47]The power to strike out a claim is contained in rule 37. The relevant parts read as follows: “(1) At any stage of the proceedings, either on its own initiative 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) …(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious …(c) for non-compliance with any of these rules or with an order of the Tribunal;(d) …(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim … (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.”[48]The word “scandalous” does not simply mean something which is shocking, but rather conduct which is irrelevant and abusive of the other side. Conduct is vexatious when it is pursued not as a genuine effort to progress the claim, but to harass the other side or out of some other improper motive. It can also include conduct which is an abuse of process: Attorney General v Barker [2000] FLR 759. Unreasonable bears its ordinary meaning.[49]The leading case on striking out for unreasonable conduct remains Blockbuster Entertainment Ltd v James [2006] IRLR 630. The Court of Appeal made clear that for a claim to be struck out on this basis the Tribunal must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps, or has made a fair trial impossible. In either case striking out the claim must be a proportionate response and is not appropriate if there is any other way of securing a fair trial.[50]The power to strike out is therefore effectively a last resort. That is particularly the case where allegations are made of discrimination contrary to the Equality Act 2010. There is a public interest in such allegations being heard and determined on their merits.[51]Effectively, therefore, the Tribunal has to consider the following matters:(a) Whether there has been scandalous, unreasonable or vexatious conduct of the proceedings;(b) If so, whether there is any means by which a fair trial can still be secured. A claim should only be struck out in its entirety if a fair trial is simply not possible. Striking Out - Conclusions Unreasonable Conduct[52]Although there had been a previous history of non-compliance with Case Management Orders, I disregarded that for the purpose of this application. My concern was with the conduct of the claimant since 24 August 2021, which was to have been the first day of her final hearing. From the information available on the Tribunal file, and having taken into account the numerous emails from the claimant over the course of this litigation, including those that gave her account of events at the Tribunal on that day, I concluded that the claimant had conducted the proceedings in an unreasonable way in the following respects.[53]Firstly, I was satisfied that the claimant had falsely alleged that the Tribunal had confirmed in March 2021 that the final hearing would be recorded. Although her email requesting this of 4 March 2021 has subsequently been retrieved from the tribunal’s email inbox, there is no trace in the Tribunal’s paper or electronic records of any confirmation that this would be done. The claimant did not produce a copy either at the final hearing on 24 August, or in the weeks that followed. She had not complied with the order contained in my letter of 7 September 2021 which required her to provide copies of that correspondence to the respondent within 21 days. I was satisfied that she had misled the Tribunal and the respondent on 24 August by making the assertion that recording of the final hearing had been agreed in advance by the Tribunal.[54]Secondly, the accusation of racism, bias and prejudice on the part of Employment Judge Ainscough was entirely unwarranted. It was the claimant's own application to postpone the hearing (when it became apparent that recording was not practicable) to which the Judge and her non legal members acceded. Having been misled into thinking that recording had been approved in advance, the respondent acquiesced in the application to adjourn. The claimant then changed her mind, but the decision had already been taken. The claimant has provided no basis whatsoever for the allegation that there was any racism, bias or prejudice on the part of the Tribunal.[55]Thirdly, the claimant's other behaviours in the Tribunal hearing room that day, to which Miss Nanhoo-Robinson can attest, were unreasonable. They troubled Employment Judge Ainscough sufficiently that she ended the hearing abruptly by walking out.[56]Fourthly, the claimant behaved in an unreasonable fashion in attending the Tribunal building in the three days that followed when she knew that there was no hearing. She also acted unreasonably in seeking the assistance of Tribunal administrative staff about her case, and in accusing some of them of racism when they declined to help her. To accuse them of racism in that situation is unreasonable and unjustifiable.[57]Fifthly, the claimant did not comply with the order set out in my letter of 7 September 2021 requiring her to provide her email of 4 March 2021 and the alleged Tribunal response confirming that the hearing would be recorded.[58]Sixthly, the claimant has persistently asserted that she has won her case and demanded judgment in her favour together with an award of compensation. Neither of the two bases upon which she has made those demands is reasonable. Any offer of settlement made on a “without prejudice” basis does not amount to any admission that the claim is well-founded. The fact that the final hearing had been adjourned to June 2022 was confirmed in writing on 25 August 2021.[59]Seventhly and finally, the claimant has sought to deny the validity of this hearing, initially by denying that she had received any notice of it, but when it became apparent that was unsustainable she changed her position to say that it was a hearing for which there was no reason because she had already won her case.[60]The combination of these seven matters caused me to conclude that the claimant had conducted this case in an unreasonable way since 24 August 2021. The power to strike out her claim had arisen. Whether to Strike Out the Claim[61]That gave rise to the second question: should I exercise that power? That required consideration of whether striking out would be a proportionate response, or whether there is any other way of securing a fair hearing though case management orders.[62]The claimant misled the Tribunal and the respondent about the existence of prior approval for the final hearing to be recorded. She refused to accept the judicial decision of the Tribunal to adjourn the final hearing on 24 August. She behaved as if that decision had not been made and communicated to her. She failed to comply with the Tribunal order for the exchange about recording to be provided. She sought to deny that this hearing had been notified to her, but when that became unsustainable changed her position to say that it was no longer valid. In my judgment, it is clear from this behaviour that she does not accept the authority of the Tribunal or have any respect for its decisions.[63]I cannot see any prospect of the claimant accepting that a further final hearing is valid. That means that a fair hearing is simply not possible. Both sides need to engage with Tribunal decisions and Case Management Orders, whether they agree with them or not, if the overriding objective of dealing with a case fairly and justly is to be met. Where only one side engages, a fair hearing is not possible.[64]I therefore decided that the claim should be struck out under rule 37(1)(b) because the manner in which the proceedings have been conducted by the claimant is unreasonable and has rendered a fair trial impossible.[65]For the avoidance of doubt, I am not striking out the claim under rule 37(1)(c), as non-compliance forms only a part of the unreasonable conduct, and nor am I striking it out under rule 37(1)(e) alone. My conclusion that a fair hearing is no longer possible is a direct result of the unreasonable conduct of the claimant. Respondent’s Costs Application[66]The claimant was made aware of the application by the respondent for the costs incurred as a consequence of the adjournment of the hearing on 24 August 2021 when she received a copy of the respondent’s email of 27 August 2021. Attached to that email was the application which made it clear that the costs were sought only if the assertion that the Tribunal had approved recording in advance was not true. That made it all the more important that the claimant substantiate that assertion by providing a copy of the communication in question. She did not do so. Legal Framework[67]The power to award costs arises under rule 76. A costs order can be made where a party has behaved unreasonably in the proceedings or part of it (Rule 76(1)(a)), or where a hearing has been adjourned on the application of a party made less than seven days before the hearing date (Rule 76(1)(c)).[68]The case law on the costs powers (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82.[69]The procedure by which the costs application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78. In summary rule 78 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000.[70]Rule 84 says that the Tribunal may have regard to ability to pay in deciding whether to make a costs award, and if so the amount.[71]It follows from these rules as to costs that the Tribunal must go through a three stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage. Power to Award Costs[72]In my view the claimant acted unreasonably in asserting, falsely, that the Tribunal had approved the recording of the final hearing in advance. It was this assertion which caused the respondent to acquiesce in the application to adjourn and the Tribunal to accede to it. The power to award costs had arisen under both rule 76 (1)(a) and (c). Whether to Make an Award[73]I considered whether I should exercise my discretion and make an award. The claimant had provided no grounds opposing the application. There was a direct causal link between her false assertion that recording of the hearing had been confirmed by the Tribunal, and the adjournment. If she had not made that assertion the hearing would have proceeded. The final hearing had to be relisted and the costs of attendance on 24 August 2021 were wasted.[74]The claimant had provided no information about her financial position. I was satisfied it was right to order her to pay something towards the costs incurred because of that unreasonable conduct. How Much to Award[75]The respondent was not seeking the totality of the costs incurred for the hearing in August 2021. The commercial arrangements between the respondent and Miss Nanhoo-Robinson’s chambers meant that total fees of approximately £7,000 had been incurred for counsel for that four day hearing. Only a quarter of the sum was being sought, representing the first day.[76]In the absence of any information about the claimant’s ability to pay I was satisfied that this was a reasonable and proportionate amount. The respondent made clear in the application that if it came to a question of enforcement it would be prepared to accept payment of a low sum month by month over a long period.[77]I therefore ordered the claimant to pay the respondent costs summarily assessed in the sum of £2,166.00. Further Costs Applications[78]Rule 77 empowers either side to make a further application for costs (or, for the claimant, preparation time) up to 28 days after the Judgment which finally disposes of the proceedings. It is likely that this will be the final Judgment.[79]The respondent is concerned that it will be put to further cost if the claimant seeks reconsideration of this Judgment, and/or seeks to appeal. Miss NanhooRobinson therefore applied for further time for the respondent to consider whether to make an application for the costs of the whole case (excluding those incurred on 24 August 2021). That seemed to me to be a sensible course of action, allowing both parties breathing space to consider how to proceed upon receipt of this Judgment.[80]I therefore exercised my power in rule 5 to extend the time limit in rule 77 so that any application for costs or preparation time must now be made up to 56 days after the date upon which the Judgment finally determining the proceedings is sent to the parties. Unless there is any reconsideration Judgment, that time limit starts to run when this Judgment is sent out. RECONSIDERATION[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claims. That application is contained in an eight page letter of 14 October 2021. The delay has been due in part to seeking clarification as to whether this letter was an application for reconsideration or an appeal.
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]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. Achieving finality in litigation is part of a fair and just adjudication. Case No: 2410294/2019 The Application[5]The application repeats a number of points which have already been made and considered. These include the following points:• The allegation that it was unlawful for the Tribunal chaired by Employment Judge Ainscough to adjourn the hearing which began on 24 August 2021.• The false allegation that the Tribunal had agreed in advance that the hearing would be recorded.• The proposition that the claimant has effectively won her case and there should have been judgment in her favour even though that final hearing did not proceed[6]These points, and the others made in her letter, give rise to no reasonable prospect that my decision to strike out her case would be varied or revoked upon full reconsideration. The points she raises are hopeless and based upon a fundamental misunderstanding and/or misrepresentation of the position. My judgment and reasons record the history of the case and the reasons for striking it out, and nothing in this letter could cause me to change my mind.
Conclusion
[7]There is no reasonable prospect of the original decision being varied or revoked. The application for reconsideration is dismissed.