Miss M Puza v Concentrix CVG CMG UK Ltd: 2500782/2022 and others
EMPLOYMENT TRIBUNALS
Case No 2500782/2022
Between
Miss M PuzaClaimantConcentrix CVG CMG UK LtdRespondent
Before
Employment Judge NewburnIn person for claimantMr S Healy (instructed by Counsel) for respondentDate 22 March 2024
JUDGMENT
[1]The Respondent’s application to strike out the Claimant’s claim does not succeed. JUDGMENT
REASONS
[1]By Order issued on 4 March 2024 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claims should not be struck out because:• The claimant failed to attend the Preliminary Hearing on 19 February 2024 and earlier Preliminary Hearing on 31 January 2024.• The Claimant failed to comply with the Orders of the Tribunal.• it has not been actively pursued.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim is therefore struck out.[1]These claims have a long history. On 14 June 2022, the claimant presented claim number 2500782/22 (‘Claim One’). The claimant had been employed by the respondent since September 2019 as a Technical Support Adviser and remained at the time of presentation of Claim One, in employment. She complained of race and disability discrimination as well as complaining she was owed ‘other payments’. The information about the complaints was scant; she has always acted in person.[2]On 16 August 2022, EJ Sweeney conducted a telephone preliminary hearing; the claimant attended unaccompanied. He noted that the claimant was of Polish origin, that her English was very good and that she did not require an interpreter. He noted she was a highly educated and articulate individual, having obtained a Masters and running her own training company.[3]He provided her with verbal and written examples of how to provide further information about her claim. He stated it was vitally important that she succinctly sets out in writing the specifics of the things she is complaining about, and ordered her to do so by 9 September 2022.[4]The claimant did not comply, but sought an extension of time to comply, suggesting that her inability to do so was caused by a nervous breakdown; the respondent agreed to an extension, noting that her GP fit note stated anxiety and depressive disorder only. On 9 September 2022, the claimant was given a further month to comply with the orders of EJ Sweeney. The claimant was directed to sources of free advice and support.[5]On 3 October 2022, the claimant sought ‘more time’ for what she described as a number of reasons. She said she was off work on sick leave and could not access ‘her systems’, and that her personal life was in a state of disarray.[6]On this occasion, the respondent objected to a further extension. It stated that whatever the adverse circumstances that meant that the claimant could not comply with the Tribunal orders, did not appear to affect the claimant’s time or ability to raise further grievances during this same period, with her employer.[7]On 5 October 2022, the claimant was provided with an extension of time to comply with the orders of EJ Sweeney until 13 October 2022.[8]On 5 October 2022, the claimant emailed the Tribunal stating that she was suffering from financial mental and physical problems.[9]On 6 October 2022, the Tribunal wrote to the claimant to state that she must provide medical evidence to support her inability to comply with the orders of EJ Sweeney together with an opinion as to when she would be fit enough to comply. She was reminded that a further hearing was due to take place on 20 October 2022, to which she was required to attend.[10]On 6 October 2022 at 15:56, the claimant emailed the Tribunal attaching part of a letter from a nurse. It is not possible to identify a date when the document was written, but it appeared to be written in recent months and for the benefit of her employer. It is not essential, for the purposes of this public document, to reproduce the details of the letter in this public document, but its contents are consistent with the claimant’s earlier and subsequent correspondence with the Tribunal i.e. that she had a significant health event in February 2021, the consequences of which have, from time to time, impact on her ability to function at her ‘usual high levels’, in a number of ways. The claimant had professional support, and the recommendation was to take a period of time off work.[11]On 7 October 2022, the Tribunal wrote to the claimant asking her whether she was fit to attend the hearing on 20 October 2022, and that she would be required to provide a letter from her GP if she were not, which should include a statement as to when her GP thought she would be fit to attend a short telephone hearing to discuss her case.[12]On 11 October 2022, the claimant was chased for a reply. On 11 October 2020 to the claimant wrote to the Tribunal stating she did not believe she was fit to attend the hearing and that she would ask her GP for a fit note. She stated her phone had broken and that she could not afford to buy a new one.[13]When postponing the hearing on 20 October 2022, EJ Johnson informed the claimant that no further postponements would be permitted save in exceptional circumstances. The hearing was relisted to take place on 12 January 2023[14]On 19 October 2022, the claimant wrote to the Tribunal complaining about the respondent and the respondent’s legal representative. She attached a number of documents. On 2 November 2022, the claimant was again directed by the Tribunal to sources of free support and advice. She was reminded to copy correspondence to the respondent.[15]On 11 January 2023, the respondent wrote to the Tribunal in anticipation of the hearing the following day. It noted that the claimant was well enough to return to work, but that the respondent was having difficulty arranging a return to work welfare meeting with her.[16]On 12 January 2023 a second private preliminary hearing took place, before EJ Aspden. The claimant did not attend and had not contacted the Tribunal or the respondent to warn them of her non-attendance. The claimant was ordered by to write to the Tribunal respondent explaining her non-attendance within seven days of the orders being sent to the parties i.e. 23 January 2023. The claimant was ordered to comply with paragraph 1 to 7 of the orders of EJ Sweeney made on 16 August 2022 by 31 January 2023. EJ Aspden noted that one possible explanation for the claimant’s non-attendance at the hearing that day, or her non-compliance with the orders of EJ Sweeney was the state of her health, but in that case, she must send a medical report to the Tribunal by 31 January 2023, in which the report explains the difficulties the claimant was experiencing, how that affected her ability to comply with orders and participate in the proceedings, when, if at all, the situation was expected to improve and whether there were any steps that the claimant or the tribunal could take to avoid the difficulties the claimant might be experiencing. EJ Aspden impressed on the claimant the importance of complying with orders, and that an inability to access her ‘systems’ was not an excuse for failing to provide information to the best of her ability; the Judge recommended the the claimant show her GP or other reporting medic the Tribunal orders, to assist in the preparation of the medical report.[17]On 22 January 2023, the claimant wrote to say that her health had improved significantly after changes that were made in early December 2022.[18]On 24 January 2023, the respondent made a written application to strike out the claimant’s case on one or more grounds in Rule 37.[19]On 27 January 2023, the claimant sent a further email to say she was struggling financially, suggesting that she was unable to purchase credit on her phone to make a phone call to join the hearing on 12 January 2023.[20]On 8 February 2023, the claimant presented a second claim, number 250 0211/2023 (‘Claim Two’). The claim form indicated a complaint of race discrimination, disability discrimination redundancy pay and wages, but contain no details of the complaints other than the sentence ‘unfair deductions of wages’.[21]On 9 February 2023, the party was sent a notice of a public preliminary hearing to take place in person at Newcastle Employment Tribunal on 28 March 2023, to consider the respondent’s application to strike out the claimant’s claim. The respondent’s application, the hearing was converted to hearing via CVP. The claimant stated she was unable to join via CVP; the respondent replied stating that the claimant had continued to call and email the respondent by email, and had been able to file a further claim form, suggesting she did have telephone and Internet access and was sufficiently well enough to do so.[22]The claimant was dismissed by the respondent on 22 March 2023.[23]The claimant was written to by the Tribunal twice, on 22 March and 27 March 2023, asking her to confirm whether she had access to a laptop/desktop/tablet and Internet; she replied on 27 March 2023, stating that she was attending the hearing the following day in person at 10am. On the same day, i.e. the day before the hearing, EJ Sweeney directed that the hearing would take place in person commencing at 10am.[24]On 28 March 2023, a public preliminary hearing took place before EJ Newburn. The claimant attended in person, the respondent attended by its counsel. The claimant provided some further particulars of her complaints. EJ Newburn refused the respondent’s application to strike out and listed a further preliminary hearing to complete the identification of the claimant’s complaints.[25]EJ Newburn ordered the claimant to provide by 30 March 2023 a 30-page document the claimant said she had prepared in answer to Orders 2-7 made by EJ Sweeney on 16 August 2022. The claimant stated a number of reasons as to why she had not provide the information sooner, including restricted access to the internet at her local library, having to deal with a local authority statutory notice requiring her to tidy her premises, her attentions were focused on trying to settle the matter, she was concerned that the legal representative for the respondent would use her further information against her, the document required fine tuning and checking and that she was litigant in person. She said she would be ‘certain’ to provide the document to the Tribunal and the respondent before the deadline, and by 29 March 2023. It appears that the claimant did subsequently provide a 30-page document to the respondent only, on a date unknown, but that it did not identify the specific complaints made.[26]The claimant was also ordered to provide some further information in respect of the allegations discussed at the hearing, and to do so by 5 May 2023. EJ Newburn impressed upon the claimant the importance of complying with orders, warning her that any future non-compliance may result in her claims being struck out.[27]On 19 May 2023, the claimant was asked by the Tribunal whether she sought a Polish interpreter for the next hearing. She did not reply. On 7 July 2023, the Tribunal wrote to the claimant to confirm, amongst other things, that no interpreter had been arranged for the hearing on 13 July 2023, but that she was to notify the Tribunal immediately if she sought one. She did not reply.[28]The claimant did not comply before the next private preliminary hearing, which took place on 13 July 2023 before EJ Murphy. EJ Murphy noted that the claimant’s employment had terminated in April 2023, some three months earlier. She noted that the claimant suggested at that hearing that she may intend to present further claim against the respondent.[29]The claimant provided some further information about her complaints to EJ Murphy. She was given an extended deadline of 23 July 2023 it being impressed upon her the importance of complying with orders. She was ordered to provide a schedule of loss by the same date and further case management orders were given to the parties to enable them to prepare for a final hearing. A final hearing was set down with a time estimate of six days on 19 to 24 February 2024.[30]On 1 September 2023, the Tribunal wrote to the claimant warning that it was considering striking out her claim for failure to comply with the orders made by EJ Murphy and because it was not being actively pursued.[31]In reply on 6 September 2023, the claimant stated she had taken a careful note of what was asked of her at the hearing, but that she had misunderstood them and did not provide the information but that the ‘best explanation’ was to be found in the letter from her mental health support team. She also said that she had provided all the information she was able to, since her mental health and the fact that she had been suspended preventing her from access to her documents prevented her from providing further detail. She stated that she had started a new job in June and consequently did not have time to attend the library as regularly. She stated she sought compensation in the sum of £50,000.[32]On 11 September 2023, the respondent wrote to the Tribunal, stating that it had attempted on three occasions to assist the claimant to focus on the information sought of her, to no avail.[33]On 8 November 2023, the claimant wrote to the Tribunal, stating that she had work commitments meaning that she could only join the preliminary hearing by telephone.[34]The claimant was ordered provide the information ordered by EJ Newburn at a forthcoming preliminary hearing on 14 November 2023.[35]On 13 November 2023, the claimant presented a third claim, case number 2502522/23 (‘Claim Three’).[36]A further private preliminary hearing took place on 14 November 2023. The claimant, who had indicated her inability to attend via CVP, was informed that she must attend by telephone. She did so, and provided the information ordered by EJ Newburn. The representative for the respondent sought clarification as to whether the claimant had presented a third claim, as intimated at the hearing before EJ Murphy. The claimant confirmed that she had presented a claim, though was unable to identify when pressed, how recently she had done so. Upon checking, she confirmed that she had, in fact, presented the claim which included a complaint of unfair dismissal the day before. Revised case management orders were given, including a detailed order to provide a schedule of loss by 1 December 2023, and the dates of the final hearing were confirmed.[37]In answer to subsequent Tribunal correspondence asking why she had not produced a schedule of loss, the claimant stated on 28 January that she had suffered a bereavement and that she had already stated how much compensation she sought.[38]A further private preliminary hearing took place on 31 January 2024, which had been set down to discuss Claim 3. The claimant emailed the Tribunal the evening before, failing, despite numerous reminders to do so, to copy in the respondent. She stated that she would not be attending because she had no telephone to join the hearing because hers had ‘stopped working’. At the hearing, the claimant was ordered to explain her nonattendance including what efforts she had made to find an alternative telephone. All three claims were discussed. The final hearing of Claims One and Two was vacated and a public preliminary hearing was set down to consider whether to strike out or make deposit orders as well as to decide time points. The case management orders contained the time, the date, and the venue of the hearing. The claimant was ordered to provide a witness statement stating why she could not have presented certain claims sooner. The respondent confirmed that not only was the claimant working elsewhere, but she was also still corresponding directly with the respondent.[39]On 31 January 2024, the claimant emailed the Tribunal to apologise for her non-attendance, explaining that she had dropped her phone and that it was broken and that attending work had meant she had not had time to purchase a new phone. She stated her laptop was a work laptop. She stated that she regretted that the Tribunal had conducted the hearing in her absence.[40]The case management orders made on 31 January 2024 were sent to the parties on 6 February 2024.[41]The claimant did not provide a witness statement as ordered, but on 13 February 2023, emailed the Tribunal with a list of ‘topics’, without further explanation.[42]The hearing commenced, in person at Newcastle Employment Tribunal at 10am on 19 February 2024, as directed. The claimant did not attend. During the hearing, at 11.32, the claimant emailed the Tribunal stating ‘I haven’t received any extension number to join the hearing today at 2’. She was informed that the hearing had proceeded at 10am in person. She wished to know when she had been notified of the hearing; the case management orders were re-sent to her. She emailed again at 13:50 the same day to state that she had ‘under the impression that the hearing with the person be today at 2pm via telephone’. She stated she was working from home that day, incapacitated by a leg injury, and that had she known the hearing was in person she would have requested an adjournment or hearing by telephone. She said she would attempt to obtain medical evidence of her leg injury.[43]At a public preliminary hearing on 19 February 2024, EJ Martin struck out a number of the claimant’s complaints in Claim One, Claim Two and Claim Three. In respect of the remaining complaints, primarily relating to incidents said to have taken place between 2019 and summer of 2022, she issued a strike out warning on the basis that the claimant failed to attend the preliminary hearing that day, the earlier preliminary hearing, that she failed to comply with the orders of the Tribunal and was not actively pursuing her complaints. The claimant was given 14 days from 4 March 2024 to make any objection.[44]On 22 March 2024, and in the absence of any representations having been received from the claimant, I decided to strike out the claimant’s remaining claims on the grounds identified by EJ Martin. The judgement was sent to the parties on 2 April 2024. Reconsideration – The ‘Application’[45]The claimant on 14, 15, 17 and 23 April 2024 sent to the Tribunal a number of documents in an effort to explain why she had failed to comply with orders. The claimant was informed that the judgment remained.[46]On 10 May 2024, the claimant appealed to the Employment Appeal Tribunal. The appeal was stayed pending the Tribunal deciding whether to reconsider the judgment.[47]On 2 September 2024, I decided that it could not be said that here were no reasonable prospects of successfully revoking or varying the judgment, since the documents the claimant had sent indicated that she had suffered further set backs to her long standing health issues, as well as specific incidents affecting her physical health – in particular a leg injury said to be sustained in February 2024 and a panic attack on 3 March 2024.[48]The parties were both given further time to respond to the application; both parties sent documents to the Tribunal. I have had considered all documents sent to Tribunal from both parties; neither sought a hearing. It is not necessary to detail the contents of some of the contents of the documents sent by the claimant in this judgment, but I have drawn from those documents the matters set out below, citing specific emails the contents of which I have had particular regard to.[49]It appears that in June 2022, the claimant was suspended from work by the respondent; her GP provided her with a fit note from September to October 2022, citing mixed anxiety and depressive disorder as the reason for her absence from work. She was dismissed in April 2023. She appears to have commenced a new job in June 2023. She commenced with her latest employer in October 2023.[50]The claimant had a significant health event in February 2021 and appears to have had support from a professional health team since. She has had to deal with significant challenges with her health, which has had consequences in her ability to manage aspects of her personal life since, including occasionally, financial challenges1.[51]On Monday 19 February 2024, the claimant stood on something sharp2. She attended work that day because her current employer was described as disapproving of employees taking time off work. She was seen by her GP on 20 February 2024 and given a fit note assessing her as unfit from work from Monday 19 February 2024 until Friday 23 February 2024. On Monday 26 February 2024, the claimant attended her local hospital for this same injury; she was discharged some 6 hours later to her GP and given medication.[52]In the evening of Sunday 3 March 2024 the claimant attended the emergency department of her local hospital reporting mental health issues; she was discharged the following day and returned to work on Tuesday 5 March 2024, when she made a complaint about her senior manager and they ‘went through a reconciliation process’.[53]On 3 April 2024, there appears to have been another incident requiring the claimant to leave work to see her GP3. Her employer contacted her on the same day and suggested she be referred to Occupational Health. An Occupational Health report was provided4; although no date is evident on the 1 Emails to ET, 6 October 2022 at 15:56 and 14 April 2024 at 18:56 2 Email to ET 15 April 2024 at 14:53 3 Email to ET 17 April 2024 at 14:02 4 Email to ET 23 April 2024 at 14:23 report, it is self-evidently written following the event on 2 April 2024. The report states that the claimant has a long-standing history of anxiety and depression, that was recently exacerbated by difficult personal circumstances. It was reported that the claimant was fit to work and was able to manage a full range of daily activities, subject to certain recommendations that are not relevant here. Reconsideration – The Principles[54]The following principles apply:a. The Tribunal may reconsider any judgment where it is necessary in the interests to do so: rule 70 of the ET Rules of Procedure 2013 / rule 68 ET Rules of Procedure 2024b. The exercise of that discretion is wide, but must be exercised judicially;c. Judges must seek to give effect to the overriding objective when exercising their discretion;d. The interests of justice requires that regard be had not only to the applicant, but also to the other party to the ligation and the public interest that there should, as far as possible, be finality of litigation;e. Reconsideration is not an opportunity for the applicant to have a second bite of the cherry, without there being some compelling reason, and nor is it an opportunity for a Tribunal to review and amend its original decision if it has changed its mind; recently affirmed in Ebury Partners UK Ltd v Davies [2023] EAT 40.
Discussion and Conclusions
[55]I start by acknowledging that the claimant has faced significant challenges to her health and her personal life in recent years. They appear to have affected her personal life in several ways, sometimes in what appears to be profound ways. I have significant sympathy for her predicament.[56]However, the problem has been, from the beginning, the claimant’s apparent difficulty in articulating her own complaints, coupled with an apparent difficulty in engaging with the litigation that she herself commenced.[57]The likelihood is that some of the claimant’s challenges in this litigation are related to the state of her health, but that is as much as it is possible to fairly infer from the correspondence from and documents provided by the claimant. The claimant was informed by the Tribunal in October 2022, at a time when she was still employed by the respondent what she was required to do to evidence the precise nature of her difficulties and how they affect her ability to pursue her own claims. The claimant responded by providing a report written by her nurse to, seemingly, her employer, in which it stated that she had the support of medical team. That report, plainly, did not answer the questions posed by the Tribunal. In January 2023, EJ Aspden posed specific questions that the claimant was to answer, if she suffered from an impediment, and it was related to her health; it was suggested that she show her reporting medic a copy of that, and the previous order, to assist with the writing of the report. No report was provided; the claimant continued to suggest various reasons for her inability to comply with orders, including not just health, but other matters such as bereavement.[58]It is not possible to identify, properly and fairly, what proportion of the challenges the claimant has had complying with the orders are due to her health.[59]The injury that the claimant sustained on 19 February 2024 was sustained on the day of the preliminary hearing itself; it does not explain her non-attendance at Tribunal at 10am that day. Her claim that she was ‘under the impression’ that she had a telephone hearing at 2pm that same day is unsustainable; she received nothing from the Tribunal to lead her to believe that. She received the strike out warning on 4 March 2024; she was, on her own account, at work on 5 March 2024. The only further evidence before me is the (undated, but contemporaneous) Occupational Health report that states she was fit to carry out all duties at her current place of work. There is no suggestion that the claimant was unfit to work, even, during this period.[60]The claimant received the judgment striking out her remaining claims on 2 April; on her own account, she was off work on 4 April and at work on 5 April; again, there is nothing to suggest that the claimant was unfit to work, even, after 5 April and before she sent her first document to the Tribunal thereafter on 14 April 2024.[61]By 18 March 2024 when the claims were struck out, the Tribunal had not received any reliable information about(a) why she was not complying with orders – whether it was health, and if so, what the precise health related reason was and(b) how long that state of affairs was likely to last. No further information assisting these questions has been provided by the claimant.[62]The test to be applied, however, is whether it is necessary to reconsider the judgment in the interests of justice. I acknowledge that the claimant feels strongly that she wishes to proceed with her complaints. However, the interests of justice require consideration of both parties, as well as the overriding objective.[63]Claim One was presented in June 2022. By March 2024 all three of her claims were struck out, finally. In the intervening time, 7 preliminary hearings had been held. At each preliminary hearing, orders were made, but by the time the claims were struck out, the claimant had not complied, substantially or at all, with a single order made of her.[64]Although the claimant was unrepresented, the Tribunal had spent significant time, from the very first hearing, with the claimant giving her significant amounts of verbal and written assistance to enable her to articulate her case, as well as multiple chances to do so; it was explained to her, repeatedly what was required of her to comply with orders as well as the consequence of a failure to do so.[65]The claimant was, on at least two occasions, directed to free sources of legal advice and assistance. She was offered an interpreter to assist her, but did not respond to the offer, despite being reminded.[66]During the period of non-compliance, it appears that the claimant has sought and secured at least one, if not two further jobs (references having been made to starting a new job in or around June 2023 as well as October 2023). I remind myself that the claimant was described as a postgraduate, who was both intelligent and articulate, running her own business.[67]The claimant was verbally reminded by EJ Newburn that she risked her claims being struck out as a result of non-compliance, something that was reminded of repeatedly since. To assist her, the respondent itself had cut and pasted parts of the orders made of her and sent them to the claimant to ensure she was able to focus.[68]When the claims were finally struck out, the respondent was still not, after 21 months, attending 7 preliminary hearings and receiving significant amounts of unrelated correspondence from the claimant, in a position to understand the full extent of the case against it. There appears to be little evidence, much less compelling evidence of the reasons that the claimant did not object to the strike out warning in time, or why she delayed writing to the Tribunal thereafter.[69]I repeat that I have had regard to the very real and occasionally profound health-related challenges that claimant faces. However, the fact remains that she failed to adduce evidence, in the face of two orders, and over 21 months to provide evidence of the precise nature of any health challenges and how, if at all, they had impacted on her ability to comply with orders despite being supported by a medical team who could report on her. No additional evidence on these points has been provided since.[70]I am unable to conclude that it is necessary in the interests of justice for the judgment to be varied or revoked. I confirm the judgment striking out the claimant’s claims.