Miss N Carruthers v Mr M Heskett Saddington: 2501510/2017
EMPLOYMENT TRIBUNALS
Case No 2501510/2017
Between
Miss N CarruthersClaimantMr M Heskett SaddingtonRespondent
Before
Employment Judge A.M.S. GreenDate 13 August 2018
JUDGMENT
The claimant’s application dated 28 June 2018 for reconsideration of the judgment
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because:
The Law
[1]I have reminded myself of the relevant provisions of Rules 70 -72 of the 2013 Rules which read: Rule70. A Tribunal may either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If revoked it may be taken again. Rule71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 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 (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal……[2]The 2013 Rules only came into force on 29 July 2013 and introduced the new concept of reconsideration of judgments rather than a review of judgments as it was entitled under the previous 2004 Rules of Procedure. In the 2004 Rules there were five grounds on which a review could be sought and the last of the five was the single ground that now exists for a reconsideration under the 2013 Rules namely that the interest of justice render it necessary to reconsider. I consider that any guidance on the meaning of “the interests of justice” issued under the 2004 Rules (and the earlier Rules) is still relevant to reconsiderations under the 2013 Rules although the matter is very much one for me when carrying out (as I now do) a preliminary assessment of the Application.[3]I remind myself that the phrase “in the interests of justice” means the interests of justice to both sides. I remind myself of the guidance from the Employment Appeal Tribunal in Redding v EMI Leisure Limited EAT 262/81 where it was stated: “when you boil down what is said on (the claimant’s) behalf, it really comes down to this: that she did not do herself justice at the Hearing, so justice requires that there should be a second Hearing so that she may now. Now “justice” means justice to both parties”.[4]I remind myself of the comments made by the Employment Appeal Tribunal in Fforde v Black EAT 68/80 where it was said that the words in the “interests of justice” do not mean: “…. that in every case where a litigant is unsuccessful he is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interest of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[5]I have reminded myself of the guidance to Tribunals in Newcastle upon Tyne City Council – v- Marsden 2010 ICR 743 and in particular the words of Underhill J when commenting on the introduction of the overriding objective (now found in Rule 2 of the 2013 Rules) and the necessity to review previous decisions and on the subject of a review: “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd. [2008] ICR 841, at para. 19 of his judgment (p. 849), it is “basic” … that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.” The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal”). Discussion and findings[6]Where a party fails to appear at a hearing, either in person or through a representative, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, the Tribunal will consider any information that is available to it, after any enquires that may be practicable, about the reason for the party’s absence.[7]In summary, the Claimant states that she does not understand that the only evidence to disprove her claim was word of mouth of the Respondent. With respect to the Claimant, her claim was not dismissed because of that. The clerk of the Tribunal had attempted to call her but there was no reply. She claims that she noticed she had received a call from the Tribunal but did not return it because she believed that the Tribunal would only accept an email from her. The Tribunal waited until 13:00 to see if the Claimant would attend. The Claimant had ample opportunity to contact the Tribunal and she could have telephoned the Tribunal particularly as she admitted in her email of 28 June 2018 that she noted she had a missed call from the Tribunal. The fact that the Tribunal telephoned her meant that she knew or ought to have known that she could have returned the call rather than simply sending an email to the Tribunal. I dismissed the appeal under Rule 47.
The Law
[1]On 14 June 2018, I dismissed the Claimant’s claim for unfair dismissal Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, schedule 1, rule 47. She had not attended the final hearing. The Claimant applied for a reconsideration of the judgment. On 17 July 2018, I reconsidered the judgment and decided that it should stand. The Respondent has applied for a Preparation of Time Order (“PTO”) under Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, schedule 1, rule 76.[2]The Respondent has claimed £2,187.50 and justifies his claim as follows: My request is based upon my opinion that the claimant had substantial notification of the date and time of Employment Tribunal to prepare and make suitable arrangement for her attendance, for instance, the use of public and/or private transport, (City of Sunderland is connected to the Tyne and Wear Metro Service and there are convenient metro stations near the Court and her home, travel distance 1.5 hours). In addition, there are appraise bus routes. If child care was required there was substantial time for the Claimant to organise appropriate cover to drop her daughter off at the local primary school in Sunderland and there was a breakfast club for £3 which the claimant could have accessed and attended on time but she chose not to attend at all on the first day. The Claimant's partner and farther of her daughter was at her family home (they live together) the evening before the tribunal at 7pm and 9pm when collecting and dropping off her daughter. The Claimant's partner's mother and farther live within very close proximity of the Claimant's home, the claimant's young daughter often stays overnight at her grandparents’ home at the weekends whilst the claimants partner and claimants child’s father, lives at the claimants home. In addition, the Claimant has a large family network, members of which have access to private cars and there would have no hesitation dropping and picking up the Claimant's daughter to school/home. We were informed by the Tribunal's Clark that the Claimant contact the court office at 9.00am to inform the court that should would be 1.5 hours late owing to some kind of child care issue. Judge A.M.S. Green and ourselves accepted such a request, however, the hours went by and the claimant failed to informed the court on her travel progression to attend the tribunal. Judge A.M.S. Green even tried to contact the claimant via mobile Telephone as to her progression and reason for further delay. At about 12.15 Judge A.M.S. Green decided the cut off point for the Claimant was to be 1.00pm before proceedings would start. I am of the opinion that the Claimant had no intention of attending the tribunal in the first instance, showed disrespect to court proceedings and to Judge A.M.S. Green, in addition to my wife and our witnesses who took time off from their work and/or final A Level revision studies. Moreover, there must have been a substantial cost incurred to the state, for example court time and Judge's. The Claimant’s original claim statement and later witness statement received 8 days late after the agreed date, show that the claimant provided two totally different versions of events and had changed her 2nd statement in response to the evidence and truth submitted by the respondent and all witnesses[3]The Claimant has resisted the claim on the following grounds: i do not agree at all with this request .two of the witnesses were not witnessess as well as three being cometly irrelevent to the case as these witnesses were only stating opinions about the claiment not at any particular time or date relevent to the case, just bully tactics to try and intimadate and presure the claiment, i also beli e after reading witness ztatement which are all so similar in lingo these were acctully infact writen by the same person to show the claiment in a bad light rather thqn provide qny facts towards tbe case also i do not belive any of the witnesses including the respondant were earning £35 per hout. As the respondant insisted on thw case spaning over 2days after canceling one court date and not coperating with the original orders and also failing to provide a list of documents and witnesses by the agreed date othe respondant failed to comply with the courts orders and therefor should no be entitled to any costs jst as the claiment was not entitled to a fair and unbias hearing.[4]There are several grounds under which the Tribunal can make a PTO. Having read the Respondent’s submissions, it appears that the relevant ground relied upon as set out in rule 76 (1) (a) which is as follows: A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings (or part thereof)[5]All the grounds for making a PTO are discretionary. This means that the Tribunal may make a PTO if the ground is made out but is not obliged to. Where the conduct of a party is vexatious, abusive, disruptive or otherwise unreasonable rule 76 (1) provides that the Tribunal shall consider whether to make a PTO. Therefore, it has a duty to consider making an order but has the discretion whether to make the award. In other words, rule 76 (1) imposes a two-stage test: first the Tribunal must ask itself whether the Claimant’s conduct falls within rule 76 (1) (a); if so it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against the Claimant.[6]I am mindful of the fact that the Claimant was a litigant in person and it is appropriate to judge her less harshly in terms of her conduct than a litigant who is professionally represented. It would not be right to judge the Claimant by the standards of a professional representative. Justice requires that tribunals do not apply professional standards to laypeople, who may well be embroiled in legal proceedings the only time in their life. Laypeople are likely to lack the objectivity and knowledge of law and practice brought to bear by a professional legal adviser. I accept that the Claimant did at least notify the Tribunal that she was running late. However, for the reasons set out in my original judgement, she failed to update the tribunal and we waited until 1 PM before I decided to dismiss her claim. If there was evidence to the effect that the Claimant was not telling the truth about why she could not come to the hearing and had simply acted to cause maximum inconvenience to the Respondent I would have considered such behaviour to be vexatious, abusive or unreasonable etc.[7]Many of the things that the Respondent has asserted in his application for the PTO had not been tested in evidence and I have not seen a pattern of behaviour having reviewed the file on the papers that is consistent with such an allegation. I do not think that the claim could be considered as vexatious. For a claim to be vexatious, it would have to have been hopeless with the Claimant having no expectation in recovering compensation. The Claimant would have to have acted out of spite to harass the Respondent or for some other improper motives. The evidence does not suggest this as there were clearly factual issues that needed to be determined. If the Claimant had a history of failing to attend hearings or to comply with directions it might be argued that her behaviour was abusive or disruptive. In this case, she failed to attend the final hearing. I do not believe that this is enough to amount to abusive or disruptive conduct. Was there any evidence of unreasonable conduct? “Unreasonable” has its ordinary English meaning and it is not to be interpreted as if it meant something like vexatious. In determining whether to make an order under this ground, the Tribunal should consider the nature, gravity and effect of a person’s unreasonable conduct. The vital issue is to look at the whole picture. The Tribunal must ask whether there has been unreasonable conduct by the Claimant in bringing, defending or conducting the case. Reasonableness is a matter-of-fact. This is not a case, where I believe there has been unreasonable conduct. For example, there has not been a persistent failure to provide information and the evidence had not been tested before it could be said that there had been lies or false evidence. I did not see any evidence of poor course of conduct or failing to accept an offer of settlement or prolonging proceedings prior to the Claimant’s non-attendance at the Final Hearing.[8]Under all the circumstances, I do not believe that it would be appropriate for the Tribunal to exercise its discretion in favour of the Respondent and the application is, therefore, dismissed.