Dr R Nyatando v Rolls Royce plc and others: 2601100/2019 and 2600881/2020
EMPLOYMENT TRIBUNALS
Case No 2601100/2019, 2600881/2020
Between
Dr R NyatandoClaimantRolls Royce plc and othersRespondent
Before
Employment Judge BlackwellDate 7 February 2022
JUDGMENT
The Employment Tribunal Judge gave judgment as follows:-[1]The Preliminary Hearing is adjourned to 4, 5, 6 and 7 May 2021.
REASONS
[1]The purpose of today’s hearing was to determine issues as set out in my case management order sent to the parties on 6 August 2020:- “2. The issues to be determined at that Preliminary Hearing are:-2.1 Whether Dr Nyatando is disabled within the meaning of Section 6 and Schedule 1 of the Equality Act 2010.2.2 Whether the Tribunal has jurisdiction to hear any or all of Dr Nyatando’s claims of discrimination having regard to Section 123 of the Equality Act 2010.2.3 Whether having regard to the provisions of Rule 37 of the first schedule of the Employment Tribunals (Constitution and Rules Page 1 of 4 of Procedure) Regulations 2013 any or all of Dr Nyatando’s claims should be struck out as having no reasonable prospect of success.2.4 Whether having regard to the provisions of Rule 39 of the said first schedule, Dr Nyatando should be ordered to pay a deposit not exceeding £1,000 as a condition of continuing to advance any or all of her allegations.”[2]On 25 November the Respondents made an application to adjourn this hearing on a number of bases including the fact that a bundle had yet to be agreed notwithstanding orders requiring it to be so and the Respondents blamed the Claimant for that position.[3]Dr Nyatando opposed the application and I note in particular that in her e-mail she stated: “Any delay is likely to deteriorate the Claimant’s health further.”[4]I determined to adjourn the claim, the primary reason being that I had underestimated the task that, in particular, the jurisdictional point entails. Which meant that there was no prospect whatsoever of dealing with the issues to be determined in the time available.[5]We then went on to consider how best to progress the matter to an adjourned hearing. I drew to Dr Nyatando’s attention the fact that in addition to the resumed Preliminary Hearing the full hearing was likely to last some weeks and that Dr Nyatando would be cross examined over a period of many days. I have listed that final hearing for January of 2022 for a period of 8 weeks.[6]In the light of that I reminded Dr Nyatando of the availability of Judicial Mediation and asked her to reflect on whether she wishes to engage in Judicial Mediation.[7]We reflected on the enormous size of the bundle submitted for today’s hearing. I made it clear that for the resumed hearing only relevant documents should form a part of a new bundle. Those documents will plainly include the pleadings and schedules at present pages 1 to 926 of the Respondent’s bundle for today. Further documents relevant to Dr Nyatando’s health insofar as they concern her ability to bring claims in time would also be relevant. I set out again Section 123 of the Equality Act 2010 for Dr Nyatando to reflect on in considering what is relevant to the out of time issues. “123 Time limits(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or Page 2 of 4 (b) such other period as the employment tribunal thinks just and equitable.(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[8]We also discussed the schedule containing the Respondent’s case on the out of time issues and Dr Nyatando’s response. It was agreed that the schedule should be stripped of those matters that do not have out of time issues and thus reformatted and agreed. Dr Nyatando pointed out that a column in the schedule had been removed referring to relevant Protected Acts. Mr French-Williams agreed to reinstate the reference to Protected Acts in column one of the schedule.[9]We also discussed claims 43 and 44 set out on pages 922 and 923 of the existing bundle and I made it clear to Dr Nyatando that if her intention is to bring forward a claim in relation to a discriminatory act that occurred after the date on which her second claim form was served ie 15 March 2020 then she would need formally to apply to the Tribunal to amend her claim.[10]We also covered a point relating to the three named individual Respondents. It was agreed that those named individuals would only be required to answer to such claims where they are specifically named.[11]Mr French-Williams also applied for the issue of disability to be removed from the list of issues to be determined. He did so because the Respondents have conceded in an e-mail to the Tribunal of 19 August that they confirmed that they accepted that the Claimant is disabled within the meaning of Section 6 of Page 3 of 4 Schedule 1 of the Equality Act 2010 solely in relation to the following conditions:-• Migraines• Depression• Stress but did not accept that the condition was caused by work related issues. They went on to say that the Respondents do not admit that the Claimant is disabled in relation to the stated condition of post-traumatic stress disorder. Dr Nyatando still wishes that issue to be determined ie whether she is disabled in relation to PTSD. I have read the medical documents to which she drew my attention and in my view the condition of PTSD is not relevant to the issues of liability. It may be relevant to remedy if Dr Nyatando is able to prove that the condition of PTSD was either caused by or contributed to by the discriminatory acts of the Respondent. That may well require the instruction of a jointly appointed expert.[12]At the time that I set down the jurisdiction issue, ie issue number 1, I had not read the documents in the bundle nor had a I read the documents in earlier bundles to which Dr Nyatando drew my attention, nor had I read the parties’ submissions on the jurisdictional point. Thus, there has been a material change in circumstances which, in my view, means that it would not be appropriate to consider the striking out of any of Dr Nyatando’s claims on the basis that they are out of time. Issue one - Jurisdiction[13]Section 123 – Equality Act 2010 “123 Time limits(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just(2) Proceedings may not be brought in reliance on section 121(1) after the end of— (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.(4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”[14]This is effectively the Respondents’ application. Mr French-Williams in his helpful written submissions set out by way of background the claims of discrimination being brought Dr Nyatando brings claims of direct discrimination, indirect discrimination. Mr French-Williams submits as follows: “… 2.9 The Claimant’s Particulars of Claim cite various alleged act/omissions/events going back a number of years into the history of the Claimant’s employment with the First Respondent (with some of the alleged acts of discrimination relied upon dating as far back as November 2012). 2.10 The Claimant asserts that she has suffered discrimination and detrimental treatment at the hands of a significant number of the First Respondent’s employees, alleging detriments including resistance to promotion, hampering of her career progression, removal of responsibilities, sexual harassment, bullying and harassment because of race and sex, disability discrimination and a failure to make reasonable adjustments. Allegations are made against numerous individuals who have held line management responsibility for the Claimant, or who have become involved in seeking to help resolve the Claimant’s grievances or support the Claimant in returning to work following her extensive periods of sickness absence. …”[15]Mr French-Williams goes on to draw my attention to three grievances which were raised by the Claimant between 2014 and 2017. The first was raised on 10 April 2014 and related to claims of bullying, intimidation and discriminatory behaviour by her line manager, Mr K Devendra. That grievance was partially upheld (see pages 863 to 867) but the grievance relating to bullying, harassment and any form of unlawful discrimination was not upheld.[16]On 30 September 2016, a grievance concerning a sexual assault on the Claimant was raised in that a male colleague squeezed Dr Nyantando’s thigh during a training course. That grievance was upheld, finding as a fact that that event had occurred. Dr Nyatando was not happy with the outcome and appealed it and, as a consequence, a revised grievance outcome was issued.[17]On 10 July 2017, a third grievance was raised. This concerned the behaviour of Dr Nyatando’s then line manager, Ms E Morse. The grievance was not upheld though it noted that unfortunate and inappropriate language was used by both Ms Morse and Dr Nyatando.[18]Dr Nyatando used all three levels of appeal open to her in accordance with the Respondents’ policies. Mr French-Williams further submits: “… 2.15 The Claimant appears to simply assert that anything that has happened over the course of her employment with which she now takes issue (going back in some instances to 2012) must have happened by reason of discrimination. The Respondents submit that not only are a significant number of these claims/allegations substantially out of time, and wholly unconnected to any of the three grievances raised by the Claimant, but the Claimant has disclosed no evidence whatsoever to support them. … 2.21 Therefore, the Respondents restate their request that the claims be struck out as being out of time. The ET is reminded of the words of Mummery LJ where he stated “Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations”. (Commissioner of Police of the Metropolis v Hendricks [2003] I.C.R 530). …”[19]Dr Nyatando, made both oral and written submissions. Her principal submission was that I should look at the picture as a whole and not just those issues that the Respondents have labelled as having time issues. I have done this by looking at the Scott Schedule submitted for the December hearing.[20]Dr Nyatando further submits, at paragraphs 2(d) and (f) of her written submissions as follows: “On several instances, the Respondents have attempted to divide single declared claims into separate and discrete claims. The Claimant objects to this and in response reiterates that these are continuing acts where linkages provided per her Scott Schedules outlined not only the onset of acts or claims but also define continuation of these acts of claims, even with for instance the changing hands of consecutive line managers or responsible persons. The Claimant submits that all claims are in time, either as themselves or are in time or are linked by similar or the same circumstances, common personalities, continuation of acts, which in themselves gave birth to further discriminatory acts at the hand of the First Respondent’s management and consecutive managers to the Claimant culminating in the dismissal of the Claimant.”[21]In oral submissions, she also referred me to the disclosure of information in January 2019 of further documents of which she had no previous knowledge, that disclosure being as a consequence of a Subject Access Request.[22]Dr Nyatando also drew my attention to the case of Tarn v Hughes [UKEAT/0064/18/DM which concerned an order by an employment tribunal requiring the Claimant to select the most recent and serious ten events relied upon as giving rise to the Claimant’s complaints and on which the tribunal is required to make findings of fact and determination. In that case, the EAT said that such orders should only be made with great caution.[23]It is abundantly clear that in order to deal with numerous allegations going back as far as November 2012, the Respondents will be put to considerable work and considerable expense. By the time the full hearing takes place, some of the events will be nearly 10 years old. However, I note that there is comprehensive documentation in relation to the three formal grievances. Further, Mr French-Williams did not submit that a fair trial was not possible nor did he indicate that any of the witnesses listed in the Respondents’ Response would not be available to give evidence.[24]The crucial question in relation to jurisdiction is whether there is conduct extending over the period from November 2012 to Dr Nyatando’s dismissal.[25]It seems to me that that decision is best left to the full hearing once that hearing has established which, if any, of the acts or omissions complained of are discriminatory. I therefore decline to make any order as to jurisdiction. Issues 2 and 3 – Strike out/deposit[26]Rules 37 and 39 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 “Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or 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) that it is scandalous or vexatious or has no reasonable prospect of success;(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) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (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. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.” “Deposit orders 39.—(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[27]The claims of automatic unfair dismissal being brought by Dr Nyatando are pursuant to:- a) Section 100 of the Employment Rights Act 1996 “100 Health and safety cases.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.” b) Section 103A “103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” c) Assertion of a statutory right – Section 104 “104 Assertion of statutory right. (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.(4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, (b) the right conferred by section 86 of this Act, (c) the rights conferred by sections 68, 86, 146, 168, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) (d) the rights conferred by the Working Time Regulations 1998, the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003, and (e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.](5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).” Section103A[28]In relation to dismissal for making a protected disclosure, there is no Scott Schedule relating to that claim, nor are there any further and better particulars. It is therefore inappropriate to consider either striking out or ordering a deposit in those circumstances. Section 100[29]In relation to the Section 100 and section 104A claims, there are sufficient particulars set out in Dr Nyatando’s submissions and in the Claim Forms.[30]Dealing with section 100, Dr Nyatando relies upon requesting risk assessments and requesting the aid of a health and safety representative in assisting with identification of the management and prevention of further issues of harassment and bullying. These requests seem to have largely arisen in relation to Dr Nyatando’s return to work in late 2018. In that regard, she had the assistance of Solicitor’s Slater and Gordon and I accept that they were advising her in relation to the issue of returning to work.[31]Those matters may come within the definition set out in subsection (1)(c), although (i) and (ii) would need to be satisfied as preconditions. There is reference to the existence of Health and Safety Representatives in correspondence between the parties It seems to me that the difficulty for Dr Nyatando will be establishing that her raising those matters was the reason or, if more than one, the principal reason for her dismissal. I consider that on the basis of the documentary evidence that I have seen, this claim has no reasonable prospect of success and it should therefore be struck out. Section 104[32]The claim in relation to the assertion of a statutory right. Dr Nyatando would need to establish that the statutory right being asserted falls within subsection (4) of section 104.[33]In her written submissions, Dr Nyatando lists seven statutory rights. In my judgement, the only right that falls within subsection (4) is the right to paid holiday.[34]However, there is no evidence that Dr Nyatando asserted such a right and, even if she did, there is once again the problem of causation. Again, on the basis of the documentation that I have seen, including that to which Dr Nyatando has referred me, there is no reasonable prospect of the link between the assertion of a right to holiday and the subsequent dismissal. This claim should also be struck out. Application to amend[35]This issue was added to today’s proceedings by an Order of EJ Adkinson at page 853. I should also note that he refused Dr Nyatando permission to add further Respondents to the proceedings and his decision was formalised in a document sent to the parties on 4 May.[36]Dr Nyatando’s application begins at page 835 and was made on 8 March 2021.[37]Its effect is to add to the ongoing proceedings paragraphs 43 and 44, which are set out at pages 417 and 418. That document was submitted on 29 June 2020 and was subsequently responded to by the Respondents and their response is also set out on pages 417 onwards.[38]By letter of 15 March, beginning at page 841, Mr French-Williams objected to the application to amend.[39]Case law establishes that a number of factors are relevant to the consideration of an application to amend. They are the nature of the amendment, the applicability of time limits, the timing and manner of the application to amend and the balance of hardship in either allowing or refusing the application. The overall context in which the application to amend must also always be taken into account.[40]It is common ground that both paragraphs 43 and 44 relate to events occurring after the submission of Dr Nyatando’s second Claim Form on 11 March 2020. It is common ground that the refusal of Dr Nyantando’s appeal against her dismissal was sent to her on 31 March 2020.[41]In summary, paragraph 44 refers to an ongoing failure to disclose documents subsequent to the refusal of the appeal.[42]Thus, the nature of the amendment is to include matters subsequent to the service of the second Claim Form. In principal, that is permissible so as to avoid the commencement of new proceedings.[43]As to the applicability of time limits, it seems to me that this has to be considered in accordance with my decision set out above as to jurisdiction.[44]As part of the hearing which took place on 2 December 2020, is recorded at paragraph 9 on page 563 the following: “9. We also discussed claims 43 and 44 set out on pages 922 and 923 of the existing bundle and I made it clear to Dr Nyatando that if her intention is to bring forward a claim in relation to a discriminatory act that occurred after the date on which her second claim form was served ie 15 March 2020 then she would need formally to apply to the Tribunal to amend her claim.”
Conclusions
[45]Dr Nyatando is a litigant in person who has a number of mental impairments that render her disabled within the meaning of the Equality Act 2010. One of the consequences of that disability she says is that her concentration is affected and I accept that contention for the purpose of determining this issue. On the other hand, Dr Nyatando is highly intelligent and has submitted in recent months a number of wellargued documents, including an application for a reconsideration of my Judgment sent to the parties on 15 December 2020 and an application to the Employment Appeal Tribunal.[46]She submits that paragraphs 43 and 44 are simply a continuation of the discriminatory behaviour of the Respondents.[47]She further submits that those paragraphs were set out in the Scott Schedule and supplied to the Respondents in June 2020 and were thus, technically, in time.[48]She further submits that the inconvenience to the Respondents is limited.[49]She also argues that she will suffer considerable disadvantage if she is not able to pursue the matters set out in her application, partly because she will not be able to pursue the allegation that the Respondents blacklisted her with potential employers. It seems to me that if that were the case, that would be a matter that would be capable of being dealt with as part of a remedy hearing should Dr Nyatando be successful following the final hearing.[50]Mr French-Williams submits, as is the case, that Dr Nyatando has waited some 12 months since learning of the outcome of the appeal. Further, that the refusal of the application would not unduly prejudice Dr Nyatando since she would still be able to pursue all claims up to and including her dismissal.[51]He further submits that there is no evidence that Dr Nyatando’s ill-health has been a factor in the delay.[52]The balance of hardship and injustice is to be given appropriate weight. The refusal of the application will prevent Dr Nyatando from pursuing matters post dismissal. However, if she is not able to establish that the Respondents’ behaviour has been discriminatory between 2012 and her dismissal in 2019, it does not seem to me that it is likely that the handling and the outcome of the appeal will make any significant difference to her prospects of success.[53]The disadvantage to the Respondents is relatively limited in the context of this claim. It would involve the individual who heard the appeal and an investigation of the appeal process and its supporting documentation.[54]As to the application’s context, I have read the pleadings and all of the voluminous Scott Schedules. On balance, I do not consider that it is in the interests of justice to allow the amendment and it is refused.
THE LAW
[55]Rule 37 of the Employment Tribunals (Rules of Procedure) Regulations provides as follows: “37.—(1) At any stage of the proceedings, either on its own initiative or 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) that it is scandalous or vexatious or has no reasonable prospect of success;(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) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (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”.[56]Whilst the striking out of discrimination claims should be rare because of the public interest importance of such claims being determined after examination of the evidence (see Anyanwu v South Bank Student Union [2001] 1 W.L.R. 638: UKEAT/0128/19/BA – albeit in a different context) that will be a permissible step where there can no longer be a fair hearing, including within a reasonable time frame (see Peixoto v British Telecommunications plc EAT 0222/07 and Riley v Crown Prosecution Service 2013 IRLR 966, CA).[57]In Riley Longmore LJ said as follows: “It is important to remember that the overriding objective in ordinary civil cases (and employment cases are in this respect ordinary civil cases) is to deal with cases justly and expeditiously without unreasonable expense. Article 6 of the ECHR emphasises that every litigant is entitled to “a fair trial within a reasonable time. That is an entitlement of both parties to litigation. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time. Judge Hall-Smith correctly found assistance in remarks of Peter Gibson LJ in Andreou v The Lord Chancellors Department which are as relevant today as they were 11 years ago:— “The Tribunal in deciding whether to refuse an adjournment had to balance a number of factors. They included not merely fairness to Mrs Andreou (of course an extremely important matter made more so by the incorporation into our law of the European Convention on Human Rights , having regard to the terms of Article 6): they had to include fairness to the respondent. All accusations of racial discrimination are serious. They are serious for the victim. They are serious for those accused of those allegations, who must take very seriously what is alleged against them. It is rightly considered that a complaint such as this must be investigated, and disputes determined, promptly; hence the short limitation period allowed. This case concerned events which took place very many years ago, well outside the normal three months limitation period. The Tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened Employment Tribunals are these days.” It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant's medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal. Like Wilkie J I can see no error of law and would dismiss this appeal.”[58]Similarly in O’Cathail v Transport for London 2013 ICR 614, CA when considering postponement applications it was made plain that there are two sides to a trial and the proceedings should be as fair as possible to both sides. The tribunal has to balance the adverse consequences of proceeding with the hearing in the absence of one party against the right of the other party to have a trial within a reasonable time and the public interest in the prompt and efficient adjudication of cases.
CONCLUSIONS
[59]We turn then to our conclusions as to the position with the continuation of the hearing and the competing applications made by the parties. Whether there should be a further adjournment[60]Before turning to the applications made by the parties we need to consider whether there should be any further adjournment to the hearing. We accept the submissions of Ms. Niaz-Dickinson that the Claimant has not complied with the terms of the Unless Order. Paragraphs 1.1.2 and 1.1.3 have not been complied with. The effect of that Unless Order is that the Claimant’s postponement application was dismissed.[61]However, we have considered whether we should adjourn the hearing further of our own volition to allow the Claimant a further period of time to comply with the Orders made. We have decided that we should not do so. The medical evidence provided by the Claimant is insufficient for us to ascertain that she remains unfit to attend the hearing. The most that the Claimant has provided is an extract from her medical records which recorded that she did appear fit to attend the hearing on 21st January 2022. We have nothing beyond that and also have no prognosis, if the Claimant is not fit to attend the hearing, as to when that state of affairs will cease. Whilst we have the Claimant’s representations that she is unfit to attend, we need to balance those against a lack of medical evidence; the failure to provide the letter from A&E to her GP as required as part of the Unless Order when it appears from medical records that it is in her possession; the fact that the email of 20th January was misleading at best about a referral to A&E; that tests that the Claimant says she is undergoing in an email of 24th January 2022 are not referred to at all in her medical notes and that she has provided and a general lack of candour in compliance with Orders so as to properly progress this matter. There is force in the submission of Ms. Niaz-Dickinson that the Claimant has placed barriers in the way of the smooth running of this hearing and in view of those matters we cannot simply accept the Claimant’s word as to the state of her health and inability to participate. We see no reason to depart from the relevant Presidential Guidance in that regard.[62]We also have some doubts over the evidence that we have received given the still unexplained errors within the original A&E admission document. We do not consider that it is for us, as the Claimant suggests, to directly ask the hospital about that.[63]We have considered whether we should adjourn the hearing again to obtain medical evidence directly from the Claimant’s GP as she contends that we should do. We do not consider that that is an appropriate course for us to take. There appears to be contradictory information within the information that we have been provided with by the Claimant from her GP about whether they provide medical reports. The email from the practice to the Claimant suggests not but that does not appear to be consistent with discussions that she was having with her GP, Dr. Khan, which appear in the GP notes that she has provided.[64]We would observe that we find it unusual in our experience for GP’s to refuse to provide medical reports of this nature. Medical practitioners frequently provide urgent reports to support applications for postponements and adjournments on medical grounds. If they did not, it would be inevitable that every application would need to be determined without that medical evidence because such applications are generally made at the last minute. We see no reason to deviate from the Presidential Guidance on Postponements and Adjournments and that on this occasion and do not consider that it is for the Tribunal rather than the Claimant to obtain the relevant medical evidence.[65]In all events, we are far from certain that we would receive a report or one that gave us the necessary information within a reasonable timescale. The email merely records that “we will consider giving a response as appropriate”. It does not commit to providing a report, not least one that provides us with the information that we have set out in previous Orders.[66]However, if we were to take such a course then if it is the case, as the GP appears to suggest, a report is going to take up to 30 days to provide then the hearing would be over before it was received.[67]We would then be in a position where we are in limbo awaiting a report with the Respondent continuing to incur costs until that happens. As we have already observed, there is also no certainty at all that we would in fact receive one or one that assists us with the Claimant’s ability to participate effectively in these proceedings.[68]In short terms it would be necessary for us to relist the hearing for a further 40 days of hearing time. The earliest time that the hearing could be relisted would be June 2023 but that would have to be before a new Tribunal who would again have to complete the reading in from scratch. If the matter came back before this Tribunal it would be October 2023 at the earliest before it could be heard. Those dates assume that the parties and witnesses would be available which might well not be the case. However, that would be a delay of at least a further 16 months.[69]We say more about the delay in the context of whether a fair hearing remains possible. The Claimant’s application to strike out the Responses[70]We should observe that the one thing that the parties do agree on is that it is no longer possible to have a fair hearing. They have a significant divergence of opinion, however, on who is responsible for that state of affairs.[71]We deal firstly with the Claimant’s application to strike out the Response of the Respondents. The basis of that lengthy application, in short terms, is the issues which we have already described above with the hearing bundle prepared by the Respondent’s solicitors. The Claimant contends that she had not been given a copy of the bundle until after the hearing had commenced and that this had made it impossible for her to complete the preparation that she had been Ordered to do. The Claimant’s position is that that was scandalous, unreasonable and vexatious conduct and that there was an abuse of process in accusing her of forgery and unreasonable conduct.[72]We have little hesitation in dismissing the Claimant’s application. Whilst the Claimant had complained previously about the hearing bundle prepared by the Respondent that was only in very general terms. The Claimant has had the bundle since August 2021 in draft and in a final form since December 2021. Other than generic complaints about the legibility of the bundle she did not engage with an explanation as to precisely what was wrong with it and instead focused on repeated applications to use her own bundles that had previously been refused. We accept that the Respondent was effectively left to guess what problems the Claimant was referring to and the issues recently identified by the Claimant were not evident on the copies that the Respondent was using. Indeed, they were not present at all on the hardcopy versions and had the Claimant engaged with the Respondent to accept their offer for it to be provided that way, all this could have bee avoided. However, she did not and pressed on with requiring an electronic copy only which she had been told may result in difficulties with the quality.[73]Moreover, had the Claimant set out what the problems actually were then they could have been rectified well before now. Even as late as the Preliminary hearing on 2nd December 2021 this matter could have been rectified if the Claimant had attended and demonstrated the problems experienced as she did before us on 17th January 2022. This is therefore to some degree a situation of the Claimant’s own making.[74]We have sought to remedy the issues with the Claimant’s electronic bundle by way of her collection of a hardcopy and provision of time to amend her witness statement. We do not accept that the Claimant’s submissions reflect the reality of the situation with regard to the hearing bundle and we do not consider that there is any basis on which to suggest that the Respondents have acted unreasonably, scandalously, vexatiously, abused the Tribunal process or rendered it impossible to have a fair hearing. Particularly, we do not accept that there is any evidence at all to suggest that there has been any falsification of documents or that the Claimant’s evidence has been in any way tampered with as she suggests.[75]Whilst allegations of unreasonable conduct on the part of the Claimant have been made, as we shall come to below those are made out, and given the clear and unexplained issues with regard to the first A&E admission document, it is not surprising that Ms. Niaz-Dickinson made the submission that she did as to them having been forged.[76]It follows from what we have said that none of the grounds in Rule 37 of the Regulations are made out as against the Respondent and as such the Claimant’s application that the Responses be struck out is therefore refused. The Respondent’s application to strike out the claim[77]The Respondent firstly contends that the Claimant has acted unreasonably in failing to comply with Orders made and secondly that a fair hearing is no longer possible.[78]We begin with the position as to whether the Claimant has conducted the proceedings unreasonably. We are satisfied that she has. She has failed and/or refused to comply with the Orders of Employment Judges Hutchinson, Clark and Butler and by this Tribunal to use the hearing bundles produced by the Respondents and to cross reference her witness statement to them.[79]Whilst we have identified that there were some issues with the electronic copy of the hearing bundle which the Claimant had been provided with, she had only complained about the bundles in very generic terms and at no point before 17th January 2022 did she provide any specific examples of the sort that she showed us on that day. That would have been a very easy thing to do as we have already observed above. We accept that the Respondent was effectively working blind in trying to understand what the Claimant’s complaints about the bundle actually were. That included providing better copies of documents which they identified might be ones that the Claimant was complaining about in terms of legibility. Had the Claimant pointed out what the precise issues were rather than seeking to go behind Orders of the Tribunal and use what she referred to as her “supplemental bundles”, the matter could and we accept would have been rectified long before it was. There were at least two Preliminary hearings before Employment Judge Clark and Employment Judge Butler where that could have happened. The Claimant did not participate in that latter hearing save for submitting written representations but again only referring generically to complaints about the bundle.[80]Instead, the Claimant did the opposite of what she had been Ordered to do and sent the lengthy supplemental bundles of her own to which she had cross referenced her witness statement. She made a token gesture – on a generous interpretation – of purported compliance in the way that we have already described above with reference to a footnote on her witness statement. We have attempted to provide a solution and time for the Claimant to comply once again with the Orders previously made but she has still failed to do so. It appears to us that that is wilful non-compliance.[81]We should say that whilst the Claimant contends that a significant number of pages in the bundle were affected by the issues that she identified on 17th January, we have not been able to drill down as to how many pages were actually affected because the Claimant did not comply with Orders which we made on 31st January 2022 to identify them.[82]Moreover, the Claimant was told by the Respondent’s solicitors in August 2021 that the quality might be affected by having to send the bundle electronically in 19 attachments. Whilst the Claimant’s written submissions indicate that she would not have considered that a hardcopy bundle would be any different to the electronic copy, having complained about legibility and been specifically warned that an electronic copy would be likely to be of lesser quality, it is extremely difficult to fathom why the Claimant did not take the Respondent up on their offer to send a hardcopy to her. That appears to stem only from a reluctance to tell the Respondent what address they needed to send a hardcopy bundle to and we have already made observations about that above.[83]The Claimant has also had in her possession for some time the hardcopy bundles which she collected from the Tribunal at her suggestion so as amend her witness statement.[84]However, we still remain in a position where the Claimant has not complied with the Orders made by three Employment Judges and this Tribunal to cross reference her witness statement to the hearing bundles. That is despite her having been in possession of all of the documents for some considerable time and having had a hardcopy of the bundle since she collected it from the hearing centre. Given all that has gone before, we have no confidence that the Claimant will ever comply with the Orders made in this regard and we have already made plain that we are not prepared to start the evidence unless and until she has done so. Equally, the Claimant has failed or refused to comply with Orders to agree or amend the list of issues and there remains no definitive list in place even at this stage of the proceedings. There is considerable force in the submissions of Ms. Niaz-Dickinson that the Claimant simply places barriers in the way to the smooth running of the hearing.[85]We are satisfied that in continually failing or refusing to comply with Orders made the Claimant has acted unreasonably. That position derailed the commencement of the hearing and as we lack confidence that she will comply at all even if given further opportunity to do so, which places the Tribunal in the position of either not commencing the evidence at all or being forced by the back door to go behind the Orders of previous Judges and allow the Claimant to use her “supplemental bundles”. We have already made plain how the latter is an entirely unsatisfactory state of affairs. We have considered the less draconian sanction of the imposition of an Unless Order but given the Claimant’s purported compliance with the Orders made previously by simply noting as a foot note that the documents that she was referring to may be found also in the Respondent’s bundle, that is likely to lead only to satellite argument as to compliance/non-compliance.[86]We should also observe in the context of unreasonable conduct that we have considerable concerns about the representations that were made about the Claimant’s inability to attend the hearing on 20th January 2022. The clear indication was that the Claimant had been admitted to A&E on that day and it was for that reason that we postponed the hearing on that date. In fact, that was not the case and the Claimant did not attend until the following day when she was already in receipt of our Order to provide medical evidence as to her admission. That is of concern as the content of the initial email was misleading at best and we also have to take into account that we have had no explanation for the myriad of errors in the original admission documentation provided by the Claimant.[87]We are satisfied that that position and, more importantly, repeated noncompliance with Orders made amounts to unreasonable conduct on the Claimant’s part. However, it is not enough to find that the Claimant has acted unreasonably. We must also consider whether a fair hearing can still take place.[88]In considering that question we have to bear in mind that we are currently on day 21 of 40 and, other than reading in, nothing at all has been achieved. We are therefore over half way through the existing listing and we have not been able to consider even Preliminary matters such as the list of issues, which the Claimant has made plain she does not intend to engage with despite the comments of Employment Judge Clark, or what other adjustments she may be seeking during the hearing itself.[89]This is not in our view a case such as Osonnaya v South West Essex Primary Care Trust EAT 0629/11 where evidence has begun and the progress made is simply slow. We have not even got past preliminary matters on day 21 of 40. In short, we have not even made it out of the starting blocks despite being over half way through the race.[90]As we have already observed above in determining whether to further adjourn the hearing, there would be a significant delay in being able to relist this hearing which would be the inevitable result if we continued to await the Claimant amending her witness statement and attending the hearing. That delay, as we have already said, would be at least 16 months. It is notable that in response to an application by the Respondent to adjourn the Preliminary hearing in December 2020, that the Claimant contended that any further delay would cause further deterioration to her health. That is not the only time that the Claimant had made such a reference.[91]The Claimant has not worked since the termination of her employment with the Respondent and has, until recently, continued to submit Statements of Fitness for Work (“Fit Notes”). She has made it plain that these proceedings cause her stress and indeed, she says that she is currently incapacitated because of the work that the Tribunal asked her to undertake to place page references within her witness statement. We accept the submission of Ms. Niaz-Dickinson that that was a relatively straightforward matter which would have only required the Claimant to compare the index from the hearing bundle and the supplemental bundles which she had previously prepared and alter the page references within her statement. Whilst we accept that we are of course not medically qualified, it is difficult to see if that task caused stress so as to incapacitate the Claimant for almost three weeks, and seemingly she appears to suggest for the remainder of the hearing time, how her stress levels will not be impacted so as to incapacitate her during cross examination both of her and by her of the Respondent’s witnesses. That is of course a far more stressful situation.[92]The list of issues alone runs to some 37 pages and the scott schedule setting out the complaints advanced is voluminous to say the very least. The case has considerable complexity as a result of the number of complaints, the time period that they span and the issues involved and there are a number of witnesses on behalf of the Respondent who the Claimant will have to cross examine. This is a far from straightforward case and we take note that even the more straightforward of claims can impact the participants stress levels. That is particularly for litigants in person suffering from mental health difficulties. We raise these matters because, as we shall come to, it is difficult to see if the matter was relisted (which practically speaking it would now have to be notwithstanding what we have said about a further adjournment) how things would be any different on the next occasion.[93]Moreover, the Claimant has made it plain during the hearing on 17th January 2022 that if she suffers a migraine then the aftereffects are such that she requires at least four days to recover. On this occasion, she has spent 18 days thus far on her account incapacitated by the effects of a migraine. The Claimant cannot access trauma treatment until after these proceedings have concluded and it is difficult to envisage that the Tribunal will find that matters have improved in the interim so that the hearing is able to be conducted effectively and in a further 40 day allocation. We accept the submission of the Respondents that the Tribunal will be highly likely to find itself in exactly the same position again in June or October 2023. Whilst we accept that we are not medically qualified, the Claimant has not complied with the requirement to provide medical evidence of her incapacity to attend a hearing and the prognosis as to when she will be able to do so. The best evidence that we have is exactly what has happened during the hearing thus far.[94]We also need to consider the impact on the Respondents in this case. It is a claim in which the Claimant has made some very serious allegations of discrimination, including against a number of individual Respondents. They are entitled to have some finality in these proceedings and not have allegations hanging over them for a further sixteen months at the very least with no certainty even then of any resolution.[95]There is also the cost to the Respondent to consider. The overriding objective requires us to deal with cases without delay where possible and save expense. Leaving aside the time and cost of the attendance of a significant number of witnesses at a further 40 day hearing, we understand that if this matter was to be relisted the legal costs to the Respondent would be in the region of £120,000.00. Whilst the Respondent is not of insignificant means, that does not mean that they should have to incur what is a huge amount of additional costs in circumstances where there can be no certainty at all that matters would be any different on the next occasion and where the Claimant has to date placed barriers in the way of a fair and effective hearing.[96]Moreover, we accept that it is not only the impact of a fair hearing on the Claimant and Respondent that we need to consider but also the resources of the Tribunal and the impact that relisting the claim for a further 40 days of hearing time will have on other users of that service.[97]Listing a case for a hearing for eight weeks occupying both an Employment Judge and non-legal members has an obvious and significant impact on the ability of other cases to be heard during that timeframe. Cases are already being listed well into 2023 and a hearing of this length will push back hearing dates of soon to be issued cases even further. Within a 40 day period of time we might envisage that somewhere approaching 20 to 30 plus cases might be able to be successfully determined.[98]That impedes access to justice for others in the system who are seeking to advance their claims and the position of having to adjourn the hearing at short notice on a number of occasions already has impacted the ability of the Judge and members to hear other cases within the list. We also need to observe here that given the effects of the pandemic there is already a significant backlog of cases waiting to be heard and they should not have to wait longer than they need to given that delay is a barrier to effective justice. As was observed in Andreou some years ago there was even then a notorious burden on the Employment Tribunal system but that has never been more the case than now given the huge backlog created by the pandemic.[99]The consideration of the needs of other users is all the more a factor when, for the reasons that we have already given, we are far from convinced that we would be able to have an effective hearing on another occasion if the matter was relisted for a further considerable period of time.[100]There is also expense to the public which needs to be considered. This claim has been the subject of a significant number of Preliminary hearings and the file itself is voluminous. A further 40 day hearing will result in significant additional cost to the public purse and as we have already indicated, it is far from certain that there could be any effective hearing of this matter in the future. Indeed, we are on day 21 already and next to nothing has been achieved. Again, the best evidence that we have is precisely what has happened thus far and the Claimant’s previous representations to which we have referred above as to the effects of delays in the proceedings on her health.[101]We take into account the fact that Article 6 of the European Convention on Human Rights lays down the right to a fair trial, including the right to have a trial within a reasonable time. In our view that cannot be achieved by relisting this matter for a further 40 days of hearing time over 16 months from now to determine complaints which in some cases occurred well over a decade ago and where we simply cannot be certain that anything further will be able to be achieved on that occasion. We would observe that such a listing would result in the claim not being heard until over four years after the presentation of the first Claim Form and over three years after the second. Moreover, as we have already said some of the complaints are about events over a decade ago and it is plain from the witness statements that we have read that recollections have already faded. A further delay of at least 16 months will only affect the cogency of the evidence even more so. The effect of all that would not be to have a fair trial and certainly not one within a reasonable time frame.[102]We can only conclude taking all of those matters into account that regrettably there is no longer any prospect of a fair hearing taking place and the only course that we can take is to strike out the claims. This is not a decision that we have taken lightly given the important public interest in discrimination (and equally whistleblowing) claims being substantively determined but we cannot determine that there is any lesser course that would achieve a just result for both parties and for other users of the Tribunal system.[103]We should observe that had we not struck out the claim then we would have dismissed it under Rule 47 of the Regulations on the basis of the Claimant’s non-attendance in circumstances where there is a lack of medical evidence to confirm that she is unfit to do so. We had considered whether as an alternative to dismissal under Rule 47 whether to proceed with the hearing in the absence of the Claimant, but we do not believe that it is appropriate to do so. The burden of proof falls on the Claimant in respect of the vast majority of the complaints that she advances and there are also significant jurisdictional issues given that some of the complaints go back well over a decade. Having read the Claimant’s witness statement there is no realistic prospect of those complaints being made out without her giving evidence. We do not consider that it is appropriate to put the Respondents and the significant number of witnesses that they intend to call to the time and expense of attending to give evidence in those circumstances.[104]For all of those reasons, we have struck out the claims under Rule 37 and had we not done so then we would have dismissed it in the Claimant’s absence under Rule 47 of the Regulations.