Mr M Gral v Greencore Food To Go Ltd: 2601777/2024
EMPLOYMENT TRIBUNALS
Case No 2601777/2024
Between
Mr M GralClaimantGreencore Food To Go LimitedRespondentDate 7 January 2025
JUDGMENT
The claim is struck out.
REASONS
Law
[1]By a letter dated 24 December 2024 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because the claimant had not complied with the Order of the Tribunal issued on 21 November 2024. it has not been actively pursued. Such representations were required by 2 January 2024.[2]The claimant 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 within the specified timeframe. The claim is therefore struck out.[3]The hearing fixed for 9 January 2025 will not take place.[1]Rule 68 of the 2024 Rules states: “(1) The 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. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion”[2]Rule 70 of the 2024 Rules states: “(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application.”[3]Rule 3 of the 2024 Rules states: “(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing, (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c)avoiding unnecessary formality and seeking flexibility in the proceedings, (d)avoiding delay, so far as compatible with proper consideration of the issues, and (e)saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a)exercises any power under these Rules, or (b)interprets any rule or practice direction.”[4]Ordinarily, it will not be in the interests of justice to reconsider a judgment because of an error made by a party’s representative - Lindsay v Ironsides Ray and Vials 1994 ICR 384, EAT. Exceptions do however exist - Phipps v Priory Education Services Ltd 2023 EWCA Civ 652, CA
Background
[5]The claimant presented a claim form on 20 September 2024. His claims are for discrimination arising from a disability, contrary to section 15 Equality Act 2010, and a failure to make reasonable adjustments, contrary to sections 20 and 21 Equality Act 2010. The claimant was, and remains, formally represented by Diana Janusz of England & Wales Employment Advice.[6]The respondent presented its response on 31 October 2024. As the complaints of disability discrimination were poorly particularised in the claimant’s ET1 the respondent requested further particulars in respect of both complaints. The information requested appeared in paragraphs1.1 and1.2 of the response.[7]On 21 November 2024 the Tribunal wrote to the claimant in the following terms: “The ET1 Claim and ET3 Response were placed before Employment Judge M Butler and judge directs the following; In order that your claims may be fully considered at the Preliminary Hearing on 9th January 2025, please provide the information requested by the Respondent at Paragraphs1.1 and1.2 of their Response. Please reply by 5th December 2024.”[8]No response was received by the claimant by the specified date and so on 24 December 2024 Regional Employment Swann issued a strike out warning to the claimant. It read as follows: “On the Tribunal own initiative Regional Employment Judge Swann is considering striking out the claim because• it has not been actively pursued. Not compiled with orders issued on 21st November 2024. Please see attached letter. If you wish to object to this proposal, you should give your reasons in writing or request a hearing at which you can make them by 2nd Jan 2025.”[9]On 6 January 2025 the claimant eventually provided further and better particulars. This was a short document running to just over one page of A4. The claimant provided no explanation for the almost 7-week delay.[10]On 7 January 2025 the matter was referred to me as I was the Duty Judge for the Midlands East region that day. The matter was referred in urgently as a preliminary hearing was scheduled to take place on 9 January 2025. I was aware of all the matters referred to above and given the claimant’s non-compliance with the Orders issued on 21 November 2024 and the fact that the claimant had failed to provide representations by 2 January 2025, I decided to strike out the claimant’s claim.[11]Later that same day, i.e. 7 January 2025, the claimant’s representative emailed the Tribunal asking if the judgment in this case could be reconsidered. I treated that email as an application under Rule 69 of the Employment Tribunals Procedure Rules 2024. After an initial consideration I did not refuse the claimant’s application using my power under Rule 70(2) but instead moved to the second stage of the reconsideration process.[12]As a consequence of that, I wrote to the parties in the following terms on 8 January 2025: “Following the claimant’s application dated 7 January 2025 and an initial consideration, Employment Judge McTigue is of the opinion that the application should proceed. If the respondent thinks that the judgment should not be reconsidered, the respondent must write to us, giving reasons, by 15 January 2025. Both parties are asked to write to us by 15 January 2025 setting out their views on whether the application can be determined without a hearing.”[13]The respondent replied to that correspondence on 10 January 2025 objecting to the claimant’s reconsideration application and outlining that they were content for the matter to be dealt without a hearing. The claimant has failed to respond to my query as to whether the matter can be resolved without a hearing and so, I have determined that it is appropriate and in accordance with the overring objective to determine this matter without a hearing.[14]I should also add that the respondent’s correspondence of 10 January 2025 made me aware that an Order dated 3 October 2024 required the claimant to provide the Schedule of Loss by 5 November 2024. That Schedule of Loss was not however provided until 26 November 2024 despite the respondent chasing on 15 November 2024. As a consequence, the respondent submits that between 26 November 2024 and 6 January 2025 the claimant took no steps to actively pursue their claim, despite the strike out warning issued on 24 December 2024.
Conclusion
[15]The Order dated 3 October 2024 required the claimant to provide the Schedule of Loss by 5 November 2024. The Schedule of Loss was not provided until 26 November 2024, despite the respondent chasing on 15 November 2024.[16]The Order dated 21 November 2024 required the claimant to provide further and better particulars by 5 December 2024. The particulars were not provided, despite the respondent chasing on 9 December 2024. The Strike Out Warning dated 24 December 2024 then informed the claimant that the Tribunal was considering striking out the Claim due to non-compliance with the previous Order and requested the claimant to respond by 2 January 2025 if it objected. Again, the claimant did not respond to Tribunal within the timeframe required.[17]The claimant’s further and better particulars were not provided until 6 January 2025. The claimant has provided no explanation whatsoever for the almost 7- week delay. The effect of this is that between 26 November 2024 and 6 January 2025, the claimant took no steps to actively pursue their claim despite the strike out warning issued on 24 December 2024.[18]I am conscious that the timeframe provided for the claimant to the strike out warning of 24 December 2024 was(a) only 7 days and(b) fell over the Christmas holiday period. Indeed, that is why I did not refuse the claimant’s application at the initial consideration stage. However, as the respondent has correctly pointed out the Claimant has provided no explanation whatsoever for the almost 7-week delay, nor has he provided any justification in support of his application. This is despite the fact that the claimant is formally represented.[19]I also consider the Strike Out Judgment to be in accordance with the Tribunal’s Overriding Objective, as set out in Rule 3 of the 2024 Rules. I consider the respondent to have been prejudiced by the claimant’s conduct as it did not fully understand the claims against it, and costs have been wasted in this matter by the claimant’s conduct. In particular, the late provision of the further and better particulars prevented the Respondent from properly assessing the risks of the claim and impaired its preparation for the preliminary hearing which was originally scheduled to take place on 9 January 2025.[20]Taking all matters into account, the claimant’s application is refused. This is an unfortunate decision for the claimant which the Tribunal has not taken lightly. However the claimant’s representative’s inability and unwillingness to actively pursue the case and comply with Tribunal Orders leaves the Tribunal with little option. Approved by[21]In terms of overlooked evidence, the claimant makes the point that the Tribunal did not take into account that the requested information had been supplied prior to the issue of the strike out judgment of 7 January 2025. That is incorrect. Paragraph 10 of my reasons makes clear that I was aware of all relevant matters when I decided to strike out the claimant’s claim. For the avoidance of doubt I was aware that one page of information had been supplied by the claimant the day before. That was obviously after the date specified in the strike out warning letter and no explanation for the delay was provided. That the Tribunal failed to take into account the claimant’s representatives’ email of 10 January[22]As stated earlier, the claimant is correct that I did not take into account the information in that email when I confirmed the judgment of 7 January 2025. I have now however taken that information into account. Indeed the points made in that email are the same as those I have been asked to take into account as part of this application. There is nothing in that email which leads me to conclude that there is a reasonable prospect of the judgment being varied or revoked. That there were exceptional circumstances due to the Christmas period[23]This was taken into account and addressed by me at paragraph 18 of my reasons. This has also been discussed above. That there was now documentary evidence available that the Claimant’s representative was on a flight on 31 December 2024[24]I have been supplied with a screenshot a boarding pass which indicates that Diana Janusz, who I understand to be the claimant’s representative, was booked on a flight from Krakow to Birmingham on 31 December 2024. On its own, this does not explain why the strike out warning was not complied with or why appropriate action was not taken by the claimant’s representative. Indeed, in their email of 10 January 2024 it was stated that the claimant’s representative’s office was open, albeit on limited hours during the Christmas and New Year period. As previously stated, the consequence of this is that urgent matters should have been actioned appropriately. That the claimant had been denied a fair hearing and his ability to pursue a claim.[25]The point made by the claimant is that he has been unfairly deprived of the ability to pursue his claim despite the necessary documentation being provided. As discussed previously, the saline point is that the documentation was not supplied in time i.e. within the time speciied by the strike out warning letter of 24 December 2024.[26]I also addressed this point in paragraph 20 of my reasons of 14 February 2025. This was not a decision taken lightly by the Tribunal. In addition, my decision today has not been taken lightly. However, the claimant’s representative inability and unwillingness to actively pursue the case and comply with Tribunal Orders left the Tribunal with little option.[27]Having carefully considered the claimant’s application, and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the judgment dated being varied or revoked. The application for reconsideration is therefore refused. Approved by