Ms N N Ishiekwene v Newham Sixth Form College: 3200056/2018
EMPLOYMENT TRIBUNALS
Case No 3200056/2018
Between
Ms N N IshiekweneClaimantNewham Sixth Form CollegeRespondent
Before
Regional Employment Judge TaylorNot represented for claimantMr Heard (instructed by Counsel) for respondentDate 14 May 2019
JUDGMENT
[1]The claimant’s claim is struck out on the ground that it has not been actively pursued.[2]The claimant’s application for the response to be struck out is refused
REASONS
[1]This matter came before the Tribunal to determine the claimant’s and the respondent’s respective applications to strike out the other party. The claimant did not attend the hearing. The claimant’s bundle of documents for this hearing were handed up to the Tribunal by Mr Dacosta Adowei, who described himself to the Tribunal as a friend of the claimant. Mr Adowei explained that he had not attended as the claimant’s representative. After handing up the documents Mr Adowei was excused and left the Tribunal hearing.
The Background
[2]The claimant presented a claim to the Employment Tribunal on 12 January 2018. The claimant is employed by the respondent, Newham Sixth Form College, as a biology teacher. The claimant claimed race discrimination against the College and one other individually named respondent. That part of the claim presented against Newham Sixth Form College was correctly accompanied by an early conciliation certificate and was accepted. The claimant had not obtained an early conciliation certificate in respect of the proposed second respondent and therefore the claim relating to that individual was rejected.[3]A notice of hearing dated 26 January 2018 was sent to the parties informing them that a preliminary hearing was listed on 5 April 2018, to identify the issues and to make case management orders relating to the conduct of the final hearing.[4]The respondent’s response form was received by the Tribunal on 23 February 2018. The respondent resisted the claimant’s claims and applied for a strike out order or, in the alternative, a deposit order on the basis that the claimant’s claims had, respectively, little or no prospect of success. The claimant objected to the applications in a letter addressed to the Tribunal dated 19 March 2018.[5]In an order dated 23 March 2018 a judge directed that an application to strike out or make a deposit order could not be considered until the issues to be determined by the Tribunal had been agreed to. The parties were ordered to cooperate to finalise an agreed list of issues in time for the case management hearing listed on 5 April 2018. The claimant was also required to provide particulars of her race discrimination claim in time for that hearing, identifying any actual comparators and the matters relied upon by her as material from which a Tribunal could find that there had been less favourable treatment because of race. The claimant provided further information in a ‘schedule of allegations’. (The respondent was not ordered by a judge to answer these allegations.)[6]At the preliminary hearing on 5 April 2018 the parties discussed the respondent’s draft list of issues and the claimant’s draft list of issues. Neither party had seen the other party’s draft in advance of the preliminary hearing and the Tribunal considered there was insufficient time to agree the issues to be determined. The employment judge directed the parties to co-operate so that the respondent could prepare a revised draft list of issues within a short time.[7]The parties wrote to the Tribunal after that preliminary hearing explaining that it had not been possible for them to agree a list of issues.[8]A second preliminary hearing was therefore listed to be held on 24 May 2018 before Judge Burgher. It is recorded in the preliminary hearing summary disagreement about the scope and extent of the factual and legal issues in the case. It was ordered that only claims set out in a claim form can proceed to a hearing (in the absence of a successful application to add a new claim or to amend a claim). The Judge recorded that the Tribunal had spent some time going through each paragraph of the claim form with the claimant to identify the legal claims and clarifying the link, if any, between the relevant paragraph in the claim form and the subsequent schedule of allegations of less favourable treatment provided by the claimant.[9]It appears from the summary that there was strong objection by the claimant at being required to assist the Tribunal in clarifying the claims and allegations in the claim form. However, that was the purpose of the hearing and by the end of it the judge had identified the legal claims to be determined by a Tribunal and had clarified the alleged acts of less favourable treatment, setting these out at paragraph 10 to 24 of the order. The Judge recorded that applications to add new claims had been refused and that the reasons for this decision had been explained to the claimant. The Judge directed that any claims not in the claim form should be considered by way of an amendment application. The Judge also varied the time table of the existing case management orders, so that disclosure by list should take place on the 5 June 2018, copy documents should be exchanged by 14 June 2018, and the trial bundle should be prepared by the respondent on 5 July 2018.[10]In an email dated 9 June 2018, the claimant made a number of applications including that all of the Case Management Orders made on 24 May 2019 should be suspended, pending the respondent providing additional information as requested by the claimant, and for the claimant and respondent to prepare hearing bundles separately. In a letter sent to the Tribunal on 22 June 2018, the respondent submitted that the claimant’s request to order the respondent to provide further information was contrary to the overriding objective in that it would delay matters and increase costs associated with the litigation. It was also concerned that the claimant would not be prepared to comply with the tribunal’s orders or prepare for the hearing.[11]At the direction of Judge Burgher, a letter was sent to the claimant (and copied to the respondent) which included the following: ‘… the preliminary hearing that took place on 24 May 2018 was lengthy and the issues were painstakingly discussed before the relevant orders and directions were made. Consequently, the issues identified in the preliminary hearing on 24 May 2018 are the only issues that will be considered by the full tribunal. The claimant can give evidence about matters not in the list of issues if it supports her case, however such matters will not be considered matters from which liability will flow.…’[12]The claimant appealed the case management orders sending a notice of appeal to the Employment Appeal Tribunal (EAT) on 4 July 2018. In the meantime, the claimant failed to comply with any of the tribunal’s orders. The final hearing remained listed to commence on 30 October 2018. The respondent informed the Tribunal in a letter dated 12 September 2018 that it had not received any documents by way of disclosure from the claimant and because it had not received the claimant’s documents requested the date for exchange of witness statements be postponed to 15 October 2018, which would still allow sufficient time for the claimant to prepare her witness statement based on the trial bundle prepared by the respondent. The claimant replied to this application in a letter dated 26 September 2018 that: ‘.. She is unable to exchange witness statements until her notice of appeal has been correctly dealt with, and the issues raised therein correctly addressed and resolved.’[13]In response, the respondent made an application for the Tribunal to issue an ‘unless order’ requiring the claimant to serve the witness statements she intended to rely on at 4:00pm on 24 October 2018, failing which the claim would be struck out. The final hearing remained listed to commence on 30 October 2018.[14]In a letter issued on the instructions of an employment judge dated 19 October 2018, the claimant was informed: ‘Please note that if you refuse to comply with the employment tribunals orders you risk having your case struck out unless you have good grounds for asking for the hearing commencing on 30 October to be postponed pending any appeal you have made (in which case you need to apply for a postponement) there appears to be no good reason why you should not exchange witness statements by no later than 4 PM on 24 October.…’[15]In an email dated 22 October 2018 the claimant stated: ‘The claimant writes in response to the correspondence purportedly sent by the employment Tribunal dated 19 October 2018….The claimant strongly maintains her position as stated in her email sent to the employment Tribunal and the respondent on Tuesday, 25 September 2018 which details as follows: The claimant submits that the reasons why she has not complied with the case management orders pertaining to the disclosure of documents are clearly stated in her notice of appeal which was received by the Employment Appeal Tribunal on Wednesday 04 July 2018’ The claimant also submits that she is unable to exchange witness statements until her notice of appeal has been correctly dealt with, and the issues raised therein correctly addressed and resolved. The claimant submits that the issues are serious, significant and fundamental to decide in the case and reaching a fair and just judgement regarding same; therefore, the hearing cannot proceed until the issues have been properly addressed and resolved. The claimant further submits that properly dealing with her ‘notice of appeal’ and the issues raised therein, is in the interest of justice and in accordance with the overriding objective of ensuring that the parties are on equal footing, as well as saving time and expense of all the parties. The claimant therefore submits that she is unable to participate in the final hearing proceedings scheduled to commence on Tuesday (30/10/2018) [for the reasons stated in her notice of appeal sent to the Employment Appeal Tribunal]…’[16]The respondent responded to that letter by writing to the Tribunal to suggest the claimant’s letter should be treated as an application to postpone the hearing, and if it was so treated, the respondent did not object to such a postponement.[17]In a letter dated 25 October 2018 the parties were notified that the (seven day) hearing listed to be held on 30, 31 October 2018 and 1, 2, 6, 7, and 8 November 2018 had been postponed by the tribunal, and treated as postponed on the application of the claimant. The final hearing was re-listed to be held for seven (non-consecutive) days commencing on 9 July 2019 until 18 July 2019. The parties were reminded that they must comply with any case management orders issued in relation to this case.[18]The claimant received a notice from the EAT dated 22 October 2018 that the appeal in this case would be set down for a preliminary hearing, and making various case management orders. The respondent provided its submissions in response to the claimant’s appeal on 13 November 2018.[19]The appeal hearing was listed to be held on 30 January 2019. The claimant failed to comply with the orders and directions of the EAT, leading to a hearing being listed on 22 January 2019, for the claimant to show cause why her appeal should not be struck out. The claimant did not attend and the appeal was struck out by order to the EAT.[20]Even though the appeal was struck out on 22 January 2019 the claimant did not make any attempt after that date to return to the orders made by the Tribunal and that might demonstrate an intention to comply with the outstanding orders and directions of the employment tribunal. The Respondent’s Submissions[21]In its application the respondent set out the recent history of the claimant’s progression of her case, as follows: ‘On 13 December 2018 the EAT wrote to the claimant ordering directions to comply with for her appeal. The claimant was required to lodge two copies of paginated bundles by no later than 2 January 2019, lodge her skeleton argument by 21 January 2019 and provide a list of authorities by 21 January 2019. The claimant did not comply with the order to lodge the bundles. On 11 January 2019 the EAT wrote to the claimant stating she had failed to provide a bundle of documents for the hearing listed to take place on 30 January 2019, and failed to respond to the EAT’s response correspondence dated 2 January 2019. The EAT’s order the claimant to provide the bundle on 15 January 2019, and appear before a judge at the EAT on 17 January 2019 to explain her non-compliance and show cause why her appeal should not be struck out. The claimant failed to comply with either of the EAT’s orders. On 17 January 2019 the EAT wrote to the claimant again ordering her to attend another hearing on 22 January 2019 to explain her non-compliance. On 21 January 2019, the EAT wrote to the claimant requesting confirmation whether she would attend the hearing listed to take place on 22 January 2019. The claimant failed to attend the hearing listed for 22 January 2019 and the EAT struck out her claim accordingly.’[22]The respondent submitted that the claimant had led the respondent and the Tribunal to believe that the only reason she had failed to comply with the employment tribunal’s orders was because she had presented an appeal to the EAT.[23]The respondent had acted in good faith, agreeing to the late postponement of the Tribunal hearing and had engaged in the EAT proceedings. It was clear from the claimant’s behaviour during the course of these proceedings, up to her appeal that she had no real intention of progressing her claim further. The claimant had consistently failed to comply with the orders and directions of the employment Tribunal and the orders and directions of the EAT. It was manifestly unfair of the claimant to deliberately delay the proceedings and to disregard the employment tribunal’s orders. The respondent had spent considerable time preparing for the employment Tribunal hearing listed to take place in October 2018, and had attempted to have the parties ready for the matter to progress to that hearing. The claimant’s conduct throughout the proceedings has been obstructive, unreasonable and vexatious. In light of the claimant’s course of conduct in the employment Tribunal matter and in the EAT matter the claimant’s claim should be struck out in accordance with rule 37 Employment Tribunal Rules of Procedure 2013. The Claimant’s Application and Submissions opposing strike out[24]In a letter dated 10 February 2019, the claimant made an application to strike out the respondent’s response and resisted the respondent’s application to strike out the claim.[25]The claimant submitted documents, numbered by her 1 to 12.[26]The claimant’s documents consisted of: 1. Claimant’s schedule of less favourable treatment 2. Response to claimant’s schedule of less favourable treatment 3. Notice of appeal from decision of employment tribunal 4. Claimant’s list of issues 5. Particulars in support of claimant’s claim 6. Consent form for consultations and reports 7. Objection to respondent application and the claimant’s application to strike out the respondent’s response dated 10 February 2019 8. Case Management order dated 23 March 2018 9. Email message from the respondent to the claimant attaching list of issues dated 4 February 2018 10. Appeal update letter sent to the claimant by HR adviser dated 29 May 2018 11. Preliminary hearing summary conducted by Employment Judge Burgher dated 24 May 2018 12. Written representations dated 25 April 2019 ‘Re: Claimant’s application to strike out the respondent’s response’[27]After setting out a description of the documents presented to the Tribunal the claimant makes submissions in respect of this hearing. They are short and are reproduced here in full: ‘In addition, enclosed is one copy of the Case Management order dated 23/03/2018 (marked as 8) and the respondent’s representatives email dated 04/04/24 team (marked as 9) which attest to the fact that they consented to the Case Management order in question. Furthermore around the end of May 2018, the claimant was notified in a letter dated 29 May 2018 (marked as 10) by the respondent of the intention to make arrangements for occupational health referral and advisor that details regarding same will be sent to her soon. Amongst other issues regarding the said occupational health referral form ‘London Borough of Newham’ was stated as the employer on the consent form completed by the respondent and sent to the claimant around August 2018, which the claimant queried and declined to sign. This same ‘error’ was made on the summary of the preliminary hearing that took place on 24 May 2018 (copy enclosed marked as ‘11’), sent to the claimant by the employment Tribunal where ‘London Borough of Newham’ was stated as respondent instead of ‘is Newham Sixth Form College’. The claimant submits that this was surely not a coincidence, not to mention the numerous issues regarding the content of the said summary of the preliminary hearing as detailed in the claimant’s ‘grounds of appeal’ sent to the EAT; the rest is history. Moreover the inconsistency in the claimant’s justification of the actions, makes this a case in point; another one of the numerous examples of the scandalous, vexatious and unreasonable manner in which the proceedings have been carried out by the respondent. The claimant has enclosed two copies of this written representation (marked as ‘12’; extra copy enclosed for the representative). The claimant submits that the employment judge considers this written representation including all supporting documentation during the preliminary hearing (25/04/2019), in determining the strike out of the respondent’s response as per the claimant’s application dated 10/02/2019.[28]The claimant submitted that the proceedings and actions of the respondent in applying to strike out her claim can be likened: ‘..to that of a student who is faced with an exam paper, and because they neither know nor have the answers to the questions there are required to answer, decide to write their own questions and provide answers to the same. Obviously, such answers will not be fit for purpose; especially when they do not address the questions on the exam paper. In this analogy, the exam paper is the claimant’s claim including the further particulars ordered by the employment Tribunal and the answers referred to the respondent’s defence. It is obvious that the respondent does not have a valid defence to the claimant’s claim and has chosen to make up their own claim which is not consistent with the claimant’s claim, and this is not acceptable. Little wonder they were so keen to proceed with the hearing as it stood; based on issues arising from claims of pleading that the claimant has not made. The respondent has so far put forward no reasonable argument pertaining to their failure to provide their defence to the further particulars the claimant was ordered to provide by the employment tribunal. The document ‘is claimant schedule of less favourable treatment’ is in the absence of the respondent’s response as requested by the claimant, establishes a prima face case of direct race discrimination, bullying, harassment and victimisation. The claimant strongly maintains a position stated in her email sent to the employment Tribunal and the respondent on Tuesday, 25 September 2018… The claimant also submits that she is unable to exchange witness statements until her ‘notice of appeal’ has been correctly dealt with, and the issues raised therein correctly addressed and resolved. The claimant submits that the issues are serious, significant and fundamental in deciding the case and reaching a fair and just judgement regarding the same; therefore, the hearing cannot proceed until the issues have been properly addressed and resolved. The claimant sent a notice of appeal dated 3 July 2018, including her attached Grounds of Appeal and enclosed all the supporting documents listed therein… and these were all received together, by the Employment Appeal Tribunal, on Wednesday, 4 July 2018. The claimant submits that no valid document relevant to the progress of her appeal has been served on her by the EAT. The claimant notes that the respondent’s representative has attached documents purportedly from the EAT to his email dated 05/02/2019, and contends that the authenticity, authorship, origin and validity of the document is questionable. The claimant therefore submits about her appeal is still pending at the Employment Appeal Tribunal. The claimant further submits that based on the reasons stated above and taking into consideration the actions and conduct the respondent throughout the proceedings pertaining to this case, whilst bearing in mind that the respondent’s defence has no reasonable prospect of success, the respondent’s response should be struck out….’
The Applicable Law
[29]Rule 37 of the Employment Tribunals Rules of Procedure provide: 3(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.[30]Where an application to strike out is made on the ground that a claim has not been actively pursued, the Tribunal is required to begin by considering whether the claimant has failed to pursue the claim actively. The Tribunal must take account of the whole of the circumstances when deciding whether it should exercise its discretion to strike out the claim (Rolls Royce PLC v Riddle [2008] IRLR 873). The striking out of a claim must be a proportionate response to the repeated failures to comply with the tribunal’s orders. (Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA).
The conclusions
[31]The judgment of the Tribunal is that the claimant’s claim is struck out, on the ground that it has not been actively pursued and the claimant’s application for the response to be struck out is refused.[32]In arriving at its decision, the Tribunal considered the claimant’s submissions, the respondent’s submissions, and the documents put before the employment Tribunal by both parties. The Tribunal also had regard to the claimant’s decision not attend the preliminary hearing and her reasons. In her written submissions dated 25 April 2019 the claimant states: ‘The Claimant is unavoidably unable to attend the preliminary hearing scheduled for today (25/04/2019), due to circumstances beyond her control.’[33]The claimant provided no additional information or documentary evidence to the respondent or the Tribunal. In the Tribunal’s view this tended to demonstrate the claimant’s lack of active engagement in this matter.[34]In arriving at its decision, the Tribunal is satisfied that the claimant’s conduct in failing to comply with the orders of the Employment Tribunal has been deliberate. The claimant’s initial delay in complying with Judge Burgher’s orders was said by her to be because she intended to appeal the case management orders to the Employment Appeal Tribunal. That is the claimant’s right and that was the appropriate course for the claimant to take in the circumstances. However, in proceeding with the appeal the claimant made no application to postpone the employment Tribunal hearing and caused a hearing listed for seven days to be postponed at short notice.[35]The Tribunal accepted the respondent’s submissions that having brought about a late postponement of a lengthy hearing, the claimant’s decision not to actively pursue her appeal and her failure to comply with EAT’s orders and directions was unreasonable. Furthermore, the claimant’s continued failure to comply with the employment tribunal’s orders after the appeal was dismissed amounted to both unreasonable conduct and demonstrated that the claimant was not actively pursuing this claim.[36]The Tribunal is satisfied that the claimant’s conduct has involved deliberate and persistent disregard of the Tribunal’s orders following the preliminary hearing held on 24 May 2019. The claimant has evinced an intention not to continue with these proceedings by her conduct, which includes her insistence that she cannot comply with any orders until her appeal has been properly dealt with and her false allegation that the respondent has made up correspondence from the EAT. Despite her appeal having been dismissed, the claimant persists in submitting that she is ‘unable’ to exchange witness statements until her ‘notice of appeal’ has been correctly dealt with, ‘and the issues raised therein correctly addressed and resolved’. The Tribunal considers it is not within the overriding objective for the respondent to be compelled to continue to prepare for a multi-day hearing when the claimant’s default has been intentional and persistent.[37]The claimant has made no attempt to comply with tribunal’s orders for disclosure or exchange of witness statements or to take action to prepare the final hearing listed in July 2019. Therefore, the Tribunal considers that the claimant’s conduct in failing to proceed with this case constitutes inordinate and inexcusable delay on her part which is likely to cause serious prejudice to the respondent. The Tribunal has concluded that there has been unwarranted and unreasonable delay in the conduct of these proceedings and that the claimant has failed to actively pursue this claim, within the meaning of rule 37 of the Employment Tribunals Rules of Procedure 2013. The claim is struck out and the Tribunal is satisfied that striking out of this claim is a proportionate response to the repeated failures of the claimant to comply with the tribunal’s orders, and her failure to actively pursue her claim. The Claimant’s application to strike out the response[38]The claim having been struck out that concludes the proceedings, however the Tribunal has decided to consider the claimant’s application and submissions and give its decision. The claimant has made submissions in respect of this application which partly focus on internal matters, which have no substantive bearing on the current application to dismiss the response. More seriously, the claimant has made an application to strike out the respondent’s response, partly based on an allegation that the respondent’s solicitors had fraudulently made up orders purporting to be from the Employment Appeal Tribunal, including the EAT’s order striking out her claim. The Tribunal is satisfied that making up such an allegation amounts is scandalous. The claimant has made this serious allegation without evidence, justification or reason.[39]The Tribunal considered that the respondent had complied with all of the Tribunal’s orders to the extent possible, having regard to the claimant’s conduct of this case. The Tribunal could not identify any grounds on which to conclude that the respondent had acted unreasonably in the conduct of this case. Therefore, the claimant’s application for the response to be struck out was refused.