Mrs S Daramy v London Borough of Tower Hamlets and Others: 3200398/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 3200398/2021, 3203309/2021, 3204987/2021

Between

Mrs S DaramyClaimant

3200398/2021 London Borough of Tower Hamlets 3203309/2021 Ms C BrownRespondent

Date 12 July 2024

JUDGMENT

The Claimant’s application dated 9 May 2022 for a reconsideration of the Judgment sent to the parties on 25 April 2022 is refused.

REASONS

Conclusion

[1]Case number 3204987/2021 was struck out in its entirety and all claims against Ms Groves and Ms Bouman in case number 3203309/2021 were struck out in an oral Judgment with reasons given at the Preliminary Hearing on 28 January 2022. Separate case management orders were made in the remaining claims at the same hearing. There were therefore two documents to be sent to the parties:(1) the Judgment and Reasons and

(2) the Orders. The file copy of the Judgment and Reasons shows that it was sent to the parties on 17 March 2022. It is clear from subsequent correspondence that due to an administrative error, two copies of the Orders were sent. This was corrected when the Judgment and Reasons were sent by letter dated 25 April 2022.

[2]In correspondence before 25 April 2022, the Claimant had indicated an intention to apply for a reconsideration of my Judgment. The amended application now before me was made by the Claimant in an attachment to her email dated 9 May 2022.

[3]Having carefully considered the grounds of the reconsideration application, I am satisfied that it is a repetition of arguments which the Claimant made at the hearing in Case Number: 3201185/2017 an attempt to re-litigate points which were considered and rejected for the reasons given. Disagreement with the findings and decision of the Tribunal is not a valid ground for reconsideration.

[4]In reaching my decision on 28 January 2022, I carefully considered and tried to distill the relevant information from the Claimant’s written submissions to the Tribunal including those sent in October and on 30 November 2021 – these were the Claimant’s lists of issues in the three claims which I allowed her to rely upon as her further information and clarification of the claims. The Claimant does not identify in her reconsideration application the specific reason for an extension of time said to have been overlooked and paragraph 69 deals with her submissions on time. I can confirm that I took into account the entirety of those documents in reaching my Judgment and, in any event, time limits were only one part of my reasons for concluding that strike out was appropriate.

[5]Considerable time and effort was spent trying to clarify the claims and identify the issues before considering strike out, with full allowance made for the Claimant’s position as a litigant in person with some ill health.

[6]As was made clear at the Preliminary Hearing, the file in the fourth claim (Case number 3207944/2021 which included disability discrimination for the first time) was not before me that day. It was only presented on 31 December 2021 and the date for a Response had not yet passed. The claim was subsequently consolidated with the remaining claims by the Regional Employment Judge upon review of the claim and Response at the rule 26 stage, as confirmed by letter dated 14 April 2022.

[7]None of the matters raised by the Claimant are such that they would give any reasonable prospect of original decision being varied or revoked and it is not necessary to reconsider the judgment in the interests of justice. Accordingly, the application for a reconsideration is refused under rules 70 and 72. JUDGMENT having been sent to the parties on 4 October 2022 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

The law

[1]The Claimant applied, by letter dated 30 May 2022 to add Denise Radley, Corporate Director as a named Respondent in this litigation or to substitute Denise Radley for Claudia Brown. The Claimant submitted a revised version of that application on 21 September. The Respondent opposed the entire application.

[2]The Tribunal applied the following law to its consideration of the Claimant’s application.

Law

[3]In seeking to add Ms Radley as another Respondent in this claim, the Claimant was making an application to amend.

[4]Rule 34 of the Employment Tribunal Rules of Procedure 2013 gives the Tribunal the power to add, substitute or remove parties to proceedings, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interest of justice to have determined in the proceedings.

[5]In considering whether it is appropriate to allow the Claimant to add another named Respondent to this case, the Tribunal considered the guiding principles set out in the case of Selkent Bus Company Ltd v Moore

1996 ICR 836

, which confirmed that in considering whether or not to grant amendments, a tribunal must consider the nature of the proposed amendment, the applicable to time limits, and the timing and manner of the application. The Tribunal also has to consider relevant time limits. I also considered the law as updated by the most recent case of Vaughan v Modality Partnership

[2021] IRLR 97

as well as the Presidential Practice Directions and Guidance on amendments.

[6]From those authorities, the Tribunal concluded that rather than using the principles in Selkent as a checklist, the core test in considering applications to amend is to conduct as assessment of the injustices and hardship likely to be caused to both parties in either, allowing or refusing the application and carrying out a balancing exercise to see where justice lies.

[7]The Tribunal drew the following conclusions from the submissions of both parties and from the written application.

Findings

[8]The complaints which the Claimant wanted to bring against Ms Radley were: complaints of Direct Discrimination on the grounds of race and/or sex and disability; Harassment based on race and/or sex; failure to investigate her grievances; failure to comply with the duty to make reasonable adjustments, detriment because of doing a protected act and victimisation. The Claimant alleged that these acts had occurred between July 2020 and June 2022 when her contract was terminated.

[9]In the narrative of her application, the Claimant made allegations that Ms Radley had omitted to/failed to investigate her various complaints of bullying, harassment, victimisation and discrimination against Claudia Brown, Shaun Last, Aderonke Debiyi and Mohamed Maniruzzaman. She also alleged that Ms Radley failed to agree to her transfer request and did not act on the recommendations of her solicitor and that those were acts of discrimination. She was unhappy about Ms Radley’s conduct of her grievance against Mags Groves and Marisa Bouman. She alleged that Ms Radley failed to investigate her grievances against the East London NHS Foundation Trust.

[10]The allegations were all allegations of omissions by Ms Radley, which the Claimant considered to have been done on the grounds of her race and/or sex and her disability.

[11]The Tribunal was aware that all complaints in Case Number 3200398/2021 had been struck out by EJ Russell at the preliminary hearing on 28 January 2022 as having no reasonable prospects of success. In addition, all claims against Ms Groves and Ms Bouman had also been struck out at the same time.

[12]In today’s hearing, the Respondent confirmed that Ms Radley will be a witness at the final hearing in July 2024 as both she and the corporate Respondent want to put her evidence before the Tribunal on these serious allegations. As corporate director, she is likely to be one of the main witnesses.

[13]This application is made a considerable period of time after the issue of these proceedings and the Claimant has provided no reason for that delay. The Claimant confirmed that her complaint her been ongoing since May 2020.

[14]Matters within the Claimant’s application are already covered in the present case and no prejudice is being caused to the Claimant by not adding her as a party.

[15]If Ms Radley is added as a named Respondent. she would firstly, have allegations made against her personally for decisions that she took as part of the performance of her duties. If she was added as a Respondent, the corporate Respondent, London Borough of Tower Hamlets would have to go through the process of assessing whether there is a conflict between her and the other individually named Respondents which would require her to be represented separately from the others: which would cause increased costs legal and otherwise, to the corporate Respondent. The corporate Respondent, as a public body, has a duty to be diligent with taxpayer’s money.

[16]The Respondent was not defending the Claimant’s claim on the basis that Ms Radley had acted outside her duties as corporate director.

[17]If Ms Radley is not added as a Respondent and the Tribunal, on hearing the case, concludes that Ms Radley was responsible for any act of discrimination against the Claimant, the corporate Respondent would be responsible for any remedy due to the Claimant. It is this Tribunal’s judgment that it would add nothing to have Ms Radley as a named Respondent apart from the Claimant being satisfied that Ms Radley was a named Respondent.

[18]The Tribunal conducted the exercise and concluded that the balance of injustice and hardship weighed against the Claimant for the following reasons: there would be little hardship or injustice to the Claimant in not allowing Ms Radley to be joined as a Respondent as all the issues that she wished to raise with or about Ms Radley are still part of the case, are included in the list of issues and will be raised in the hearing. Ms Radley will be in the hearing to answer the Claimant’s questions about why she made the decisions/omissions that she did. On the other hand, the balance of injustice and hardship weighed against the corporate Respondent, which is also a public body. There will be increased costs incurred in defending the claim on behalf of another named Respondent. The corporate Respondent was also concerned that it would have to carry out an exercise to determine whether there were any conflicts of interest between any of the named Respondents that would mean that they would need to incur further expense in engaging separate legal representation. The case is presently already against two individual named Respondents, in addition to the corporate Respondent. The corporate Respondent accepted that it would be vicariously liable for any acts which the Tribunal found were discriminatory, in respect of any of the named Respondents. It was the corporate Respondent’s case that Ms Radley was acting in accordance with her duties.

[19]The Tribunal also considered the delay that had happened in the Claimant making this application and although she has stated that the reason for the delay was that she was waiting for Ms Radley to determine the grievance in the way that she wished her to, that was not be a good enough reason for the delay issuing the claim as it meant that the application was now made many months after the claim had been issued in December 2021. The application was issued many years after some of the allegations against Ms Radley occurred. They mostly related to a period July – November 2020. The complaints that the Claimant wishes to bring against Ms Radley are therefore out of time.

[20]It is not just and equitable to extend time to allow the Tribunal to consider them. The delay in the grievance outcome is not sufficient reason to delay bringing the claim. The Claimant did not submit that there was any continuing act to consider here.

[21]After due consideration, it is this Tribunal’s judgment that the Claimant has made allegations against Ms Radley which are to be determined at the final hearing in July 2024. The fact that Ms Radley is not a Respondent has not prevented her from making those allegations. I was assured that they are already part of the case against the corporate Respondent, on whose behalf she will attend the hearing as a witness.

[22]It is this Tribunal’s judgment that little or no prejudice would be caused to the Claimant by not adding Ms Radley as a party as all the issues that she wished to complain about were each already part of the case.

[23]In the circumstances, it is this Tribunal’s judgment that it was not in the interests of justice to add Ms Radley as a Respondent and the Claimant’s application is refused. JUDGMENT having been sent to the parties on 29 February 2024 and reasons having been requested in accordance with Rule 62(3) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

Background

[1]The claimant made complaints of direct sex and disability discrimination; harassment related to disability, race and sex; indirect disability discrimination; discrimination arising from disability; victimisation; failure to make reasonable adjustments; direct discrimination (dismissal because of race, sex, and disability); harassment (dismissal related to race, sex, and disability): and dismissal for the reason or principal reason that the claimant made protected disclosures. The respondents disputed the claimant’s claim in its entirety. - 1 -

[2]At a Case Management Preliminary Hearing on 29 September 2022 before Employment Judge Jones the complaints were discussed and further specification was sought and some Case Management Orders were issued.

[3]Employment Judge Barrowclough made further Case Management Orders dated 24 March 2023 (issued to parties on 27 March 2023).

[4]Following a hearing before Employment Judge W A Allen KC on 16 May 2023 (and the Judgment sent to the parties on 23 May 2023), the claimant’s applications dated 10 January 2023 and 27 January 2023 for strike of the Response (together with her application for an unless order dated 10 January 2023) failed and they were dismissed. The Case Management Orders made by Employment Judge Jones were varied to include new dates for the preparation of the Hearing Bundle (27 June 2023), exchange of witness statements (26 September 2023), and for parties to confirm that they are ready for the Final Hearing (24 October 2023). The respondents were ordered to provide copies of the documents listed at paragraph 3 of Employment Judge Allen KC’s orders.

[5]Having considered the claimant’s Reconsideration Application dated 06 June 2023, Employment Judge Allen KC refused that application by a Judgment dated 23 June 2023 (sent to the parties on 26 June 2023). At paragraph 2 of the Reconsideration Judgment, Employment Judge Allen KC directed that a copy of the Final List of Issues was to be resent to the parties along with his Judgment (a copy of the Judgment with the Final List of Issues appended was on the Tribunal file).

[6]In his Reconsideration Judgment, he also addressed a number of points made in correspondences received from the claimant up to 09 June 2023. It was observed that, “Ms Bello has supplied to the claimant a number of documents and explained why other documents had not been supplied. Nothing on the face of the correspondence indicates that the Respondent has failed to comply with the Tribunal’s case management orders. The Claimant has not articulated why she considers that the Respondent has failed to comply with any part of the order of 16 May 2023 that it was capable of complying with.” Claimant seeks strike out

[7]By an application dated 26 June 2023 sent at 11.51pm the claimant applied to strike out the respondents’ Responses pursuant to Rules 37(a), (b), (c), (d), and (e) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”).

[8]The claimant states that Employment Judge Allen KC erred in law in a number of respects in terms of his Judgment refusing her unless order and strike out applications, and by not giving reasons for selecting only four documents from the claimant’s specific disclosure application (and refusing to order disclosure of the remaining disclosure documents requested in her application), refusing her application to shorten the Final Hearing, and by - 2 - alleging that the respondents had complied with the Tribunal’s orders despite the fact that they had not done so.

[9]The claimant takes issue with Employment Judge Allen KC’s agreement with the respondents’ position that they sent a Bundle to her home address on 04 January 2023 that was subsequently returned to the respondents. The claimant states that this was a fabrication by the respondents’ representatives. The claimant also refers to her being blamed for her alleged non compliance (which had allegedly led to the respondents’ non compliance) and the fact that the Employment Judge accepted the respondents’ partial response to paragraph 18 of Employment Judge Jones’ order concerning her disability impact statement.

[10]The claimant refers to two emails dated 23 June 2023 that she sent to the respondents’ representative (copied to the Tribunal) concerning outstanding documents and information that she says the respondents repeatedly failed to provide. The claimant says the respondents did not provide the documents Employment Judge Allen KC had ordered them to provide by 30 May 2023.

[11]The claimant refers to a list of documents she attached to her application. The claimant states that those documents are relevant to her claim and the respondents’ defence, and that she has explained why they are relevant. The claimant explains that if the respondents cannot provide these documents, referring to Rule 37(1)(e) of the ET Rules, the claimant contends that it will no longer be possible to have a fair hearing, that it will be an abuse of process, and the Response should be struck out pursuant to Rules 37(1)(a), (b), (c), and (d) of the ET Rules.

[12]The claimant also complains that the respondents’ representative had failed to send her a copy of the Final Hearing Bundle by 27 June 2023.

[13]The claimant avers that Employment Judge Allen KC, Acting Regional Employment Judge Russell, and Employment Judge Jones failed to treat her in accordance with the correct principles as a Litigant in Person. She states that Employment Judge Allen KC tipped the scales in favour of the respondents and he was determined to weaken her claim at all costs.

[14]The claimant also sets out a complaint and a request for a transfer of the claim on the basis that she had lost confidence in East London Employment Tribunal’s ability to deal with her case fairly and justly.

[15]The claimant appends copy correspondences in support of her application.

[16]Although the claimant had not made it clear as to why, specifically, each of the grounds relied upon were said to have justified a strike out of the claim, the Tribunal has considered the entirety of the claimant’s claim and the responses and approach taken in assessing each of the grounds relied upon. - 3 - Matter to be determined at Preliminary Hearing in public

[17]Regional Employment Judge Burgher directed on 07 July 2023 that there will be a Preliminary Hearing in public listed for one day in person on 19 October 2023 to consider the claimant’s application dated 28 June 2023.

[18]The claimant sent an email to the respondents’ representative on 25 July 2023 advising that due her outstanding strike out application, she had not read any correspondences from the respondents after 28 June 2023 and she would only be responding to these if directed to do so by the Tribunal. The claimant explained that she objected to the respondents proposal to extend the deadline for Hearing Bundle preparation to 11 July 2023 and she advised that she would not be available on 07 August 2023.

[19]On 24 August 2023 the claimant made an application for an extension of time to exchange her witness statements until the end of October 2023 (after the Preliminary Hearing on 19 October 2023). The claimant’s application for an extension of time was granted by Acting Regional Employment Judge Russell on14 September 2023 and parties were sent correspondence on that date confirming the same.

[20]A Notice of Preliminary Hearing was issued to parties on 11 September 2023 confirming that pursuant to Regional Employment Judge Burgher’s directions there will be a Preliminary Hearing on 19 October 2023 at 10.00am to consider the claimant’s strike out application and any Case Management Orders.

[21]The claimant sent an email to the Tribunal on 15 September 2023 advising that she will be sending a draft witness statement to the respondents by the due date of 25 September 2023. As the Hearing Bundle had not been finalised, the claimant stated that she could not cross reference her witness statement with the page references. The respondents’ representative replied on the same date proposing that witness statements be exchanged on 10 October 2023 and pointing out that the final Hearing Bundle was sent to the claimant by Egress on 11 July 2023 (a further copy had been sent to the claimant that day). The respondents’ representative’s Trainee Solicitor had tried to contact the claimant to arrange for delivery of a hard copy of the Hearing Bundle. The claimant was invited to contact the respondents’ representative if she wished to add any further documents to the Hearing Bundle.

[22]The respondents’ representative also sent email correspondence to the Tribunal on 15 September 2023 in which they confirmed that the Hearing Bundle was sent to the claimant via Egress on 11 July 2023 and that they would be happy to exchange witness statements on 10 October 2023 or after the Preliminary Hearing.

[23]Parties were advised by letter dated 04 October 2023 from the Tribunal that parties are expected to co-operate to ensure that the matters can be properly determined and the failure to do so could result in the claim or - 4 - response (or part of it) being struck out and a party being liable to pay costs. The claimant sent detailed representations to the Tribunal by email on 09 October 2023 in response to the Tribunal’s correspondence of 04 October 2023. Documents before the Tribunal at this Hearing

[24]Prior to the Preliminary Hearing I was provided with two bundles of documents by the respondents’ representative (Preliminary Hearing Bundle dated 16 May 2023 containing extracts from the 1733 page bundle and a correspondence file consisting of 1324 pages, an email from the claimant dated 18 October 2023 sent at 11.59pm containing submissions comprising 44 A4 pages (a further email was sent at 4.30am attaching an index), and a copy of the Tribunal file (including correspondences between the parties and the Tribunal), to which reference was made by parties. Parties’ Submissions

[25]In addition, I heard oral submissions from the claimant, who appeared in person, and Mr McCombie, Counsel, on behalf of the respondents. Claimant’s submissions

[26]The claimant referred to the chronology of events and to the Preliminary Hearing before Employment Judge Allen KC on 16 May 2023.

[27]The claimant had applied for an extension of time to provide her witness statement, and an extension of time was granted by Acting Employment Judge Russell until the end of October 2023. The claimant nevertheless submitted her draft witness statement on 26 September 2023.

[28]The claimant submitted that the respondents were taking time to revert to the claimant. The respondents claimed she had not complied with the orders of the Tribunal. By way of example she had asked for an extension of time to provide her disability impact statement, and despite this the respondents stated that the claimant did not comply with the Tribunal’s orders. The claimant advised that Employment Judge Allen KC agreed with the respondents even though there was evidence to show that an extension of time had been requested. The claimant explained that it took the respondents’ representative two months to reply (and they did not respond until 06 February 2023).

[29]The claimant advised that the respondents failed to provide their list of documents by 22 April 2022. Employment Judge Russell decided that there would be a 7- day extension of time. The deadline by which parties were supposed to exchange lists was on 22 April 2022 but Ms Bello said that the respondents were not ready. When she eventually exchanged documents with the respondents, the claimant noted that the respondents’ disclosure was incomplete. - 5 -

[30]The claimant stated that the respondents had failed to provide the Hearing Bundle to the claimant pursuant to the Tribunal’s directions in June 2023. She said the respondents were required to follow the Rules. The claimant pointed out that she lacked confidence that she would receive justice.

[31]The claimant advised that the respondents cannot say that they delivered the Bundle to her as it had been returned. The respondents provided a photograph with an A4 envelope. The respondents’ actions, it was submitted, amounted to falsification of information, and wasting the court’s resources. There were serious allegations hanging over the claimant including breaching equality, putting service users’ lives at risk and under performance, and the claimant was currently unable to work.

[32]She stated that the respondents’ evidence should not be considered by the Tribunal given the circumstances.

[33]I was referred to Employment Judge Allen KC’s orders in which he ordered the respondents to disclosure certain documents (at paragraph 3). The respondents responded on 30 May 2023 and I was referred to pages 430 to 431 in respect thereof. The claimant explained that the following documents had not been provided in terms of paragraph 3 of Employment Judge Allen KC’s orders: a) 3.1: there was no letter from Claudia Brown. On 09 December 2020 Denise Radley sent an email of 09 October 2020. Apparently the letter did not exist. b) 3.2: The claimant received the policy. Underperforming was not in there. c) 3.3: This is outstanding. The claimant was given policies. She stated that there was nothing about whether if she was underperforming she would not be sent for training. d) 3.4: This was not provided. They sent the letter Shaun wrote to payroll a year after to say that the claimant’s salary should be stopped (which the claimant disclosed to them previously). This related to the reduction of salary in 2019. The document in question was from before the claimant’s salary was reduced. The claimant wanted to know who gave the instructions and why it had been done.

[34]The claimant advised that the letter from Freda Terrence of 10 July 2019 was not included in the Hearing Bundle.

[35]Clearly, the claimant was dissatisfied with Employment Judge Allen KC’s decision and in particular his failure to (according to the claimant) order the remainder of the documents the claimant requested to be disclosed and not providing any reasons in respect thereof. - 6 -

[36]I indicated to the claimant that I am unable to deal with her concerns in respect of alleged deficiencies with Employment Judge Allen KC’s decision. The claimant confirmed that she had raised this matter in her Reconsideration Application and in her appeal to the Employment Appeal Tribunal.

[37]The claimant confirmed that she attempted to access the Egress link sent to her by the respondents’ representative on 11 July 2023, but she could not gain access to the documents. It was not clear why the claimant had not contacted the respondents’ representative to assist her and to progress this matter.

The law

[38]The claimant explained that she did not want to deal with the respondents’ trainee Solicitor as she did not want to correspond with too many people. This was in order to ensure that proper communications could take place and to avoid any miscommunications.

[39]Acting Regional Employment Judge Burgher had asked parties to comment on the list of issues by 22 September 2022, but the respondents did not send their comments until 29 September 2022. The claimant raised concerns about this, but no action was taken. The claimant also raised the following concerns about the respondent’s non compliance with orders: a) Employment Judge Jones made orders relating to her disability discrimination claim which included requiring the respondents to write to the Tribunal by 02 December 2022 to indicate their position. Due to the claimant’s ill health the information was sent to them later than the normal time. She stated that any reasonable practitioner would have asked for more time. The claimant said that they wrote to the Tribunal on 10 January 2023 asking for a strike out order, and that they knew that the claimant had disclosed her medical records. b) The claimant also points out that the respondents responded conceding disability. They did not agree that they knew about it. They had sent the claimant to Occupational Health five times and they suggested reasonable adjustments (none of which were provided). They suggested reasonable adjustments. None of those were provided. They sent her back to work with the perpetrators. As she did not return to work, they reduced her salary. c) In terms of Employment Judge Allen KC’s orders, the claimant said that whatever the respondents said was taken into account in relation to the final List of Issues. This showed the unreasonable behaviour of the respondents. As she was a Litigant in Person, the claimant said that no one listened to her. The claimant complained that the respondents did not sit down with her and discuss the List of Issues, which may have avoided the need for Employment Judge Allen KC to have dealt with this matter. - 7 -

[40]The claimant relied on the following conduct by the respondents as amounting to unreasonable conduct of proceedings: a) The respondents stating that they sent documents which they had not sent to the claimant. They showed an A4 envelope (pages 1663 and 1654-1658) relating to the list of documents (04 January 2023). b) Allegedly a letter was sent on 13 January 2023 in relation to information about the claimant’s disability. The claimant stated that they lied about having sent her that letter on 13 January 2023 (the claimant only found that out in May 2023 when she was looking through their index). The claimant explained that the whole letter was made up. c) The claimant said the way the Bundles were presented was inappropriate. Once the Bundle had been agreed, she was advised that no one can add anything else (Ms Bello and the respondents’ counsel reiterated this on the day of the Preliminary Hearing). However the respondents’ representative had attended with 3 documents including an 11-page List of Issues. This was unprofessional and it should not have happened. d) On 02 May 2023/15 May 2023 there was email correspondence stating that the respondents cannot accept the claimant’s documents once the Bundle was agreed. She brought them into the hearing on 16 May 2023. e) The respondents’ allegations are baseless. Their defence is baseless. The allegations that they brought against the claimant cannot be well founded in any way. f) The vexatious and scandalous allegations they brought against the claimant are set out in the claimant’s list of allegations (I was referred to the table at page 1552). The respondents had breached the Trusts’ policies. g) The respondents refused to give the claimant a copy of the Lone Working Policy. She questioned why they were refusing to provide this. She had requested that document previously when she received the respondents’ list of documents. h) In terms of the Bundle, a big Bundle was provided to her today and they expected her to go through it before the Hearing. This was unreasonable.

[41]The claimant also submitted that a fair trial was not possible. This was because of the way the respondents had conducted the proceedings and the supporting evidence the claimant had referred to demonstrated this. She had lost confidence in this Tribunal to give her a fair trial as she felt that the Tribunal had been ruling in favour of the respondents and she had evidence of that (she stated that Regional Employment Judge Burgher is aware of - 8 - those concerns). The claimant stated that she knows that whenever the respondents are given an order, it is a given that they will not comply. She believed that the Tribunal would turn a blind eye. The claimant said that only one or two judges had treated her fairly.

[42]The claimant advised that she is beginning to sense that there is an apparent bias and that the fact she was being ignored may be because she is a black female. The claimant feels that she is treated like she is a nobody, and further that, if she had failed to comply with orders, she stated that her claim would have been struck out. Respondents’ submissions

Disposal

[43]Counsel for the respondents submitted that Employment Judge Jones’ orders addressed the matters that were prior to September 2022 and that the application before the Tribunal today, did not refer back to the events from April 2022 as events she was relying on.

[44]It was submitted that neither Employment Judge Allen KC nor this Tribunal were in a position to deal with the factual question of whether the respondents’ disclosure bundle was contained in the parcel that was sent to the claimant in January 2023. In any event there was no reason why the respondents would fail to send the disclosure bundle within the envelope sent to the claimant. Moreover, the claimant did not know what was in the envelope as she did not collect it.

[45]It was submitted that Employment Judge Allen KC had dealt with the claimant’s specific disclosure application at the same time as considering her strike out application, and that the notion that the matters within the specific disclosure application could be reopened at this hearing is unfathomable.

[46]It was pointed out that the claimant was copied into the email dated 13 January 2023, and she could have replied in order to set out any points of dispute.

[47]In relation to the allegations about documents bundles and what happened at the hearing on 16 May 2023, the respondents’ representative stated that they did not say that the claimant could not add to the Hearing Bundle once it was agreed.

[48]The respondents’ counsel rejected the claimant’s contention that anything the claimant wanted to include was not before (or considered by) Employment Judge Allen KC. The claimant was able to participate in the discussion relating to the list of issues.

[49]It was submitted that the claimant’s allegations within the List of Issues were fact sensitive matters that required to be determined at the Final Hearing. - 9 -

[50]In terms of the Bundle for today’s hearing the respondents’ representative said that the claimant had not provided additional documents until shortly before the hearing, and therefore the respondents simply provided the Bundle from the last Preliminary Hearing and a file of correspondences.

[51]The respondents’ representative explained that the claimant had submitted her medical documents relating to her disability after the deadline for compliance.

[52]In terms of the allegation of non compliance in respect of the final Hearing Bundle, the respondents’ representative said that on the Friday and Monday before the 27 June 2023 deadline, the claimant had sent a total of 59 pages of narrative explanation in terms of what documents she thought were still to be disclosed. The claimant referred to documents she says still had to be disclosed and the claimant made various points about issues and information that needed to be addressed relating to the Bundle (I was referred to pages 514, 530 and 559 of the correspondence file).

[53]The claimant had mentioned that there were further documents in terms of recordings and the claimant’s SAR request. The claimant had not supplied the recordings to date. The claimant had indicated at the 16 May 2023 hearing that she was unable to find them.

[54]The respondents’ representative was out of office for a period of time until 29 June 2023. A combination of the receipt of the claimant’s emails that have been referred to and Ms Bello being out of office were the reasons why the Hearing Bundle could not be prepared in advance of the deadline. On 30 June 2023 Ms Bello sent an email to the Tribunal requesting an extension of time to prepare the bundle (until 11 July 2023). The claimant replied to that application on 05 July 2023 advising that the respondents’ breach of the Tribunal’s orders was wilful and deliberate.

[55]The respondents submit that there was no prejudice to the claimant save in respect of the 2-week delay between the original deadline and the proposed new deadline of 11 July 2023. Additionally, it is said on behalf of the respondents that this was very far from conduct which would make it proportionate to strike out the Responses.

[56]It was submitted that the claimant was sent an Egress link to download the Final Hearing Bundle on 11 July 2023 and that this was resent to the claimant on 15 September 2023. The claimant was invited to contact the respondents if she required a hard copy of the Hearing Bundle. The respondents’ representative said that the 15 September 2023 email had been accessed by the claimant on 13 October 2023. The claimant had not sent any correspondence to the respondents indicating she could not access any of the documents.

[57]In addition the respondents’ representative (Trainee Solicitor) had attempted to contact the claimant to provide her with a paper copy of the Hearing Bundle without success. - 10 -

[58]The respondents’ representative explained that they had brought a hard copy of the Final Hearing Bundle with them to today’s hearing and they would be happy to provide this to the claimant to take away with her. The respondents’ representative indicated that they were prepared to include any relevant documents that the claimant wished to rely on at the Final Hearing that had not been included in the Hearing Bundle.

[59]It was submitted that the Tribunal had granted an extension of time for both parties to submit their witness statements by 24 October 2023 pursuant to Acting Employment Judge Russel’s directions.

[60]In respect of the claimant’s points in relation to paragraphs 3.2 and 3.3 of Employment Judge Allen KC’s orders, the respondents’ representative indicated that these were matters the claimant could put in cross examination. Any other documents issues that the claimant wished to raise could be addressed prior to exchanging witness statements. The respondents’ representative proposed that the Tribunal directs that parties be granted until 27 October 2023 in order to address any outstanding issues relating to documents and 17 November 2023 for exchanging witness statements. It was submitted that the Final Hearing is listed in July 2024, and that with further Case Management Orders parties could undertake the necessary preparation and there would be no prejudice caused to the claimant’s preparation as a result of the respondents’ conduct.

[61]The respondents’ representative said that it is not generally appropriate for a Tribunal to hear evidence in strike out applications. It was acknowledged that there are exceptions but these were limited to cases where the respondents were on notice of any evidence that would be considered and that a consideration could take place proportionately. The claimant’s claim involved fact-sensitive issues. It was submitted that it was not appropriate for the Tribunal to deal with this matter without the Tribunal hearing evidence at a Final Hearing. Claimant’s reply

[62]The claimant replied to those submissions indicating that she had sent an email to Ms Bello on 13 October 2023 advising that she had not read any of her emails since the Tribunal had set the date for the strike out application hearing. The claimant stated that she objected to the respondents’ application for an extension of time and that the Tribunal did not give her any further instructions in terms of what further steps she needed to take. The Tribunal simply stated in their last letter that the parties needed to cooperate or that there may be consequences. The claimant explained that if she had the documents within the Hearing Bundle on or before the deadline, she would have reviewed them. - 11 - Further Case Management Orders following hearing on 19 October 2023

[63]There was insufficient time to determine the claimant’s application on 19 October 2023. I therefore directed that the Preliminary Hearing be adjourned part heard. A Continuation Hearing was listed to take place today, 15 January 2024, to allow the Tribunal to hear further submissions that parties wished to make, to give an oral judgment together with reasons on the claimant’s application dated 26 June 2023 to strike out the respondents’ Responses, and to give directions in relation to any further applications and/or case management orders, if appropriate.

[64]Notwithstanding the fact that I had not yet determined the claimant’s application dated 26 June 2023, it was considered to be useful to discuss directions (including finalising the Hearing Bundle which had not yet taken place and exchanging witness statements which was due to take place prior to the continuation hearing).

Conclusion

[65]The previous deadline for exchange of witness statements was on 26 September 2023. The claimant made an application dated 24 August 2023 for an extension of time. The extension of time was granted by Employment Judge Russell, and this was confirmed to parties by letter of 14 September 2023.

[66]The claimant had supplied her draft Witness Statement (dated 26 September 2023) prior to the new deadline (and within the original deadline). However, there was no agreement between parties in advance in relation to exchanging witness statements prior to 23 October 2023. The respondents’ representative advised that the respondents had not read the claimant’s witness statement. The claimant submitted that she had not been able to include page references in her witness statement as the Hearing Bundle had not been finalised. I advised the claimant that the claimant could update her witness statement to insert page numbers into her witness statement prior to exchanging her final Witness Statement with the respondents’ representative.

[67]The respondents’ representative referred to two emails that had been sent to the claimant containing the documents in the draft Hearing Bundle (via software called Egress) and stated that their records indicated that the claimant had not downloaded the Hearing Bundle. I was advised that there was an attempt made by the respondents to deliver the draft Hearing Bundle to the claimant, but the date proposed by the respondents for delivery by courier was not appropriate (due to bereavement of a family member of the claimant and the claimant travelling abroad). The respondents’ representative brought a paper copy of the draft Hearing Bundle to the hearing, and they provided two lever arch files containing paper copy documents to the claimant. The claimant advised during the hearing that she was not able to take these documents home with her. She stated that she did not have anything to carry them with, and she already had a lot of documents she was carrying. - 12 -

[68]In those circumstances, the Tribunal believed it would assist the parties to discuss the current directions, including setting out clear expectations for parties between the date of 19 October 2023 hearing and the Continuation Hearing. The claimant requested written confirmation of the expectations and timeframes that were discussed during the hearing. It was agreed that it would be helpful to the parties if the directions could be recorded in writing and the respondents’ representative agreed to provide a draft note of the directions. The Tribunal acknowledged receipt of the draft directions which were typed and provided by the respondents’ representative by email dated 19 October 2023 at 11.15pm. I reviewed those draft directions. Thereafter, I made any required adjustments, and I recorded the Tribunal’s directions in the Case Management Orders issued to parties on 23 October 2023.

[69]The claimant and the respondents were directed to write to the Tribunal by 4pm on 24 November 2023 to confirm that they have complied with those directions or to explain their non-compliance. Parties were advised that I may take their written confirmations sent to the Tribunal into account when deciding the claimant’s application. Further submissions at the hearing on 15 January 2024

[70]The claimant and the respondents’ representative made further oral submissions during today’s hearing, on 15 January 2024.

[71]The claimant confirmed that she received the draft Hearing Bundle in electronic and paper form from the respondents.

[72]The claimant also said that she sent copy documents to the respondents that were missing from the draft Hearing Bundle by the deadline of 02 November 2023.

[73]The respondents’ representative stated that they received 32 documents from the claimant and those documents had been included in the Hearing Bundle.

[74]The respondents’ representative confirmed that the Final Hearing Bundle was prepared and sent to the claimant pursuant to the Tribunal’s directions. The claimant received a copy of the Final Hearing Bundle. It appeared that the 32 documents provided by the claimant were incorporated.

[75]The claimant made an application for an extension of time to exchange witness statements. The respondents did not object. An extension of time was granted.

[76]Witness statements were exchanged by parties on 07 December 2023.

[77]The respondents’ representative sent correspondence dated 13 December 2023 confirming that witness statements had been exchanged on 07 December 2023 and that the Hearing Bundle had been prepared. The claimant was advised that she did not comply with the order from 19 - 13 - October 2023 in terms of supplying copies of documents. However the claimant was further advised that if there were copies of documents in existence relating to the time of the events and are relevant to the issues in the claim, then it was appropriate to place them within the Hearing Bundle. It was also explained that redactions had been made for confidentiality reasons.

[78]The claimant sent correspondence dated 14 December 2023 attaching a document of the same date in which she confirms that the respondents provided electronic and hard copies of the Hearing Bundle to her (referring to her email to the respondents in terms of the unreasonable manner in which the final Hearing Bundle had been compiled). The claimant also confirmed that mutual exchange of witness statements took place on 07 December 2023 (which was the new deadline following the claimant’s application for an extension of time).

[79]The claimant referred to her detailed written submissions, references to case law and copies of email correspondences that she provided, which I read, considered carefully, and I took into account prior to reaching my decision.

[80]The claimant supplemented those written submissions by providing further oral submissions today indicating that the respondents’ representative had failed to include documents she had previously requested to be added to the Hearing Bundle. The claimant said that the respondents’ representative had not included the Lone Working Policy and Schedule of Allegations in the Hearing Bundle.

[81]The respondents’ representative indicated that those documents were included within the Hearing Bundle. Having provided the relevant page references to the claimant, the claimant accepted that those documents had been inserted into the Final Hearing Bundle. The claimant said, however, that she could not confirm whether or not the correct version of the Schedule of Allegations had been included.

[82]Although there were no other documents that the claimant had identified as having not been included by the respondents from those sent by the claimant to the respondents on 02 November 2023, the claimant stated that the respondents had not included other documents that were sent to the respondents previously. By way of example she referred to screenshots and telephone records she provided several months ago that were not included. The claimant stated that she did not have time to check and compile these and send them to the respondents within the deadline set by the Tribunal at the last hearing (and she was not able to undertake this task prior to today’s hearing due to her personal circumstances, having suffered a bereavement and that she was seeking counselling).

[83]The claimant indicated that she supplied a Supplemental Bundle Index to the respondents on 12 January 2024 and 15 January 2024 which she says - 14 - contained documents that were provided to the respondents several months ago and they did not include them in the Hearing Bundle.

[84]The respondents’ representative said that some of these documents may already be within the Hearing Bundle. They had not had an opportunity to fully review the claimant’s requests. The respondents’ representative advised that if there were documents in the claimant’s index that were not included that are relevant to the issues in the claim they would be happy to add these to the Hearing Bundle.

[85]The claimant also advised that there were about nine policies that were included in the Hearing Bundle, which were not placed in a readable format. Some of these were upside down. The respondents’ representative advised that if this was the case there would be ample time for parties to review the Bundle documents before the Final hearing listed in July 2024 and to rectify the documents in question.

[86]The claimant said that there were records held by the respondents which had not been disclosed to her including staff attendance records kept from 2018 – 2022. She stated that these were important as they will clear her name. I indicated that if the documents have been requested from the respondents voluntarily and they have not been disclosed, the claimant can make an application to the Tribunal copied to the respondents, which will be referred to an Employment Judge for directions.

[87]The claimant also complained that there were documents that had been redacted by the respondents. She said that she had copies of the unredacted versions. I explained that in relation to some documents that contain references to, for example, third parties, children, family law proceedings or legally privileged documents, a party may well properly seek to redact them (although an application should be made in accordance with Rule 50 of the ET Rules). The respondents claimed that the documents contained confidential information. The claimant advised that the information did not fall into that category. I advised parties that it was not proper to deal with this dispute today. Such a dispute should be raised by way of an appropriate application to the Tribunal copied to the other party (including in respect of any application to be made pursuant to Rule 50 of the ET Rules).

[88]The claimant also referred to an SAR request she made to the respondents since the last Hearing. I explained that the claimant should seek legal advice in relation to how to address any issues relating to non compliance with an SAR request. I advised that the Employment Tribunal does not have jurisdiction to deal with compliance matters in relation to SAR requests. The Law Overriding objective - 15 -

[89]A Tribunal is required when addressing matters such as the present to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the ET Rules”), Rule 2 of which states as follows: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Strike Out

[90]Rule 37 of the ET Rules 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;

(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.”

[91]With regard to the claim or response being scandalous or vexatious or having no reasonable prospects of success, care requires to be taken to apply the wording of the ET Rules. ‘Scandalous’ means irrelevant and abusive of the other side. It is not to be given its colloquial meaning of signifying something that is ‘shocking’. A ‘vexatious’ claim or defence has been described as one that is not pursued with the expectation of success - 16 - but to harass the other side or out of some improper motive or to include anything that is an abuse of process.

[92]To strike out because the Tribunal considers there to be no reasonable prospect of success’ requires a Tribunal to form a view on the merits of a case, and only where it is satisfied that the claim or response has no reasonable prospect of succeeding can it exercise its power to strike out.

[93]The Employment Appeal Tribunal gave guidance in Cox v Adecco

[2021] ICR 1307

, where the Employment Appeal Tribunal stated that, if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike-out will be appropriate. The claimant’s case or the respondent’s Response must ordinarily be taken at its highest and the Tribunal must consider, in reasonable detail, what the claim(s) and issues are.

[94]With regard to striking out because of the manner in which proceedings have been conducted, in Bennett v London Borough of Southwark

[2002] IRLR 407

the Court of Appeal observed (at paragraph 26) that the underlying mischief to this area of the Employment Tribunal Rules is the notion of abuse – has there been conduct of proceedings which amounts to abuse of the Tribunal's process. Elias LJ summarised the approach to be taken in Abegaze v Shrewsbury College of Arts

[2010] IRLR 236

at paragraph 15: ''In the case of a strike out application it is well established that before a claim can be struck out, it is necessary to establish that the conduct complained of was scandalous, unreasonable or vexatious conduct in the proceedings; that the result of that conduct was that there could not be a fair trial; and that the imposition of the strike out sanction was proportionate. If some lesser sanction is appropriate and consistent with a fair trial, then the strike out should not be employed'.' This approach has been approved in by the Court of Appeal in Blockbuster Entertainment Ltd v James

[2006] IRLR 630

[95]The first question is whether there has been scandalous, unreasonable, or vexatious conduct of the proceedings. If so, the second is whether a fair hearing is no longer possible. If that is fulfilled the third is whether strike out would be a proportionate response to the conduct in question.

[96]With regard to whether there has been scandalous, unreasonable, or vexatious conduct, there must be a conclusion by the Tribunal not simply that a party has behaved scandalously, unreasonably, or vexatiously but that the proceedings have been conducted by or on their behalf in such a manner.

[97]The conduct in question may be that of the party's representative as well as the party themselves. In Harmony Healthcare plc v Drewery

UKEAT/866/00

a party was held to be fixed with the conduct of their representative who assaulted the other party's representative in the Tribunal waiting room. It is relevant to note that in Harris v Academies Enterprise Trust

[2015] IRLR 208

the Employment Appeal Tribunal upheld a Tribunal's ruling that the - 17 - conduct of the representative and the party may be distinguished in an appropriate case. The Employment Judge was held entitled to conclude that the representative's actions were not a reflection of the instructions given and the prejudice of not allowing a full hearing of the discrimination claims would be significant.

[98]Care should therefore be exercised when the conduct in question is that of a party's representative. As indicated, in some, but not all, cases, that conduct can be visited on the relevant party leading, potentially, to a strike out of their claim or response. In Bennett the Court of Appeal stated that what is done in a party's name is 'presumptively, but not irrebuttably' done on his behalf.

[99]'Scandalous', was considered by the Court of Appeal in Bennett. It is not a synonym for 'shocking' but embraces 'the misuse of the privilege of legal process in order to vilify others', and 'giving gratuitous insult to the court in the course of such process'. The Court of Appeal noted the claimant had been 'difficult, querulous and uncooperative in many respects' but was not prepared to assume that this met the definition.

[100]'Vexatious' can include anything that is an abuse of process.

[101]One possible form of scandalous, unreasonable, or vexatious conduct is the wilful disregard of Tribunal orders. It is not any breach that will meet the threshold. The Court of Appeal in Blockbuster described the 'deliberate and persistent disregard of required procedural steps' as a cardinal example of conduct which would meet the definition

[102]The second factor that must be considered if scandalous, unreasonable, or vexatious conduct of proceedings has been found, is whether a fair hearing is still possible. When striking out a party's case, the Tribunal must explain why a fair hearing is no longer possible or why the case falls within the exceptional circumstance where the fairness of the trial is not a consideration.

[103]In Bolch v Chipman

[2004] IRLR 140

the Employment Appeal Tribunal described the reasoning behind the 'no fair trial' factor by stating that a striking out order is not, first and foremost, a tool to punish scandalous, unreasonable, or vexatious conduct of proceedings. Rather, it is to protect the other party (and the integrity of the judicial system) from such behaviour which results in it no longer being possible to do justice. A party that acts scandalously, unreasonably, or vexatiously in the conduct of proceedings should not thereby gain an advantage of any kind in the judicial process. The court in Bolch approved the High Court decision of Logicrose Ltd v Southend United (1988) 5 March, in which Millett J had observed that the deliberate and successful suppression of a material document 'was a serious abuse of the process of the court and might well merit the exclusion of the offender from all participation in the trial' because it rendered a fair trial impossible, but that if the threat of striking out the claim or defence resulted in the production of the missing document, this might require the - 18 - lifting of that strike out threat. Once the document had been produced there should only be a strike out 'if, despite its production, there remained a real risk that justice could not be done. That might be the case if it was no longer possible to remedy the consequences of the document's suppression despite its production', adding 'It would not be right to drive a litigant from the judgment seat, without a determination of the issues, as a punishment for his conduct, however deplorable, unless there was a real risk that the conduct would render further proceedings unsatisfactory'.

[104]The third factor which must be considered is that of proportionality. Simler P (as she then was) in Arriva London North v Maseya

UKEAT/0096/16

at paragraph 27) said: 'There is nothing automatic about a decision to strike out. Rather, a tribunal is required to exercise a judicial discretion by reference to the appropriate principles.' Even if there has been scandalous, unreasonable or vexatious conduct of proceedings and a fair trial is not considered possible, the tribunal must still examine the proportionality of striking out the claim or response and must consider other, less seismic orders because, as Sedley LJ put it in Blockbuster the power to strike is 'a Draconic power, not to be readily exercised'.

[105]In Blockbuster the Court of Appeal (at paragraph 21) said: ''it takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing'.'

[106]In Blockbuster the claimant had in breach of orders failed to give adequate particulars of his claim, refused to allow the respondent to photocopy his documents, attended on the first morning of the hearing with unseen documents and made changes to his witness statement without prior notice to the respondent. The Court of Appeal upheld the Appeal Tribunal’s decision that the Tribunal had been wrong to strike out the claim. While acknowledging that the claimant had been 'difficult, querulous and uncooperative', the Court of Appeal said that the courts are open to the difficult as well as the compliant.

[107]The proportionality consideration requires an assessment by the Tribunal of any alternative, lesser sanctions, for the conduct in question and a balance requires to be struck.

[108]Strike out can also be ordered where there has been non-compliance with the Tribunal’s orders (Rule 37(1)(c) of the ET Rules). In considering failure to comply with orders, the Tribunal should ensure the decision is proportionate. Hence in Ridsdill v D Smith and Nephew Medical

UKEAT/0704/05

it was held to be disproportionate to have struck out a claim for failure to provide witness statements and schedules of loss where a less - 19 - drastic means of dealing with the non-compliance was available, such as unless orders and costs orders.

[109]The guiding consideration, when deciding whether to strike out for non compliance with an order, is the overriding objective (Weir Valves and Controls (UK) Ltd v Armitage

[2004] ICR 371

) which requires the Tribunal to consider all the circumstances, including 'the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is possible' (see paragraph [17]). The Tribunal must consider the matter objectively and weigh the factors in the balance on an assessment of fairness. A sanction short of strike out may be appropriate.

[110]In Harris v Academies Enterprise Trust

[2015] IRLR 208

, the Employment Appeal Tribunal (at [26]) referred to the fact that 'A failure to comply with orders of a tribunal over some period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again. Tribunals must be cautious to avoid that', but the Employment Appeal Tribunal noted that if the failure was an 'aberration' and unlikely to re-occur, that would weigh against a strike out. At [33] the Employment Appeal Tribunal described another relevant principle as 'each case should be dealt with in a way that ensures that other cases are not deprived of their own fair share of the resources of the court. If a case drags on for weeks, the consequence is that other cases, which also deserve to be heard quickly and without due cost, are adjourned or simply are not allotted a date for hearing'.

[111]Consideration of a striking out order under Rule 37(1)(c) of the ET Rules must include consideration of whether a fair hearing is still possible. Proportionality, and consideration of whether there are alternative orders to a strike out that would better address the breach of Rules or orders, will be a necessary consideration before the power under Rule 37(1)(c) of the ET Rules is exercised by a Tribunal.

[112]It is also possible to strike out a claim where the claim or a response has not been actively pursued (Rule 37(1)(d) of the ET Rules). This can be where there has been delay that is intentional or contumelious (disrespectful or abusive to the court), or there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the claimant or the respondent (as the case may be).

[113]The final situation where strike out can be ordered is where it is no longer possible to have a fair hearing (Rule 37(1)(e) of the ET Rules).

[114]In general, the Employment Appeal Tribunal has held that the striking out process requires a two-stage test in HM Prison Service v Dolby

[2003] IRLR 694

, and in Hassan v Tesco Stores Ltd

UKEAT/0098/16

. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide - 20 - as a matter of discretion whether to strike out the claim. In Hassan, Lady Wise stated that the second stage is important as it is 'a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit.’

[115]Striking out is not automatic and care is needed given the draconian nature. In Hassan, the Employment Appeal Tribunal held that relevant factors in the exercise of that discretion that might have weighed heavily included the early stage of the proceedings, the ability to direct that further and better particulars of each claim be specified, and the absence of any application on the part of the respondent for striking out.

[116]Ultimately a Tribunal should exercise caution before striking out a claim, particularly where facts are in dispute and it is possible to hear evidence to determine the issues. Discussion and decision

[117]The Tribunal considered the claimant’s application carefully in light of the authorities. While the claimant had not set out or clearly identified what the facts were that were said to have justified strike out in respect of each of the grounds listed within Rule 37 that the claimant relied upon, the Tribunal carefully considered parties’ submissions and the approach taken by the respondents (and the respondents’ representative) together with the pleadings and case that had been advanced and the context of this case in assessing the application under each heading. Each aspect is dealt with in turn. Non compliance with orders

[118]The claimant argues that some documents had not been included by the respondents within the Hearing Bundle. The claimant had provided a list of documents to the respondents in January 2024. The respondents’ representative said they had not yet had an opportunity to review these. It was confirmed on behalf of the respondents, that if there were missing documents, these would be added to the Hearing Bundle if they were relevant to the issues in the claim. Parties must co-operate in order to ensure that the Hearing Bundle contains copies of both parties’ documents which are relevant to the issues in the claim (and to which both parties will refer at the Final Hearing).

[119]The claimant indicated that the respondents’ disclosure was not complete. The claimant had made disclosure applications previously, which have been determined by Employment Judge Allen KC. It is not clear what documents (if any) are outstanding in terms of the respondents’ disclosure that did not form part of the Tribunal’s previous determination. If the claimant wishes to pursue any further specific disclosure applications (that have not been previously adjudicated upon by Employment Judge Allen KC), the claimant should request the relevant documents from the respondents in the first instance, and if they are not provided voluntarily, she may (if so - 21 - advised) make an application to the Tribunal (setting out clearly with reference to the final List of Issues how the documents requested are relevant to the issues in the claim).

[120]On that basis and having considered parties’ readiness for the Final Hearing, I am unable to find that there was a failure or any material failure to comply with the Tribunal’s orders in relation to the matters identified by the claimant.

[121]Both parties confirmed that they have provided to each other copies of any relevant documents in relation to the issues in the claim (and that their respective disclosure of documents were made in compliance with the Tribunal’s orders). I am satisfied that it may be practicable to address any outstanding issues relating to the content of the Hearing Bundle or applications that the claimant wishes to make prior to the Final Hearing.

[122]I have considered the circumstances in which the respondents did not meet the original deadline for preparation of the Hearing Bundle in June 2023. The claimant had provided a detailed document and information that needed to be addressed fairly close to the original deadline. The respondents’ representative was out of office for a period of time. An application was made by the respondents for an extension of time on 30 June 2023. It is unclear why the claimant did not consent to the application. The link to the electronic documents in the Hearing Bundle was provided to the claimant by the respondents’ representative on 11 July 2023, prior to the Tribunal’s determination of the application for an extension of time. I do not agree with the claimant’s position in terms that the respondents’ conduct amounted to a contumelious flouting of the Tribunal’s orders in the circumstances. In any event there is no evidence before me that the claimant suffered any prejudice between the original deadline in June 2023 and the date the documents were provided to her.

[123]The deadline for exchange of witness statements was initially extended by Employment Judge Russell on the claimant’s application, and thereafter, they were extended at the hearing before me that took place on 19 October 2023, and they were further extended on the claimant’s application made after that hearing. Witness statements were not exchanged until December 2023. The claimant had sufficient time to take account of any documents within the Hearing Bundle and to incorporate those (together with any page references) in her witness statement.

[124]In addition, I am unable to identify any or any material non compliance by either party between 19 October 2023 and 14 December 2023 in relation to the orders that I made at the hearing on 19 October 2023 on the basis of the documents and correspondences that I have considered and the submissions that have been made. - 22 - Is a fair trial possible?

[125]Even if I had accepted that the respondents had been in contumelious breach in respect of any of the Tribunal’s orders as set out in the claimant’s application, I would not have been satisfied that it was no longer possible for a fair hearing to take place. With additional Case Management Orders, parties are now in a position in which they have confirmed their readiness for the Final Hearing (subject to any matters identified above).

[126]The authorities emphasise that a Tribunal may only strike out a case in terms of procedural non compliance, if it is satisfied that a fair trial is no longer possible.

[127]Parties have now exchanged documents. A Final hearing Bundle has been prepared.

[128]If there are issues relating to documents such as any redactions, documents being formatted incorrectly or any outstanding requests for specific disclosure, those issues may be dealt with by way of a written application copied to the other party (in the event that parties are unable to co-operate and resolve any outstanding issues between themselves).

[129]Witness Statements were exchanged in December 2023.

[130]The claimant has sent an index of missing documents from the Hearing Bundle in January 2024. The respondents’ representative indicated they will require time to go through these. If the respondents’ representative does not include those documents in the joint file, the claimant may request permission from the Tribunal to prepare a Supplemental Bundle (if this is required).

[131]The Final Hearing is listed for 10 days in July 2024. Taking account of all the above circumstances, I am unable to conclude that a fair trial is not possible within the existing Hearing dates. Manner proceedings conducted

[132]It also cannot be said that the manner in which the proceedings have been conducted by the respondents has been scandalous, unreasonable, or vexatious. The claimant has set out what the acts are that are said to be unlawful. The respondents dispute the acts and the disputes can be resolved by hearing evidence. The respondents’ representative has sought to engage with the Tribunal process. There is no reasonable basis upon which it can be said that the proceedings have not been conducted reasonably. - 23 - No reasonable prospects of success

[133]Employment Judge Allen KC determined the List of Issues in respect of the claimant’s claim, a copy of which were sent to the parties with his Judgment (and resent with the Reconsideration Judgment).

[134]The claimant invited me to strike out the respondents’ Responses on the basis that they have no reasonable prospects of success. I took into account that I must not be willing to reach such a determination too readily on a strike out application, except in the clearest of cases. In certain cases, it may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based.

[135]The claimant’s submissions consisted of a number of matters which she says show that she was wrongly accused or victimised by the respondents. She says the documents make clear that there were no basis for these allegations. The respondents’ representative said that it is not generally appropriate for a Tribunal to hear evidence in strike out applications. It was acknowledged that there are exceptions but these were limited to cases where the respondents were on notice of any evidence that would be considered and that a consideration could take place proportionately. It was submitted that it was not appropriate for the Tribunal to deal with this matter without the Tribunal hearing evidence.

[136]In the circumstances of this case, it is not appropriate, to strike out the respondents’ Responses without hearing evidence in relation to the disputed matters. This is not a case where I can say on the basis of the documents I have read or the submissions that I have heard that the Responses have no reasonable prospects of success.

[137]Taking the respondents’ case at its highest, it cannot be said there are no reasonable prospects of success. Evidence is required to determine the issues arising.

[138]It cannot therefore be said that the claim is scandalous or vexatious or that it has no reasonable prospects of success. The respondents have presented Responses which I am unable to determine have no reasonable prospects of success and accordingly the claim requires to be determined having heard evidence. Response not actively pursued

[139]No basis has been set out by the claimant as to in which way the Responses were not being actively pursued. The respondents’ representative has been engaging with the process and a Final Hearing has been fixed. The Responses are being actively pursued. - 24 - Fair hearing not possible

[140]It is possible to have a fair hearing. There is no basis for the claimant suggesting a fair hearing cannot proceed or that there is any bias against her (in terms of the claimant as a litigant in person, a black female or otherwise). The claimant understands the basis for the respondents’ Responses. The respondents’ representative has explained that the matters require oral evidence prior to determination. The disputes in this case are clear and can be determined by evidence. The claim should accordingly proceed to the Final Hearing. Taking a step back

[141]The Tribunal took a step back to consider the claimant’s application in light of the full factual matrix and how the respondents and the respondents’ representative have acted. The Tribunal did not accept the claimant’s bald assertion that it is in the interests of justice to strike out the Responses. It would not be proportionate to strike out the Responses. None of the grounds that allow strike out to be granted have been satisfied in the circumstances of this case and it is not proportionate or just to strike out the Responses.

[142]It is in the interests of justice to progress this case to the Final Hearing that has been fixed. That was a decision reached having taken a step back to assess the approach the respondents and the respondents’ representative have taken in defending this case, in terms of the case that has been advanced in their Responses and in terms of their approach to this litigation generally. Moving forward

[143]The parties should work on preparing a short and concise agreed Chronology, Cast List, Reading List, and a draft timetable (including witness evidence) and work together to ensure the Final Hearing can proceed expeditiously.

[144]Both parties are reminded of the overriding objective and of the need to work together to ensure the Final Hearing can be proceed in a proportionate and fair way.

[145]The Responses are not struck out and the Final Hearing shall proceed with the parties working together to achieve the overring objective.

Conclusion

[146]The claimants’ application to strike out the respondents’ Responses is dismissed.

[147]Further Case Management Orders have been issued to parties under separate cover. - 25 - Postscript

[148]I am advised by the Clerk to the Tribunal that the claimant has lodged an appeal with the Employment Appeal Tribunal (appeal reference EA-2024- 000153-AS). In view of the claimant’s EAT appeal and the dates of the Final Hearing, I direct the Clerk to the Tribunal to copy the Judgment, the written reasons and the Case Management Orders made in this case to the Employment Appeal Tribunal for information.

[1]This case called before the Tribunal again on 24 June 2024, for an in chambers Reconsideration Hearing, with the Judge sitting in chambers (in private).

[2]The claimant made an application dated 01 February 2024 for reconsideration pursuant to Rules 70 and 71 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”).

[3]The Employment Judge considered the application under Rule 72(1) of the ET Rules. The Employment Judge decided that there is no reasonable prospect of the original Judgment being varied or revoked because of the reasons set forth below.

[4]The reconsideration application arose out of the Tribunal’s Judgment on 26 February 2024 (issued to parties on 29 February 2024) that: “1.1.The claimant’s application for strike out of the respondents’ responses is refused, and accordingly, the case shall proceed to the Final Hearing fixed. 1.2.Case Management Orders have been made under separate cover.” 5. 24 June 2024 was the earliest convenient date for the Tribunal to consider the claimant’s application, on account of other commitments, including annual leave, parties’ further correspondences not being received by the Employment Judge which were received in proximity to the hearing in chambers, and other judicial commitments. Tribunal’s original Judgment

[6]On 15 January 2024, following a listed 2-day Preliminary Hearing in public that took place as an in person hearing at the London East Employment Tribunal and having heard and considered detailed submissions from parties, the Tribunal, declined to strike out the respondents’ responses following the claimant’s strike out application (as detailed below), and it did so for the reasons given at the time in my written Reasons dated 15 April 2024 that were issued to parties dated 17 April 2024.

[7]The issues that the Tribunal were required to investigate and determine during the Preliminary Hearing in Public, were as directed by Regional Employment Judge Burgher on 07 July 2023 to consider the claimant’s strike out application dated 28 June 2023. - 2 -

[8]For present purposes, it will suffice to note here the specific terms of my Judgment only, issued in writing on 29 February 2024 (“the Judgment”), as follows: “1.1.The claimant’s application for strike out of the respondents’ responses is refused, and accordingly, the case shall proceed to the Final Hearing fixed.” Claimant’s reconsideration application

[9]On 01 February 2024, the claimant, applied to the Tribunal, further to Rule 70 of Schedule 1 of the ET Rules, for reconsideration of the Judgment that was given to parties orally at the conclusion of the hearing on 15 January 2024 (the Judgment was issued to parties in writing on 29 February 2024). Her application was copied to the respondents’ representative.

[10]The claimant’s reconsideration application states as follows, in summary:10.1 Ms Tola Bello made a bare assertion (which Counsel for the respondents reiterated at the hearing on 15 January 2024) in her email of 13 December 2023 in the following terms which was not sufficient ““Further to the Tribunal's letter of 29 November 2023, we write to confirm that the Respondent has complied with the Tribunal's directions given at the preliminary hearing held on 19 October 2023. We have copied the Claimant into this correspondence.”

10.2 “All the evidence I presented to support my strike-out application and during the PH of 19 October 2023 and 15 January 2024 were backed by point of law and relevant authorities in several supporting correspondence, which I have used to identify flaws in Respondent's alleged compliance and the detrimental impact of the impasse and injustice I have suffered at the hands of the Respondent.”

10.3 The claimant sets out at paragraph 3 five separate points alleging noncompliance on the part of the respondents in terms of the Tribunal’s orders.

10.4 The claimant is critical of the respondents’ counsel “playing down” the respondents’ noncompliance and unreasonable manner in which the Hearing Bundle had been prepared.

10.5 Examples of tricky tactics the respondents used against the claimant for the same motive in her correspondence of 09 October 2023.

10.6 The respondents’ counsel taunted the claimant about the dismissal of her strike out applications from May 2022 and January 2023, in which EJ Russell and EJ Allen dismissed respectively as further grounds for the claimant’s third strike out application of 28 June 2023 to be struck out. - 3 -

10.7 “The conduct of the Respondent, Mr McCombie, in this regard, is nothing short of bullying and judicial misconduct, which is contrary to the Law Society Litigants in Person: guidelines for lawyers and the role of judicial office holders (JOHs) and core principles of judicial conduct. I am aware that judicial misconduct is dealt with separately. I have only mentioned it here to make a point.”

10.8 The claimant sets out under the heading “additional grounds for reconsideration” matters arising from correspondence dated 31 January 2024 sent to the respondents’ representative. The claimant says that she mentioned during the Hearing on 15 January 2024 that and in correspondences dated 02 November 2023, 14 December 2023, 22 December 2023 and 15 January 2024 that she referred to some relevant documents that she disclosed to the respondents and are in the possession of the respondents which were not included in the Hearing Bundle, corrupted or not page numbered appropriately.

10.9 The claimant says she reminded the respondents of their contraventions of the Tribunal’s orders and referred to Rules 37(1)(a) to (c) of the ET Rules on receiving the paper and Egress version of the Hearing Bundle. The respondents did not respond to that correspondence or challenge its content.

10.10 “Had the Respondent complied with the Tribunal's Orders and my requests for disclosure of evidence to prove that I breached the Respondent's and East London NHS Foundation Trust (ELFT) safeguarding, I would not be compiling an additional list of documents to include in the hearing bundle.”

[11]As at the date of the claimant’s application, the claimant was not in receipt of the written Judgment or reasons of the Tribunal.

[12]The claimant has also presented an appeal to the Employment Appeal Tribunal with a seal date of 29 January 2024, and a copy of the same has been forwarded to me by the Clerk to the Tribunal. The claimant states within her grounds of appeal: “In the meantime, I would like to state that the Employment Tribunal erred in law by:a. ET failed to follow the correct procedures, which affected its decision/judgment.

b. In disregarding principles,

c. Misapprehension of the facts

d. And essential matters I had brought to the attention of the - 4 - Employment Tribunal were either omitted, dismissed or glossed over.

e. ET /EJ Beyzade had no evidence to support its decision.

f. ET was unfairly biased towards the other party.

g. And other relevant grounds for my appeal”

[13]The claimant in her Notice of Appeal has included a copy of an email dated 24 January 2024 to the Tribunal stating: “5. For the Attention of Mr Martin On 15 January 2024, I wrote to Mr Martin for clarifications on which of the emails he forwarded to EJ Beyzade on my behalf during the PH of 15 January 2024, but my email has not been given the courtesy of a response or an acknowledgement of receipt upon receiving it from me. I would be grateful if Mr Martin could look into this outstanding matter. I look forward to hearing from you regarding your response to these urgent matters.” Issues for determination by this Tribunal

[14]The only live issue for determination by the Tribunal at this Reconsideration Hearing was the claimant’s application for reconsideration of my judgment dated 26 February 2024 and issued on 29 February 2024, as per the claimant’s application of 01 February 2024.

[15]Having received a copy of the claimant’s reconsideration application, and having noted that the same was sent to the Tribunal prior to receipt of the Tribunal’s written reasons issued to parties on 17 April 2024, the Clerk to the Tribunal issued the following directions on behalf of the Tribunal dated 08 May 2024: “The claimant's reconsideration application dated 01 February 2024 who has directed me to write to you to request that if the claimant wishes to review the earlier grounds or supplement those grounds having received the written reasons of the Tribunal, the claimant must write to the Tribunal in respect thereof copied to the respondent by not later than 4pm on 24 May 2024. The claimant and the respondent must write to the Tribunal copied to each other by not later than 4pm on 24 May 2024 to confirm whether there are any outstanding Case Management Orders that maybe required, if so what the proposed orders are, how the party proposes the matter be dealt with, and how this will assist the Tribunal to further the overriding objective (Rule 2). Parties are reminded of the requirement to co-operate with each other and to meet the Tribunal's orders. On or shortly after 24 May 2024, the case file will be referred to Employment - 5 - Judge Beyzade for further directions.”

[16]Accordingly, the case file was referred to me thereafter for further directions. I was provided with copies of all correspondences received from parties since 15 January 2024 (in addition to correspondences prior to 15 January 2024 which I had access to within the Tribunal files that were before me at the Preliminary Hearing).

[17]I noted that the claimant sent a further email dated 08 May 2024 at 5.00pm to the Tribunal requesting a transcript (and access to a recording) of the Preliminary Hearing, referring to correspondences dated 02 November 2023, 14 December 2023, 22 December 2023 and 31 January 2024. The claimant also referred to a number of correspondences which she states were sent to the Employment Judge and forwarded to him by the Clerk to the Tribunal at various times throughout the day on 15 January 2024. In addition, the claimant also references her recent email correspondences dated 18 March 2024, 19 March 2024 and 27 March 2024.

[18]I also reviewed all correspondences on the Tribunal file between the parties and the Tribunal up to and including 21 June 2024. Relevant law: reconsideration

[19]The ET Rules set out the Rules of Procedure in Schedule 1, and those in relation to the reconsideration of judgments are at Rules 70 – 73. Those provisions are as follows: “Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special - 6 - reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.”

[20]When considering such an issue regard must also be had to the Tribunal’s overriding objective in Rule 2. The Tribunal’s “overriding objective” under Rule 2 is to deal with the case fairly and justly. The precise terms of Rule 2 of the ET Rules, are as follows: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, - 7 - or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal."

[21]A reconsideration application requires to be dealt with as per Rules 70 to 73 of the ET Rules. I have set out its full terms above for ease of reference. As this was an application for reconsideration by the claimant, Rule 73, relating to reconsiderations by the Tribunal on its own initiative, does not fall to be considered further. Further, as always, there is the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly.

[22]The previous Employment Tribunal Rules 2004 provided a number of grounds on which a judgment could be reviewed (now called a reconsideration). The only ground in the current 2013 Rules is that the judgment can be reconsidered where it is necessary “in the interests of justice” to do so. That means justice to all parties.

[23]However, it was confirmed by Her Honour Judge Eady QC (as she then was, now Mrs Justice Eady, the current EAT President) in Outasight VB Limited v Brown [2014]

UKEAT/0253/14/LA

, reported at [2015] ICR D11, that the guidance given by the EAT in respect the previous Rules is still relevant guidance in respect of the ET Rules and, therefore, I have considered the case law arising out of the 2004 Rules.

[24]The approach to be taken to applications for reconsideration was also set out more recently in the case of Liddington v 2Gether NHS Foundation Trust [2016]

UKEAT/0002/16/DA

in the judgment of Mrs Justice Simler, then President of the EAT, and now Lady Justice Simler in the Court of Appeal. The Employment Tribunal is required to: “1. identify the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage; 2. address each ground in turn and consider whether is anything in each of the particular grounds relied on that might lead ET to vary or revoke the decision; and 3. give reasons for concluding that there is nothing in the grounds advanced by the (applicant) that could lead him to vary or revoke his decision.”

[25]In paragraph 34 and 35 of the Judgment, the learned former EAT President, Mrs Justice Simler (now Lady Simler, a Justice of the Supreme Court), stated as follows: “34. In his Reconsideration Judgment the Judge identified the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being - 8 - varied or revoked refusing the application without a hearing at a preliminary stage. In this case, the Judge addressed each ground in turn. He considered whether was anything in each of the particular grounds relied on that might lead him to vary or revoke his decision. For the reasons he gave, he concluded that there was nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision, and accordingly he refused the application at the preliminary stage. As he made clear, a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited.

[35]Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly.”26. There is a public policy principle that there must be finality in litigation and reviews or reconsiderations are a limited exception to that principle. In the case of Stephenson v Golden Wonder Limited

[1977] IRLR 474

it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord Macdonald, the EAT Judge in Scotland, said that the review provisions were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence produced which was available before”.

27. The Employment Appeal Tribunal went on to say in the case of Fforde v Black EAT68/80 that this ground does not mean “that in every case where a litigant is unsuccessful is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”

28. “In the interests of justice” means the interests of justice to all parties. The EAT provided further guidance in Reading v EMI Leisure Limited EAT262/81 where it was stated “when you boil down what it said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she - 9 - may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”

29. I consider that any guidance on the meaning of “the interests of justice” issued under the 2004 Rules (and the earlier Rules) is still relevant to reconsiderations under the ET Rules. I also remind myself that the phrase “in the interests of justice” means the interests of justice to all parties.

30. Further, I have also reminded myself of the guidance to Tribunals in Newcastle upon Tyne City Council – v- Marsden

[2010] ICR 743

and in particular the words of Mr Justice Underhill when commenting on the introduction of the overriding objective (now found in Rule 2 of the ET Rules) and the necessity to review previous decisions and on the subject of a review: “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd.

[2008] ICR 841

, at para. 19 of his judgment (p. 849), it is “basic” “… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.”

31. Further, I have also considered the further guidance on the ET Rules from Her Honour Judge Eady QC (as she then was, now Mrs Justice Eady, EAT President) in her judgment in Outasight VB Limited –v- Brown [2014]

UKEAT/0253/14

. I have considered that guidance and in particular have noted what is said about the grounds for a reconsideration under the ET Rules: “In my judgment, the 2013 Rules removed the unnecessary (arguably redundant) specific grounds that had been expressly listed in the earlier Rules. Any consideration of an application under one of the specified grounds would have taken the interests of justice into account. The specified grounds can be seen as having provided examples of circumstances in which the interests of justice might allow a review. The previous listing of such examples in the old Rules - and their absence from new - does not provide any reason for treating the application in this case differently simply because it fell to be considered under the “interests of justice” provision of the 2013 Rules. Even if it did not meet the requirements laid down in Rule 34(3)(d) of the 2004 Rules, the ET could have considered whether it should be allowed as in the interests of justice under Rule 34(3)(e). There is no reason why it should then have adopted a more restrictive approach than it was bound to apply under the 2013 Rules”.

32. In considering matters in the present case, I also reviewed the EAT judgment in Wolfe v North Middlesex University Hospital NHS Trust

[2015] ICR 960

; [2015]

UKEAT/0065/14

, and I have noted, from that judgment, at paragraph 75, what the EAT judge, His Honour Judge Serota QC, stated: - 10 - “There is now a long line of authority to the effect that where a would be Appellant believes there has been a material omission on the part of an Employment Tribunal to deal with a significant issue or to give adequate reasons in respect of significant findings, the proper course is not to lodge a Notice of Appeal, but to go straight back to the Employment Tribunal and ask that the omission be repaired. If reasons are given orally, this should be done as soon as practicable on the completion of delivery of the judgment, and if Written Reasons are later handed down as soon as practicable after the Judgment is received. I would like to make clear that it is the duty of advocates to adopt this course in litigation in the Employment Tribunal.”

33. Further, in considering this reconsideration application, I have also taken into account the helpful judicial guidance provided by Her Honour Judge Eady QC, then EAT Judge, and now EAT President, in her judgment in Scranage v Rochdale Metropolitan Borough Council [2018]

UKEAT/0032/17

, at paragraph 22, when considering the relevant legal principles, where she stated as follows: - “The test for reconsideration under the ET Rules is thus straightforwardly whether such reconsideration is in the interests of justice (see Outasight VB Ltd v Brown

UKEAT/0253/14

(21 November 2014, unreported). The "interests of justice" allow for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.”

34. At Outasight VB Ltd v Brown, at paragraphs 27 to 38, the learned EAT Judge (now Mrs Justice Eady, EAT President) reviewed the legal principles. The EAT President, then Mr Justice Langstaff, in Dundee City Council v Malcolm [2016] UKEATS/0019-21/15, at paragraph 20, states that the current Rules effected no change of substance to the previous Rules, and that they do not permit a claimant to have a second bite of the cherry, and the broader interests of justice, in particular an interest in the finality of litigation, remained just as important after the change as it had been before. 35. Further, I have also taken into account the Court of Appeal’s judgment, in Ministry of Justice v Burton & Another

[2016] EWCA Civ.714

, also reported at

[2016] ICR 1128

, where Lord Justice Elias, himself a former EAT President, at paragraph 25, refers, without demur, to the principles “recently affirmed by HH Judge Eady in the EAT in Outasight VB Ltd v Brown

UKEAT/0253/14

.”

[36]Specifically, at paragraph 21 in Burton, Lord Justice Elias had stated that: “An employment tribunal has a power to review a decision "where it is necessary in the interests of justice": see Rule 70 of the Tribunal Rules. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Newcastle on Tyne City Council v Marsden

[2010] ICR 743

, para. 17 the discretion to act in the interests of justice - 11 - is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily…” Discussion and Deliberation

[37]I have now carefully considered the claimant’s written application, the claimant’s correspondences sent between 15 January 2024 and all correspondences up to and including 21 June 2024, including all correspondences referred to within the claimant’s reconsideration application, my own notes of the submissions at the Preliminary Hearing on 19 October 2023 and 15 January 2024 (including any documents and authorities referred to by parties), the Judgment and written reasons issued to parties following that hearing, and also my own obligations under Rule 2 of the ET Rules, being the Tribunal’s overriding objective to deal with the case fairly and justly.

[38]I consider that the claimant has been given a reasonable opportunity, in advance of this Reconsideration Hearing, to make (and to supplement) their application for reconsideration of the Judgment.

[39]On the test of “in the interests of justice”, under Rule 70, which is what gives this Tribunal jurisdiction in this matter, there is now only one ground for “reconsideration”, being that reconsideration “is necessary in the interests of justice.” That phrase is not defined in the ET Rules upon which a Tribunal could “review” a Judgment under the former 2004 Rules.

[40]While there are many similarities between the former 2004 Rules and the ET Rules, there are some differences between the current Rules 70 to 73 and the former Rules 33 to 36. Reconsideration of a Judgment is one of the two possible ways that a party can challenge a Tribunal’s Judgment. The other way, of course, is by appeal to the EAT.

[41]Rule 70 confers a general power on the Employment Tribunal, and it stands in contrast to the appellate jurisdiction of the EAT. In most cases, a reconsideration will deal with matters more quickly and at less expense than an appeal to the EAT.

[42]Here, in the present case, the claimant has chosen to pursue both routes. The EAT will decide next steps in that appeal after it, and parties, have given consideration to this my Reconsideration Judgment. Disposal Grounds 10.1 to 10.10 – is it in the interests of justice to reconsider the Judgment? - 12 -

[43]Having assessed the submissions and representations made by the claimant, I am of the view that this reconsideration application in respect of grounds 10.1 to 10.10 should be refused because it is not in the interests of justice to grant the claimant’s application.

[44]The Tribunal is of the view that it is not in the interests of justice to allow the claimant’s application in respect of grounds 10.1 to 10.10 (and any supplementary matters thereafter), and nor would it be in accordance with the Tribunal’s overriding objective to deal with the case fairly and justly to allow grounds 10.1 to 10.10 (and any supplementary matters thereafter) of the claimant’s application.

[45]In reaching this view, I have again reviewed the documents in the substantial file of papers provided at the Preliminary Hearing (documents within the Preliminary Hearing Bundle and my notes), all relevant correspondences on the Tribunal file, the relevant statutory provisions and case law authorities, the parties’ representations made at the hearing, and I have taken account of all of the relevant circumstances in doing so.

[46]I do not believe that I have made any error of law, as suggested by the claimant, but I do recognise that that matter is ultimately a matter for the Employment Appeal Tribunal to decide upon, and not for me.

[47]As I see things, in considering the arguments of the parties, following the Preliminary Hearing, I thereafter took all their submissions into account relating to grounds 10.1 to 10.10, during my private deliberation in chambers, taking into account all relevant considerations, and I did not have regard to anything irrelevant.

[48]I sought to take into account all of the circumstances of the case, and the correspondences, documents and submissions before me. I applied the facts to the law, and I reached the conclusions that I reached in the original Judgment.

[49]Now, on reconsideration, I do not consider it is in the interests of justice to vary my original Judgment and allow the claimant’s application. Put simply, the claimant’s arguments put to me in the reconsideration application have not established for me that it would be in the interests of justice for the original Judgment to be varied or revoked on reconsideration.

[50]My view remains essentially the same as it was expressed in the reasons given at the time in the Tribunal’s written Judgment and Reasons ruling on 15 April 2024 and sent to parties on 17 April 2024.

[51]As the Employment Appeal Tribunal has made clear, in many other instances, when reviewing any Judgment of an Employment Tribunal, parties should know why they have won or lost, but the Tribunal’s decision is not required to be an elaborate formalistic product of refined legal - 13 - draftsmanship – it must give adequate reasons for its decision, and failure to do so can amount to an error of law giving rise to an appeal to the EAT.

[52]I believe that I gave adequate reasons at the time, when I delivered the written Judgment and Reasons but, in light of the claimant’s reconsideration suggesting that incomplete or inadequate reasons have been given for certain matters, I take the opportunity to amplify those earlier reasons here in the Reasons for this Reconsideration Judgment.

[53]I do not believe that I have failed to take into account relevant considerations, and I do not believe that I have had regard to irrelevant considerations.

[54]For completeness, I confirm that prior to reaching my conclusion in the original Judgment I reviewed all the documents to which I was referred including but not limited to the correspondences within the claimant’s

[55]I have included below brief observations in respect of each of the numbered grounds10.1 to 10.10 (adopting the numbering at paragraph 10 above): 10.1 Ms Bello’s email of 13 December 2023 was before the Tribunal at the Preliminary Hearing on 15 January 2024. The claimant had ample opportunity to make appropriate submissions in respect of the same.

10.2 The claimant’s evidence, submissions including any points of law and relevant authorities and several supporting correspondences, were taken into account prior to reaching my decision.

10.3 I have noted the claimant’s five separate points alleging noncompliance on the part of the respondents in terms of compliance with the Tribunal’s orders. I am satisfied that the claimant had the opportunity to raise these matters at the Preliminary Hearing. I was not satisfied that the alleged breaches (including any new matters raised by the claimant) amounted to conduct such that it was appropriate to strike out the respondents’ responses in all the circumstances.

10.4 The claimant had the opportunity to comment at the Preliminary Hearing that the respondents’ counsel was allegedly “playing down” the respondent’s non-compliance in respect of the Hearing Bundle. Moreover appropriate directions were made in respect of the preparation of the Hearing Bundle at the Hearing. Parties are expected to comply with those directions.

10.5 It is not clear what is meant by the reference to tricky tactics the respondent used against the claimant. I was not satisfied that the alleged breaches (including any new matters raised by the claimant) - 14 - amounted to conduct such that it was appropriate to strike out the respondents’ responses in all the circumstances.

10.6 The Tribunal’s record of the hearing does not record that respondents’ counsel taunted the claimant about the dismissal of her strike out applications. It was open for the claimant to bring her concerns to the attention of the Employment Judge at the material time.

10.7 It is not clear what conduct the claimant alleges amounts to bullying and judicial misconduct, which is contrary to the Law Society Litigants in Person: guidelines for lawyers and the role of judicial office holders (JOHs) and core principles of judicial conduct. The claimant notes that judicial misconduct is dealt with under a separate process.

10.8 The claimant referred to some relevant documents that she disclosed to the respondent and are in the possession of the respondent which were not included in the Hearing Bundle, corrupted or not page numbered appropriately. This matter was discussed during the Preliminary Hearing and appropriate directions were made to assist the parties to prepare for the Final Hearing in accordance with the Tribunal’s overriding objective.

10.9 The claimant says she reminded the respondent of their contraventions of the Tribunal’s orders and referred to Rules 37(1)(a) to (c) of the ET Rules on receiving the paper and Egress version of the Hearing Bundle. The claimant’s concerns relating to the Hearing Bundle were discussed during the hearing and appropriate directions were made to assist the parties to prepare for the Final Hearing in accordance with the Tribunal’s overriding objective.

10.10 I note that the claimant was compiling an additional list of documents to include in the Hearing Bundle and that an application was made to rely on a supplemental bundle.

[56]In relation to the correspondences sent to the Clerk to the Tribunal by various emails dated 15 January 2024 by the claimant, I note that the claimant did not provide paginated printed copies of the same with an index nor did the claimant make an application for permission to add additional documents to the substantial Preliminary Hearing Bundle. It is contrary to the overriding objective not to do so, and I note that one of the emails referred to contained 26 attachments and it was not sent by the claimant until 1.42pm on 15 January 2024 (this was not forwarded to the Employment Judge until sometime afterwards). It was open for the claimant to do so timeously, and if permission to adduce new documents were granted, the claimant could have referred to the same in the claimant’s submissions. To seek to rely on the said correspondences by way of a reconsideration application is contrary to overriding objective and the principles in Ladd v Marshall

[1954] 3 All ER 745

. It is noteworthy that no explanation is provided - 15 - in respect thereof.

[57]Notwithstanding this, I have noted that copies of the correspondences referred to by the claimant dated 13 October 2023, 02 November 2023 (26 attachments included), 22 December 2023, and 14 December 2023 (2 emails) have subsequently been uploaded onto the Tribunal’s file and accordingly I have considered the same. I do not consider that it is possible to discern any breach (contumelious or otherwise) or any material breach of the Tribunal’s orders.

[58]Furthermore, I note that the claimant is seeking permission to adduce a Supplemental Bundle. If there are additional documents that are not contained in the Hearing Bundle which the claimant wishes to refer to at the Final Hearing, these should be placed at the back of the existing joint file and any disputed application relating to adducing additional evidence can be decided by the Tribunal at the outset of the Final Hearing.

[59]Moreover, having considered all of the claimant’s points made in respect of the reconsideration application, I consider that it is possible to have a fair hearing. The disputes in this case are clear and can be determined by evidence. The claim should accordingly proceed to the Final Hearing.

[60]My previous judgment remains unaltered having taken a step back to consider the claimant’s application in light of the full factual matrix and how the respondents and the respondents’ representative have acted. The Tribunal did not accept the claimant’s position that it is in the interests of justice to strike out the Responses. In my Judgment, it would not be proportionate to strike out the Responses.

[61]The claimant’s application appears to be a challenge in terms of the documents and submissions taken into account by the Tribunal and the weight afforded to the same which is a matter for the Tribunal, and which was carefully considered prior to reaching my decision. If the claimant disagrees with the Tribunal’s approach in terms of the same, the proper way to challenge this is by way of an appeal (if so advised) and not a

[62]My conclusions were reached after having considered all the submissions given by the parties before me, including in terms of any documents, my notes of their submissions and the matters contained within the documents to which I was referred.

[63]In any event, a perversity appeal, which is essentially a complaint about a Tribunal’s conclusions (if so advised) should be pursued at the EAT. I have considered the leading case in terms of the threshold for a perversity appeal, Yeboah v Crofton

[2002] IRLR 634

at paragraph 93, in which Mummery LJ said: “Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable tribunal, on - 16 - a proper application of the evidence and the law, would have reached. Even in cases where the appeal tribunal has ‘grave doubts’ about the decision of the employment tribunal, it must proceed with ‘great care,’ British Telecommunications PLC v Sheridan

[1990] IRLR 27

at para 34.”

[64]Having carefully considered the points made by the claimant in this reconsideration application, the Tribunal does not consider that it is in the interests of justice to revoke or vary my earlier Judgment in respect of grounds 10.1 to 10.10 (or any supplemental matters added thereafter), and I adhere to it, for the reasons given then with the original Judgment, and as now amplified in these Reasons. As such, the Tribunal’s original Judgment stands, and I do not set it aside Conclusion

[65]The claimant’s application dated 01 February 2024 for reconsideration of the Judgment sent to the parties on 29 February 2024 (written reasons sent on 17 April 2024) is refused. There is no reasonable prospect of the original Judgment being varied or revoked for the reasons set out above.

[66]Accordingly, I do not vary or revoke the original Judgment in respect of grounds 10.1 to 10.10 (or any supplemental matters raised thereafter), as I confirm it, that being the appropriate disposal having refused the claimant’s Intimation to EAT and ACAS

[67]In issuing this Reconsideration Judgment and Reasons, I have instructed the Clerk to the Tribunal to send a copy to ACAS, and to the EAT Registrar, for their respective information. Further procedure

[68]Should any other matters arise between now and the start of the Final Hearing, on dates assigned by the Tribunal, then written case management application should be intimated, in the normal way to the Tribunal, by e-mail, with copy to the other parties’ representatives, sent at the same time, and evidencing compliance with Rule 92, for comment/objection within seven days.

[69]Dependent upon subject matter, and any objection/comment by the other parties’ representatives, any such case management applications may be dealt with on paper by an Employment Judge, or a Case Management Preliminary Hearing fixed, either in person, or by Cloud Video Platform, or by telephone, as might be most appropriate. - 17 -

[70]In accordance with Rule 3 of the ET Rules the parties are reminded of the services of ACAS, judicial and other forms of mediation and the many other means of resolving the dispute by agreement.

[1]The Claimant’s renewed application to postpone is refused.

[2]The Claimant’s claims are dismissed pursuant to Rule 47 of the 2013 ET Rules.

[1]The Claimant’s claims were for: direct and indirect sex discrimination / harassment related to sex; direct and indirect race discrimination / harassment related to race; direct and indirect disability discrimination / discrimination arising from disability / failure to make reasonable adjustments / harassment related to disability; victimisation; and unfair dismissal (ordinary and automatic whistleblowing unfair dismissal). There was originally also a potential claim for unpaid wages – which the Respondent says was satisfied and which is reflected in the other claims in any event. The issues were set out in the list of issues compiled as a result of the preliminary hearing on 16 May 2023.

[2]These claims were listed to be heard over a 10 day period from 1 July 2024 to 12 July 2024. An earlier listing for similar dates from 2 July to 17 July 2024 was altered by order dated 3 June 2024.

[3]The Claimant had previously unsuccessfully applied for a postponement of this final hearing in her correspondence dated 24 April 2024; 29 April 2024; 24 May 2024; 30 May 2024; 5 June 2024; 7 June 2024; and 14 June 2024. The tribunal has responded already to that correspondence as set out below. Claimant’s renewed application to postpone

[4]The Claimant renewed her request for a postponement by emails dated 20 June 2024 and Friday 28 June 2024 at 16.57 (the hearing being due to start on Monday 1 July 2024). The email dated 20 June 2024 was not before EJ Iman prior to the correspondence sent out by the tribunal on 21 June 2024.

[5]The email of 20 June 2024 stated: I am writing to follow up on my prior correspondence dated 14 June 2024. As of 20 June 2024, I have sought medical advice from my GP, who has recommended additional therapeutic support to address stress and anxiety, as well as to assist in managing my heightened blood pressure. Furthermore, my GP Surgery has advised me to contact them by tomorrow concerning another physical health issue. In addition, I have been referred to a Hypertension Clinic and the Cardiology department for a repeat 24-hour blood pressure monitoring. I also have a forthcoming post TMJ Surgery appointment in July 2024. Following EJ Iman's dismissal of my medical evidence on 12 June 2024, I pursued legal representation from the Free Representation Unit (FRU). Unfortunately, they are unable to represent me due to the prolonged duration of the hearing, as they can only accommodate cases with a hearing length of up to four days. Despite my prior application to the ET to shorten the hearing day, which was dismissed by EJ Allen during the PH on 16 May 2023, I kindly request a reconsideration of that decision to enhance my chances of securing legal representation. I have informed the Employment Appeal Tribunal (EAT) of my intention to lodge another appeal. This is based on EJ Iman's refusal of my postponement application, REJ Burgher's denial of the transcript of the preliminary hearing (PH) of 15 January 2024 before EJ Beyzade, and other grounds, including the persistent failure of the ET to provide me with the audio recording of the same PH, EJ Beyzade's notes of the PH of 19 October 2023, and the CCTV recordings of 16 May 2023 and 19 October 2023. I would like to reiterate that due to medical grounds and the aforementioned reasons, in addition to the lack of legal representation, I will be unable to attend the 10-day final hearing scheduled by the Employment Tribunal from 1 July 2024 onwards.

[6]The email of 28 June 2024 stated: I am writing to inform you that I will be unable to attend the final 10-day hearing scheduled from 1 July onwards. The reasons for my non-attendance have been clearly outlined in my previous correspondences and in an additional postponement application. Since my last communication on 20 June 2024, I have undergone several necessary medical interventions that have rendered me unable to attend the 10-day hearing. Here is a detailed timeline of the medical interventions since 20 June 2024: - On 20 June 2024, I had a comprehensive medical review with my primary GP, Dr. Mizra, who recommended immediate therapeutic intervention to address stress, anxiety, and stabilize my blood pressure. Subsequently, I was advised to seek further consultation regarding my swollen and painful ankles. - On 21 June 2024, Dr. Hawa referred me to A&E to thoroughly investigate the reasons behind the swollen ankles and to eliminate any concerns about potential blood clots. - On 22 June 2024, following treatment at the Urgent Treatment Centre of the A&E, I was discharged back to my GP for follow-up care. Additionally, I received a post-TMJ operation appointment scheduled for July 2024 to address the severe headaches, facial pains, and dizziness, as outlined in the Eastman Hospital clinical letter of 6 March 2024. - On 25 June 2024, I was further referred for a comprehensive blood test to investigate the cause of the swollen and painful ankles and to conclusively rule out any potential blood clot. On the same day, the Talking Therapies contacted me and granted an appointment for 2 July 2024 to receive essential support for stress and anxiety, as recommended by my GP, Dr. Mizra. - On 26 June 2024, I sought further clarification from the GP surgery regarding the outcomes of my blood test, which necessitated another consultation to discuss the results. - On 27 June 2024, during another consultation with Dr. Carson, further necessary steps were taken, including the prescription of additional blood pressure medication, along with full disclosure of potential side effects of the medication, including dizziness and lightheadedness. I trust that the Employment Tribunal will give due consideration to the significant medical developments mentioned above and vacate the pending hearing. However, in the unfortunate event that the Tribunal decides to proceed with the hearing in my absence and dismiss my direct, race, sex and disability discrimination, harassment, victimisation and unlawful dismissal claims, I will have no alternative but to promptly lodge another appeal with the Employment Appeal Tribunal (EAT) to seek justice. Please note that, due to my current medical condition, I may not be able to check and respond to my email regularly. I have copied the Respondent, Ms. Bello, and the EAT into this correspondence. Furthermore, I will be forwarding a separate copy of this correspondence to my GP for their information and record-keeping purposes.

[7]There were no attachments to the emails from the Claimant dated 20 June 2024 or 28 June 2024.

[8]The case appears to be ready for hearing. The tribunal had a bundle running to page 3496. Witness statements were exchanged in December 2023 including a 54 page statement from the Claimant and 10 statements from witnesses called by the Respondents. The Respondents had been ordered to produce a chronology - to be agreed if possible. A chronology and cast list have been produced, albeit that it has not been possible to agree. Any remaining issues concerning documents could have been resolved at the outset of this hearing.

[9]The Claimant did not attend the tribunal on 1 July 2024. Efforts by the tribunal staff to contact her by telephone and email on 1 July 2024 did not receive any response.

[10]The tribunal sent a message to the Claimant on 1 July 2024 in the following terms: 1 July 2024 EJ Allen KC has instructed me to write as follows: “The final hearing is listed for ten days 1 to 12 July 2024. The Claimant has not attended on the first day (Monday 1 July 2024). She has requested a postponement by emails dated 20 June 2024 and 28 June 2024. The tribunal will reconvene on Tuesday 2 July 2024 at 10am to consider the Claimant’s application. The Claimant may attend representing herself and / or she may be represented or accompanied at the hearing. The Claimant may attend in in person or she can attend by video link – a CVP video link will be sent to her. She should indicate by email response to the tribunal (copied to the Respondent) if she is intending to attend by video. The Claimant can also make any additional submission in writing by email (copied to the Respondent) which can be taken into account when the tribunal considers its next step on Tuesday 2 July 2024. The tribunal has already dealt with the Claimant’s previous applications to postpone (and for reconsideration of the tribunal’s refusals to postpone) set out in her correspondence dated 24 April 2024; 29 April 2024; 24 May 2024; 30 May 2024; 5 June 2024; 7 June 2024; and 14 June 2024. The tribunal notes the content of the Claimant’s emails of 20 June 2024; and 28 June 2024 which have not yet been the subject of any determination by the tribunal. The tribunal has already referred the Claimant to the Presidential Guidance on postponement applications at https://www.judiciary.uk/wp-content/uploads/2014/08/Presidential-guidancepostponement.pdf which states: “Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.” The tribunal in the correspondence from EJ Iman dated 12 June 2024 has already informed the Claimant that, on the basis of the evidence including that attached to her email of 5 June 2024: “I do not consider that there is sufficient evidence before me to justify postponing the Final Hearing. There is nothing on the information before me that satisfies me that the Claimant is unable to attend and participate in a Final Hearing.” The tribunal in the correspondence from EJ Iman dated 21 June 2024 has already informed the Claimant that “Mrs Daramy still has an opportunity to submit a medical note that meets the requirements as set out in the presidential guidance and renew her application to postpone the hearing before the Tribunal should she consider it appropriate to do so.” The Claimant has a further opportunity prior to the resumption of the hearing on Tuesday 2 July 2024 to submit any further documentation from a medical professional in line with the Presidential Guidance (and the previous communications from the tribunal) which specifically addresses the question of her fitness to attend the final hearing and / if she is not fit, if and when she might be fit to attend. The tribunal can consider reasonable adjustments to assist the Claimant – these can include things like: frequent breaks, shorter days, sitting for fewer days per week (e.g. having rest days) and / or later start times. This is not an exhaustive list. If necessary, the tribunal could consider the case going into some of the days of a third week if this would assist the matter to be heard with reasonable adjustments to the timetable.

[11]The Claimant was sent a link to enable her to join the hearing by CVP.

[12]The tribunal reconvened on Tuesday 2 July 2024 at 10am to consider the Claimant’s application for a postponement and any consequential decisions.

[13]The Claimant did not attend in person or by CVP. She had not made any further communication in writing to the tribunal. A further attempt was made by the tribunal staff to contact her by telephone on the morning of 2 July 2024 and the Claimant did take the call. It was reported to the tribunal that the Claimant said that she has sent all of her evidence last Friday [28 June 2024]; that she will not be attending the hearing – because she needs to think of her mental health; that she was not prepared for the hearing; that she was having therapy; that she would not wish to attend in person or by video; and that she wants the hearing to be postponed.

[14]There has been no further email correspondence from the Claimant.

[15]The hearing resumed at 10.30 on Tuesday 2 July 2024. Respondents’ arguments on the renewed application to postpone

[16]The Respondents’ position was that it wished the tribunal to reject the application to postpone and dismiss the Claimant’s case under Rule 47.

[17]The Respondent relied upon the following:17.1 The case is ready for trial; and if there are any outstanding issues e.g. in relation to documentation – they could be dealt with by this tribunal;

17.2 Witness statements had been exchanged in December 2023 – and the tribunal has a bundle, chronology and cast list;

17.3 The Respondent has 10 witnesses scheduled and lined up to give evidence and in addition has made an application for a witness order;

17.4 Although the Claimant still has complaints about way in which the case has been managed and she wishes to make points about disclosure – these could have been dealt with at the outset and would not have ultimately prevented this hearing from going ahead;

17.5 The 20 and 28 June 2024 communications from the Claimant to the tribunal contained nothing new – and attached no new medical evidence;

17.6 The effects of C’s blood pressure and hypertension were present during her employment from 2020 onwards – OH reports include blood pressure – arising from stress at work – by the time we get to 4th and 5th OH reports, they were stating that if work issues could be resolved, she could return to work in some form or other;

17.7 The stress impact of which the Claimant complains; and which is still present related to blood pressure – has been at large since at least 2020 – nothing in the nature of anything the tribunal reads recently suggests that there is an acute problem now – blood pressure monitoring is a continuing state of affairs;

17.8 There was an acute episode in January / February 2024 – resulting in an EAT hearing being postponed – but there is no acute difficulty related to non-attendance at this hearing;

17.9 The situation is the same for the Claimant’s mental health. The basic situation is that she has had those challenges for years – arising from stress. Standing back, the Respondent says, even setting aside the Claimant’s non-compliance with the Presidential Guidance, there is nothing before the tribunal saying that the Claimant can’t be at the hearing nor giving a prognosis. There is nothing that allows the tribunal to even infer that she is genuinely unable to attend;

17.10 The Claimant has been in a steady state of illness since 2020. She had had 342 days absence at the point of the report on the basis of which she was given notice in 2022. She had not been at work from October 2020 until the date of her dismissal in 2022;

17.11 The Claimant is asserting the same essential underlying difficulties today as then. The general proposition that she faces health challenges isn’t challenged but hasn’t changed today since looked at by EJ Iman a number of times in June 2024. The situation is continuing;

17.12 The Claimant has appeared at face to face hearings at the tribunal in person 3 times in May 2023, October 2023 and January 2024;

17.13 The Claimant has attended other tribunal telephone hearings;

17.14 The Claimant had not asked for other matters to be postponed;

17.15 The Claimant was able to put her arguments at those hearings – capable of participating in hearings and making herself understood;

17.16 The Claimant has also been able to put her position in an articulate manner in writing on a number of occasions – sometimes at length;

17.17 With appropriate adjustments, which have been offered, this hearing could proceed fairly;

17.18 The Claimant had been invited to think about adjustments she might need by EJ Iman (and by this tribunal) but she has not engaged with that suggestion;

17.19 The impact on R of this case has been considerable and the impact of a postponement would be prejudicial. Two senior witnesses no longer work for the Respondent: Ms Brown – who is also an individual Respondent; and Ms Radley – who has retired. Ms O’Driscoll, the dismissing manager is leaving TH in July 2024. Ms Groves is semi retired – 3 days per week and works for the East London Foundation NHS Trust (ELFT). Ms Taylor is the individual for whom the Respondent has applied for a witness order. She has long left the Respondent. Those are the more obvious witness issues but in general, marshalling witnesses only gets more difficult over time;

17.20 The burden on the Respondent as a public organisation is great. This case involves taking community mental health workers and their managers away from their work. Four of them were here on 1 July 2024.

17.21 The factual allegations span 2020 to 2022 – and the build-up in the 2nd half of 2019 is also relevant;

17.22 The oldest factual matters are already 5 years old and all of the allegations are at least already 2 years old;

17.23 Witnesses are already relying significantly on their memory – even when supported by documents;

17.24 The burden of this litigation on the Respondent has been immense. The tribunal has seen a flavour of the way that the Claimant seeks to pursue the case by correspondence and her repeated strike out applications; followed by reconsideration applications and appeals all alleging bias by various different Judges;

17.25 The most recent strike out application took two days to determine;

17.26 The Respondent has not just been dealing with applications but also with voluminous correspondence where the same points are made over and over again – referring back to earlier applications and correspondence;

17.27 It would be wrong to think that the burden on the Respondent is limited to another brief fee. It has had multiple emails from the Claimant every month. The solicitor at the Respondent is tearing her hair out on a weekly basis;

17.28 The Respondent has come here ready to engage with the factual substance of the detailed and complex case which the Claimant has brought; and the Claimant now tells us she is not prepared and not ready to engage – that is not acceptable;

17.29 The question the Respondent poses is ‘if not now – when?’. This is where the tribunal should see the real effect of the Claimant not having obtained a prognosis;

17.30 Nothing suggests that there will be a more favourable position at some point in the future – there is no time envisaged at which the clouds will lift;

17.31 Any tribunal on a postponed date is likely to be faced with more of the same;

17.32 In relation to Rule 47, practicable enquiries have been made. It is accepted that the option to adjourn / postpone is always there but the Respondent says refuse that renewed application, don’t adjourn – deal with the case today;

17.33 If the matter is not postponed, it would be farcical and disproportionate to go ahead without the Claimant, the claims should be dismissed under rule 47 including the unfair dismissal claim;

17.34 The Respondent is asking the tribunal to find that the Claimant has chosen not to attend today on the basis that she has given her medical position and she had said she is not ready / not prepared;

17.35 The medical information before the tribunal doesn’t say that the Claimant is unable to attend / participate in a hearing – indeed the Respondent says that the tribunal can derive from the 3 June 2024 letter from the GP, Dr Carson, that the Claimant is able to attend (with appropriate care / adjustments);

17.36 The Respondent is not asking the tribunal to make a finding on the credibility of the Claimant’s assertion that she believes herself to be unable to attend, it is asking the tribunal to find that the medical evidence does not support that assertion;

17.37 The Respondent argues that it is clear from recent tribunal correspondence from EJ Crosfill and EJ Iman that the Claimant has been given an opportunity to satisfy the Presidential Guidance – and to specifically supply medical evidence of inability to attend and / or prognosis - that door was left open but the Claimant has not taken that opportunity. Tribunal’s findings on the renewed application to postpone

[18]The Claimant’s application to postpone dated 24 April 2024 had been made on the basis of:18.1 Outstanding appeals to the EAT against earlier preliminary hearing / case management orders – including appeals against previous decisions by the Employment Tribunal declining to strike out the Respondent’s response;

18.2 Medical grounds in the following terms: On 8 February 2024, Judge Tayler’s (EAT) Sealed Order concerning the postponement of my appeal, reference EA-2022-000670, was issued on medical grounds. I have provided several medical evidence to support the postponement. I have had some recent medical investigations and interventions concerning my blood pressure, TMJ, stress, depression, and anxiety. Further, my GP also reviews me regularly. The ET has several correspondences concerning my medical condition. These have been well documented and communicated to the ET since the PH of 15 January 2024.

18.3 Allegedly late disclosure / non disclosure by the Respondents.

[19]On 29 April 2024 and 1 May 2024, the Claimant added new information about upcoming EAT appeals being listed for hearing on 23 January 2025. The tribunal understands that those two appeals are (at this stage) against the EAT Registrar’s decision not to accept the Claimants’ appeals as they were brought out of time.

[20]On 1 May 2024, the Respondent replied to all of the points raised in the Claimant’s application,- stating the following in relation to the medical point: 2. Medical grounds The Presidential Guidance states that alleged unfitness to attend a hearing should be evidenced medically, along with a prognosis and an indication of when the person might be fit. This has not been provided in this case. It is insufficient for the Claimant to rely on general ill-health since the issue is specific to the trial dates and fitness for that exercise. The Claimant makes reference to His Honour Judge Tayler’s Order in appeal EA-2022- 000670. He made a postponement Order in respect of the hearing on 8 February 2024, having received an application on emergency medical grounds made by the Claimant at 1:56 am that morning. He directed the Claimant to provide medical evidence (which the Respondent has not seen). HHJ Tayler’s subsequent Order of 20 April 2024 consolidating EA-2022-000670 and EA2022-001314 (despite the Claimant’s objection to consolidation) states: “Having considered the medical evidence I cannot see anything that would prevent this hearing now proceeding.” We submit that this determination by HHJ Tayler is sufficient to dispose of the Claimant’s application on medical grounds. She faced an emergency; the medical evidence apparently does not indicate any effect on the ability, after the emergency has passed, to conduct an appeal. There is no basis for thinking that it would prevent her from conducting a trial.

[21]In a communication from the tribunal dated 23 May 2024 in response to the Claimant’s postponement application, EJ Crosfill did not grant the application for postponement, but he made it clear to the Claimant what she needed to do if she wished to pursue the application stating: If the Claimant wants the Tribunal to consider medical evidence she must collate all the evidence she relies upon and put it before the tribunal in one go. It is not the role of an employment judge (or the administration) to attempt to assemble the evidence. The Claimant should have regard to the Presidential Guidance on seeking postponements on medical grounds. It is essential that the evidence deals with her ability to attend and participate in tribunal proceedings and that if it is said that she cannot, give an indication of when she might be able to do so.” . . . If the Claimant wishes to pursue this application she must prepare a paginated and indexed bundle of documents in support of the application which must include: 1) Her notices of appeal to the Employment Appeal Tribunal and any orders of correspondence from that tribunal; and 2) Any medical evidence on which she relies in support of her application. The Claimant must explain any document she says the Respondents have not disclosed. The application should be marked ‘for the Urgent Attention of EJ Crosfill’. It shall be sent to the Tribunal and the Respondents as soon as possible and in any event no later than 10 days from the date of this letter. [6 June 2024]

[22]On 24 May 2024, the Claimant responded to the tribunal in the following terms: I am writing to acknowledge receipt of your email and the directions attached by EJ Crosfill. This email acknowledges EJ Crosfill concerning my postponement application of [24 April 2024] under Rule 30A.-(1) and briefly outlines the grounds for the application (i.e. pending EAT appeals, medical matters, and other matters in hand). I will not go into great detail in this email. Although my pending EAT appeals should be sufficient grounds for the postponement, however, I included other reasons to support my request further. [The Claimant outlined her position in relation to appeals to the EAT] . . . Claimant's medical condition It is worth noting that when Judge Tayler decided that the 2-hour ARO hearing should proceed, I was still waiting for hospital test results and follow-up treatments. It is not up to the Respondent and Tribunal to determine whether my current medical condition makes me fit to attend the 10-day final hearing in July 2024 or to downplay my medical condition. The decision lies with my medical professional and my being fit medically (both physically and mentally). I trust the Respondent and Tribunal will respect this. I urge the Respondent and Tribunal to treat my medical matter with the utmost sensitivity and understanding, as it fully impacts my ability to participate in the proceedings. Further, I request that the Tribunal has regard for relevant authorities in their dealings with this matter. Medical evidence In the meantime, as directed by EJ Crosfill, I will contact my medical professionals for any evidence I rely on to support my application further. However, providing the medical evidence by 6 June 2024 will depend on the medical professionals and the availability of such evidence. If there are any delays in providing the information, I will convey that to the Tribunal accordingly. . . . [The Claimant then addressed matters concerning the Respondent’s alleged conduct of the litigation including in relation to a chronology and the bundle – and a matter concerning a request for a transcript of an earlier hearing]

[23]On 2 June 2024 the tribunal wrote to the Claimant stating that: Employment Judge Iman has considered your request to postpone the hearing and has refused it. The Judge’s reasons for refusing the request are: The Claimant’s application to postpone the final hearing is refused. It is in the interests of justice that this claim is determined. There has been a significant passage of time since the claim was registered with the Tribunal. The Tribunal does not consider that postponing a hearing due to the parties failure to agree a chronology of events is proportionate and/or in accordance with the overriding objective. Further, it is not persuaded that conflicting obligations and awaiting the outcome of appeals lodged with the EAT are also proportionate reasons for postponing the hearing further. The EAT appeals are scheduled to take place in January 2025. The parties have not reached agreement and therefore they are to submit separate chronologies to the Tribunal to avoid any further delay. The Respondent, if not already done so, is to serve their chronology on the Tribunal and the Claimant by 12 noon 31 May 2024. The Claimant is to serve her chronology on the Tribunal and the Respondent no later than 5pm 07 June 2024. I remind the parties of their overriding duty to assist the Tribunal and their duty to co-operate. I further remind the Claimant that the chronology should be proportionate in length and concisely detail those dates that are relevant to the issues to be determined by the Tribunal.

[24]By notice dated 3 June 2024, the listing was brought forward by a day and altered to 1 July to 12 July 2024.

[25]On 5 June 2024. The Claimant sent a covering letter and medical documentation. The covering letter stated: 1. I am writing to urgently bring to your attention the comprehensive medical evidence supporting my application for postponement. This evidence, as directed by EJ Crosfill on 23 May 2024, reveals the alarming severity of the increase in my blood pressure. The severity is such that it will significantly impede my ability to participate actively in the pending ten-day final hearing on 2, 3, 4, 5, 9, 10, 11, 12, 16, 17 July 2024. 2. I have attached a detailed letter from Dr Carson (GP), which thoroughly outlines the outcome of my recent medical consultation on 3 June 2024. This consultation revealed the alarming severity of my condition despite the adjustment in the dosage of my blood pressure medication. As of the time of writing this email, my blood pressure remains critically high, and I have now forwarded the readings to my GP practice for further consultation. 3. The persistently high blood pressure, coupled with debilitating symptoms such as severe headaches, facial pains related to TMJ, and palpitations and norms to the left side of my body, significantly impede my ability to actively participate in the pending ten days final hearing on 2, 3, 4, 5, 9, 10, 11, 12, 16, 17 July 2024. 4. Furthermore, I have also included Dr Carson's previous letter to Judge Tayler of the Employment Appeal Tribunal (EAT) dated 15 April 2024 following my consultation of 6 March 2024. This letter provides additional context and evidence of the ongoing nature of my medical condition, further supporting my request for postponement. My GP/Medical notes, also evidencing my emergency hospital admissions on 26 January 2024 and 8 February 2024 and other treatments I have had in the community are attached. 5. In addition to the medical correspondence, I wish to draw your attention to the urgency of post-TMJ operation treatment recommended by specialists at the Royal National ENT and Eastman Dental Hospitals in their letter of 6 March 2024. This treatment is critical in addressing the severe headaches, facial pains, and associated side effects that I regularly endure. The success of these treatments not only impacts my health and recovery but is essential for my ability to engage in the ongoing legal proceedings actively. 6. Regrettably, the delay in obtaining these essential treatments has had a profound and detrimental impact on my health and ability to participate in day-to-day activities, as outlined in the attached letter from the Royal National ENT and Eastman Dental Hospitals. 7. I have also included several emails I sent to Guys and St Thomas' Hospital follow-up and PALs Complaint Departments and their acknowledgement email of 3 June 2024. I have indexed all of the above medical evidence as directed by EJ Crosfills. 8. I respectfully request EJ Crosfill and the Tribunal to thoroughly review the provided medical evidence, considering the gravity of my situation and the compelling grounds outlined in my postponement application. I reiterated these grounds in my correspondences to the Tribunal on Wednesday, 22 May 2024, in response to REJ Burgher's refusal decision on 22 May 2024 concerning my request for the transcript of the preliminary hearing (PH) of 15 January 2024 before EJ Beyzade and on Friday, 24 May 2024 at 4.32 in response to EJ Crosfill's request for my medical evidence. 9. I also request the Tribunal to have regard for the case concerning Khan and Uzayr v BP PLC EA-2021-000261-JOJ, in which the EAT overturned the Tribunal's refusal to postpone a 12-day final hearing. 10. Due to my current medical condition and on medical advice, I am prioritising my health and recovery, which may limit my ability to stay on top of matters and respond to any correspondence promptly. I appreciate your understanding and consideration in this matter. 11. In addition, I request the Tribunal consider all the relevant and outstanding matters I have referred to in previous correspondences, such as those regarding issues relating to the following matters: Outstanding matters" 11.1. Compiling the audio recordings/transcripts of several meetings with the Respondent to support my discrimination, harassment, victimisation and unfair dismissal claims." 11.2. Reviewing and finalising the hearing bundle, which contains over 3,600 pages, to ensure that all of the necessary documents the Respondent had deliberately removed, corrupted, redacted, duplicated, and inappropriately paginated are in the bundle as expected. I also request the Tribunal to have regard for the case concerning Khan and Uzayr v BP PLC EA-2021-000261-JOJ, in which the EAT overturned the Tribunal's refusal to postpone a 12-day final hearing. The documents are crucial evidence to support my discrimination claims. These are some of the examples I relied on to lodge my third strikeout application pursuant to Rule 37 (1) (a), (b), and (c). I presented these evidential documents during the preliminary hearings on 19 October 2023 and 15 January 2024. However, the Tribunal did not consider them, leading me to file a Notice of Appeal (NOA) to the EAT on 29 January 2024. 11.3. Outstanding subject access request (SAR) matters relevant to my case have been escalated to the Information Commissioner’s Office (ICO). I made those requests in accordance with the Data Protection Act (DPA) 1998, which is the legal provision that allows me to request these documents in the interest of justice. 11.4. Amending the Respondent's purported chronology. 12. In conclusion, due to my current medical condition and on medical advice, I am prioritising my health and recovery, which may limit my ability to stay on top of matters and respond to any correspondence promptly. I appreciate your understanding and consideration in this matter."

[26]The attached medical documentation comprised:26.1 3.06.2024 GP Letter from Dr Carson: ‘To whom it may concern’

26.2 6.03.2024 GP letter from Dr to Judge Tayler [at the EAT] dated and stamped on 15 April 2024

26.3 25.01.2024-13.02.2024 GP/Medical Notes – with details of emergency hospital admissions 26 January 2024 and 8 February 2024

26.4 6.03.2024 From The Royal National ENT and Eastman Dental Hospitals to the Claimant’s GP

26.5 4.10.2023-24.05.2024 The Claimant’s emails to Guys and St Thomas Dental Oral Surgery Follow-Ups Department culminating in a complaint by the claimant

26.6 30.05.2024 3.06.2024 Email exchange between the Claimant and Guys and St Thomas’ PALs concerning a complaint by the Claimant

[27]None of the medical documentation stated that the Claimant was not well enough to participate in a hearing in July 2024; and none of the medical documentation stated that the Claimant would be better able to participate in a hearing at any particular time in the future. The GP letter dated 3 June 2024 stated: I reviewed Mrs Daramy today during a review consultation into her ongoing sporadic hypertension readings. Today her clinic readings have been 199/120 representing a very high BP reading. I am repeating investigations into her average BP to ensure this is not a constant level and increased her blood pressure medication dose. Her investigations to date have been normal. At present these symptoms are likely to represent stress related hypertension. Please take his into consideration during her upcoming appointment requirements

[28]The tribunal noted that Dr Carson had been aware that the Claimant had ongoing litigation given the correspondence from Dr Carson to HHJ Tayler at the EAT dated 6 March 2024; and the tribunal noted that the Claimant herself has said in some of her correspondence with the tribunal that she is copying her GP into that correspondence.

[29]Although not determinative of the postponement issue in itself, the tribunal concluded that Dr Carson’s reference to ‘appointments’ in the 3 June 2024 letter included tribunal hearings. The tribunal concluded that this letter pointed towards the Claimant being capable of participation in a tribunal hearing is appropriate adjustments were made.

[30]On 7 June 2024 C asked for reconsideration of EJ Iman’s decision of 2 June 2024 on the reasonable basis that EJ Iman had not seen the medical evidence directed by EJ Crosfill and submitted by the Claimant on 5 June 2024.

[31]On 12 June 2024 the tribunal wrote to the Claimant stating that EJ Iman had instructed the following response: The Claimant has requested that I reconsider my decision dated the 29 May 2024. The Claimant specifically set out the following: The Tribunal erred in not considering my medical evidence and other outstanding matters before refusing my postponement application. Therefore, in the interest of justice and fairness, I request a reconsideration of EJ Iman’s decision in light of the new evidence and circumstances. The new evidence relates to the Order dated 23 May 2024, where Employment Judge Crosfill requested the submission of medical evidence by 6 June 2024. This was submitted by the Claimant on 5 June 2024. The medical information arrived after I had considered the information before me and therefore, I am satisfied that it would be in the interests of justice for me to reconsider my decision in light of the new medical evidence provided. Having now considered the medical information it demonstrates that the Claimant has presented to medical professionals with high blood pressure and is being monitored to establish whether it is high at a constant level and accordingly her medication has been adjusted to manage symptoms. Further, the medical documentation requests that this information is taken into account for upcoming appointments. Investigations to date have been normal and therefore the medical conclusion is that the symptoms are likely to represent stress related hypertension. I do not consider that there is sufficient evidence before me to justify postponing the Final Hearing. There is nothing on the information before me that satisfies me that the Claimant is unable to attend and participate in a Final Hearing. The Claimant’s high blood pressure and ‘stress related hypertension’ will be fully taken into consideration at the Final Hearing and the Tribunal will consider if any reasonable adjustments are required to assist the Claimant and as such her symptoms do not justify postponing determining the matter any longer. Further, I note that the claimant has stated that she was unable to comply with the directions of my previous Order in respect of the submission of a chronology by 07 June 2024 but has provided no explanation as to why she has not met the deadline. I consider the following statement to be inherently vague; Unfortunately, I will not be able to meet the submission deadline due to my current medical condition and other uncontrollable circumstances. Having now considered all the information before me the directions of my previous Order remain. The Claimant’s further application to postpone proceedings is refused and the Final Hearing remains listed.

[32]On 14 June 2024, the Claimant asked for review of that decision in the following terms: I am writing to urgently bring to your attention the decision from EJ Iman dated 12 June 2024, which has denied my request for a postponement on medical grounds. This decision has significant implications for my health and well-being, and I am deeply concerned about its potential impact. It is evident that EJ Iman did not fully consider the medical evidence I provided on 5 June 2024 and has deemed me fit to represent myself in a 10-day final hearing despite the existence of alarming stress-induced high blood pressure, compounded by other medical conditions, severe headaches, TMJ facial pain, palpitations, dizziness not to mention the current state of my mental health. EJ Iman has also failed to consider the relevant grounds I outlined in my postponement application, such as my pending Employment Appeal Tribunal (EAT) appeal and other outstanding matters. These include my subject access request (SAR), EJ Beyzade's notes of 19 October 2023 preliminary hearing (PH), and the transcript and audio recording of the PH of 15 January 2024, which are relevant for supporting my discrimination claims and aligning with the overriding objectives of justice. The grounds have been supported by compelling evidence in accordance with the Presidential Guidance on Seeking a Postponement of a Hearing and relevant authorities such as the Khan and Uzayr v BP plc EA-2021-000261-JOJ case, heard before Mr Justice Choudhury (EAT), in which he overturned the East London Tribunal's refusal to postpone a 12-day Final Hearing on medical grounds. Furthermore, due to my current medical condition, it has been impossible to amend the Respondent's purported chronology and review the extensive hearing bundle provided by the Respondent, containing over 3,600 pages. The sheer volume of documents, combined with the need to ascertain if those documents the Respondent deliberately removed, corrupted, inappropriately paginated and duplicated have been amended, has made it extremely challenging to conduct a comprehensive review. These critical documents need comprehensive review, which has been challenging given my health circumstances. The manner in which the Respondent conducted the proceeding outlined above was one of the grounds for my strike-out application pursuant to Rule 37 (1), (a), (b) and (c), which EJ Beyzade dismissed on 15 January 2024 without considering the compelling evidence I provided before and during the PHs of 19 October 2023 and 15 January 2024. To exacerbate the situation, the Regional Employment Judge (REJ) Burgher refused my application to have the transcript of the PH of 15 January 2024, and my request for the audio recording and EJ Beyzade’s notes have also not been made available to me. Given the severity of my medical condition, I am deeply troubled by EJ Iman's decision to proceed with a 10-day final hearing. While EJ Iman has made assurances regarding reasonable adjustments, I urgently seek clarification on the specific nature of these adjustments and any contingency plans for potential medical emergencies during the hearing. Understanding these details is crucial for my preparation and well-being. Should my medical conditions and concerns be disregarded, and the hearing proceed in my absence, resulting in the dismissal of my discrimination claim. In that case, it would not only constitute a miscarriage of justice but also have significant implications for litigants in person (LiP) or unrepresented parties with physical and mental disabilities. I have forwarded EJ Iman's decision to my GP for review and record-keeping, and I intend to seek legal advice on this matter. This decision has serious implications for me, and it is necessary to explore all avenues to ensure a fair and just outcome. I stress again that I am not well enough to prepare for and attend the pending ET hearing. I will keep you updated on the outcome of further medical consultations.

[33]On 21 June 2024 the tribunal wrote to the Claimant stating that EJ Iman had directed the following response Mrs Daramy has written to the Tribunal requesting the Tribunal reconsider my directions dated the 12 June 2024, in which the claimant’s application to postpone the final hearing scheduled to commence on the 01 July - 12 July 2024 was refused. For completeness, the 12 June 2024 directions arose out of Mrs Daramy’s request for a re-consideration of my initial directions dated 02 June 2024. In accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013; A case management order, may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made. There are no material changes in the circumstances before me since the previous direction dated the 02 June 2024 and the 12 June 2024. I consider that both parties had a reasonable opportunity to make representations to the Tribunal. However, I have decided for completeness to address the matters again raised by Mrs Daramy and re-consider my decision as she states that the decision has significant implications for my health and wellbeing, and I am deeply concerned about its potential impact. I have therefore carefully considered all the matters raised in the recent correspondence from Mrs Daramy dated the 14 June 2024 and will deal with them in turn accordingly as to whether they satisfy me that it is in the interests of justice to grant the application to postpone the hearing; 1) It is evident that Employment Judge Iman did not fully consider the medical evidence I provided on 05 June 2024. The medical evidence provided was taken into consideration and specifically referred to in my directions dated the 12 June 2024. It is explained within the directions dated the 12 June 2024 that the medical information was not before me on the 02 June 2024 and therefore, it was in the interests of justice that the decision was reconsidered in light of the medical evidence. Having considered the medical evidence again, I consider it important to set out what is contained within the documents. The most recent medical evidence consists of a letter from Dr Carson dated the 03 June 2024 which explains that he reviewed Mrs Daramy in a review consultation of her ongoing sporadic hypertension readings. The letter goes onto to explain that Mrs Daramy’s blood pressure reading on the 03 June 2024 was very high, namely 199/120. The letter explains that to date investigations have been normal. Dr Carson explains that he will repeat investigations and has increased the blood pressure medication. He explains that at present these symptoms are likely to represent stress related hypertension. Further, the letter addressed to Judge Taylor dated the 06 March 2024 sets out that the circumstances that led to Mrs Daramy attending accident and emergency on the 25 January 2024 complaining of chest pains and left arm paraesthesia. She was discovered to have low potassium levels which was considered likely secondary to her medication There was a further attendance at accident and emergency on the 08 March 2024 where Mrs Daramy attended complaining of a severe headache with some associated paraesthesia. She was discharged with monitoring. On the 01 March 2024, on review Mrs Daramy’s diastolic blood pressure was found be high and therefore he medication was adjusted and reviewed. Further investigations were planned into establishing what might be causing the blood pressure. The letter explains that the hypertension is likely to improve with the adjustments made to the medication over the next 2-4 weeks and that the general practitioners review and checks of the blood pressure would likely give the most indication as to improvement. Further, I note that Mrs Daramy attended the Royal National department ENT on the 06 March 2024 with severe left sided jaw pain which was related to temporomandibular disorder and was advised on various physiotherapeutic methods and there is also reference in the documentation that she remains under the care of Guys Hospital. In Mrs Daramy’s medical notes at the most recent entry, it is documented that on the 13 February 2024, her cause for complaint is stress at work (New) and that upon a second review her BP was deemed satisfactory and her potassium levels were considered normal. She was considered not fit for work 13- 29 February 2024. There is reference in the medical evidence that Mrs Daramy remains under the care of Guys Hospital. I have noted that Mrs Daramy has been suffering with TMD pain since September 2021 and had an operation on her TMJ in September 2021. It is documented that Mrs Daramy has reported that the pain has reduced post operatively but that when she is stressed the pain gets worse. There is reference to how chronic pain management techniques can assist with this pain it is stated that there can be no assurances that completely remove all of the painful symptoms. I further note that on the 03 May 2024 and 24 May 2024 in emails to her dentist, Mrs Daramy mentions that she is suffering from constant headaches and facial pains. I also note that low mood is referred to in the medical notes with the recommendation of referral for counselling. There is nothing in the medical evidence before me that states that Mrs Daramy is not fit to attend a hearing. It is clear from the evidence that Mrs Daramy has had ongoing difficulties with her TMD for quite some time and that her symptoms have fluctuated with stress and that this is a chronic condition that she has been dealing with. It is acknowledged by the Tribunal that hearings can be stressful for all parties involved and that resolution and final determination of the issues may alleviate stress. Further, in respect of Mrs Daramy’s blood pressure the letter from Dr Carson records, as mentioned above, that prior to the most recent blood pressure check, that investigations to date have been stable and he is seeking to manage the stress related hypertension. I have considered the presidential guidance in respect of seeking a postponement. The presidential guidance states that: Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease. There is no statement meeting these requirements before the Tribunal. Mrs Daramy still has an opportunity to submit a medical note that meets the requirements as set out in the presidential guidance and renew her application to postpone the hearing before the Tribunal should she consider it appropriate to do so. 2) My pending appeal and other outstanding matters Mrs Daramy includes her subject access request for Employment Judge Beyzade’s notes of the 19 October 2023 preliminary hearing and transcript and audio recording of the preliminary hearing of 15 January 2024 as a ground for postponement. The transcript and recordings request for the preliminary hearing held on 15 January 2024 hearing has been dealt with by Regional Employment Judge Burgher on the 22 May 2024 and he refused further reconsideration of that decision on the 13 June 2024. Therefore, there is no material change in circumstances nor is it in the interests of justice for me to reconsider his decisions. The subject access request for the Judge Beyzade’s notes has been dealt with by HMCTS on the 06 June 2024 and the notes were accordingly not disclosed. Further, this is material that was requested in a subject access request to support an appeal that has not yet been registered with the EAT nor made it to the sift stage. In respect of the three outstanding appeals. It is my understanding that two of the appeals have been rejected by the Registrar. Therefore, the hearings listed in January 2025 are an appeal against the Registrar’s decision. If they are successful any appeal of the substantive issues will not be concluded within the next 12 months. The third appeal, has not progressed to the sift stage and therefore remains unclear whether it will be registered as an appeal with the EAT. This third appeal relates to the strike out application determined by Judge Beyzade. There is no material information before me to justify postponing this hearing pending the outcome of the sift. 3) It has been impossible to amend the Respondents purported chronology and review the extensive hearing bundle …containing over 3600 pages. Mrs Daramy explains that it has been challenging to conduct a comprehensive review of the documents given her health circumstances. There is a lack of cogent evidence before me as to why Mrs Daramy is not ready for the final hearing. I note the respondents have explained in their response to the application to postpone the hearing dated the 01 May 2024, that mutual exchange of witness statements took place on 7 December 2023 and that the claimant has been in possession of the trial bundle since November 2023 at the latest. They conclude that the case is ready for trial and oppose the application to postpone. Further, I note that the claim was registered with the Tribunal in 2021. I consider that there has been sufficient time for Mrs Daramy to have prepared herself for the final hearing and I have no medical information before me to conclude that she has been unable to review her documents in readiness for the hearing as a result of her medical conditions. I further re-iterate what was contained in my directions dated 02 June 2024 that the Tribunal does not consider that postponing a hearing due to the parties failure to agree a chronology of events is proportionate and/or in accordance with the overriding objective. Further, the Tribunal is not persuaded that conflicting obligations [mentioned in the initial application to postpone] and awaiting the outcome of appeals lodged with the EAT, in circumstances such as these are also proportionate reasons for postponing the hearing further. 4) While Employment Judge Iman has made assurances regarding reasonable adjustments. I urgently seek clarification on the specific nature of these adjustments and any contingency plans doe potential medical emergencies during the hearing. The Tribunal has a duty to accommodate reasonable adjustments to ensure that the claimant can participate in the final hearing. Mrs Daramy, however, has not provided any details as to which adjustments she may require in order to assist her in the proceedings. I encourage Mrs Daramy to reflect on what reasonable adjustments she considers she requires in order to participate in the hearing. Mrs Daramy may wish to discuss this with her general practitioner and submit a statement from her general practitioner dealing with any reasonable adjustments required to assist the Tribunal. The Judge at the final hearing can determine what reasonable adjustments are required. I have also taken into account the response from the respondent who strongly opposes the application to postpone proceedings. I accept that there would be prejudice to the respondent in granting a postponement to proceedings. This further delay, would mean that the hearing would be listed some months away and would have an impact on the ability of the respondent’s witnesses to recall and deal with matters that relate to some years ago. I consider that it is in the interests of justice for the issues in this case to be determined and I remind myself that the Tribunal’s duty of fairness relates to both parties. Accordingly, the application to postpone the final hearing is refused for all the reasons set out above.

[34]In the meantime, the Claimant’s renewed application to postpone was sent dated 20 June 2024 (set out above). That was not seen by EJ Iman prior to the letter from the tribunal to the Claimant dated 21 June 2024.

[35]On 25 June 2024, EJ Beyzade’s refusal to reconsider EJ Beyzade’s earlier Judgment dated 26 February 2024 and sent to the parties on 29 February 2024 - refusing to strike out the Respondents’ responses - was sent to the parties.

[36]Finally the claimant sent her email dated 28 June 2024 – also set out above.

[37]In all of her correspondence to the tribunal, the Claimant does not say that a GP or other medical professional has said that she cannot attend this hearing or that if unfit she will be fit at an anticipated future time.

The Law

[38]The issues relating to the outstanding appeals to the EAT and alleged late disclosure / non-disclosure by the Respondents (and other alleged failings by the Respondents in relation to the chronology or the compilation of the bundle) have been dealt with in the earlier orders of the tribunal. Therefore, this tribunal has focused on the medical basis for the postponement as outlined above – as that is the primary focus of the Claimant’s more recent communications on 20 June 2024 and 28 June 2024. This tribunal did however read and take into account all of the communications from the Claimant and all of the points raised therein.

[39]Where a party fails to appear at a hearing, either in person or through a representative, an employment tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Rule 47 of the ET Rules states:

[47]Non-attendance If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence.41. The tribunal considered all of the information sent to the tribunal by the Claimant including that highlighted above.

42. It has long been good practice for a tribunal, before proceeding in a party’s absence, to try to contact the absent party by telephone and / or email, and this practice has received judicial approval. The tribunal made enquiries of the Claimant on Monday 1 July 2024; and took into account her further response on the telephone on Tuesday 2 July 2024.

43. Employment tribunals are under a duty to make reasonable adjustments to accommodate claimants’ and respondents’ disabilities. This tribunal offered to consider reasonable adjustments and outlined examples of the sorts of adjustments which could be considered in its communication to the Claimant on 1 July 2024 (the possibility of adjustments has also been raised in EJ Iman’s previous communication).

44. Presidential Guidance has been issued on the procedure for applying for a postponement.

45. The Guidance states that all medical certificates and supporting medical evidence should be provided, in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied, it should include a statement from the medical practitioner that, in his or her opinion, the applicant is unfit to attend the hearing, the prognosis of the condition, and an indication of when that state of affairs may cease.

46. The Court of Appeal in Pye v Queen Mary University of London

2017 EWCA Civ 1820

, CA, confirmed that, in a long-running case, a tribunal may eventually decide that there is insufficient prospect of a hearing ever taking place. That case returned to the tribunal in early 2012 and, after several further postponements, was eventually struck out in February 2014. Although the latest medical evidence in that case suggested that P’s condition was improving and his chances of being fit to proceed were increasing, the tribunal took the view that it would not be fair to the respondent to delay the hearing any further, given the possibility that P’s condition could deteriorate again, with a further postponement being required. 47. The interests of justice and the right to a fair trial, which exists as part of the common law but is also given specific expression in

Article 6 ECHR

, are engaged when a litigant argues that a postponement or adjournment is required to enable her to present her case as effectively as possible.

[48]The kinds of factors that may be taken into account by tribunals in deciding whether to order a postponement or adjournment include:• the degree of prejudice to the other side

• whether the parties had any say in the original listing date (e.g. by being asked for their dates to avoid)

• whether the case has previously been postponed or adjourned and the length of time the case has been waiting to be heard

• in the case of a party who is unable to attend though illness, the prospect of that party being well enough to attend within a reasonable time.

[49]The Court of Appeal decision in in O’Cathail v Transport for London

[2013] ICR 614

, CA and earlier decisions of the Court of Appeal in Teinaz v London Borough of Wandsworth

[2002] ICR 1471

, CA, and Andreou v Lord Chancellor’s Department

[2002] IRLR 728

, CA were all considered.

[50]Lord Justice Mummery spelled out in O’Cathail 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.

[51]The Court of Appeal suggested in Teinaz, that the right to a fair trial will usually require a postponement when a litigant cannot attend a scheduled hearing through no fault of his or her own, however inconvenient this may be to the tribunal or the other parties. The Court of Appeal went on to say, however, that a tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and the onus is on the party making the application to prove the need for such adjournment. Where a tribunal is not satisfied with the initial medical evidence with which it has been provided, it has the discretion to give directions to enable such doubts to be resolved.

[52]Further guidance on a tribunal’s discretion to postpone or adjourn on the ground of ill health was given by the Court of Appeal in Andreou, a case decided shortly after Teinaz. Here, the claimant requested a postponement on the basis of a medical certificate that stated that she was unfit to attend work. In view of the fact that she had been off work for the past two years, the tribunal was not satisfied that she would be in any better state in six months’ time when the case would be relisted. It therefore adjourned proceedings for one week, with directions that a medical report be produced within three days, detailing the nature of and prognosis for the illness and the reasons why the claimant was unfit to attend the tribunal hearing. However, the claimant failed to provide adequate information about her inability to attend the hearing and, as a result, the tribunal struck out her claim on the ground that she had failed to comply with a direction.

[53]In this case, the Claimant was offered and rejected the possibility of continuing by CVP – having made it clear that she had not prepared the case.

[54]This tribunal concluded that the Claimant’s perception of her own inability to attend is not backed up by the medical evidence supplied; nor is there any medical evidence as to when the Claimant could attend. She has indicated that she has not prepared for the hearing. That in itself is not sufficient ground to postpone. The tribunal has noted that in her email of 28 June 2024, the Claimant says that on 25 June 2024, she accepted an appointment for 2 July 2024 (the 2nd day of the hearing).

[55]Noting that the Claimant has said that she copies in her GP to her correspondence to the tribunal; and that Dr Carson had written directly to the EAT in the recent past, this tribunal concluded that Dr Carson did have in mind attendance at legal proceedings when he referred to the recipients of his ‘to whom it may concern’ letter of 3 June 2024 as needing to take the Claimant’s hypertension into account – that suggests that his view, 4 weeks ago, was that – with appropriate adjustments – the claimant was capable of attending this hearing.

[56]If this hearing is postponed the matter would not be able to be re-listed until November 2025.

[57]Taking into account that the case is ready for trial; the undoubted prejudice to the Respondent – in particular that witnesses had left the Respondent; and that the matter could not be relisted for 16 months at the earliest – and balancing that against the undoubted serious prejudice to the Claimant if her application does not succeed, the tribunal refuses the renewed postponement request on the basis that the Claimant has not supplied medical information stating that she is incapable of taking part in the hearing or any indication of when she might be capable of taking part in such a hearing – despite it having been made clear to her on several occasions by the tribunal that this is what the tribunal needed. On the basis of the information before this tribunal, the Claimant would have been able to attend – and with reasonable adjustments, the hearing could have proceeded. There was no evidence which suggested to the tribunal that the situation would be any different on any particular future date.

[58]Having decided not to postpone, the tribunal considered the alternatives available to it. It would have been entirely artificial to have continued with the hearing without the Claimant present. She bears the initial burden of proof on the discrimination claim and the whistleblowing claim. In relation to the unfair dismissal claim, where the Respondent bears the burden of showing the reason for dismissal, it would be artificial in this case for the Respondent to present its evidence as to the reason for dismissal without challenge.

[59]On that basis the claim is dismissed under Rule 47. Useful information

Introduction

Conclusion

[1]All judgments (apart for judgments under Rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimants and respondents.

[2]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation- practice-directions/

[3]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedure- rules

[4]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal