Mrs B Chattopadhyay v Peter Bedford Housing Association: 3201726/2019 and 3202014/2019
EMPLOYMENT TRIBUNALS
Case No 3201726/2019, 3202014/2019
Between
Mrs B ChattopadhyayClaimantPeter Bedford Housing AssociationRespondent
Before
Employment Judge ReidIn person for claimantDate 9 December 2020
JUDGMENT
The Claimant’s claims are dismissed under Rule 47 of the Tribunal Rules 2013 for non-attendance at the final hearing on 9th September 2020 to 11th September 2020. Oral reasons having been given, the Claimant requested written reasons at the hearing.
REASONS
[1]The Respondent made an application for dismissal of the Claimant’s claims for non-attendance at the final hearing on 9th September 2020, alternatively for a strike out of her claims. The Respondent provided written submissions dated 22nd October 2020. I heard oral submissions on both sides.[2]There was a telephone preliminary hearing on 20th August 2020 to discuss arrangements for the final hearing to start on 9th September 2020. Neither party said they had any problems with arrangements for the hearing and said they could do a video hearing (CVP). The Claimant did not raise her mental health as an issue affecting participation although she had had a mental health condition since June 2020 when she first went to her GP about it.[3]At this hearing today the Claimant said the main reason for asking for the postponement on 1st September 2020 was because her mental health meant she could not attend the final hearing.[4]On 1st September 2020 the Claimant’s husband Mr Chattopadhyay asked for a postponement for two reasons(1) the Claimant had chronic depression and(2) COVID 19 (unspecified). He then stated that three of the Claimant’s witnesses had COVID 19; he did not merely say they had symptoms and were self-isolating. I find that the Claimant’s husband was not saying the Claimant specifically had COVID 19 herself in this application.[5]The Claimant was asked to provide medical evidence for her witnesses by Judge Russell on 1st September 2020 including NHS messages confirming positive test results.[6]On 2nd September 2020 the Claimant sent the Tribunal a MED 3 certificate dated 2nd September 2020 saying she was not fit for work due to depressive disorder and lower back pain but she sent nothing about COVID 19 and her witnesses and no explanation as to why they could not attend by CVP a week later.[7]Judge Taylor refused the postponement application on 8th September 2020 noting that the witnesses’ COVID 19 evidence had not been supplied as per Judge Russell’s order and the MED 3 certificate did not show why she could not attend by reason of the two conditions on the certificate. Judge Taylor noted that the bundle had been supplied to the Claimant on 3rd June 2020 and updated on 27th August 2020.[8]On 8th September 2020 the Claimant’s husband emailed the Respondent a text message from her GP surgery said to have been received by the Claimant on 8th September 2020, showing that a GP letter had been requested by the 8th September. I find that the Claimant did not request the letter until 8th September 2020 because the text refers to a request to get the letter that day ie the Claimant had only asked for it on the 8th September 2020 and not before. The Claimant subsequently attended an appointment to discuss that letter on 16th September 2020 according to the GP entry for that date. The Claimant said today that she had originally asked for that letter in August 2020 but produced no evidence that she made the request for the letter in August and requesting it in August was inconsistent with the text dated 8th September 2020 referring to her wanting the letter that day and not mentioning any problems on 20th August 2020.[9]The Claimant’s husband then sent in a 12 point letter in response to the postponement refusal, explaining that due to her mental health the Claimant was not speaking to anyone, unable to think properly to take part in a hearing and that her condition was grave.[10]The Claimant did not attend on 9th September 2020 for the final hearing. The Respondent was ready to go ahead. Judge Taylor had made it clear to the Claimant the day before that reasonable adjustments could be considered.[11]Judge Lewis made directions taking into account what the Claimant’s husband had said in his 12 point letter and he (and not the Claimant) then provided a witness statement and the GP print out and GP letter dated 16th September 2020.[12]The GP letter did not say that the Claimant could not attend a hearing due to her mental health. It said that further stress could jeopardise her mental health to a detrimental level and that the proceedings should be adjusted accordingly – it made no reference to not being able to attend hearings either in the past or going forward (consistent with the later 18th September 2020 entry – when the Claimant was coherent and able to talk normally).[13]The Claimant said she had been disadvantaged in her hearing preparation by claimed delays by the Respondent in providing the electronic bundle but did not claim today that that was the reason for any inability to attend the final hearing (which even if it were the case, would not explain nonattendance). I find this to be something of a red herring and not relevant to the issue of why she did not attend on 9th September 2020. Judge Taylor had in any event already decided that she had received it by 3rd June 2020 and it had been updated on 27th August 2020. The Tribunal Rules[14]Tribunal Rule 47 provides that a claim can be dismissed if a claimant does not attend their hearing; alternatively the Tribunal can proceed in a party’s absence.[15]In this case the Tribunal on 9th September 2020 took account of the Claimant’s husband’s detailed letter and did not immediately dismiss the claim (or go ahead without the Claimant) but made further directions for her to provide evidence as to why she could not attend.[16]The evidence then provided did not show that she had been unable to attend via CVP on 9th September 2020 due to her mental health condition.[17]The Claimant also did not provide any further evidence regarding her witnesses’ inability to attend – she said at this hearing that the postponement request was because they had COVID 19 symptoms and not because they definitely had COVID 19, but the application for a postponement specifically said they had COVID 19. There was also no explanation why a week after the postponement application they were unable to attend via videolink. Although the Claimant said she was respecting their privacy she could have given further explanation and information about them.
Conclusion
[18]Taking these findings into account and the overriding objective under Rule 2 of the Tribunal Rules 2013, I decide that the Claimant’s two linked claims should be dismissed under Rule 47 because she failed to attend the final hearing on 9th September 2020 to 11th September 2020.[19]I have taken into account the Claimant has a mental health problem which has been treated and is being treated with CBT but she has not provided evidence that she was unable to attend the final hearing on 9th September 2020 because of that condition; she had had the condition since June 2020 and there were several opportunities for her to address that issue before the hearing but she did not do so. When she did provide a letter from her GP it ultimately in any event did not support an inability to attend the hearing due to her mental health, which she said was the main reason she did not attend. Her claims are therefore dismissed under Rule 47.[21]The Respondent also made an application for costs which decision was reserved due to the Claimant having to leave for a doctor’s appointment. The decision on that application is set out in a separate judgment. COSTS JUDGMENT (RESERVED)
Conclusion
[1]The Claimant is ordered to pay £125 legal costs to the Respondent, pursuant to Rules 74-84 Tribunal Rules 2013 because the Claimant acted unreasonably within Rule 76(1)(a) in the way she conducted her claim by not attending the final hearing.[2]The date the Claimant must pay this amount is 1st February 2021.
Conclusion
[1]The Respondent made an application for costs under Rule 76(1)(a) of the Tribunal Rules 2013 on the basis that the Claimant not attending the final hearing on 9th September 2020 was of itself unreasonable behaviour. The Respondent provided a costs schedule totalling £10,725. The Claimant’s claims had been dismissed under Rule 47 for non-attendance at the final hearing. This judgment should be read in the light of the Rule 47 judgment.[2]I heard oral submissions on both sides, asked some questions of the Claimant about her financial means and reserved my decision due to lack of time because the Claimant said she had to leave for a doctor’s appointment. The Respondent’s costs said to relate specifically to the nonattendance at the hearing on 9th September 2020 were identified (£3,545 including Counsel’s fees for today’s hearing) but it was argued that the entirety of the total costs for defending the claim should be awarded. The Claimant said that as she and her husband had both been on Universal Credit for the past 18 months and had no savings, no costs should be awarded.
Relevant law
[3]The relevant Tribunal Rules are Rules 74-84 of the Tribunal Rules 2013. Costs in the Employment Tribunal are the exception rather than the rule and there is a high threshold.[4]There is a two stage test, to consider firstly whether the relevant ground under Rule 76 is made out and then if it is, secondly whether the Tribunal should exercise its discretion to award costs.[5]The Tribunal may (but is not required to) take into account the paying party’s ability to pay in deciding whether to make a costs order and if so in what amount (Rule 84).[6]Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420 requires the Tribunal to consider all the circumstances as a whole. and McPherson v BNP Paribas [2004] IRLR 558 establishes the need to consider the nature, gravity and effect of the claimed unreasonable conduct.[7]In AQ Ltd v Holden 2012 IRLR 648 the EAT stated that the threshold tests governing the award of costs are the same whether a litigant is or is not professionally represented, but that the application of those tests should take this factor into account. However, a litigant in person can be found to have behaved unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[8]There is also Presidential Guidance on costs (Presidential Guidance; General Case management – Guidance Note 7 Costs) which I have followed. Findings of fact relevant to costs application[9]The Claimant’s claims have been dismissed because she did not provide evidence showing that she had been unable to attend the final Tribunal hearing on 9th September 2020 due to her mental health or due to witness unavailability.[10]The Claimant’s husband made the application for a postponement on 1st September 2020. That application was made more than 7 days prior to the hearing such that the provisions of Rule 30A(2) did not apply but as a litigant in person the Claimant (or her husband) may have wrongly thought that she was entitled to make an application before 7 days which would be likely to be granted because it was made in good time (she referred to making the application more than 7 days in advance, suggesting she thought that that was significant).[11]The Claimant (or her husband writing on her behalf) initially did not understand the need to produce medical evidence to support the assertion that she was unable to attend the hearing due to her mental health. When she did later provide a GP letter it did not support that she was unable to attend a hearing. She also did not initially understand that if claiming witnesses were too unwell to attend she would need to produce medical evidence. The need to produce such medical evidence on both grounds was however made clear to her after the Tribunal received the postponement application and she was then given a clear opportunity to produce it both after the application was made and after she did not attend on 9th September 2020.[12]The Claimant was aware on 8th September 2020 that the hearing was going ahead, her application having been refused. She was also aware that the Tribunal could discuss reasonable adjustments for her at the start of the hearing.[13]The Claimant brought her claim in July 2019 and was aware of the preparation the Respondent had undertaken to prepare for the final hearing. She was aware the Respondent was legally represented. She was aware that by not attending the final hearing the Respondent was ready and able to proceed and had already incurred legal costs. Whether to make a costs award[14]I have therefore taken into account the following factors in deciding whether to award costs under Rule 76(1)(a) on the basis of unreasonable behaviour (not attending the final hearing): The Claimant was a litigant in person and she (and her husband) may not have understood that there were possible costs consequences of making a postponement application, even if they thought they had made it in good time The Claimant (and her husband) may also not at the point of making that application have understood that it is not sufficient to merely assert an inability to attend a hearing but that it must be backed up with evidence, in her case medical evidence It was however made clear to the Claimant on 1st September 2020 that medical evidence was required The Claimant delayed until 8th September 2020 in asking for a GP letter which mean the vast majority of the Respondent’s costs would in any event already be incurred (even if the letter had supported her non-attendance, which ultimately it did not) On 8th September 2020 the Claimant was aware that her mental health condition could be taken into account by way of a discussion about any reasonable adjustments she required; at this point there was a clear opportunity for her to attend but to have her concerns about the arrangements at the hearing addressed The effect of the Claimant’s non-attendance meant at the very least that most of the Respondent’s costs for attending the hearing as listed would have been incurred but would be wasted as the hearing would not go ahead (even if it had done on a future date) At its highest the effect was that Respondent had incurred costs in defending a claim the Claimant had chosen to bring but at the hearing for which claim she had not attended, despite clear opportunities to provide medical evidence supporting nonattendance and, if that was not possible, despite having the opportunity the day before the hearing to nonetheless attend but ask for adjustments for the hearing itself.[15]Taking the above into account the Claimant’s behaviour in not attending her hearing on 9th September 2020 was, taken in the round, unreasonable behaviour within Rule 76(1)(a) taking into account the above sequence of events leading to that non-attendance and the effect on the Respondent. Whilst the Claimant was not legally represented she was made aware of the need to provide evidence for the reasons she gave for non-attendance and, if she was even then unable to do so, had a clear opportunity to still attend and ask for adjustments.[16]As to whether I should exercise my discretion to award costs I have taken into account the Claimant’s ability to pay, which is limited and the fact that awarding costs is the exception and not the rule. I have also taken into account her mental health condition which is being treated with CBT but this is also the condition which she said prevented her attendance but without ultimately supplying evidence that it did prevent her attendance. Whilst the Claimant’s means are limited the Respondent has been put to significant cost at the very least in having to attend on 9th September 2020 (and this hearing) and the final hearing not go ahead.[17]Weighing it up I conclude that the high threshold is met for a costs award to be made and that I should exercise my discretion to award costs against the Claimant and in favour of the Respondent. Amount of costs award[18]I take into account that had this non-attendance not happened the Respondent would have incurred costs prior to that non-attendance in any event.[19]The claimed costs of the actual non-attendance were made up of £165 solicitors’ costs for 9th September 2020, £2,000 brief fee for 9th September 2020 and £1,380 Counsel’s fees for preparation (£630) and attendance at this hearing (£750), total £3,545. I take into account that Counsel’s fee for the hearing of £2,000 would have already been incurred at the latest by the day before the hearing, whether it went ahead or did not go ahead and also that it encompassed the fee for day 1 of the hearing. I therefore discount Counsel’s fee of £2,000 to £1,000. I therefore assess the actual costs solely associated with the hearing not going ahead (including the costs of having to make this application at this hearing) as £2,545.[20]I also take into account the Claimant’s ability to pay, it being limited. She told me that she and her husband are on Universal Credit and that they are renting their home. They have no other dependents and do not have any savings. I have assumed that the Claimant and her husband receive only the minimum amount on a joint claim for Universal Credit (currently £594.04 per month) and do not receive any of the additional elements; I have not taken into account that her husband may also receive the carer’s element (the Claimant said he was her carer) or that she is in the process of applying for the health element for herself.[21]Taking that into account I make a costs award of £125, being around 5% of the costs incurred only by the non-attendance on 9th September 2020 (plus the costs of this hearing) and not taking into account any of the costs incurred prior to that date. I have heavily discounted the costs by 95% to take into account the Claimant’s ability to pay. I have fixed the payment date so that the Claimant has two months’ worth of income with which to make the payment.