Ms P Hylton v Citizens Advice Waltham Forest Ltd: 3202627/2019 and 3200752/2020
JUDGMENT
The Claimant did not attend the hearing. Her claims are dismissed pursuant to rule 47 of the 2013 Employment Tribunal Rules.REASONS
[1]The Claimant presented her first claim to the Tribunal on 13 November 2019. The ET3 in respect of this claim was submitted on 24 December 2019. A preliminary hearing to consider the issues and consider case management orders took place before EJ Moor on 1 May 2020. It was clarified that the Claimant brings complaints of direct race discrimination or harassment related to race and unlawful victimisation. A full merits hearing was listed for 24, 25 and 26 March 2021.[2]By letter dated 13 May 2020 the Claimant sought to amend her claim to add a further protected act.[3]By letter dated 19 May 2020 the Claimant informed the Respondent that she did not have internet access and requested that all post be sent by mail to her home address.[4]The Respondent acknowledged the Claimant’s request for correspondence by post in its letter to the Tribunal dated 3 June 2020, which also objected to the amendment application. The Respondent corresponded by post since this date.[5]The Claimant subsequently entered into email correspondence with the Tribunal and the Respondent by email from the hello@a****.co.uk email address. She made applications and for specific disclosure and responded to the Respondent’s objection to any amendment. Second claim 3200752/2020[6]On 16 March 2020 the Claimant presented her second claim following being dismissed by the Respondent. She claimed unfair dismissal and asserted that her dismissal was race discrimination and unlawful victimisation. Unfortunately, this claim was not processed by the Employment Tribunal Service until 31 October 2020. The ET3 in respect of this claim was submitted on 26 November 2020.[7]A preliminary hearing in respect of the second claim took place before EJ Lewis on 8 February 2021. The first and second claims were combined. Paragraph 9 of EJ Lewis’ case management summary stated:[9]The parties agreed that it would not be possible to hear both claims on the forthcoming dates in March, it was agreed that the three day hearing on March would be vacated and the case re listed for five days on 6 - 9 July and 13 July 2021. It is likely that the hearing will take place by CVP. We discussed the requirement for a CVP hearing. The notes on CVP hearings are to be sent to the Claimant so that she can test whether she can successfully join a CVP hearing, if not then the hearing will need to be a hybrid hearing with the Claimant attending the tribunal to use its CVP facilities. 8. A notice of hearing was sent to the parties on 12 February 2021 confirming the full hearing date. In particular:8.1 It was stated that the hearing will take place by CVP;8.2 A CVP link was sent to the parties;8.3 The parties were informed that before the hearing they should allow plenty of time to ensure that their IT equipment is functional. If in doubt they were requested to call technical support on the number provided. They were required to notify the Tribunal as soon as possible if they had any concerns on their ability to join the hearing;8.4 Guidance on ensuring a good internet connection and testing internet connection speed was provided;8.5 It was stated that if there were any issues or queries then the parties were required to contact the Tribunal. 9. The Claimant did not inform the Tribunal of any issues about attending by CVP or raise any concerns about being able to participate in this format at the time.[10]On 18 February 2021 the Claimant corresponded with the Tribunal from a pyramidsolutions email address. This email address stated that it did not accept or monitor emails. She specified the further matters that needed to be incorporated in the list of issues.[11]By email dated 22 February 2021 the Claimant applied to amend her claims. She repeated her application by email dated 2 March 2021 and made extensive requests for written answers and specific disclosure.[12]By email dated 4 March 2021 the Claimant applied for a witness order. EJ Lewis responded to the Claimant’s applications by letter dated 6 March 2021. The Claimant sent further emails on 5 and 8 March 2021 repeating requests and providing a schedule of loss.[13]The Respondent objected to the Claimant’s applications and the Claimant sent a further email to the Tribunal on 11 March 2021 responding to the objections. The Claimant sent further emails to the Tribunal on case management matters on 12 and 26 March and 9 and 13 April 2021.[14]On 15 April 2021 EJ Massarella ordered a further preliminary hearing to take place. This took place on 17 May 2021 before EJ Russell who considered outstanding matters and made consequential orders.[15]The Claimant sent emails on case management matters on 4, 7, 11, 13, 17, 21, 24 and 26 May and 4, 18 and 25 June 2021. The Claimant’s email of 25 June 2021 stated that she was not ready to exchange witness statements as ordered.[16]The Respondent applied for an unless order for exchange of witness statements by letter dated 30 June 2021.[17]In none of the above emails sent by the Claimant, nor at the preliminary hearing on 17 May 2021, did the Claimant indicate that there may be a problem with her attending the hearing by CVP. However, on 2 July 2021 at 15:12 the Claimant sent the Tribunal the following email. Dear Sir/Madam I am the Claimant in the above case. I am litigant in person. I write respectfully to inform the Employment Tribunal; I do not agree with the Respondent's bundle. Unfortunately, they have not included documents that I will be relying on at the hearing, these documents were sent to them 26 April 2021 (with a numbered index). The Respondent's representatives have, stated that the documents are not relevant. Due to cost and time constraints, I will aim to send or bring documents I will be relying on to the Tribunal before or at the hearing scheduled 6 July 2021. I will be attending the Tribunal in person as I do not have reliable digital access. The Respondent's representative has a copy of my witness statement, I am waiting for the Respondent's witness statements which their representative said I would receive today. I have not yet received the Respondent's witness statements. I have sent a copy of this email to the Respondent's representative[18]The hearing was due to commence on 6 July 2021 at 10am. However, at 9.30 the Claimant telephoned the Tribunal and informed the Tribunal clerk that she would not be attending the CVP hearing. She stated that she was self-isolating due to COVID-19 and would be unable to attend the Tribunal. The Claimant was informed that the hearing was a CVP hearing and that she would be able to access the hearing from home. The Claimant then stated that she did not have any digital access at all to be able to participate.[19]The hearing commenced at 10.30 after further enquiries were made with the Claimant. The Claimant stated that she had initially intended to access the hearing by using her friend’s internet access and this was no longer possible because the Claimant was now self- isolating. The Tribunal considered this to be inconsistent with the Claimant’s email on 2 July 2021 where she stated that she did not have reliable internet access with no reference to a friend.[20]The Tribunal outlined the chronology at the hearing. Mr Griffiths, on behalf of the Respondent, submitted that it would not be appropriate to adjourn the hearing due to the prejudice to the Respondent, its witnesses and costs arising. He submitted that the case should either be heard in the Claimant's absence or dismissed pursuant to rule 37 of the Employment Tribunal rules. He stated that the Respondent was ready to proceed, its witnesses were in attendance and there was no reasonable basis for the Claimant to suggest that she did not have digital access. He stated that the Claimant specifically refused to have documents sent to her by post and required all documents to be sent by email. However, this submission seemed to be contrary to the practice of the Respondent and the Tribunal sending the Claimant’s documents by post.[21]Following Mr Griffiths’ submissions the Tribunal adjourned and sought further clarification from the Claimant as to when, if at all, she would be able to attend this hearing. The Claimant informed the Tribunal clerk at 11.00 that she would not be able to attend the hearing but would make enquiries as to whether she could get a dongle or whether she could make contact with her friends in her bubble to try and get a laptop or smart phone to see if she could attend the hearing.[22]When considering most appropriate way to proceed the Tribunal considered rule 47 of the Employment Tribunal rules which states: Non-attendance 47. 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.[23]The reasons given for the Claimant not being in attendance are that she does not have any digital access and that she is now self-isolating. The Tribunal is sceptical about the reasons provided in view of the procedural history, the timing of the Claimant’s notification and the implication in the Claimant’s email of 2 July 2021 that she was not properly prepared to proceed because she does not have all the documentation.[24]In any event neither of the Claimant’s reasons have not been evidenced, they have simply been asserted at a very late stage.[25]Given the detailed procedural history that has occurred and the clear terms of the notice of hearing dated 12 February 2021, the Tribunal conclude that the Claimant’s very late indication, on 2 July 2021, of potential inability to attend CVP due to not having reliable digital access was unreasonable. This seriously undermines the credibility of the reason given for her non-attendance. Further, no details or evidence has been provided when the Claimant became a contact case to self-isolate or why she only contacted the Tribunal on the morning of the hearing to state this. Finally, her failure to make any prior enquiries regarding using the equipment of people in her bubble before stating that she was not attending is conspicuous.[26]The Tribunal did not consider that it was appropriate to hear the claim in the Claimant’s absence. We concluded that consideration of the fact sensitive matters would be academic in her absence.[27]The Tribunal is sceptical of the reasons for the Claimant’s non-attendance, there are inconsistencies between her email of 2 July 2021 and the explanations that have been provided to the clerk on the morning of the hearing. The Claimant’s inability to attend CVP has been notified at an unreasonably late stage. There are also continuing issues concerning the parties cooperation in preparation for the hearing and in view of the numerous emails the Claimant was sending regarding case management matters. The Tribunal is not confident that these would be resolved by any further case management orders.[28]In these circumstances we conclude that the Claimant’s claims should be dismissed due to her non-attendance pursuant to rule 47 of the Employment Tribunal rules. We do so on the grounds that the Claimant has not provided sufficient detail of evidence of the reasons for her non-attendance and there are inconsistencies undermining the credibility of the reasons advanced. A 5 day listing, that other cases could have been listed against has now been wasted. The Claimant is, of course, entitled to apply to the Tribunal to reconsider its judgment with a fully evidenced application addressing the concerns the Tribunal have about the credibility of the reasons she has advanced. RECONSIDERATION JUDGMENT The Claimant’ application to reconsider the judgment sent to the parties on 8 July 2021 is refused. It is not considered to be necessary in the interests of justice to do so. The original decision is therefore confirmed. The Claimant is ordered to pay the Respondent the sum of £100 in respect of its cost arising from her unreasonable conduct in the litigation.[1]The Claimant applied to reconsider the Employment Tribunal judgment that was 2021, was six pages long consisting of numerous points why the judgment should be reconsidered.[2]The primary points for the reconsideration were that the Claimant was unaware of the details of a CVP hearing, having not received the 12 February 2021 notification; and that there were reasonable reasons for her non-attendance at the Tribunal on 7 July 2021.[3]The Claimant attached four documents to her application, namely3.1 A letter from Thashi Innis 16 July 2021 relating to the offer of digital resources to the Claimant;3.2 A redacted credit card statement from Ms Innis dated 14 July 2021;3.3 A generic NHS test receipt card with barcode AAL 8707 4127 and the Claimant's name handwritten onto it. No further details were provided of this;3.4 A ‘to whom it may concern letter’ dated 5 July 2021 from the Claimant's GP Dr Rebecca Gidley stating that the Claimant had been experiencing anxiety and would appreciate support breaks during the hearing.[4]Whilst the reconsideration letter was sent to the Respondent, the four appendices were not. Mr Griffiths did not have them to make his submissions before the Tribunal and he submitted, that on the evidence that was provided to him the threshold for sift to allow reconsideration was not met. He submitted that the Claimant's application to reconsider should not be permitted.[5]We did not permit Mr Griffiths to comment on the four appendices, which we took as read. On the face of it they did not evidence the Claimant's inability to attend on the Tribunal hearing on 7 July 2021 and therefore did not take matters further.[6]It was incumbent on the Claimant to evidence the good reason for nonattendance at the Tribunal on 7 July 2021 and she has not done so. The questions that Mr Griffiths asked the Claimant underlined the issues that the Tribunal had regarding her credibility which we found to be seriously wanting. The Claimant stated that she did not return a preliminary hearing bundle addressed to her to the post office and it must have been her uncooperative neighbour who did so. Our concerns about the Claimant’s credibility and willingness to properly engage in proceedings remain unchanged to those we held about her failure to attend the Tribunal on 7 July 2021.[7]In the circumstances we do not reconsider the judgment. We have had regard to the submissions of the Claimant that she is a litigant in person; that she is very vulnerable; and that she is making serious claims of race discrimination and victimisation when considering whether it is in the interests of justice to reconsider. However, we conclude that in the circumstances it is not in the interests of justice to reopen the case. The Claimant was given a proper opportunity to have her case considered and did not attend without good reason.[8]Therefore the Claimant's application for reconsideration is refused and her claims remain dismissed. Costs[9]Following delivery of the reasons for reconsideration Mr Griffiths applied for costs on behalf of the Respondent totalling £600 (£500+ VAT) in respect of his attendance for the preliminary hearing only. He submitted that the Claimant was unreasonable in her conduct of the litigation. He stated that the Claimant’s reconsideration application was made without full disclosure of documentation to them; that her approach to the litigation was unreasonable in returning the preliminary hearing bundle to the post office and that the costs proportionate in view of what was especially in the context of the Claimant’s failure to comply with orders and attend the Tribunal previously.[10]The Claimant objected to the costs application and stated that it would be unreasonable for her to pay costs. She stated that she is earning £300 month working part-time and has outgoings of £800 month she also relies on family and friends to help pay expenses and that she has about that £1500 worth of savings. The Claimant stated that she would suffer hardship having to pay such costs.[11]Rule 76 of the Employment Tribunal rules states: 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success; [or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins].(a) (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. (3) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and (b) the postponement or adjournment of that hearing has been caused by the respondent’s failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment. (4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party. (5) A Tribunal may make a costs order of the kind described in rule 75(1)(c) on the application of a party or the witness in question, or on its own initiative, where a witness has attended or has been ordered to attend to give oral evidence at a hearing.[12]The Tribunal also has regard to the structured approach set out in the case of Millan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN where the then President of the EAT, Langstaff J, described the exercise to be undertaken by the Tribunal as a 3 stage exercise at paragraphs 52: There are thus three stages to the process of determining upon a costs order in a particular amount. First, the tribunal must be of the opinion that the paying party has behaved in a manner referred to in Rule 40(3); but if of that opinion, does not have to make a costs order. It has still to decide whether, as a second stage, it is “appropriate” to do so. In reaching that decision it may take account of the ability of the paying party to pay. Having decided that there should be a costs order in some amount, the third stage is to determine what that amount should be. Here, covered by Rule 41, the tribunal has the option of ordering the paying party to pay an amount to be determined by way of detailed assessment in a county court.[13]The Tribunal therefore considered the following issues:13.1 Has the putative paying party behaved in the manner proscribed by the rules?13.2 If so, it must then exercise its discretion as to whether or not it is appropriate to make a costs order, (it may take into account ability to pay in making that decision).13.3 If it decides that a costs order should be made, it must decide what amount should be paid or whether the matter should be referred for assessment, (again the Tribunal may take into account the paying party’s ability to pay).[14]We accept Mr Griffith’s submission that the Claimant has acted unreasonably in: litigation not copying in important documents the Respondent was unreasonable and refusing to accept the preliminary hearing bundle from the Respondent. It was unreasonable of her not attending the Tribunal with specific documentation to support her application.[15]The Tribunal then considered whether to exercise our discretion to award costs costs and if so tribunal the amount.[16]The Claimant's conduct amounts to unreasonable conduct and the Tribunal exercise its discretion to award costs. In respect of the amount of costs the Tribunal does not award £600. The Tribunal orders the Claimant to pay £100 to the Respondent in respect of costs. The Tribunal has had regard to rule 84 the Tribunal rules, the Claimant’s ability to pay and her income and have outgoings. Miscellaneous[17]During the submissions the Claimant commented that she thought that she knew Tribunal Member Jansen. Enquiries were made about with Ms Jansen who has extensive HR experience over a number of years. She has no recollection of encountering the Claimant at all and there was no indication whether there was preknowledge to form the basis of potential conflict to affect the determination of the reconsideration or costs.