B Attila v K Halal Food Ltd: 3205607/2021
JUDGMENT
The claim is struck out under Rule 37.REASONS
[1]On 21 March 2022 the Tribunal made a case management orders. The Claimant has not complied with that order.[3]The Tribunal wrote to the Claimant on 16 July 2022 stating that the Claimant had not complied with the Order and stating that an Employment Judge was considering striking out the claim for unreasonable conduct, failing to comply with the Tribunal’s Orders and not actively pursuing the claim.[4]On 30 July 2022 the Claimant responded to that letter. His email indicated that he had technical and mental health problems, said that he was seeking assistance, but gave no indication of when he might be able to comply with the Orders made.[5]On 22 August 2022 the Tribunal again wrote to the Claimant. It set out what he must do, and suggested ways he might do those things. It said that if he did not do so by 05 September 2022 his claim might be struck out.[6]On 24 August 2022 the Claimant replied. He said that he had an appointment with a lawyer on 01 September 2022. He said his medication made it hard to concentrate, and that he did not have any friend who could help him.[7]The Tribunal copied this to the Respondent and told the Claimant that he must write to the Tribunal by 05 September 2022.[8]On 02 September 2022 Whitechapel Legal Advice Centre wrote to the Tribunal. They said that they were volunteer advisers of, but not acting for, the Claimant. They said that the Claimant told them that he needed another one to two months to deal with the matters in the Case Management Order. The letter did not Cases No: 3205607/2021 2 say that they would be dealing with compliance with the Orders. It said that the Claimant needed to extract information from his mobile phone, which would enable him to better evaluate his evidence.[9]Rule 37 relates to striking out a claim for non-compliance with orders. It states: “Striking out 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;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).[10]The Case Management Order was made very nearly six months ago. The Claimant has not complied with it. There is an expression of hope that he will do so within the next month, or two months. There is no likelihood of him doing so, for he has not done so in those six months and gives no indication of how he will comply in the immediate future.[11]For two months he has been on notice that striking out his claim was being considered for failing to comply with the Order.[12]No medical evidence has been provided in support of the Claimant’s assertion that medical reasons are part of the reason why he has not complied.[13]There comes a time when a case cannot be allowed to continue when a party does not comply with case management orders. That time has come.[14]This claim is struck for failing to comply with the Order of 21 March 2022, and because it is not being actively pursued. Employment Judge Housego Date: 15 September 2022 Case Number: 3205607/2021 1 EMPLOYMENT TRIBUNALS Claimant: Bartus Attila Respondent: K Halal Food Ltd Heard at: East London Hearing Centre On: 24 May 2022 Before: Employment Judge Housego Representation Claimant: Written application Respondent: Written response[1]On 15 September 2022 I struck out this case under Rule 37 for failure to comply with and Order of the Tribunal dated 21 March 2022, and because it was not being actively pursued. The judgment was promulgated on 22 September 2022.[2]By email of 30 September 2022 at 08:37 Whitechapel Legal Advice Centre asked for a reconsideration of that judgment. Case Number: 3205607/2021 2[3]A later email attached a letter from the Claimant’s GP dated 06 October 2022. This GP letter stated that the Claimant suffered from mental health issues and back pain. It stated that “He reports difficulties with focus and concentration.” It stated that he takes Sertraline 50mg “for his mood”.[4]The relevant procedural rules are in Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. Those relevant Rules are as follows: RECONSIDERATION OF JUDGMENTS Principles70. 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. Application71. 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 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. Case Number: 3205607/2021 3 (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. Reconsideration by the Tribunal on its own initiative 73. Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused).[5]The letter from WLAC does not point to any factual error in the judgment. On 15 September 2022 the Claimant was in breach of the Tribunal’s order of 21 March 2022 by many months.[6]The GP letter does not give the GP’s opinion but reports what the Claimant told the GP. The medication of 50mg Sertraline is a routine prescription. The Claimant’s back pain is no reason to reconsider the judgment.[7]There is no reason to reconsider the judgment, and I refuse the request to reconsider it.