Miss S Amir v Royal Berkshire Foundation NHS Trust: 3300324/2017
JUDGMENT
The complaints of direct discrimination on grounds of disability, discrimination arising from disability, failure to make reasonable adjustments and harassment on the grounds of disability are struck out.REASONS
[1]By a letter dated 18 September 2018 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable; the claimant had not complied with the Order of the Tribunal dated 9 January 2018 (as subsequently varied).[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim is therefore struck out.[3]The hearing fixed for 29/10/2018 will only be dealing with the claimant’s complaints about direct discrimination on the grounds of religion, harassment related to religion, victimization and unlawful deduction of wages take place.[1]I heard submissions from the Claimant Ms Amir and from Mr Steer on behalf of the Respondent.[2]I do not have the full Tribunal file available today but I have received documents from that file and also documents from the Respondent and from the Claimant which have been given to me today. I consider that I have sufficient information to make a decision on the Claimant’s application today.[3]The background to the case is that on 18 February 2017 the Claimant presented a claim to the Tribunal which had claims of disability discrimination, discrimination based upon religion and belief, and a claim for unpaid wages.[4]A preliminary hearing was held on 19 December 2017 at which the Claimant was present in person. Part of the case management order (sent to the parties on 9 January 2018) made at that preliminary hearing related to the disability discrimination claim. At paragraph 1.4, it was ordered as follows: 1.4 The Claimant is ordered to disclose by list and copy so as to arrive with the Respondent by 27 March 2018 all medical records held by the Claimant’s GP and/or by any Hospital, including notes, whether manual or on computer, of attendances by the Claimant, referrals to other medical or related experts, reports back from such experts, copies of X-rays, test results or other examinations relevant to her condition of migraine and any associated complications thereof.[5]The Claimant failed to provide such medical evidence but was granted an extension of time from 27 March to 25 May 2018 to do so. Even with that extension, the Claimant failed to comply with the order.[6]On 24 August 2018 the Respondent complained about that matter to the Tribunal.[7]On 18 September 2018 an Employment Judge sent a strike out warning to the Claimant in respect of the disability discrimination claims on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Claimant has been unreasonable and she had not complied with the order of the Tribunal dated 9 January 2018 as subsequently varied. She was given an opportunity to object to the strike out and to give reasons in writing or request a hearing at which she could make them.[8]The Claimant did not respond to the strike out warning. On 16 October 2018 the disability discrimination claim was struck out. That was because the Claimant had failed to produce the medical evidence which she had been ordered to produce. Page 2 of 7[9]The other claims, that is the claims of discrimination based upon religion and belief and unpaid wages, were allowed to proceed. The strike out related only to the disability discrimination claims.[10]On 29 October 2018 the case came on for a 5 days full merits hearing on 29 October to 2 November 2018.[11]On 29 October 2018, the Employment Judge recorded the following: The case came before the Tribunal for hearing today. The Claimant and the Respondent have not exchanged witness statements. The Claimant was not able to proceed with the hearing today she has not produced a witness statement and has failed to disclose evidence on which she would seek to rely. The Claimant attended the hearing with her new born child. The Claimant did not have any alternative child care. It would not have been practicable for the proceedings to go ahead today as the Claimant had to provide care to her new born baby which meant that the Claimant could not sensibly conduct the hearing. The Claimant indicated that she wished to make an application for the judgment striking out her disability discrimination complaints to be reconsidered and the disability discrimination claims to be reinstated.[12]Accordingly, an order was made as follows: The Claimant is ordered to send to the Respondent to arrive by no later than 4.00 pm on 1 November 2018, any evidence including any witness statements or medical evidence on which she wishes to rely in support of her application or in order to resist the Respondent’s application.[13]The Respondent’s application was an application to strike out the remaining claims.[14]When the hearing resumed on 2 November 2018 the Claimant failed to attend. In the meantime, on 30 October 2018 the Respondent’s representative had written to the Claimant to set out what was required arising out of the orders made on 29 October 2018. The Claimant having failed to attend the hearing on 2 November 2018, the Tribunal made the following order: The Claimant not attending, not being represented and the Claimant having failed to serve on the Respondent any evidence including any witness statements or medical evidence in support of her application for a reconsideration of the judgment striking out her complaints about disability discrimination by no later than 4.00 pm on 1 November 2018, the application is dismissed.[15]Today, the Claimant has submitted that she has been suffering from serious health problems over the past year or so, and that she had a difficult Page 3 of 7 pregnancy and gave birth on 16 May 2018. She then had the responsibility of looking after the baby. She said that she has made efforts to obtain medical evidence but her GP surgery has not been co-operating. She produced two emails dated 12 November 2018 and 6 March 2019 which she sent to the GP surgery asking for disclosure of her medical records. She also produced a handwritten letter from her GP dated 13 March 2019 which says: “This patient of mine suffers from depressive illness and more recently post-natal depression. She is on treatment with Mirtazapine (daily) and counselling”. That is the only medical evidence which the Claimant has produced over the past 15 months.[16]I have taken into account what the Claimant has said about her difficult pregnancy, her ill health, having to look after a child, and also the efforts that she says she has made to obtain her medical records. But I cannot avoid the simple fact that, after 15 months, the Claimant has not produced any medical evidence in support of her disability discrimination claim. She accepts that fact.[17]The disability discrimination claim having been struck out by reason of the Claimant’s failure to comply with the Tribunal’s order to provide medical records and the Claimant’s acceptance that, even at today, she has still failed to do so, I can find no grounds upon which to grant her application to reinstate the disability discrimination claim. The application is therefore refused. Respondent’s application to strike out the remaining claims[18]The Tribunal heard submissions from Mr Steer on behalf of the Respondent and from Miss Amir on her own behalf.[19]The Respondent’s application for strike out of the remaining claims (direct discrimination on the grounds of religion, harassment related to religion, victimisation and unlawful deduction of wages) was based upon Rule 37 of the Employment Tribunals Rules of Procedure as follows:(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 – … (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued;(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.[20]The Respondent said that the Claimant had failed to comply with the case management orders made on 19 December 2017 at a preliminary hearing at which she was present in person. Orders were sent to the parties on 9 Page 4 of 7 January 2018. The Respondent claimed that the Claimant had failed to comply with the following orders: 1.1 The parties are ordered to give mutual disclosure of documents relevant to the issues identified above by list so as to arrive on or before 13 March 2018. The parties are then to provide copies of documents on their respective lists which are not set out in the other party’s list so as to arrive on or before 27 March 2018. This includes, from the Claimant, documents relevant to all aspects of any remedy sought. … 2.1 The Claimant is ordered to provide to the Respondent and to the Tribunal, so as to arrive on or before 6 February 2018 a properly itemised statement of the remedy sought (also called a schedule of loss). … 5.5 It is ordered that witness statements are exchanged so as to arrive on or before 1 October 2018.[21]The Respondent said that the Claimant had not, even now, some 15 months later, complied with these orders.[22]As found above, at the start of the full merits hearing on 29 October–2 November 2018, the Claimant arrived without having produced a witness statement or any documents. She did not bring with her a copy of the trial bundle of documents which had previously been served on her by the Respondent. She brought with her a young child.[23]Additionally, the Claimant had the opportunity to provide a witness statement and supporting documents no later than 1 November 2018. She failed to do so and failed to attend the hearing on 2 November 2018.[24]Hearings have taken place on 19 December 2017, 29 October 2018, 2 November 2018 and again today, 25 March 2019. Despite these hearings and the various case management orders referred to above, even at today’s date, the Claimant has not produced a witness statement or any documents in support of her claim.[25]There is no indication that the Claimant has, over the past 15 months, actively pursued her claim, despite several opportunities to do so.[26]Following Mr Steer’s application, the Claimant was given a 25 minute adjournment to consider a response to the Respondent’s application. When she returned, she said that most her claim related to the disability discrimination claims. She requested a postponement so that the Respondent’s application could be put in writing to her and an extension of Page 5 of 7 time for her to put in a written response. She said that she was not a lawyer, English is her third language, and the application was not straightforward for her to understand and she would prefer it to be put in writing. She said she was under pressure and stress.[27]I refused that application for a postponement. The Claimant was given notice of the Respondent’s application to strike out the claim in the case management order made on 2 November 2018 and has had ample time to prepare for this hearing. It was not in the interests of justice to further delay matters when the Claimant had been given the opportunity to make representations at this hearing.[28]I was satisfied that the application was straightforward and I took the opportunity to explain it again to the Claimant. It was simply that she had failed to comply with the Tribunal’s orders and had not actively pursued her claim in the last 15 months.[29]The Claimant did not provide any further explanation for the failure to comply with Tribunal orders in addition to the reasons given above for the failure to provide the medical evidence.[30]Just before the break at 01:00pm for lunch, the Claimant said that due to childcare commitments, she would not be able to return in the afternoon. I therefore confirmed that I would reserve my decision on the Respondent’s application for strike out of the remaining claims and that would be given in writing at a later date. Also, the Respondent’s further application for a costs order would be dealt with at a later date.[31]I found as follows.[32]The magnitude of the non-compliance by the Claimant is high. She did provide a schedule of loss on 6 February 2018, but has otherwise failed to comply with the Tribunal’s other orders.[33]The Respondent is prejudiced because a case that should have proceeded in October 2018 is now, other than the schedule of loss, no further forward than it was in December 2017. The hearing in October 2018 was non-effective because the Claimant had not complied with the Tribunal’s orders and attended without any papers and with a young child to care for. The Claimant was a litigant in person, but I noted that in November 2018 she had the assistance of Mwaniki Gachuba (whose status was not stated but claimed to act on her behalf) who wrote to the Tribunal on her behalf on 1 and 20 November 2018, but did not appear to represent her. The Claimant then failed to provide any documents on 1 November 2018 and failed to attend the hearing on 2 November 2018.[34]It is unlikely that a further full merits hearing could be listed before April 2020 by which time some of the events involved in the case would be 5 years old. Page 6 of 7[35]I considered whether a lesser sanction than strike out would be an appropriate response to the disobedience to the Tribunal’s orders. In view of the previous failures to comply with the Tribunal’s orders, I was not satisfied that a postponement of the hearing or the making of an unless order would be effective.[36]The Claimant has not actively pursued her case in the past 15 months. I was conscious of the fact that the approach of Tribunals should be facilitative rather than penal but could not see what lesser course would facilitate a fair procedure towards a full merits hearing when the Claimant has failed to engage with the process.[37]Both parties are entitled to a fair process and a fair hearing but in this case the Claimant has shown an unwillingness to engage in the process. In these circumstances a fair hearing is not possible.[38]Although I took account of the Claimant’s ill health and difficult pregnancy, there was no medical evidence produced to indicate that she was unable to participate in the Tribunal process.[39]In these circumstances, I considered that the remaining claims should be struck out for non-compliance with the Tribunal’s orders and because the Claimant was failing to actively pursue the claims. A fair hearing is not possible. The Respondent’s application was therefore granted Respondent’s application for a costs order[40]Because the Claimant was unable to attend the hearing after lunch, I ordered that this application should be dealt with later and a case management order was made separately in respect of this matter.[1]By a claim form presented on 18 February 2017, the Claimant presented a claim form that she was discriminated against on the grounds of disability and religion or belief. The Claimant also complained that she was owed arrears of pay and other payments. In a response received at the Tribunal on 27 March 2017, the Respondent denied all the Claimant’s complaints.[2]The Claimant’s claim was listed for a preliminary hearing to take place on 31 May 2017. On 30 May 2017, the case was postponed by Regional Employment Judge Byrne because there was no judge to hear the case on 31 May 2017. The case was relisted for a hearing to take place on 27 July 2017 when the case was again postponed because there was no judge to hear the case. The case was listed for hearing on 19 December 2017. The preliminary hearing took place on 19 December 2017 before Employment Judge S Jenkins. The Claimant appeared in person and the Respondent was represented by solicitor, Mr Pender.[3]Following a hearing which lasted for two hours 18 minutes according to the Employment Tribunal Record of Proceedings form, the Employment Judge set out a case management summary which included identification of the issues in the case setting out a number of different complaints being pursued by the Claimant. The Employment Judge also made a number of directions in respect of the disclosure of documents for provision of a statement of remedy or schedule of loss, provisions relating to medical and expert evidence, the preparation of a trial bundle of documents, the exchange of witness statements and the provision of a chronology and cast list. The full merits hearing was listed to take place over five days Page 1 of 5 commencing on 29 October 2018. This gave the parties a period of about 10 months and 10 days to prepare for the hearing.[4]The case came up for hearing before Employment Judge Gumbiti-Zimuto sitting with Members Ms C Carr and Mr N Singh. On that occasion, an order was made that the hearing was adjourned and that the case may be relisted before any other Tribunal. The Respondent made an application to strike out the Claimant’s complaints and it was decided that the application to strike out the complaints would be considered on 2 November at 12 noon. The Claimant was ordered to send to the Tribunal to arrive no later than 4.00 pm on 1 November any evidence including any witness statements or medical evidence on which she wished to rely in support of her application or in order to resist the Respondent’s application. The Claimant was applying for the Judgment striking out her complaints about disability discrimination to be set aside and the Respondent was applying to strike out the claims on the grounds that the Claimant had failed to comply with the Tribunal’s orders.[5]On 2 November 2018, the Claimant did not attend before the Tribunal. The decision of the Tribunal was to stay the claim until 2 February or until further order.[6]On this occasion the Respondent’s application for the Claimant to pay the Respondent’s costs incurred at the hearing on 29 October and 2 November were put over to be heard by an Employment Judge sitting alone on 25 March 2019.[7]Paragraph 3 of the Order made stated that the Claimant not attending, not being represented and the Claimant having failed to serve on the Respondent any documents including any witness statements or medical evidence in support of her application for a reconsideration of the Judgment striking out her complaints about disability discrimination by no later than 4.00 pm the application was dismissed. The remaining live applications were therefore whether the Claimant’s claims should be struck out on the grounds that the Claimant had failed to comply with the Tribunal’s orders and the Respondent’s application for costs relating to the hearing on 29 October and 2 November.[8]The Claimant’s case came up for hearing before Employment Judge Vowles on 25 March 2019 and following hearings before him the Claimant’s application for a reconsideration of a decision to dismiss her application was refused and the Respondent’s application for the Claimant’s claim to be struck out was granted.[9]In respect of the Respondent’s application for costs, the Tribunal made the following order. Firstly, that the Respondent was to make the application in writing within 14 days and send a copy to the Claimant and to the Respondent and the Claimant within 14 days of receipt of the application was to send to the Tribunal and copy to the Respondent her response to Page 2 of 5 the application with reasons why a costs order should not be made against her and details of her ability to pay such an order.[10]The grounds for the Respondent’s application for costs were set out in a letter provided to the Tribunal on 8 April 2019. In that application, the Respondent pointed out that a number of orders were made by Employment Judge Jenkins on 19 December 2017 and that the Claimant had failed to comply with those orders. It was pointed out that the orders included the requirement that the Claimant provide a statement for mutual exchange, provide medical records, disclose documents, provide a schedule of loss and attend a hearing listed to take place on 29 October. The Respondent points out that in respect of all of those matters, the Claimant failed to comply with any of the orders.[11]The Respondent points out that despite failing to fulfil any of the orders indicated the Claimant attended the hearing which was listed to take place on 29 October knowing that the Respondent had prepared statements which were waiting to be exchanged and without bringing her copy of the hearing bundle which had been sent to her in the post prior to the hearing. The Claimant also attended the hearing with a baby that required attention throughout the short time that the hearing took place and she was unprepared for the hearing. The Respondent points out that the Claimant was aware at least 10 months earlier of the date of the hearing and that she could have undertaken reasonable steps in order to provide suitable childcare for her baby in order to be able to attend the hearing and because she came with the baby which required constant attention the hearing on that date was effectively abortive. The Respondent points out that the Claimant stated at the hearing on 25 March that she had been suffering from post-natal depression following the birth of her child. The Respondent makes an application for costs in relation to the hearings on 29 October and 2 November on the grounds that there has been a breach that the criteria set out in rule 76(1)(a) and rule 76(2) have been met and the Tribunal has the power to make an order for costs. The total amount of costs claimed is £4,533.75 which equates to 23 hours and 15 minutes’ preparation for and attendance at the hearings on 29 October and 2 November 2018.[12]On 23 April 2019, the Claimant sent an email to the Tribunal which insofar as is relevant reads as follows: “I refer to the above case regarding the application for costs made by the Respondent on 8 April 2019. I oppose this application due to the following reasons. I am unemployed caring full time for my 11 month old baby. I live in a social housing and receive state benefit. I have suffered depression and anxiety for the past three years. I was diagnosed with pre- and postnatal depression and anxiety after the birth of my baby. I am taking an antidepressant and getting counselling.”[13]The order which was made by Employment Judge Vowles indicated that the costs application would be considered on the papers unless either Page 3 of 5 party requested a hearing. Neither the Claimant nor the Respondent has sought a hearing. Rule 76(1) of the Employment Tribunals Rules of Procedure 2013 provides that: “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.”[14]Rule 76(2) provides for circumstances where: “A tribunal may make an order for costs 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.”[15]I am satisfied in this case that the conduct of the proceedings by the Claimant has been unreasonable and further, that the Claimant has failed to comply with the Tribunal’s orders. The Claimant has failed to provide and cogent explanation for her failure to comply. I appreciate that the Claimant has stated that she has suffered from depression and post-natal depression but beyond that the Claimant has not explained how this has impacted on her ability to prepare for this case and/or fail to comply with the relevant orders which have been made by the Tribunal. The Claimant has not really cooperated with the Respondent by, for example, communicating with them the difficulties that she is facing, or explaining why she is not able to do the various steps which were required at various points during the course of this case.[16]I am satisfied that this is a case where the Tribunal’s power to make an order for costs either pursuant to rule 76(1) or 76(2) has been triggered.[17]The power to make a costs order under those rules is discretionary. The Claimant has provided a statement, brief though it is, setting out her circumstances. She is unemployed; she has an 11 month old baby; she lives in social housing and is in receipt of state benefits; she suffers from depression and anxiety and has done so for the past three years; she was diagnosed with pre- and post-natal depression and she is taking antidepressants and counselling.[18]Whilst I appreciate that the Claimant’s means and outgoings have not been set out in any more detail, it seems to me that it is unlikely that the Claimant would be in a position to meet any order for costs that are made against her other than a very nominal amount.[19]I note that the entirety of the Claimant’s claims have now come to an end and that the reason that they have come to an end has essentially been because of the Claimant’s inability to prepare for the cases. I again note Page 4 of 5 that the Claimant puts this down to her circumstances arising from anxiety, depression and having a new baby. Should I make an order for costs in this case?[20]In deciding whether or not to make an order for costs, rule 84 deals with the ability to pay and provides that in deciding whether to make a costs order and if so in what amount the Tribunal may have regard to the paying party’s ability to pay. I am satisfied that the Claimant really has no ability to pay an award for costs other than as I have already indicated a very nominal amount and it seems to me, taking that factor into account and also the fact that the Claimant’s claims have not been determined after a hearing on the merits where the substance of the claim is considered against the substance of the Respondent’s response, that the appropriate way to deal with this case is to make no order for costs.[21]I come to that conclusion because the claims have come to an end and the level of costs that have been incurred by the Respondent would have been no doubt much greater had the cases proceeded to a hearing. The Claimant has not had the opportunity of having the substance of her claims heard.[22]I also have reflected on the fact that the Respondent is a large public body and whilst its resources ought not to be squandered fighting unmeritorious cases, I also have to reflect on the fact that the Claimant is not in a position to pay any costs other than a nominal amount