Employment Judge AnstisNot represented for claimantMr D Hobbs (instructed by counsel) for respondentDate 28 September 2023
JUDGMENT
[1]The respondent’s application to strike out the claimant’s claims is refused.[2]The claimant’s claims are dismissed.
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because the claimant’s application for reconsideration is essentially criticism of the tribunal’s to refuse to postpone the hearing, rather than criticism of the judgment itself. Only judgments (rather than orders) can be subject to the reconsideration process. The decision to refuse to postpone the hearing is contained in an order rather than a judgment and so cannot be addressed by way of reconsideration. REASONS
INTRODUCTION
[1]The tribunal has produced two orders dated 5 September 2023 in this case. Reasons have previously been given for the second order. The claimant requested written reasons for the first order by an email on 5 September 2023 timed at 20:44. However, this request was not referred to the employment judge until 13 October 2023. These are the written reasons.[2]The order in question reads: “1. The claimant’s application to postpone the hearing is refused. 2. The claimant’s application to attend the hearing remotely is refused.”[3]This hearing was listed to take place on 5-8 September 2023.[4]It is difficult to keep track of the number of occasions on which the claimant has applied for this hearing to be postponed, but we will start our discussion of this with her application of 7 August 2023. The basis of that application was said to be late disclosure by the respondent. An exchange of correspondence followed and on 8 August 2023 the claimant explained that she had gone through a bereavement in July 2022, which she wished the tribunal to take account of.[5]This was the subject of consideration by EJ Quill, who on 9 August 2023 refused the application and required witness statements to be exchanged on or before 24 August 2023.[6]On 14 August 2023 the claimant wrote requesting a reconsideration of that decision, reiterating that she could not be expected to consider 450 pages of documents before the hearing. In her pre-hearing checklist submitted that same day, as well as referring to her postponement applications the claimant said: “Due to rising cases of covid … claimant requests final hearing to be conducted by CVP please and to permit claimant to attend by CVP. Whilst claimant has requested postponement of final hearing, request for CVP hearing is requested if and when provided new date for final hearing. It is also to note that according to South East user group meeting notes June 2022 published online, stated that Reading Hearing Tribunal Centre has regular problems with heating and ventilation. Taking this into account and the health and safety regulations, CVP hearing is requested to allow claimant to attend hearing by CVP to provide access to justice.”[7]On 15 August 2023 she wrote requesting that an urgent telephone case management preliminary hearing should be listed “for the matters detailed in this email and to postpone September 2023 hearing”. The basis of this was difficulties with the new documents and the tribunal bundle.[8]On 16 August 2023 EJ Quill wrote to say: “The claimant’s emails of 14 and 15 August 2023 (and the contents of the prehearing checklist) do not provide reason to vary … the order I made for exchange of witness statements, or my refusal of the postponement application … I do not grant the claimant’s application that she attend the hearing by video. She must attend Day 1 by physically attending the hearing centre. She is free to ask the tribunal panel dealing with the case to consider making different arrangements for the remaining days, but she should proceed on the assumption that she will need to physically attend each day.”[9]On the morning of 16 August 2023 the claimant wrote (apparently after EJ Quill had made his latest decision, but before she would have been notified of it) saying: “The final hearing is required to be postponed in the interests of justice as both respondent and tribunal evidently are aware that it is practically not possible to review over 450 documents as an unrepresented party, not possible to review over 2,300 pages and complete witness statements in less than 1 week. In accordance with overriding objectives, to seek flexibility in proceedings, the claimant requests tribunal to grant the application.”[10]In the afternoon of 16 August 2023 the claimant wrote again to ask for a postponement, it seems on the basis of the new documents.[11]The regional employment judge wrote on 17 August 2023 to say “The hearing is not postponed and will proceed on 5th September 2023 at Reading ET.” Within an hour of this the claimant wrote again asking for a postponement or to covert the hearing to a video hearing (in view of the Covid risk).[12]On 18 August 2023 EJ Quill wrote to say: “I note the contents of the claimant’s further emails and that she has already had a response to some of them from REJ Foxwell. Her emails of 17 August 2023 at 14:25 pm and 14:18 pm do not raise new arguments that have not already considered or represent a change in circumstances. The hearing is not postponed, and witness statements must be exchanged by 24 August 2023. The time that the claimant has spent recently writing lengthy emails objecting to these decisions could, and should, have been spent on preparing for the final hearing. The risks of Covid infection are not such that I will make an order that one side (the claimant) attend the hearing by video. As previously mentioned, on the first day of the hearing, the claimant must physically attend, and she is free to make an application to the panel to ask them to allow her to attend by video for the remainder.”[13]Later on 18 August 2023 the claimant wrote objecting to his decision not to convert the hearing to a video hearing. Shortly after that she wrote criticising his decision not to postpone the hearing and to require witness statements by 24 August 2023.[14]On 18 August 2023 the claimant submitted an appeal against the 9 August 2023 decision to refuse her application for a postponement.[15]On 1 September 2023 EJ Quill wrote saying: “The claimant’s emails of … 18 August … are repeating points that have already been considered and rejected. If the claimant does not attend the hearing, then the panel will make a decision about that nonattendance, which might be to dismiss under rule 47, to strike out under rule 37 or whatever other decision they think is appropriate.”[16]Later that day the claimant wrote again seeking a postponement. This was based on apparent communication difficulties with the respondent’s representatives, and what she said was an outstanding rule 50 application. She says that “covid 19 concerns and the worry of catching the virus is a legitimate reason to hold a hybrid hearing/remote hearing on request of one party.” She says “claimant already notified tribunal of bereavement … claimant has gone through three bereavements in the family in July and August 2023, therefore unable to attend hearing in person and only remote hearing” and “due to the worry of catching covid, claimant can only participate in remote hearings and not in person”.[17]It is the 1 September 2023 application that was outstanding at the start of the final hearing, and that fell to be considered by this tribunal.[18]We have said that it is difficult to keep track of the number of postponement applications that the claimant has made, but it seems to have amounted to between 5-10 applications in the month prior to the hearing, which had resulted in four formal refusals of her applications to postpone the hearing. Of these, at least two of her applications and two of the refusals had also addressed the question of conducting the hearing by CVP.[19]While the claimant has placed different emphasis on the reasons for a postponement at different times, this has been across a consistent range of reasons. The reasons for holding the hearing by video had consistently been Covid risks, although the 1 September 2023 application had added that this was necessary by reason of the claimant’s bereavements.[20]The expectation in litigation is that applications will be made once, with full details and supporting evidence being given at the time. The decision will be made once and is final, subject only to any rights of appeal (which the claimant has exercised in respect of at least one decision to refuse a postponement).[21]Rule 29 provides an opportunity for a tribunal to vary a previous case management order “where necessary in the interests of justice”. The scope of this was considered by HHJ Tayler in Liverpool Heart and Chest Hospital NHS Foundation Trust v Poullis [2022] EAT 9, where he said “exercise of the power [to vary an order] will generally require a material change of circumstances or some other unusual circumstances”. He explained that “The underlying principles are that judges should not, in effect, hear an appeal against their own decisions, or those of a judge at an equivalent level, and that there should be finality in litigation so that … a party … should not find that it has been altered absent a material change in circumstances.”[22]We do not think it could be said that there have been “other unusual circumstances” in this case. We can only revisit the previous orders if there has been a “material change in circumstances”, but we are at a loss to think what that “material change in circumstances” might be. The claimant’s communication difficulties with the respondent seem only to have arisen at the end of August, but that would not justify a postponement. If that had prevented the claimant from providing the respondent with a witness statement then that would seem to be more a reason for the respondent to seek an adjournment than the claimant. If there were an outstanding rule 50 application it is the kind of thing that could be dealt with at the start of the hearing. There is nothing new in the email of 1 September 2023 that would justify a postponement or revisiting the previous orders on the basis of a material change in circumstances.[23]So far as the question of a remote hearing was concerned, EJ Quill had contemplated an application for this being considered by this tribunal, but only on the basis that the claimant attended the first day of the hearing, which she had not. The new matter referred to in support of this is that the claimant had suffered multiple recent bereavements (not just one in July 2022 as previously referred to), but there was nothing in the application on why these bereavements would require a remote as opposed to in-person hearing.[24]We refuse the claimant’s applications on the basis that there has been no material change in circumstances that would give us jurisdiction to revisit the earlier orders, including the order that the claimant’s attendance was required in person on the first day of the hearing.[25]For the avoidance of doubt, although we consider we are bound as a matter of law not to vary the earlier orders, we record that we do not see anything wrong or incorrect in the earlier orders, nor do we consider that the outcome of the claimant’s application would have been any different if we did have jurisdiction to revisit or vary the earlier orders.[26]It is long established that tribunals should not take an unnecessarily restrictive approach in identifying protected acts. It is, for instance, not necessary for an individual to specifically allege a breach of the Equality Act. Nevertheless, it is clear that something more than a general complaint is required, and there must be something in the protected act from which the tribunal could find that the claimant was (implicitly or explicitly) alleging a breach of the Equality Act by someone.[27]The only phrase in that email that might imply a breach of the Equality Act is “there is possible discrimination” – but the word “discrimination” can be used in many senses, and does not necessarily suggest a breach of the Equality Act. In Durrani v Ealing UKEAT/0454/2012/RN (where the tribunal had found that the allegation of “discrimination” did not amount to a protected act) Langstaff P said: “This case should not be taken as any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act. All is likely to depend on the circumstances, which may make it plain that although he does not use the word “race” or identify any other relevant protected characteristic, he has not made a complaint in respect Page 6 of 10 of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground.”[28]So an allegation of “discrimination” can usually be expected to amount to a protected act, but it does not necessarily. In Durrani the claimant expressly disavowed any allegation of racial discrimination. That is not the case here. However, we have to consider on the facts of the case whether the claimant citing an extract from the ACAS Code of Practice referring to “there is possible discrimination” (apparently on the basis that this would require the disciplinary process to be suspended pending resolution of her grievance) can be taken as an allegation of a contravention of the Equality Act.[29]We find that this is not a protected act. The bare reference to “discrimination” in that context does not imply an allegation that someone has contravened the Equality Act. In saying this we take into account the email as a whole. She refers to matters including “bias”. It is clear that the claimant is suggesting that she has been treated differently, but there is nothing in this email that suggests she considers her different treatment to be a matter in relation to a protected characteristic or a breach of the Equality Act. It would not take much to imply from a bare allegation of “discrimination” a breach of the Equality Act, but it does take something, and that something is not present in her complaint.[30]The second protected act is similarly brief. The claimant’s grievance of 2 July 2021 is set out at p508 of the tribunal bundle. She says: “I would like to raise a grievance against head of branch Kate Inns. I recently wrote to Kate Inns on email issues regarding breach of confidentiality, discrimination, managers serious misconduct and unfair treatment. I am upset that Kate Inns has not acknowledged this and not advised what steps she can take to provide support and resolve the situation. She is not replying to emails either.”[31]This seems to flow from the earlier alleged protected act. The “discrimination” mentioned is that alleged in the earlier email, and for the same reason we find it is not a protected act when repeated here.[32]For the sake of completeness, the detriments alleged are:(a) Dismissal, which did occur and must be taken to be a detriment. We will address this in the considering the unfair dismissal claim.(b) Omitting to contact the claimant to arrange a return to work.[33]The “omission to contact the claimant to arrange a return to work” suggests that something occurring after the alleged protected acts should have triggered a manager contacting her about a return to work, but they did not do that because of her alleged protected act(s). Page 7 of 10[34]The allegation that someone should have contacted the claimant to discuss a return to work first arises in her email of 28 August 2021 responding to an invitation to a disciplinary hearing, where she says “Nobody contacted to arrange return to work, which is why I have not been able to return to work. You and management do not want me back at work.” We are, however, at a loss to see what should have triggered an approach from management, and do not see any basis on which it could be said that such an omission was anything to do with any alleged protected acts. E. DISMISSAL[35]The claimant was dismissed by way of a letter dated 16 September 2021. It was a summary dismissal, with the reason given being “your serious misconduct namely unauthorised absence and failure to follow the correct absence reporting procedures”.[36]“Unauthorised absence” is identified as potentially being “serious misconduct” in the respondent’s disciplinary policy. The claimant’s dismissal follows an apparently orthodox disciplinary process and her non-attendance at the disciplinary hearing (which was rearranged once to allow a second opportunity to attend).[37]On what we have heard, we are at something of a loss as to how the claimant could have considered her dismissal to be unfair, still less anything to do with her alleged protected act(s).[38]The list of issues describes the claimant’s unfair dismissal claim in a somewhat generic manner. It appears clear to us that the claimant was dismissed for conduct, that the dismissing officer had a genuine belief that she had committed misconduct and that there was reasonable grounds for that belief following as much investigation as necessary. It is also clear to us that dismissal in those circumstances was within the range of reasonable responses.[39]In her claim form the claimant says “There was no case for unauthorised absence as I was in contact with [members of staff] discussing bereavement support and return to work in email”. She continues “the dismissal was procedurally unfair as there was no disciplinary investigation process”.[40]We are not sure what contact the claimant had in mind, or if this was raised by her at any stage in the process. However, whatever the rights and wrongs of this, being in discussion about a return to work is not inconsistent with a dismissal for unauthorised absence. The question of investigation is dealt with below in the context of her appeal.[41]The claimant appealed against her dismissal. If the basis on which a dismissal is said to be unfair is not clear, in some cases it can become clearer by seeing what was said on appeal.[42]The claimant’s appeal can be found at p1272 onward. Page 8 of 10[43]A summary of the grounds of appeal is that there was no investigation stage ahead of her disciplinary hearing (or her previous disciplinary hearing), the disciplinary officer was unsuitable because he had been responsible for a data protection breach (he has mis-addressed a letter to her) and that the disciplinary hearing ought not to have taken place on the day it did. She mentions (unspecified) “possible discrimination”.[44]We therefore understand the claimant’s complaint of unfair dismissal to relate to matters of procedure, rather than the underlying disciplinary offence. There is nothing in her appeal letter to address the question of whether she had, in fact, been away from work on unauthorised absence.[45]Procedural protections are important to a fair dismissal, in the apparent absence of any dispute concerning the underlying allegation of unauthorised absence we are bound to say that any award of compensation would have to be subject to considerable reduction for contributory fault (perhaps to nothing) and/or be reduced to nothing or a minimal amount through a “Polkey” argument from the employer.[46]We do not consider that any data protection breach disqualifies someone from chairing a disciplinary hearing. We also do not consider an allegation of “possible discrimination” can lead to a finding of unfair dismissal without an explanation of what the discrimination was.[47]That leaves the question of the lack of an investigatory stage and the hearing proceeding on the day it did.[48]As for the investigation, Mr Towse explains matters this way in his witness statement (recounting a conversation with a colleague as part of his consideration of the appeal): “[the colleague said that] in cases of alleged unauthorised absence if there is no contact from the Partner and they don't attend their shift then they would be invited to a disciplinary meeting. She went on to say that if the Partner subsequently attends the disciplinary meeting, then that meeting could perform the function of an investigation meeting as it would give the Partner the opportunity to explain the situation from their perspective and allow the manager to investigate the issues. [She] explained that if a Partner is not attending work, it is very difficult to investigate before inviting them to a disciplinary meeting as the primary reason for that meeting is their non-attendance for a contractual shift. I agreed with this view and would also make the point that given the nature of Ayesha’s communications with her managers and the lack of any cooperation on her part, I found that the Branch had no other option but to invite her to a disciplinary meeting in the hope that the seriousness of the matter might persuade her that it would be in her best interests to attend disciplinary meeting in the hope that the seriousness of the matter might persuade her that it would be in her best interests to attend.” Page 9 of 10[49]This is a reasonable and rational approach to an issue of misconduct that may not be susceptible to an investigation stage. The lack of an investigation stage did not make the claimant’s dismissal unfair.[50]As for the date of the hearing, Mr Towse found that the claimant had been on an extended period of bereavement leave (two weeks) from 2 September, but that this would not account for her being absent on the day of the disciplinary hearing (16 September 2021). In those circumstances we do not see anything wrong with proceeding in her absence.[51]Although, so far as we are aware, it has never been part of the claimant’s allegation of unfairness, we had some concerns about the respondent apparently having issued her with a first written warning and then subsequently dismissal without the intervening step of a final written warning. However, we are satisfied with the respondent’s explanation that (amongst other things) unauthorised absence is itself an act of serious misconduct justifying dismissal so there is no need to step up warnings through different levels before dismissing.[52]The claimant’s dismissal was not unfair, and we see no basis for her allegation that it was an act of victimisation.[1]This is a costs hearing listed on the application of the respondent following the dismissal of the claimant’s claims at a final hearing on 5 & 6 September 2023.[2]We gave our decision on the respondent’s application at the hearing, reserving our reasons. These are the reasons for our decision. MATTERS ARISING AT THE HEARING[3]The claimant made an application to vacate or cancel this hearing on 10 November 2023. That is addressed in our second order of 13 November 2023, which incorporates written reasons for the decision.[4]The claimant did not attend today’s hearing. It has been listed to be held by CVP following the claimant’s previous objections to in-person hearings. The claimant did not attend by CVP. She says she could not connect to CVP on the web link provided, and that the appropriate guidance notes and FAQs had not been provided to her. The events of the morning are addressed in our first order of 13 November 2023, which incorporates written reasons. That order required that: Page 1 of 12 “The claimant must, by 12:00 today, either provide the tribunal with a telephone number on which she can be contacted, or attend in person at the Reading Tribunal Hearing Centre, 30-31 Friar Street, Reading RG1 1DX.”[5]In the time between this order being sent and the claimant’s response, she was provided with the CVP guidance notes and FAQs.[6]The claimant replied around 12:00 as follows: “In response to the order sent today by Tribunal in email correspondence, Claimant provides telephone number: [number given]. Claimant notes that Tribunal sent this order at 11:13am stating to either attend by call on in person by 12pm today ... Tribunal gives notice to attend in person today by 12pm. This is clearly not possible because Claimant needs to have a charged phone to attend. This order was sent 11:13am to attend by 12pm and phone does not charge this quickly. Phone does take few hours to charge. Tribunal now also sent the guidance notes less than hour notice before 12pm time given and FAQ today document at short notice, therefore confusing claimant and to cause stress in deciding to either choose between reading the guidance notes and FAQ document, or attend hearing in person. For claimant to make these decisions in the given time of 47 minutes is clear bullying and hardship and prejudice to claimant. Tribunal deliberately did not send guidance notes and FAQ in advance of hearing. Claimant is very upset and has not had opportunity to read through guidance notes and FAQ. Tribunal deliberately is putting pressure on claimant and to bully and harass claimant to prevent attendance at todays hearing because Tribunal wants to put a costs order to bully and harass claimant. The conduct of Tribunal is very upsetting and causes prejudice to claimant ...”[7]At around 12:15 the tribunal sent an email to the claimant in the following terms: “The tribunal will resume the hearing at 13:30. This is designed to give the claimant the opportunity to charge her phone and consider the guidance documents about CVP before joining the hearing. The tribunal considers that in most cases a phone can be used while it is charging, which may remove any requirement for the phone to be charged for several hours before use. The claimant may attend at 13:30:(i) by CVP, online using the link and log-in details provided,(ii) by CVP (audio-only) by calling [number given],(iii) by CVP (audio-only) by making a request for the tribunal to call her, Page 2 of 12 with such a request to be made before 13:25, or(iv) by attending in person at the Reading Tribunal Hearing Centre. If there is no attendance by the claimant it is anticipated that the tribunal will consider her application(s) and (depending on the outcome of those) the respondent’s costs application in her absence, by reference to her written submissions.”[8]At 13:30 the claimant replied as follows: “… Tribunal now gives another short notice of one hour for claimant to decide how to attend hearing, to again continue to cause further stress to keep Claimant away from hearing. A fair and impartial Tribunal does not send one hour notice that too on day of hearing which has caused significant inconvenience. The manner Tribunal is conducting this hearing is to make sure claimant cannot focus on defending her case for the hearing today and to cause hardship and prejudice. For in person attendance, Tribunal normally orders parties to bring a bundle to the hearing. In order for claimant to present her case and defence at the costs hearing in person, Claimant will have to print all relevant documents, opening submissions and evidence when speaking, referring to documents and defending claimant’s case. It is not possible to print all documents and be able to reach the Tribunal hearing centre in less than one hour by the time given of 13:30pm short notice. By giving one hour short notice, this is evidently not enough time to arrange a legal representative for in person attendance. For CVP hearing, Tribunal failed to send guidance notes and FAQ with the CVP link on 10th November 2023, to deliberately disadvantage claimant not prevent attending hearing and to not understand how CVP works. The CVP link was sent less than 24 hours working day before hearing day and was sent at short notice and should have been provided weeks in advance of hearing, to ensure claimant can ask any questions or email concerns about the hearing, taking into account claimant is the unrepresented party and would want to ask questions to understand the CVP process. Tribunal sent guidance notes and FAQ at 11:19am today, less than hour notice where Tribunal made order to respond by 12pm, to cause hardship and prejudice to claimant. Tribunal again provides option to call on 0207 number, which is expensive and claimant already stated that claimant cannot afford call costs. Page 3 of 12 Tribunal says to email to request to call claimant, 55 minutes from the time this email was sent which is short notice, taking into account time it takes to respond by email to this injustice and unfairness in the tribunal correspondences. It is not safe to use phone whilst charging when on call and phone would not be fully charged to last for the duration of hearing. Tribunal is determined to conduct hearing only with Respondent … The manner in which Tribunal wants to proceed with todays hearing in claimant’s absence is same conduct by Respondent when dismissing claimant. Tribunal only wants to bully claimant by giving these one hour notices and not giving enough time for claimant to understand the correspondences and last minute orders made during todays hearing. All communications by Tribunal are not in accordance with overriding objectives and Tribunal only wants to put unfair costs order in claimant’s absence without giving opportunity for claimant to present case and defence at todays hearing taking into account all circumstances detailed in claimant’s correspondences. One hour short notice is only excuse for Tribunal to claim they are giving options to claimant but this is not correct at all and not in accordance with overriding objectives. It is unreasonable for Tribunal to expect claimant to make quick decisions about the hearing and the Tribunal correspondences received today has simply caused stress and preventing claimant to present case and defend at the hearing.”[9]The claimant has previously criticised the tribunal for addressing an application that the employment judge thought had been implicitly made when it had not been explicitly made. We have reviewed the claimant’s correspondence concerning her attendance at the hearing and while she has criticised various matters in relation to arrangements for the hearing she had not made any particular application for postponement or adjournment of the hearing, or for the hearing to take place in any particular way. Given the lack of any express application, and the claimant’s criticism of us implying applications she has not made, we do not see in this correspondence any application made by the claimant that we are required to deal with. However, we do think that we need to consider, of our own motion, whether in these circumstances the hearing can proceed.[10]The CVP system is not perfect. There can be difficulties with connections, although in our experience they rarely go so far as someone being completely unable to connect to the CVP system. It is unfortunate that the claimant was not provided with the guidance note and FAQs at the same time as being given the link, but we do not accept her suggestion that this was deliberately done by tribunal staff to disadvantage her. Page 4 of 12[11]If there are difficulties with the CVP system, it is possible to fall back on other means of communication. Typically this will be by telephone link to CVP, which can be done either by the tribunal calling out to the party in question or by them dialling in using a phone number and conference ID. Both those options were presented to the claimant, and the first order indicated that if it was done this way all others would be audio-only in order to prevent her being at a disadvantage.[12]A further option was attendance in person at the Reading Tribunal Hearing Centre. The claimant is sensitive about matters relating to that, but there was reason to believe that this would be possible within the timescales suggested by the tribunal.[13]What is most striking in this case is the wide range of unusual reasons given by the claimant for why none of these options are possible. She cannot call out because of the cost. She cannot be called because her phone has low charge. She cannot speak on the phone while it is charging because she considers this to be dangerous. She cannot attend in person because either (in the case of her initial response) she would need her phone which was on low charge, or (in the case of her most recent response) it would require her to print out a bundle. She mentions questions of having a legal representative if attending in person, but this is the first time that has been suggested, and if there was any question of her instructing a legal representative that would have been as relevant for the intended CVP hearing as it would be for any in person attendance.[14]Difficulties even logging on to CVP are unusual, although we accept that the claimant did not originally have the usual guidance notes and FAQ document.[15]A reluctance to call a landline from a mobile phone on costs grounds is unusual in days when most mobile phone contracts contain inclusive minutes.[16]A reluctance to be called because the phone has low battery is not a good answer to not trying the call at all – even if it may or may not last, some sort of contact is helpful in moving on a case or hearing.[17]A reluctance to speak while a phone is charging on the basis that it may be dangerous is unusual, particularly when most modern phones can operate on a speaker or via some hands-free mode.[18]Reluctance to travel to a tribunal hearing centre when a phone is on low charge is not easy to understand and does not make sense to us.[19]Thinking that attending a tribunal hearing in person would require printing out a long bundle is also not easy to understand, particularly when the claimant’s opening submissions criticise the provision of the respondent by a bundle and point out that no order was made for a bundle. Page 5 of 12[20]Taking all of this into account, we come to the conclusion that the claimant is doing everything possible to avoid this hearing. She has made an application to vacate or cancel it the working day beforehand, and is now taking every opportunity to avoid attending. Where options for her to attend on alternative bases have been given, these have been refused by her on the basis of a series of reasons that while individually at least unusual taken together become highly improbable, and suggest to us that she is simply trying to avoid this hearing.[21]In those circumstances, and in the absence of any express application by the claimant, we are not minded to postpone or vacate the hearing of our own motion, and have proceeded in the claimant’s absence. THE APPLICATION[22]The respondent’s application was made in writing. We understand it was made one working day later than permitted by our order but do not see that that invalidates it. As will appear below, we are taking account in this hearing of submissions made by the claimant seven days out of time.[23]The application starts with a summary: “The broad summary is that: - this was a hopeless claim from the outset; - the Claimant made repetitious applications of little merit; - the Claimant breached essential orders including a failure to file and serve a witness statement; - the Claimant failed to turn up to the final hearing; and - defending the claim has cost the Respondent over £20,000.[24]The respondent relies on rule 76(1)(a), (b) and (2), saying: “The Claimant acted unreasonably in bringing and thereafter pursuing the claim. It was unreasonable to bring the claim because it had no reasonable prospects of success. The claims for victimisation and harassment were never developed into a cohesive argument. There was no evidence to support either. The unfair dismissal claim was exposed as being nothing more than a weak argument about the procedure followed and accordingly was deemed to have had little or no value even if it had succeeded (which it did not). In addition, the manner in which the Claimant made repeated applications for case management orders that failed to further the case amounted to unreasonable conduct. Lastly, it was also grossly unreasonable (as well as a breach of Tribunal Orders) not to file and serve a witness statement or attend the final hearing.” Page 6 of 12[25]They go on to talk through the merits of the claim, and the tribunal’s decision. They recite various applications made by the claimant and her non-attendance at the hearing, concluding: “This is the clearest case for making a costs award. The claims were hopeless, the case management process was littered with pointless applications, the Claimant failed to serve a witness statement (in breach of the Order of 9th August 2023) and then didn’t turn up to the final hearing. If costs are not awarded in this case. It is hard to conceive of a case in which a costs order would be justified.” THE RESPONSE[26]The claimant was to respond to this application by 20 October, although this deadline was extended to 6 November 2023 by the order of 1 November 2023.[27]Although it is clear that during the relevant time the claimant has engaged in considerable correspondence with the tribunal, there is nothing that seems to have been submitted as her response to the costs order. As on previous occasions we regret to say that the claimant seems to have preferred to argue about points of procedure rather than address the substance of matters. The closest she has come to a substantive response to the costs application is in her “opening submission”, sent to the tribunal on the morning of the hearing. Although this is outside the time limit allowed, we have taken this into account in our decision.[28]From the middle of the second page of that document the claimant addresses the merits of her claim. She talks of harassment of the claimant by Kate Inns hand delivering a letter to her. Her point seems to be that there is documentation to suggest that she knew before the hand delivery that the relevant letter had been signed for through the post, so there was no need for any hand delivery. The claimant says “She [Kate Inns] wanted claimant to have enough time to ‘digest the notes’. This is exactly how a person speaks who discriminates partners on the basis of race.” She says Kate Inns later lied about the posted letter having been signed for. She refers to her grievance and says “The disciplinary process was initiated by Kate Inns as she had received details of grievance against her.” She accuses Kate Inns of interfering in her appeal, and of an offence of criminal harassment.
THE LAW
[29]Rules 76-77 provide that: “76(1) A Tribunal may make a costs order…and shall consider whether to do so, where it considers that: (a) a party … 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 Page 7 of 12 (b) any claim or response had no reasonable prospect of success; or …(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. 77 … No such order may be made unless the paying party has had a reasonable opportunity to make representations … in response to the application.”[30]Rule 78 addresses the amount of any costs order, in respect of which the tribunal’s jurisdiction is limited to £20,000.[31]Rule 84 provides: “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.”[32]In principle there are therefore three stages to the making of a costs award. The first is to consider whether the criteria in rule 76(1)(a), (b) or (2) are met. If criteria in rule 76(1) are met, we have to consider making a costs order. Under either rule 76(1) or (2) the second stage is considering whether, as a matter of discretion, we should make an award. The third stage is what the amount of that award should be. Rule 84 can be relevant to both the second and third stages of the process. DISCUSSION AND CONCLUSIONS The principle of a costs award Unreasonable bringing of the claim, and no reasonable prospect of success
DISCUSSION AND CONCLUSIONS
[33]Did the claimant act unreasonably in bringing her claim, and did it have any reasonable prospect of success?[34]In our judgment we have been critical of the merits of the claimant’s claim, finding, for instance, that the hand delivery of the letter “was not racial harassment as it had nothing to do with the claimant’s skin colour and, beyond that, it did not have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant nor could it reasonably have been considered by her to have this effect.”[35]We also found, on the question of victimisation “we are … at a loss to see what should have triggered an approach from management, and do not see any Page 8 of 12 basis on which it could be said that such an omission was anything to do with any alleged protected acts.”[36]On the question of dismissal, we say, “we are at something of a loss as to how the claimant could have considered her dismissal to be unfair, still less anything to do with her alleged protected act(s)”.[37]The consideration at this stage is whether the bringing of the claim had been unreasonable or whether the claim had no reasonable prospect of success. This does not seem to us to be a case in which the respondent had produced during the course of preparation for the final hearing some unexpected or surprising evidence which has changed the direction of the case. The claimant’s complaint of harassment was added by amendment and had not originally been contained in her claim, so it appears at least from the claimant’s point of view that her claim improved as matters went on, not that it unexpectedly got worse. If the claim had no reasonable prospect of success at the final hearing or was considered to have been unreasonably brought at the time of the final hearing it must be because it had no reasonable prospects or was unreasonably brought at the start, not because something had changed during the course of the litigation.[38]The claimant’s dismissal is at the heart of her claim. Her original claim form summarises her position on this in the following way: “I believe I have been unfairly dismissed. I believe I was unfairly dismissed because I had raised grievance on race discrimination … before my grievance was to be heard, Kate Inns contacted her regional manager to assign disciplinary manager to dismiss me. There was no case for unauthorised absence as I was in contact with [named individuals] discussing bereavement support and return to work in email.”[39]The first element of this is addressed by the claimant in her response to the costs application. She says: “Dale Warne was the dismissing manager. Kate had requested PPA that Dale should hear the Claimant’s appeal against first disciplinary. As PPA already selected manager to hear first disciplinary appeal, Dale was then intentionally assigned for second disciplinary …”[40]Para 62 of the claimant’s original claim says that “evidence to support this is Kate Inns statement taken in grievance investigations in which she admitted contacting regional manager to assign formal disciplinary manager”.[41]As far as we can tell, that is a reference to the following passage at p996 of the tribunal bundle for the final hearing: “LE Are you aware of why Dale was the disciplinary manager. Page 9 of 12 KI Yes that was my request again we were having someone neutral, practically it was standard, I reached out to my RM in Waitrose and he was nominated.”[42]The problem with this is that even if it bears the interpretation contended for by the claimant – that Kate Inns nominated the disciplinary officer – there is no basis on which to say this was anything to do with her grievance or made her dismissal unfair.[43]The second element is that “there was no case for unauthorised absence as I was in contact with” other managers within the respondent. As explained in our judgment, even if the claimant was in contact with others we do not see how this makes the claimant’s dismissal unfair.[44]The claimant’s race harassment and victimmisation claims have always suffered from the fundamental flaw that there is nothing from which the tribunal could conclude that the actions had anything to do with her race or her complaints of race discrimination. The claimant’s suggestion that “digesting the notes” is “how a person speaks who discriminates” is not right and has never had any supporting basis.[45]The claimant’s claims had no reasonable prospect of success and she acted unreasonably in bringing them. Vexatious, abusive, disruptive or unreasonable conduct of the claim[46]The claimant’s recent persistent applications, often being repetition of the same application with no new material, is vexatious and unreasonable conduct of her claim. Breach of order[47]The claimant has breached tribunal orders, both concerning provision of a witness statement and attendance on the first day of the hearing.
Conclusion
[48]The threshold requirements for consideration of a costs award are met. The question is whether we should exercise our discretion to make a costs award.[49]It might be argued that taken individually none of these matters require an award of costs. The claimant has not provided a witness statement and did not attend the first day of the hearing, but in general there is no obligation on a party to provide evidence or attend a hearing in support of their claim. It may be that she preferred simply to put the respondent to proof on, for instance, her unfair dismissal claim.[50]The difficulty with this case is that when taken in combination, the various problems become too much to overlook. Page 10 of 12[51]The claimant has started with a claim which she ought to have known was weak. Even if she were not objectively able to see that it had no reasonable prospects of success she should have realised that it would not be an easy case to win.[52]Instead of putting her effort into bolstering the substance of her claim, or acknowledging where the respondent may have good points, the claimant has, particularly recently, adopted a practice of elevating points of procedure above the substance of her claim. Where matters have not gone her way, she has resorted to baseless allegations against the individuals involved in her case. We cannot help but observe that this is very similar to how she seems to have conducted herself during the respondent’s various procedures.[53]When the opportunity has arisen for her to address the substance of her claim or, for instance, the substance of the respondent’s costs application, she has gone out of her way to avoid taking that opportunity, yet continued to criticise the respondent and the tribunal itself by way of further applications. She has failed to recognise the underlying difficulties with her case and instead caused considerable difficulties for the respondent with persistent meritless applications.[54]In those circumstances we do consider it appropriate to make a costs award, and will exercise our discretion to do so. The amount of the costs award[55]The respondent has applied for the full amount of its costs across the whole of the claim (although we were told by Mr Dobbs that in fact the schedule of costs he had submitted was less than those actually incurred). On the facts of this case we consider it appropriate to make an award based on the whole costs of the claim, rather than picking individual elements or, for instance, confining ourselves to the costs of hearings.[56]We accept that we should award the “Burges Salmon Fixed Fee”, which appears to be entirely reasonable for a case of this nature.[57]Mr Dobbs was not able to explain to us the scope of the “Burges Salmon Additional work” or “Additional Counsel work”, so we will not make any award for this.[58]We are parepared to award £1,500 in respect of counsel’s fee for preliminary hearings and the costs hearing (to include any associated such as drafting the costs application). There will have been substantial work associated with each hearing, such as, for instance, initial preparation of the list of issues. However, we do not see that there is any basis on which the fee should be higher for the 21 June 2023 hearing than it was for the 24 October 2022 hearing. In each case the fee will be £1,500. Page 11 of 12[59]We consider the brief fee of £7,500 for the final hearing of the case to be more than was necessary in this case, and will reduce it by half to £3,750.[60]The amount of costs awarded is therefore £13,250, comprising: Burges Salmon Fixed Fee £5,000 Counsel’s fee 24 Oct 2022£1,500 Counsel’s fee 21 June 2023£1,500 Brief fee for final hearing £3,750 Counsel’s fee for costs application and hearing £1,500[61]The claimant has been given the opportunity to make represntations or produce evidence in relation to her means, but has not done so. On that basis we make no reduction under rule 84 on the basis of means, and there is nothing in relation to means for us to take into account in considering whether to make a costs award in the first place.[62]No award is made in respect of VAT as Mr Dobbs accepted that could be reclaimed by the respondent.
Conclusion
[1]The claimant’s application dated 12 December 2023 for reconsideration of the judgment sent to the parties on 30 November 2023 is refused.[2]The claimant’s application for the costs judgment to be stayed is refused.
INTRODUCTION
[1]On 12 December 2023 the claimant made an “application for reconsideration for the decision on costs order also including application for bias and recusal of tribunal panel”.[2]I have taken this as an application for reconsideration of the judgment of 15 November 2023 (I will call this the “costs judgment”). That judgment was a costs award against the claimant. A costs award is a “judgment” (rule 1(3)(b)(i)) and so is susceptible to the reconsideration process. The claimant’s application for reconsideration was made within the appropriate time limit.[3]The claimant’s application starts as a criticism of the tribunal’s conduct of the hearing on 13 November 2023 (which took place in her absence – I will call this the “costs hearing”) and moves on to more general criticism of the tribunal’s conduct and decisions in relation to her claim. RECONSIDERATION[4]The tribunal can reconsider a previous decision “where it is necessary in the interests of justice”. The application is first considered under rule 72(1), where the employment judge (sitting alone) will refuse the application if “there is no reasonable prospect of the original decision being varied or revoked”. I have concluded that there is no reasonable prospect of the costs judgment being varied or revoked, so I refuse the application. These are the reasons for that decision. THE APPLICATION Generally[5]As mentioned earlier, although starting with criticism of the tribunal’s conduct of the costs hearing, the claimant’s application encompasses many areas of concern that she has expressed before. The first task is to try to separate out what is properly considered as an application for reconsideration of the costs judgment and was is more general criticism, or criticism of other decisions made by the tribunal. Bias[6]Not for the first time, the claimant has alleged bias on the part of the tribunal. The tribunal does not accept the allegations of bias. In those circumstances any allegations of bias must be raised by the claimant with the Employment Appeal Tribunal, and it does not form a sound basis for reconsideration of the costs judgment. The claimant already has at least one appeal which may encompass allegations of bias, and we note her intention to raise further appeal(s). Matters prior to the costs judgment[7]Much of the claimant’s application is taken up with matters arising prior to the costs hearing or the costs judgment. There is, for instance, criticism of our underlying judgment on the merits of her claim. To the extent that earlier decisions are criticised, they must be the subject of applications for reconsideration or appeals in their own right (some of which have already been made by the claimant). An application for reconsideration of the costs judgment cannot be used as a vehicle for challenging earlier findings, orders or judgments from the tribunal. The costs hearing – proceeding in the claimant’s absence[8]The conduct of the costs hearing and the subsequent costs judgment can properly be the subject of an application for reconsideration. Much of the claimant’s criticism (at least in the start of her application) is on the tribunal’s decision to proceed in her absence.[9]On this point the claimant’s application for reconsideration does not address what seems to be quite a difficult point for her. As pointed out in para 9 of our reasons, despite any difficulties in attending the claimant had not at any point made an application for the hearing to be adjourned or postponed. The reconsideration can only succeed on the basis that the consideration of proceeding made of our own motion was wrong, not that we incorrectly decided on an application that she made.[10]In the first and part of the second page of her application she criticises our view of the events that led us to conclude that she was doing everything possible to avoid the hearing. That is essentially a dispute with our factual finding. I see nothing in the reconsideration application that could properly disturb that finding. Perhaps the only thing that is new there is that she was on a pay-as-you-go mobile phone and had run out of credit, as an explanation of not (or no longer) being able to call out to the tribunal. The claimant talks of a news article about charging phones, but this was not supplied with her application. The point remains that the problem was not with any one of the reasons the claimant gave for non-attendance, but that “while individually they are at least unusual, taken together [they] become highly improbable”. If we have made an error of law by proceeding in her absence that will be a matter the claimant can raise with the EAT. The costs judgment generally[11]In the middle of the first page the claimant refers to the question of seeking legal advice. The claimant says that 13 November 2023 was not the first time she had suggested she would need legal representation. The claimant said that she had mentioned this in an application on 10 May 2023. She may be correct about that, but the point in para 13 was less that this had not been mentioned at all before and more, as is set out in the final sentence of that paragraph “if there was any question of her instructing a legal representative that would have been as relevant for the intended CVP hearing as it would be for any in person attendance”.[12]Almost everything beyond the second page of the application is criticism of earlier decisions by the tribunal or matters raised by the claimant in support of her allegations of bias. In her final page the claimant says that “tribunal was fully aware claimant has no means to pay”, referring back to a schedule of loss submitted in October 2022. I do not see how a schedule of loss in October 2022 can be taken as a statement or evidence of the claimant’s means at a hearing in November 2023, particularly when specific provision had been made for the claimant to present evidence on that point in the second order of 6 September 2023. Staying the costs judgment[13]At the end of her application the claimant refers to staying the costs order. I am not sure if it is within my powers to do that, but the point does not arise because I do not see any proper basis on which I should stay the costs judgment. Final observations[14]I cannot rule out there being a proper basis for the claimant to make further applications to this tribunal, but it seems to me that now that this application has been dealt with the parties must turn their attention to the Employment Appeal Tribunal and addressing the appeals or prospective appeals brought and to be brought by the claimant there.