Mr G Moran v Network Rail Infrastructure Ltd: 3302968/2021
JUDGMENT
Pursuant to an application to Strike Out under Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 It is the Judgment of this tribunal that the claimant’s claims are struck out under Rule 37 (1)(c) and (d). The claimant’s claims are therefore dismissed.REASONS
[1]At the outset of this hearing the respondent pursued an application to strike out the claimant’s claims under rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1. In considering a strike out application the tribunal must have mind to the contents of rule 37. We were directed by the respondent’s counsel to rule 37(1)(c) and rule 37(1)(d). Rule 37 says 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; …” And it is on those two grounds that the application is before us.[2]In considering an application under rule 37 and as always with any procedural rules in the tribunal, the tribunal also has to have cognisance of the overriding objective at rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 schedule 1. Tribunals must deal with cases fairly and justly including insofar as practicable ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings avoiding delays insofar as compatible with proper consideration of the issues and saving expense.[3]The brief history of this case is that the claimant presented an application to the Watford Employment Tribunal on 10 March 2021. Is his ET1 he ticked the box indicating that he was pursuing a claim for unfair dismissal and the application was homemade and he gave a short explanation as to the nature of his unfair dismissal claim. He did not tick the box relating to discrimination or disability but simply ticked the box which said he was making another type of claim and simply put in the two words that followed that “mental health”.[4]Pursuant to that the file having been before the Regional Employment Judge, REJ Foxwell and REJ Foxwell sent out what is a standard order in circumstances where claimants are pursuing claims for disability discrimination. REJ Foxwell invited the claimant to clarify and indicate in terms whether he was pursuing a claim for disability discrimination and asked him in very straightforward terms to supply information about that claim. The order expired on 12 July, that is that the claimant was requested to comply by 12 July. No such compliance was forthcoming.[5]I should point out that from the file it looks as if the order was sent to both the address which the claimant gave as his address for service in his ET1 and it may also have been emailed to the email address that he gave in his ET1 albeit that on the file there is no evidence of an email just simply evidence that it was sent in the post.[6]Pursuant to that failure to comply the respondent who is represented by a large firm of solicitors went through a process of contacting the tribunal and chasing the claimant for compliance with the order and no such compliance has ever been forthcoming until November of 2021 which I will come to shortly.[7]There then followed a further order from the tribunal, where the tribunal gave this date for the full merits hearing of this matter and with that was also a list of directions setting out in terms what the parties had to do by certain dates. That included disclosure which is an exchange of documents by list. The obligations were all clearly explained in boxes on the back of that order.[8]Those representing the respondent sought to seek to comply with the order and on many occasions attempted to contact the claimant and to enquire about the claimant’s compliance. There was no compliance from the claimant pursuant to those orders an accordingly those representing the respondent wrote to the tribunal on several occasions. The history of their email communications are aptly set out in their first written application for a strike out which appears in the bundle in front of me and was in an email of 8 November 2021 from Olivia Bell the solicitor with carriage of this matter to the tribunal. I do not propose to read every paragraph but that sets out the timeline very adequately in terms of the compliance and the lack of compliance on behalf of the claimant.[9]Matters continued where the claimant failed to comply with any orders, in fact nothing was heard from the claimant at all. On 25 October the file came before another colleague of mine, EJ Tynan and he of his own initiative wrote to the claimant to confirm that he was considering striking out the claimant’s claim for the claimant’s failure to comply with the various orders. He gave an order that the claimant write to the tribunal and give reasons why his claim should not be struck out by 1 November. There was a failure to comply with that order in that no correspondence was received addressing that question. On 1 November an email was received by the tribunal and by those representing the respondent from Brenda Moran, a relative of the claimant and that was timed at 17:06, she also copied in the claimant at that time using the claimant’s email address that he had put on his ET. Later she a sent a further email confirming that in fact the claimant’s email address had changed and she copied in the claimant’s new email address. Attached to that email was an attempt to comply with the order of REJ Foxwell on 13 June but on any analysis that attempt fell very far short of complying with the orders of REJ Foxwell and failed to advance the claimant’s claim insofar as there was one in disability discrimination at all.[10]Subsequent to that matters continued in much the same vein in that the tribunal having earlier fixed a date for a preliminary hearing of 7 October had to adjourn that date and that date, that preliminary hearing was re-listed for hearing on 14 December. On the 14 December the matter came before another colleague, Judge Laidler and the claimant failed to attend. Judge Laidler made a further order indicating that she too was considering striking out the claimant’s claim unless he responded within 7 days of that hearing explaining why he had failed to attend. He failed to comply with that order too and to date has still not complied with Judge Laidler’s order.[11]Further failure by the claimant occurred in that we appear today at this hearing supposedly ready to proceed for a 2 day hearing without any witness statement from the claimant. The claimant and we have seen emails that are in the bundle where there was communication between those representing the respondent and the claimant at his new email address communicated to those representing the respondent in Brenda Moran’s email of 1 November. There was communication between the parties where the claimant appeared to indicate that he was in a position to exchange witness statements on 22 December at 4.00 pm. When 4.00 pm came he indicated that he was not in a position to exchange any witness statements and said he had no witnesses.[12]So we find ourselves in the unfortunate situation today that we come here with an unformed claim but more particularly we have a situation where we have no witness statement from the claimant and a very long list of failures on the claimant’s part to comply with orders and to communicate with the tribunal and to communicate with those representing the respondent. I am bound to say that those representing the respondent have conducted themselves impeccably and have at every touch and turn done everything they can it would appear to assist the claimant but they have had very little response from the claimant albeit more latterly there have been some exchanges and I will turn those in a moment or more particularly one of them.[13]The claimant’s explanation for his failure is that he has had a lot on his mind and he had a lot happening in his life and certainly that appears to have been the case. He said that he does not think that he ever saw the order of REJ Foxwell of 13 June and many of the documents that he has failed to comply with he said he has not seen. The reason he thinks that that might be the case is because he moved from the address which he had cited on his ET1 as his address for service because that was a family home and he split up with his partner and left that address he said in the summer of last year, he could not be specific about when he left and he also said that due to losing his mobile phone he had had to change his email address and that of course that had been communicated by Brenda Moran on 1 November. What was clear is that he had not at any stage communicated the fact that he had moved from that address and that his email had changed to those representing the respondent who were continuously attempting to contact him nor did he contact the tribunal to inform the tribunal of his change of address and change of email.[14]He explained in his submissions today that in fact he had been liaising with ACAS throughout this process and thought that ACAS were acting as a go between, between him and the tribunal, and him and those representing the respondent. We asked him to produce evidence of communications between him and ACAS because he intimated that in fact he made it plain to ACAS that he had left his address for service and moved elsewhere and that his email address had changed. When asked to do so he indicated that he could not find any such emails because he could not source them on his mobile phone. So we have seen no evidence that he has been contacting ACAS and that he had informed ACAS of the change of his address and his email. Notwithstanding that and even taking his argument at its highest, if indeed he had informed ACAS of those changes he still should have taken responsibility to inform the tribunal of those changes because it is a case which is his case which he is pursuing in the tribunal and he failed to do that.[15]In terms of the witness statement, I do not consider that his explanation was at all credible when he indicated that the reason why he did not exchange witness statements was because he had no witnesses. That does not seem to sit well with the fact that earlier on in the day he indicated that he was in a position to exchange. The tribunal accepts that he may have been confused about that. If one reads the order set out by the tribunal and attached to the Notice of this Hearing it does make it plain that parties should prepare full written statements of the evidence they and their witnesses wish to give at the hearing. So the reading of the order is clear, claimants are witnesses, should be in a position to exchange witness statements.[16]So having heard the claimant’s explanation we turn to the final email that was produced to us today during the course of this hearing by those representing the respondent and that is a confirmation by the claimant of acceptance of the bundle in advance of this proceeding where he reiterates that his address for service as the very same address that he put on his ET. This is despite the fact that he said he has moved from that address, he still regards that as the best place to serve him with documents through the Royal Mail.[17]Further, the claimant said that he had no knowledge of the hearing of 14 December before Judge Laidler and that is why he did not attend but our attention was drawn by Ms Levine to a very clear email from those representing the respondent where they wrote to him by email both at his former email address and his new email address and copied in Brenda Moran making it absolutely plain what was to be determined at the hearing of 14 December in advance of that hearing. He said he simply did not check his emails regularly and might have missed that and therefore did not know about the hearing. He also says he did not receive the Notice of Hearing in which the second strike out warning of Judge Laidler was contained.[18]So having heard from both parties we have to consider the position. We are bound to say that we have considered the claimant’s position with great care. Tribunals do not strike out claimant’s claims lightly. Tribunals are a forum which prides itself on being approachable by those who are not instructing professional advisors and over the years Tribunals have always attempted to be as flexible and as helpful as possible with individuals who may misunderstand the procedure and who may not be able themselves to be in a position to instruct solicitors and counsel to represent them.[19]We do feel that that exceptional circumstance has been reached today. We consider that the failures of the claimant in this case go well beyond that which we would usually see when dealing with cases of this nature. It is not unusual for us to arrive at a hearing, and for there to have been some dispute between the parties concerning a failure to comply with orders by due dates and usually we are very flexible about that failure to comply and provided that the parties are in the position to proceed then we rather consider that flexibility extends to according some considerable leeway to claimants who have perhaps missed a deadline by a number of days or perhaps have not done something in quite the form that professional advisors would do. Tribunals are well accustomed to that but this is very different. By own admission, in the claimant did not have this matter at the top of his list of priorities and an awful lot has been happening in his life. We have sympathy for that but we must also take into account that the respondent has behaved without fault and have no doubt invested a great deal of money in instructing lawyers to deal with matters expeditiously. We have to have cognisance of that and be fair to both parties.[20]The claimant simply has chosen not to prosecute his claim properly. It is very evident that it does not form a significant part of his life and that is understandable but the fact remains that it is his claim, there is a duty on him to prosecute that claim to a reasonable degree and he has failed to do that on any analysis. He did not contact the tribunal to indicate that he had a change of address or change of email and even where he has received documents he has consistently failed to comply with them and so for the reasons set out above we do think that the threshold under rule 37(1)(c) and (d) has been reached and the claimant’s claims in their entirety are struck out.