Mrs R Yiannopoulos v Secretary of State for Justice and Others: 3304232/2024
JUDGMENT
The claim is struck out under rule 38(1)(c) of the Employment Tribunal Rules of Procedure 2024.REASONS
[1]This is an application to strike out on the claim under rule 38(1)(c) of the Employment Tribunal Rules of Procedure 2024 for non-compliance with a Tribunal Order.Background
[2]The Claimant has been employed by the First Respondent in the Probation Service since 3 April 2023 as a Diary Manager. She is still so employed.[3]ACAS conciliation took place between 14 December 2023 and 25 January 2024.[4]On 22 April 2024 she brought a claim of unfair dismissal and for disability discrimination, bullying and harassment. In her claim form she describes herself as being neurodiverse and having autism and ADHD and also being in constant pain and dealing with fatigue daily.[5]The Response was submitted on 23 August 2024.[6]From the pleadings, the complaints appear to be based around the fact that the Claimant’s probationary period was extended in September 2023 because of the First Respondent’s concerns about her performance. Further in November 2023 the First Respondent started a disciplinary investigation into an allegation (which the Claimant denied) that at a meeting on 25 October 2023 she had referred to the Second Respondent as a “dick”. In October or November 2023, the Claimant submitted a grievance in respect of both these matters. In December 2023 the Claimant’s probation period was extended for a second time to allow the disciplinary process to conclude. Following a subsequent disciplinary hearing in January 2024 the Claimant was advised that no further action would be taken. Also in January 2024 the Claimant appealed against the outcome of her grievance. The Claimant makes complaints, amongst other things, of discrimination in relation to the extension of her probation period, the instigation of the disciplinary proceedings against her and the handling of her grievance.[7]On 4 December 2024, the Claimant was sent a Case Management Order by the Tribunal requiring her to provide Further Particulars of her claim, including(i) details of what happened to her because of her disability (including the date of each event, the name of the person doing it, what they did and where they did it); and why this was unfavourable or less favourable treatment because of disability, and(ii) the facts she relied upon to prove her claim that the Respondent had failed to make reasonable adjustments.[8]The same Case Management Order also required the Claimant to provide particulars of what physical or mental impairments she relied upon, how long she had had those conditions and the effects of those impairments on her ability to do day to day activities, and also to provide copies of parts of her GP and other medical records that were relevant to whether she had a disability at the time of the alleged events.[9]The Respondent was required to write to the Tribunal by 15 December 2024 to state whether it accepted the Claimant had a disability at the material time.[10]Unfortunately, the Case Management Order contained an error in that the deadline for the provision of information by the Claimant was stated to be 1 December 2024 (prior to the date of the Order).[11]The Respondents’ representative therefore wrote to the Claimant on 5 and 9 December 2025, seeking her agreement to vary the Case Management Orders applicable to the Claimant to 1 January 2025, and vary the Case Management Order applicable to the Respondents to 15 January 2025.[12]The Claimant did not respond to these emails.[13]On 11 December 2024, the Respondents’ representative made an application to the Tribunal asking that the Claimant’s dates for compliance set out in the Case Management Orders be amended to 1 January 2025 and the date for the Respondents’ compliance of their one order set out in the Case Management Orders be amended to 15 January 2025. The Respondents’ representative sought an urgent response from the Tribunal but did not receive one.[14]On 13 December 2024, the Respondents’ representative notified the Tribunal that it could not comply with their Case Management Order by 15 December 2024 because the Respondents had not had sight of the Claimant’s responses to the Case Management Orders applicable to the Claimant relating to her alleged disability.[15]On 18 December 2024, the Respondents’ representative followed up with the Tribunal on its application dated 11 December 2024 and correspondence dated 13 December 2024 but got no reply.[16]On 30 December 2024, the Claimant replied to the Respondents’ representative’s email dated 9 December 2024, stating: “my apologies i have just seen this will respond shortly. My disabilities have been flaring a lot recently due to workplace stress”. However, the Claimant then sent no further communication.[17]On 6 January 2025, the Respondent requested the Tribunal to amend the dates for the Claimant and Respondents’ compliance with the Case Management Orders as it saw appropriate, enabling sufficient time for the information to be provided by the Claimant, and enabling sufficient time for the Respondents to consider the information provided and comply with its Case Management Order.[18]Since no response had been received, on 30 January 2025 the Respondents’ representative contacted the Claimant asking her to respond to the Tribunal’s Case Management Orders by 13 February 2025, and in any event simply to respond to the email to acknowledge receipt.[19]The Claimant did not acknowledge receipt of the email and did not respond to the request to comply with the Case Management Orders.[20]On 6 February 2025, the Respondents’ representative contacted the Tribunal, setting out its concerns about the Claimant’s failure to comply with the Case Management Orders and the Claimant’s lack of engagement with the Respondents’ representative. The Respondents’ representative set out the Respondents’ concern that the failure of the Claimant to provide the information in the Case Management Orders would impede the parties’ ability to adequately prepare for the Preliminary Hearing (“PH”) which was due to take place on 27 May 2025.[21]On 6 May 2025 the Respondents’ representative wrote to the Claimant, attaching draft copies of the PH agenda, a draft list of issues, and a bundle of documents, and requesting the Claimant provide her feedback on the documents by 13 May 2025.[22]Again the Claimant did not respond to the Respondents.[23]On 12 May 2025 the Tribunal notified the parties of the postponement of the PH and listed a new date of 21 July 2025 (today).[24]The Tribunal also amended the dates for compliance with the Case Management Orders of 4 December 2024 as follows: the Claimant was required to comply by no later than 09 June 2025 and the Respondents to comply by no later than 23 June 2025.[25]The Order of 12 May 2025 stated that “Failure to comply with these revised orders may result in the claim/response being struck out.”[26]The Claimant did not comply with the Case Management Orders by 9 June 2023 or indeed send any response to the Tribunal or the Respondent.[27]On 18 June 2023 the Respondents’ representative made an application for strike out under rule 38 of the Employment Tribunal Procedure Rules 2024 (“ET Rules”) on the grounds that the Claimant had not complied with an order of the Tribunal under rule 38(1)(c) and/or the claim was not being actively pursued under rule 38(1)(d).[28]In the alternative, the Respondents made an application for a deposit order under rule 40 on the basis that the claims had little prospects of success because the Claimant had advanced an unfair dismissal claim but was still employed by the First Respondent and had failed to articulate the alleged disability/disabilities she relied upon for the purposes of her disability discrimination claims.[29]On 3 July 2025 the Tribunal informed the Claimant that in accordance with rule 38 of the Employment Tribunal Rules of Procedure, Employment Judge Tynan was considering striking out the claim because she had not complied with the Order of the Tribunal dated 4 December 2024 (as varied on 12 May 2025) and the claim had not been actively pursued. The Claimant was required to set out her objections to the proposal to strike out her claim by 16 July 2025.[30]The Tribunal also ordered that the PH on 21 July 2025 would be a Public Preliminary Hearing and that at the hearing the Tribunal would consider striking out the claim.[31]On 9 July 2025, in preparation for the PH, the Respondents sent the Claimant an updated draft list of issues, a draft agenda, a draft bundle (including the correspondence from the Tribunal and the Respondents’ strike out application); and a draft index to the bundle. The email further stated: “Given the Respondents’ application for strikeout, and in the alternative, a deposit order, let me know if you have any documents you wish to be added to the bundle that cover your ability to pay a deposit order. Please provide your feedback and comments on the attached documents by close of play, Friday 11 July 2025. If I do not hear anything from you by this date, I will proceed with finalising the documents and file them with the Tribunal in advance of the PH.”[32]The Claimant did not respond to that email either and the documents were filed with the Tribunal by the Respondents on 14 July 2025.[33]On 15 July 2025 the Claimant sent an email to the Tribunal stating “Attached is my response, I will send further documents in a subsequent email. Let me know if there is anything I need to do so.” Her email attached the Respondents’ Grounds of Resistance, with links at various points to comments. The email made no reference to the Case Management Order of 4 December 2024, the Order of 12 May 2025 or the letter from the Tribunal of 3 July 2025 requiring the Claimant to set out any objection she had to her claim being struck out by 16 July 2025. Further, the Claimant did not send the Tribunal or Respondent any further documents prior to the Tribunal hearing today.Conclusions
[34]In considering this strike out application I must have regard to the overriding objective set out in rule 3 of the Employment Tribunal Rules of Procedure 2024 of seeking to deal with cases fairly and justly. This requires me to consider, as part of my overall assessment, the magnitude of the non-compliance, whether the default was the responsibility of the party or his or her representative, what disruption, unfairness or prejudice has been caused, whether a fair hearing would still be possible and whether striking out or some lesser remedy would be an appropriate response.[35]As regards the magnitude of the default, I note that the Claimant was required to provide information - namely particulars of her claim and particulars and evidence of her alleged disabilities - that goes to the very core of her claim and without which the case was unable to proceed. Despite this, there is no evidence of any communication by the Claimant with the Tribunal or the Respondent between 30 December 2024 and 15 July 2025. Moreover, as at today’s date (21 July 2025) the Claimant had still failed to comply with the Case Management Order of 4 December 2024 (as amended by the Order of 12 May 2025) and indeed had not made any demonstrable attempt to do so.[36]Further, while the initial Case Management Order from the Tribunal of 4 December 2024 was confusing as regards the date by which it had to be complied with, the substance of the Order was written in straightforward terms. Moreover, if the Claimant had engaged with the Respondent the problem with the date could easily have been rectified, but she failed to respond in any meaningful way to any of the Respondents’ emails seeking to adjust the dates in that Order, (or indeed to respond to any of their other emails, including those seeking to agree matters in preparation for the PH initially listed on 27 May 2025 and this PH). In any event, the Tribunal’s Order of 12 May 2025 was clear that compliance was required by 9 June 2025, and the Tribunal’s letter of 3 July 2025, stating it was considering striking out the claim, clearly required a response to that proposed course of action by 16 July 2025.[37]Accordingly, there has been a prolonged period of non-compliance with Tribunal Orders, the effect of which has been to prevent the case moving forward at all for a period of almost seven months, and I therefore consider that the magnitude of default in this case is relatively high.[38]As the Claimant is not represented the question of the fault of a representative is not a consideration.[39]As regards whether disruption, unfairness or prejudice has been caused, it plainly has been. The effect of the Claimant’s failure to comply with the Tribunal Orders (or respond to the Respondents’ emails) has caused the First Respondent to incur significant unnecessary costs and to require a PH to be relisted. Further case has effectively been hanging in a state of suspension for the last seven months, which is particularly unfair to the number of named individuals who are respondents to the claim. In addition, the events that form the basis of the claim are now considerably further in the past than they were when the claim was brought (nearly a year ago), so that if the case were to proceed to trial the memories of all those involved will have waned.[40]As regards whether a fair trial is still possible, the first matter is the delay that has already taken place and the impact of that delay on the memories of the witnesses involved. However, I recognize that fair trials can and do take place despite significant delays.[41]The second, more difficult, matter, is whether, going forward, the Claimant would engage, or be able to engage, with the Tribunal process and in particular the Tribunal’s Case Management Orders, including not only the Case Management Order of 4 December 2024 (as varied by the Order of 12 May 2025) with which the Claimant has still not complied, but all the future Case Management Orders that would need to be made in order to progress the matter to a fair trial at a Final Hearing.[42]In her submissions the Claimant said that she did not engage with the Tribunal Orders or the Respondents’ correspondence because her neurodivergent disabilities are such that she struggles with tasks others find easy, becomes overwhelmed by stress and anxiety and has a pathological and overpowering avoidance mechanism. She likened having to engage with the Tribunal process to a person being asked to put their hand in a flame. She further read out letter she had apparently obtained from her GP the previous week (which had not been provided to the Tribunal or the Respondent prior to the hearing) as regards her being affected by stress and anxiety (the letter did not refer to autism or ADHD).[43]These submissions, as regards being unable to engage with the Tribunal process, do not sit easily alongside the fact that the Claimant is still employed by the Respondent and has apparently been attending work since (and before) December 2024 during which time she must presumably have been dealing with work-related communications and emails. However, if her health and/or alleged disabilities mean she really has been unable to comply with the Tribunal’s Orders or to respond to emails from the Respondents it is difficult to see why that situation should change in any significant way going forward and how, in those circumstances, the case could progress to a fair hearing. In my judgment, the Claimant can’t rely on her health and/or alleged disabilities as being the reason why she didn’t engage with the process for more than six months yet without any change in her health and/or alleged disabilities (or any suggestion that legal representation or other support will be available to her) now be assumed to be able to engage with the process going forward.[44]I therefore have considerable doubts as to whether a fair trial is possible in this case.[45]As to whether some lesser remedy to striking out would be an appropriate response, I note that while this is not a matter of failing to comply with an actual Unless Order, there have been three previous Orders, namely of 4 December 2024, 12 May 2025 and 3 July 2025. Further, the Order of 12 May 2025 stated that non-compliance with the Order could result in the claim being struck out and the Order of 3 July 2025 specifically stated that the Tribunal was considering striking out the claim and the Claimant must set out any objection to that proposed course of action by 16 July 2025. The Claimant has therefore been given ample warning that her claim was at risk of being struck out in the event of non-compliance as well as ample opportunity to provide the information and evidence asked of her. Moreover, I am not satisfied that a lesser sanction such as an Unless Order would be appropriate when, for the reasons set out above at paragraphs 42-43, there is no basis for believing the Claimant would, or would be able to, comply with it.[46]It is true that the Claimant is a litigant in person, and it was plain from her emotional state at the Tribunal that she found the process difficult and very stressful. However, the interests of justice require the interests of the Respondents as well as the Claimant to be taken into account and in my judgment any claimant who brings a case to a Tribunal has a degree of responsibility to engage with the process and at least respond to communications and the Case Management Orders that are necessary to progress the matter to a Final Hearing. The Respondents cannot be expected to conduct litigation in a vacuum of facts and information about the case it is required to meet or to continue to waste considerable time and resources because their communications are repeatedly unanswered and Tribunal Orders are repeatedly disregarded by the Claimant.[47]For all these reasons I therefore strike out the claim in its entirety pursuant to s. 38(1)(c) of the Employment Tribunal Rules of Procedure 2024. Name of Respondent[48]While the claim was initially brought against His Majesty’s Prison and Probation Service (and others), the Tribunal was informed that the correct name of the First Respondent was the Secretary of State for Justice. On 4 December 2024 the Tribunal wrote to the Claimant stating that if she objected to the change of name she should write to the Tribunal and the Respondents by 11 December 2004. The Claimant did not respond. Accordingly, the correct identity of the First Respondent is the Secretary of State for Justice. Approved By: