Mrs E Vidler v Your Choice (Barnet) Ltd and The Barnet Group Ltd: 3308905/2023 and others

EMPLOYMENT TRIBUNALS

Case No 3308905/2023, 3308906/2023

Between

Mrs E VidlerClaimant

Your Choice (Barnet) Ltd and The Barnet Group LtdRespondent

Before

Employment Judge Bansal

In person for claimant

Mr J Braier (instructed by Counsel) for respondent

Mr O Holloway (instructed by Counsel) for respondent

Ms Amy Stroud (instructed by counsel) for respondent

Date 10 February 2025

JUDGMENT

ON INTERIM RELIEF The Claimant’s application for interim relief is refused.

REASONS

[1]This public preliminary hearing was directed by Employment Judge Young on 1 November 2024. The direction is as follows:- “It is unclear whether the claimant has complied with the Employment Tribunal order to provide details of remedy. The issue and the exchange of witness statements cannot be resolved by correspondence. The matter is listed for a preliminary hearing in person.”

[2]On 21 November 2024 the respondents renewed their application to strike out the claimant’s claims. Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 2

[3]Due to various emails sent by both sides to the employment tribunal after 1 November 2024, so the matter was referred back to Employment Judge Young who directed on 31 December 2024 that the matter be listed for a PPH as soon as possible and that all matters in correspondence would be dealt with at the PPH. Strike out

[4]The principal issue before me today was the respondents’ application to strike out all the claimant’s claims. This was pursuant to Rule 38(1)(b) and (c) of the Employment Tribunal Procedure Rules 2024.

The law

[5]Rule 38 provides as follows:- “Striking out 38 - (1) The tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim… on any of the following grounds – … (b) That the manner in which the proceedings have been conducted by or on behalf of the claimant… has been scandalous, unreasonable or vexatious; (c) For non-compliance with any of these rules or with an order of the tribunal;”

[6]Ms Stroud provided written submissions for her application which included the following submissions on the law:- “Law on striking out – Rule 37(1)(c)a. A. Weir Valves and Controls (UK) Ltd v Armitage

[2004] ICR 371

, EAT sets out the factors a tribunal must consider when deciding whether to strike out a party’s case for non-compliance, pursuant to Rule 38(1)(c): Non-compliance with tribunal rules or orders. These factors include: a. The magnitude of the non-compliance;

b. Whether the default was the responsibility of the party or his or her representative;

c. What disruption, unfairness or prejudice has been caused;

d. Whether a fair hearing would still be possible, and

e. Whether striking out or some lesser remedy would be an appropriate response to the disobedience. B. Consideration of whether a fair trial is still possible will usually always be relevant save in occasional circumstances where there is “persistent willful Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 3 disobedience of an order” – Blockbuster Entertainment Ltd v James

[2006] IRLR 630

. In such cases, a claim may be struck out without the tribunal needing to investigate or conclude that a fair trial was impossible, although the basis for that conclusion must be explained by the tribunal: Daly v Northumberland Tyne and Wear NHS Foundation Trust UK

EAT/0109/16

. C. Parallel to these authorities, the EAT noted in Harris v Academies Enterprise Trust

[2015] IRLR 208

, at 26, that “A failure to comply with orders of a tribunal over some period of time, repeatedly, may give rise to a view that if further indulgence is granted, the same will simply happen again. Tribunal’s must be cautious to avoid that. See too the Court of Appeals decision in Governing Body of St Albans Girls’ School v Neary

[2010] IRLR 124

where the Court was unanimous that: “It is well established that a party guilty of deliberate and persistent failure to comply with a court order should expect no mercy.””

[7]Further, as observed in Blockbuster Entertainment: “This power… is a draconian power not to be readily exercised.”

[8]Further, I have to have regard to the overriding objective which is as follows:- “The overriding objective of these rules is to enable employment tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) Ensuring that the parties are on an equal footing:

(b) Dealing with cases in a way which is proportionate to the complexity and importance of the issues:

(d) Avoiding delay, so far as compatible with proper consideration of the issues:

(e) Saving expense.”

The facts

[9]The background to this hearing is that it is less than four weeks prior to the beginning of a 10 day full merits hearing on 3 March 2025.

[10]This is the fifth preliminary hearing heard in these six cases.

[11]On 19 January 2024 (order sent to the parties on 7 February 2024) Employment Judge Young listed this case for hearing and made case management orders. The case management orders included:- “Schedule of Loss 10. The Claimant must by 8 March 2024 send to the Respondent and the Tribunal a document setting out how much compensation for lost earnings or other losses they are claiming and how the amount has been calculated. This is called a Schedule of Loss. Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 4 11. If the Claimant has been dismissed and wants to be reinstated or re-engaged, the Schedule of Loss must say so.”

[12]On 8 March 2024, in an email timed at 21:49, the claimant emailed the tribunal to state:- “I am writing to comply to the best of my abilities to the case management order point 10 regarding the compensation aspect of my case. I wish to express my difficulty in assigning a specific monetary value to the challenges I have faced. As someone who has never been inclined towards material pursuits, the task of quantifying the impact of the issues raised in my claim proves to be challenging. Understanding that the determination of compensation falls within your discretion, I trust your ability to objectively evaluate the evidence and circumstances presented. Given my unfamiliarity with assigning financial values to personal experiences, I believe it would be most appropriate to leave the matter of compensation entirely to your judgment.”

[13]On 11 March 2024 the respondent replied to the claimant pointing out that it was necessary to comply with the tribunal orders and warned the claimant that if the information was not provided by 28 March the respondent would seek an unless order or a strike out order on the basis that the claimant was not actively pursuing her claims.

[14]The claimant did not respond to that warning.

[15]On 2 April 2024 the respondent applied to the tribunal for a strike out order and/or an unless order for the claimant to provide a schedule of loss.

[16]The case file was referred to Employment Judge Young who directed as follows on 14 May 2024:- “The respondent’s application for strike out is postponed. However, the claimant is to provide the following information no later than 28 May 2024 the following:” There was then set out five paragraphs of financial information that the claimant was ordered to provide.

[17]The claimant did not comply with that order.

[18]On 10 June 2024 the respondent emailed the tribunal repeating its application for a strike out or an unless order.

[19]The case file was referred to Employment Judge Young and on 12 July 2024 the following was issued:- “STRIKE OUT WARNING Employment Tribunal’s Rules of Procedure 2013 Rule 37 On the application of the respondent and having considered any representations made Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 5 by the parties, Employment Judge Young is considering striking out the claim because you have not complied with the orders of the tribunal dated 7 February 2024 and 14 May 2024. If you wish to object to this proposal you should give your reasons in writing or request a hearing at which you can make them by 26 July 2024.”

[20]The claimant does not appear to have responded to the strike out warning and objected to the proposal by 26 July 2024. The claimant suggested to me today that she did respond but could not place before me any evidence of that. I have on file three emails that the claimant sent to the tribunal dated 16, 23 and 26 July 2024. None of them directly addressed the issue. The first email made general assertions concerning the claimant’s difficulties due to dyslexia in expressing herself effectively in writing. However, it is clear from the file in this case that the claimant is more than capable of sending long emails.

[21]Due to the claimant’s failure to respond, the respondent sent an email to the tribunal on 5 August 2024 seeking to reactivate its strike out/unless order application.

[22]It was against that background that Employment Judge Young directed that this preliminary hearing be listed.

[23]At the start of this hearing the claimant produced a four page email titled Schedule of Loss which she handed to me and the respondent.

[24]The schedule handed today is not compliant with the case management orders. It has no figures in it, there is no indication of what level of Vento injury to feeling damages the claimant is seeking and does not deal with the reinstatement/reengagement question.

[25]I first considered the magnitude of the non-compliance. Any order of the tribunal is important, and a schedule of loss is an important document in giving the respondent an idea of what the claimant thinks they will be achieving at trial. That said, I do not characterise it as of the greatest importance. Much of the financial information will be within the knowledge of the respondent such as the claimant’s gross and net pay etc. The respondent is well able to calculate the basic award and should be able to have a figure for loss of statutory rights in its mind. The information that the respondent does not have is for how long the claimant is claiming any loss of earnings, what efforts she may have made to achieve alternative work, what state benefits she was in receipt of and where the claimant puts her injury to feelings on the Vento bands. An indication of what the claimant is seeking to achieve at trial will undoubtedly be important as far as the respondent is concerned for the purposes of any without prejudice negotiations. I am unaware of any such negotiations but, if this issue is relevant, it can be raised at the conclusion of the full merits hearing as appropriate.

[26]The default was clearly the responsibility of the claimant. She suggested to me it was not deliberate but, in my judgment, her initial email suggesting that the issue be left to the tribunal was clearly deliberate. I take into account that the claimant is a litigant in person and has disabilities of dyslexia and Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 6 anxiety/depression. Against that, the claimant told me that she had access to legal advice at “The Clinic” and that any uncertainty or difficulties in quantifying her claim could have been raised there. Further, the claimant told me she was familiar with Google and researching issues on the internet.

[27]I now consider what disruption, unfairness or prejudice has been caused. In my judgment, the preparation for the hearing of this case has clearly been disrupted and the respondent has been put to the trouble and expense of pushing the issue to this hearing. I find that there has been no substantial prejudice to the respondent. If the late disclosure of information concerning the claimant’s financial claims is shown to have caused the respondent prejudice at the full merits hearing, then I make clear that the respondent will be able to highlight it to the tribunal as being a material factor for the tribunal to consider in the assessment of any damages.

[28]In my judgment, a fair hearing of this case is still possible. The parties have four weeks to prepare.

[29]I find that the claimant has failed to comply with orders of the tribunal repeatedly. The claimant was given a second chance in May 2024 and a clear warning in July 2024. The claimant has been copied in to all the respondent’s emails and must have been aware that the application to strike out her claims was very much being pursued throughout 2024. However she persistently failed to comply and only attempted to do so today.

[30]I have to consider whether striking out the claimant’s claims would be proportionate. In my judgment, it would not. In my judgment, there is some lesser remedy which would be an appropriate response to the disobedience.

[31]In my judgment, the claimant’s conduct in failing to comply with the orders for a Schedule of Loss was unreasonable. In my judgement, It was reasonable for the respondent to push for a strike out order in the circumstances and I find that the claimant’s unreasonable conduct caused the respondent to be put to the trouble and expense of today’s hearing.

[32]Ms Stroud told me that her brief fee was £3,500 plus VAT. In addition the respondent had a Grade A solicitor in attendance at an hourly rate of £495.

[33]In my judgment, given the complexity of these six claims and the history of them, it was entirely appropriate to have an instructing solicitor attend upon Ms Stroud. However, I do not consider that Grade A fee earner was reasonable. In addition, I consider that Ms Stroud’s brief fee is excessive.

[34]In my judgment, I allow the following costs:

[35]£1,500 brief fee plus VAT: Total £1,800

[36]Solicitor attendance: 3 hours at £250 per hour: £750 plus VAT: £900

[37]Accordingly, I award the respondent costs in the total sum of £2,700. Case Numbers: 3304022/2022,3311700/2022,3312929/2022, 3308905/2023,3308906/2023 and 3308885/2023 7 Hearing bundle

[38]A hearing bundle has been provided to the claimant. The claimant has not agreed it as there are various other documents that she wants included. The respondent has been seeking information as to what the respondent’s documents show and/or their relevance but the claimant has not engaged. On a pragmatic basis and due to the hearing date being so close, I directed that the hearing bundle as it currently is, should be the hearing bundle for the trial. I indicated to the claimant that she should provide all her further documents in a separate supplemental bundle and should bring five copies of it to the tribunal for the hearing. I indicated to the respondent that if the respondent could show that it had been prejudiced by not being told the relevance of these documents or their late production then that was a matter that could be raised with the full merits hearing which could assess what, if any, weight to put on such evidence.

[39]The claimant indicated that she had six videos she wished to play to the tribunal. I indicated that whether or not the tribunal viewed these videos was a matter for the tribunal at trial. I indicated to the claimant that she would need to bring an apparatus upon which those videos could be viewed by the tribunal.

List of issues

[40]In March 2024 the respondent supplied a draft list of issues to the claimant. The claimant did not expressly agree that list of issues but has not taken any opportunity in the ensuing 11 months to suggest any changes to it. I directed that the list of issues should be treated as the final list of issues, subject to any applications that may be made to the full merits hearing. The claimant’s witness statement

[41]The respondent complained that the claimant’s witness statement was unpaginated and did not have paragraph numbers and had 146 pages of documents annexed to it. In my judgment, it was too late to issue further orders. I requested the respondent simply number the paragraphs and paginate it in manuscript and photocopy the witness statement for use by the tribunal. I did not require the 146 pages annexed to it to be removed although the full merits hearing may do that as necessary. Approved by: Employment Judge Alliott Date: 10 February 2025