Ms D Osapanin v Heathrow Express Operating Company Ltd: 3309607/2022
EMPLOYMENT TRIBUNALS
Case No 3309607/2022
Between
Ms D OsapaninClaimantHeathrow Express Operating Company LtdRespondent
Before
Employment Judge YoungNot represented for claimantMr Michael Salter (instructed by Counsel) for respondentDate 19 May 2025
JUDGMENT
[1]It is the Judgment of the Employment Tribunal that the Respondent’s application to strike out the Claimant’s claim is refused at this stage.[2]The final hearing remains as listed for 22-26 April 2024
REASONS
[1]For the avoidance of doubt, the claimant’s unfair dismissal, harassment on the grounds of race and claim for unauthorised deduction of wages remain and will be heard at the hearing listed for 19-23 May 2025. The law on striking out[2]Rule 38 of the Employment Tribunal Procedure Rules 2024 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— … (c) for non-compliance with … an order of the Tribunal; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim… (or the part to be struck out). (2) A claim… may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.” Case Number: 3309607/2022 2[3]The power to strike to part of a claim is a discretionary power. My discretion must be exercised judicially; that is, with due regard to reason, relevance, logic, and fairness.[4]As per the judgment of Mrs Justice Stacey in Bharaj v Santander UK Plc and others, [2023] EAT 152 at 45:- “Where the exercise of a power which may result in a terminating ruling, such as a decision to strike out a claim or response, the exercise of the discretion must also be approached through the lens of the Court of Appeal authority of Blockbuster Entertainment. “5. This power [a reference to what is now the power to strike out for unreasonable conduct under rule 37(1)(b)] as the employment tribunal reminded itself, is a draconian power not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that t has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response…It will, however, be necessary to return to the question of proportionality before parting with this appeal.”46. As promised, Sedley LJ returned to the question of proportionality: “20. It is common ground that, in addition to fulfilling the requirements outlined in paragraph 5 above, striking out must be a proportionate measure.” He then explained how to approach proportionality in a strike out application: “21. It is not only by reason of the Convention right to a fair hearing vouchsafed by article 6 that striking out, even if otherwise warranted, must be a proportionate response. The common law, as Mr James has reminded us, has for a long time taken a similar stance: see Re Jokai Tea Holdings [1992] 1 WLR 1196, especially at 1202E-H. What the jurisprudence of the European Court of Human Rights has contributed to the principle is the need for a structured examination. The particular question in a case such as the present is whether there is a less drastic means to the end for which the strike-out power exists. The answer has to take into account the fact if it is a fact that the tribunal is ready to try the claims; or as the case may be that there is still time in which orderly preparation can be made. It must not, of course, ignore either the duration or the character of the unreasonable conduct without which the question of proportionality would not have arisen; but it must even so keep in mind the purpose for which it and its procedures exist. If a straightforward refusal to admit late material or applications will enable the hearing to go ahead, or if, albeit late, they can be accommodated without unfairness, it can only be in a wholly exceptional case that a history of unreasonable conduct which has not until that point caused the claim to be struck out will now Case Number: 3309607/2022 3 justify its summary termination. Proportionality, in other words, Is not simply a corollary or function of the existence of the other conditions for striking out. It is an important check, in the overall interests of justice, upon their consequences.”47. The relevant paragraphs in Weir Valves in the judgment of HHJ Richardson are worth setting out in full: “13. What are the principles on which the Employment Tribunal should act in deciding whether to strike out in a case such as this, where there has been a breach of a direction?[14]Where the unreasonable conduct which the Employment Tribunal is considering involves no breach of a court order, the crucial and decisive question will generally be whether a fair trial of the issues is still possible: …[15]Even if a fair trial as a whole is not possible, the question of remedy must still be considered so as to ensure that the effect of a debarral order does not exceed what is proportionate: see Bolch v Chipman at pages 23–25. For example, it may still be entirely just to allow a defaulting party to take some part in a question of compensation which he is liable to pay:[16]Those principles apply where there is no disobedience to an order. What if there is a court order and there has been disobedience to it? This is an additional consideration. The principles which we have set out above do not apply in the same way. The Tribunal must be able to impose a sanction where there has been wilful disobedience to an order: see De Keyser v Wilson at paragraph 25, Bolch v Chipman at page 22.[17]But it does not follow that a striking out order or other sanction should always be the result of disobedience to an order. The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been cause and, still, whether a fair hearing is still possible. It should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.” The facts 5. In this case the claimant brings a number of disability related claims. 6. It is understood that the disability relied upon by the claimant is the mental impairment of anxiety and depressive illness. 7. As recited in the case summary of Employment Judge Daley following a preliminary hearing heard on 24 February 2023:- “45. The claim is that during her employment , the claimant developed stress/anxiety Case Number: 3309607/2022 4 and depression due to workplace issues; and that this led to an extended period of sickness absenteeism which started on 27 September 2021, and was interspersed with annual leave, until, the claimant’s claim is that her health conditions amounted to a disability within the meaning of Employment Rights Act 2010, and that she complied as far as she was able, with the requirements of the respondent’s time and attendance policy.” 8. The respondent does not concede either that the claimant was disabled at any relevant time or that it had knowledge of the same. 9. In the circumstances, disclosure of the claimant’s GP records, and other medical evidence would be crucial to allow the respondent to prepare for the hearing and to assist the tribunal in arriving at its decision on the disability issues. 10. Disclosure of documents was initially ordered for 14 April 2023. The claimant has not disclosed her GP records or other medical reports by then or at all. 11. The claimant has a history of being in breach of orders of the tribunal. I do not set them out here in full. 12. The matter came before me on 4 June 2024 to determine whether the claimant had been in breach of an unless order. I determined that she was not in breach of the unless order but made further case management orders as follows:- “1. Further medical evidence 1.1 By 4pm, 24 January 2025, the claimant must send to the tribunal and the respondent medical evidence (that is, evidence from a General Practitioner or other qualified doctor) answering the following questions:1.1.1 Whether the claimant is, as of the date of the report, fit to take part in employment tribunal proceedings by way of attendance, giving evidence and answering questions in cross examination.1.1.2 Whether the claimant will be able to take part in the proceedings scheduled for 19-23 May 2025 and, if so, the extent to which she will be able to participate.1.1.3 What steps that the doctor can suggest that the tribunal might take to facilitate the claimant’s participation and the hearing scheduled for 19-23 May 2025.” 2. GP records 2.1 By 4pm, 24 January 2025 the claimant is to send to the respondent copies of her GP records from 9 December 2017 to late 2024. 3. IF THE CLAIMANT DOES NOT COMPLY WITH THESE CASE MANAGEMENT ORDERS IT IS HIGHLY LIKELY THAT HER CLAIM WILL BE STRUCK OUT.” 13. The claimant has not complied with either of those case management orders. 14. On 10 February 2025 the respondent applied for the claim to be struck out Case Number: 3309607/2022 5 pursuant to rules 38(1)(b), (c) and (d). 15. Two previous final hearings listed for 16-20 October 2023 and 22-26 April 2024 have had to be postponed. 16. On 17 February 2025 the claimant’s son and carer responded indicating that possession proceedings have been made against the claimant and stressing the claimant’s right to a fair trial. 17. On 20 March 2025 I caused the claimant to be sent a strike out warning in the following terms:- “Employment Judge Alliott is considering striking out the claim because You have not complied with the order of the tribunal dated 24 June 2024, sent to the parties on 12 July 2024. If you wish to object to this proposal, you must write to the tribunal by 27 March 2025 giving your reasons or requesting a hearing at which you can give them. Your reasons must include an explanation as to why you have not complied with the order, when you expect to be able to comply with the order and information as to whether the claimant will be able to take part in the hearing scheduled for 19-23 May 2025 by way of attendance, giving evidence and answering questions in cross examination.”
The facts
[18]On 1 April 2025 the respondent emailed the tribunal to point out that the claimant had failed to respond and requesting a strike out order.[19]On 2 April 2025 the claimant’s son, who has represented her at all times, responded once again stressing the claimant’s right to a fair trial. He states however:- “Despite her challenging circumstances, including her eviction from her home on 27 December 2024, Desiree has shown a strong commitment to attending the newly listed final hearing from 19-23 May 2025, as requested by the tribunal. She has corresponded with the tribunal, explaining her situation and expressing her willingness to attend.”[20]I am unaware of any correspondence from the claimant, but I take this as an indication that the claimant is intending to attend and participate in the full merits
hearing.
[21]Nevertheless, the claimant has not taken the opportunity to explain why she has not complied with the order to disclose her GP records and, more importantly, has not set out when she expects to be able to comply.[22]I take into account the following factors:-22.1 The claimant has a history of not complying with orders of the tribunal in this case.22.2 The failure to disclose her GP records is very serious in circumstances where the respondent is disputing both disability and knowledge. Case Number: 3309607/2022 622.3 The default is the responsibility of the claimant, albeit acting through her son. Due to the claimant’s sons involvement, I discount any mental health issues that may affect the claimant.22.4 The full merits hearing is scheduled to begin on 19 May 2025. It is the third time the case has been listed for final hearing. By the time this order is sent to the parties there will be less than a month to the hearing.22.5 In my judgment, the respondent will be severely prejudiced by the lack of the GP notes. The respondent must have a reasonable opportunity to prepare for the hearing and, if necessary, make enquiries that might be generated by disclosure of the GP notes.22.6 In my judgment, a fair trial on the disability issue is no longer possible.22.7 I have considered whether any lesser sanction is appropriate. In particular, I have considered whether yet another unless order to produce the GP records would enable a fair trial to take place. In my judgment, it would not. The claimant has had two clear warnings of the consequences of failing to comply.22.8 In my judgment, due principally to the proximity of the full merits hearing, the only proportionate response is to strike out the claimant’s disability related claims.[23]Whilst the claimant has failed to comply with the order to provide medical evidence as to her fitness to attend the full merits hearing, I take into account the expressed intention of her to attend. In the circumstances, in my judgment a fair trial is still possible on the remaining claims of unfair dismissal, harassment on the grounds of race and unauthorised deduction of wages and, consequently, I consider that a strike out order would be disproportionate. Approved by: Employment Judge Alliott Date: 29 April 2025
hearing.
[1]The claimant’s application to postpone the hearing and to stay the case is refused.[2]All remaining claims are dismissed for the claimant’s failure to attend the hearing. Approved by: