Mr A Mullins v Auto-Sleepers Group Ltd: 3310534/2023
EMPLOYMENT TRIBUNALS
Case No 3310534/2023
Between
Mr A MullinsClaimantAuto-Sleepers Group LtdRespondent
Before
Employment Judge RussellNot represented for claimantMiss Cheng (instructed by Counsel) for respondentDate 29 July 2024
JUDGMENT
The claim is dismissed under Rule 47 of the Employment Tribunal Rules of Procedure as the Claimant has failed to attend or be represented at the hearing. In deciding to dismiss the claim I considered the following:[1]The Claimant failed to attend this hearing and failed to provide any reasons for his non-attendance.[2]Under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1, if a party fails to attend or be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reason’s for the party’s absence.[3]The Claimant’s email address and telephone number have been included on the claim form. The Claimant indicated on the claim form that he would be able to participate in a video hearing.[4]A notice of hearing was sent to the Claimant on 15 February 2024 at the address provided on his claim form. The hearing was originally intended to be heard in person on 29 July, 30 July and 31 July 2024. The parties were informed that the hearing may be transferred at short notice to another hearing centre. The Claimant was aware of the dates of the hearing.[5]On Friday 26 July 2024 the hearing was converted to a video hearing. At 4.25pm on 26 July 2024 the parties were sent a link to access the video hearing. The link was sent to the email address given by the Claimant on the claim form.[6]At 06.03am on Monday 29 July 2024 the Claimant wrote to the Tribunal using the email address on his claim form to say: “I am assuming that because I haven’t heard anything, and because the respondent is unable to attend. That this is now not going ahead.” He copied in the Respondent’s solicitor to this email.[7]It is not clear on what basis the Claimant considered that the hearing would not be going ahead when a link to the video hearing had been sent to him on Friday 26 July 2024 using the email address on his claim form.[8]Tribunal staff have attempted to make enquiries with the Claimant including by telephone and email. Enquiries were made of the Respondent who had attended the hearing. It confirmed that the Claimant would have been aware of the hearing. The Respondent had emailed the Claimant that morning at 09.52am in response to his email at 06.03am to make clear that the hearing would proceed.[9]The start of the hearing was delayed to 11am to allow Tribunal staff to make further enquiries of the Claimant. Shortly after 11am, I directed Tribunal staff to telephone and email again to the Claimant to advise him that the start of the hearing will be delayed further until 2pm and to request that he contact the Tribunal as a matter of urgency. I considered this proportionate and in accordance with the overriding objective. While there had been a delay in the Claimant providing his witness statement to the Respondent in breach of the case management orders of 09 May 2024, I could not be satisfied that this was a case where the Claimant had taken no steps to pursue his claim.[10]The Tribunal waited until 2pm. It was not possible to determine the issues in the absence of the Claimant. The Tribunal had made all reasonable attempts to contact the Claimant, who was aware of the hearing and who had been sent the relevant video link. No explanation for the Claimant’s non-attendance has been given. Accordingly, in all the circumstances, I considered it in accordance with the overriding objective to dismiss the claim under Rule 47.
REASONS
[1]The case was listed for a final hearing at Reading Tribunal on 29 July 2024, 30 July 2024, and 31 July 2024. A notice of hearing was sent to the parties on 15 February 2024. The notice explained that the tribunal may transfer the case at short notice to be heard at another hearing centre within the region.[2]The Claimant indicated on the claim form that he would be able to participate in a video hearing. He noted that his preferred method of communication would be email and provided his email address.[3]On 27 June 2024 the Respondent applied for the hearing to be converted to video (CVP). The Respondent repeated its application on 15 July 2024. The Claimant responded on 15 July 2024. His preference was for the hearing to be delayed (i.e. postponed) and for it to remain in person. The Respondent contacted the Tribunal on 18 July 2024 seeking an update on its application.[4]On Friday 26 July 2024 Acting Regional Employment Judge Quill directed that the hearing be converted to a video hearing. The parties were informed of this by the Tribunal at 1.12pm on 26 July 2024. They were told that a link to access the hearing would be sent later that day. The link was sent to the parties at 4.25pm on 26 July 2024. The link, and the email notifying the Claimant that the hearing would now take place via video, was sent to the email address given by the Claimant on the claim form. 10.1 Judgment – no hearing - rule 60 February 2018[5]At 06.03am on Monday 29 July 2024 the Claimant wrote to the Tribunal, copying in the Respondent’s solicitor, using the email address on his claim form: “I am assuming that because I haven’t heard anything, and because the respondent is unable to attend. That this is now not going ahead.”[6]The Respondent replied to the Claimant on 29 July 2024 at 09.52am. It made clear that the hearing was proceeding.[7]The Claimant did not attend the hearing. The start of the hearing was delayed to 11am to allow Tribunal staff to contact the Claimant. The Claimant could not be contacted. It was further delayed until 2pm to allow the Tribunal to make further enquiries with the Claimant including by telephone and email. The Tribunal made all reasonable attempts to contact the Claimant.[8]The Claimant failed to provide any reasons for his non-attendance.[9]The Claim was dismissed pursuant to Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1. Full reasons for doing so are contained in my judgment of 29 July 2024. I had found in that judgment that the Claimant had been informed by the Tribunal that the hearing would proceed on 29 July 2024 and would take place via video. I concluded in that judgment that: “It was not possible to determine the issues in the absence of the Claimant. The Tribunal had made all reasonable attempts to contact the Claimant, who was aware of the hearing and who had been sent the relevant video link. No explanation for the Claimant’s non-attendance has been given. Accordingly, in all the circumstances, I considered it in accordance with the overriding objective to dismiss the claim under Rule 47.”[10]I have checked the case file and the Claimant has not applied for a reconsideration of that judgment under rule 71. Respondent’s application[11]At the end of the hearing on 29 July 2024 the Respondent intimated that it would make an application for costs. On 06 August 2024 the Respondent applied to the tribunal for an order of costs to be made against the Claimant.[12]The parties were given until 13 September 2024 to inform the Tribunal if they wanted the application to be considered at a hearing. The Claimant was also given until 13 September 2024 to make any representations on the Respondent’s application and to provide details of his ability to pay. No response has been received from the Claimant. The Respondent has provided written submissions and has not requested a hearing to determine the application.[13]The primary ground for the Respondent’s application is that ‘the Claimant acted and behaved vexatiously, abusively, disrespectfully or unreasonably in the conduct of proceedings. Rule 76(1)(a) and under Rule 76(2) because the Claimant was in breach of an Order (effectively not attending when he knew that the hearing was proceeding on a CVP basis).’ 10.1 Judgment – no hearing - rule 60 February 2018[14]In the alternative, the Respondent argues that ‘the Tribunal may make this award under Rule 80(1)(a) as he was effectively his own representative and was again (in not attending the hearing and giving an explanation before or after) guilty of a improper and/or unreasonable and/or negligent act’.[15]The conduct upon which the Respondent relies is ‘the Claimant not turning up and giving no reason either before or since the hearing on Monday 29th July 2024’.[16]The Respondent argues that the Claimant was aware that the hearing may be converted to CVP or that it may be postponed. It submits that the Claimant was then clearly informed on 26 July 2024 of the Tribunal’s decision that the hearing would proceed by CVP. It argues that the Claimant had been in email correspondence with the Tribunal and Respondent in the weeks leading up to the hearing and that there is no reasonable explanation as to why the Claimant did not attend. The Respondent further submits that: ‘the lack of any enquiry since the hearing as to what was now happening (see his alleged assumption that it had been postponed) also we submit speaks volumes of the fact that the Claimant had simply abandoned his case and had no intention of turning up for the hearing and knowing full well that would incur the Respondent significant disruption and costs’.[17]The Respondent refers as ‘background information’ to settlement discussions between the parties that were ultimately unsuccessful. It is not clear whether privilege has been waived and whether these discussions were conducted on a without prejudice basis or without prejudice save as to costs basis. The Respondent’s submission is clear that it does not seek to rely on the costs incurred in respect of these discussions. I decided not to have regard to this background information given the lack of certainty over the status of the offer and the Respondent’s own view that this was not a ground upon which it sought to rely in its application.[18]The Respondent claims counsel’s fees (brief and day 1) of £1,250, copy charges for the bundle of documents of £199.50, and instructions to counsel of 4 hours at £250 + VAT being £1,200. The total claimed is £2,649.50.
Law
[19]Costs are the exception and not the rule in employment tribunals (Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78, CA).[20]Rule 75(1)(a) provides that a costs order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative.[21]An employment tribunal may make a costs order under rule 76(1)(a) of the Tribunal Rules where it considers that 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. 10.1 Judgment – no hearing - rule 60 February 2018[22]Rule 76(2) provides that 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.[23]Rule 76(1)(a) imposes a two-stage test. First, a tribunal must ask whether a party’s conduct falls within rule 76(1)(a). If not, no discretion to make an order arises and the application must be dismissed. Second, if the conduct does fall within rule 76(1)(a), the Tribunal must consider whether it is appropriate to exercise its discretion to make a costs order.[24]In Scott v Russell [2013] EWCA Civ 1432, the Court of Appeal approved the definition of ‘vexatious’ given in Attorney General v Barker [2000] 1 FLR 759: ‘the hallmark of a vexatious proceeding is… that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’.[25]Abusive or disruptive conduct has its ordinary meaning (Garnes v London Borough of Lambeth and anor EAT 1237/97). 26. ‘Unreasonable’ also has its ordinary English meaning. It is not to be interpreted as being similar to vexatious (Dyer v Secretary of State for Employment EAT 183/83). Whether a party’s conduct has been unreasonable is a matter of fact for the Tribunal to determine. It should be considered in the round. Matters such as the nature, gravity and effect of a party’s unreasonable conduct may be considered. The Tribunal must ask whether there has been unreasonable conduct in the bringing, defending or conducting of the case. It must identify the conduct, what was unreasonable about it, and what effect it had (Yerrakalva v Barnsley Metropolitan Borough Council and anor [2012] ICR 420, CA).[27]The Claimant is a litigant in person. I reminded myself that lay people may not have much, if any, previous experience of legal proceedings and may lack the objectivity and knowledge of law and practice brought to bear by a professional legal adviser (AQ Ltd v Holden [2012] IRLR 648, EAT). This is relevant when considering whether the threshold of unreasonable conduct has been met and, if so, whether to exercise the tribunal’s discretion to award costs. This does not, however, mean that lay people are immune from orders for costs (Barton v Wright Hassall LLP [2018] 1 WLR 1119, UKSC). Each situation depends on its own facts.[28]The tribunal need not determine whether there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. However, causation is not irrelevant when deciding the amount of costs. The tribunal has a broad discretion, should take a broad-brush approach, and should avoid adopting an over-analytical approach (Yerrakalva; Sud v Ealing London Borough Council 2013 ICR D39, CA).[29]In addition to reminding myself that costs are the exception in employment tribunals, I also bore in mind that a costs order is to compensate the receiving party and not to punish the paying party (Lodwick v Southwark London Borough 10.1 Judgment – no hearing - rule 60 February 2018 Council [2004] ICR 884, CA). It is necessary to examine what loss has been caused to the receiving party and costs should be limited to those reasonably and necessarily incurred.[30]In deciding whether to make a costs order and if so, in what amount, the tribunal may have regard under rule 84 to the paying party’s ability to pay. A tribunal is not obliged to have regard to ability to pay. It is merely permitted to do so (Jilley v Birmingham and Solihull Mental Health NHS Trust and ors EAT 0584/06).[31]Under Rule 78 a costs order may order the paying party to pay a specified amount not exceeding £20,000 or alternatively order the paying party to pay the whole or a specified part of the costs with the amount to pay to be determined by detailed assessment. The Respondent’s cost schedule totals £2,649.50. It is not seeking a detailed assessment.[32]The Respondent has also made an application for a wasted costs order in the alternative. Rule 80 provides that a tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs(a) as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or(b) which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay. “Representative” for the purposes of a wasted costs order means a party's legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings.
Conclusions
[33]I am satisfied that I am able to determine the Respondent’s application without a hearing. The Respondent has not requested a hearing. The Claimant has not replied to the tribunal’s correspondence to either request a hearing or provide written submissions. In reaching this view I have had regard to the overriding objective to deal with cases fairly and justly. This includes avoiding delay and dealing with cases in ways which are proportionate. I was satisfied that the Respondent had clearly set out the grounds for its application and the costs it had incurred. I was also satisfied that the Claimant had been given a reasonable opportunity to make written submissions to the tribunal including giving details of his means.[34]The Respondent’s application is made primarily under rule 76(1)(a), namely on grounds of the Claimant’s conduct in failing to attend the hearing and failing to give reasons for his non-attendance. In the alternative, it pursues its application under(i) rule 76(2) (where there has been a breach of any order or practice direction); and(ii) rule 80 for wasted costs. Applications under rule 80 and rule 76(2)[35]Wasted costs pursuant to rule 80 are ordered against a representative personally as a result of the representative’s improper, unreasonable or negligent act or omission. The Claimant is a litigant in person. Wasted costs can only be made against a representative. This application fails and is dismissed. 10.1 Judgment – no hearing - rule 60 February 2018[36]With regards to section 76(2), the Respondent’s case is, in essence, that the notice of hearing amounts to an order and that the Claimant has been in breach of this by failing to attend. I have considered whether it is correct to characterise the notice of hearing in this way. The Tribunal rules make a distinction between orders of the Tribunal being either judgments or a ‘case management order’, being an order or decision of any kind in relation to the conduct of proceedings, not including the determination of any issue which would be the subject of a judgment. Case management orders were made to prepare the case for final hearing. There had been a delay in the Claimant providing his witness statement to the Respondent in breach of the case management orders of 09 May 2024 but this is not what the Respondent refers to in its submission. Moreover, there is generally no obligation on a party to attend a hearing in support of their case and the Claimant had already provided a witness statement. I am not satisfied that there has been a breach of rule 76(2). I am not persuaded that an order has been made for the Claimant to attend the hearing and that he is in breach of such an order. This application fails and is dismissed. Application under rule 76(1)(a)[37]For the Respondent’s application to succeed, it must first be shown that the Claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably. What was the conduct?[38]The conduct in question was the Claimant’s failure to attend the final hearing on 29 July 2024. It was not in dispute that this conduct had occurred. What was unreasonable about the conduct?[39]Turning to what was allegedly unreasonable about this conduct, at the heart of this issue is whether the Claimant knew that the hearing would proceed and that it would take place via CVP. It is not in dispute that the Claimant knew that the hearing was listed for 3 days, beginning on 29 July 2024. This is clear from his email to the Tribunal on 15 July 2024 in which he suggests that the hearing might be ‘delayed’. It is also not in dispute that the Respondent made an application to the Tribunal on 27 June 2024 for the hearing to be converted to a CVP hearing due to a witness recovering from ankle surgery. The Claimant’s suggestion that the hearing be postponed was made in response to a further email from the Respondent to the Tribunal on 15 July 2024 seeking a response to its application of 27 June 2024.[40]It is clear, therefore, that as of 15 July 2024 both parties were aware that the hearing would begin on 29 July 2024 and that, as at that point, it was to be in person. Both parties were also aware that the Respondent had asked for the hearing to be converted to a video hearing. Both parties were also aware that the Tribunal had yet to decide on the Respondent’s application.[41]The parties were made aware in the initial notice of hearing dated 15 February 2024 that cases may be transferred to other hearing centres at short notice. The parties were informed in the early afternoon of Friday 26 July 2024 that the Respondent’s application had been granted and the hearing would now take place via video. They were sent the relevant CVP link later that afternoon. I am 10.1 Judgment – no hearing - rule 60 February 2018 satisfied that the relevant emails were sent by the Tribunal to the email address that the Claimant had given in his claim form. This was also the email address he had been using to correspond with the Respondent and the Tribunal.[42]The Claimant had access to his email on the morning of the hearing. This is clear from his email of 29 July 2024 sent at 06.03am in which he wrote: “I am assuming that because I haven’t heard anything, and because the respondent is unable to attend. That this is now not going ahead.”[43]There was no basis for the Claimant writing that the ‘respondent is unable to attend’. The Respondent’s application was for the format of the hearing to be changed so that parties may attend via video. The Claimant has provided no explanation to support his contention that ‘he had not heard anything’ from the Tribunal. He had been sent two emails from the Tribunal on Friday 26 July 2024 to confirm that the hearing would proceed via video and to provide the relevant video link. The Respondent had also emailed him shortly before the hearing to explain that the hearing would proceed. The Claimant has not explained why he apparently did not receive the emails from the Tribunal (or the Respondent) when he has received other correspondence sent to his email address. I did not find it credible that he would receive some emails but not others. On balance, I find that the emails from the Tribunal would have been received by the Claimant and that he would have been aware that the hearing was proceeding.[44]I have, however, gone on to consider the possibility that the emails may have been missed by the Claimant and that he remained ignorant that the hearing would take place. I do not consider such ignorance to be reasonable. ‘Email’ had been selected on the claim form as the Claimant’s preferred method of communication. That being the case, it was not unreasonable to expect that he would check his email inbox with a degree of care while his Tribunal claim was ongoing and particularly when waiting for a decision to be made about the format of the hearing. While the Claimant might have missed emails, I considered this was more likely than not to be due to a lack of care on his part. If the Claimant remained ignorant that the hearing would take place, such ignorance was unreasonable. He had known of the hearing date for some months. He was online on the morning of 29 July 2024. He could have contacted the Tribunal by email or telephone to check if he had been uncertain about the hearing taking place. In the end, the Tribunal made all reasonable efforts to contact him and delayed the start of the hearing to the afternoon. It was unable to contact the Claimant.[45]In sum, even if the Claimant had missed the emails from the Tribunal (I find this unlikely given that other emails had been received), his ongoing ignorance was not reasonable.[46]I consider that the Claimant’s failure to attend the final hearing on 29 July 2024 without explanation was unreasonable conduct. I find that he would have been in no doubt that the hearing would proceed given the Tribunal’s correspondence on 26 July 2024. If he had missed those emails, this was because of his lack of care in monitoring his inbox. His failure to attend without explanation after all reasonable attempts had been made by the Tribunal on 29 July 2024 to contact him was unreasonable conduct. 10.1 Judgment – no hearing - rule 60 February 2018[47]I acknowledge the Respondent’s frustration as it regards the Claimant as having ‘simply abandoned his case’ with ‘no intention of turning up for the hearing’. However, it cannot be said that this is a case where the Claimant has taken no steps to pursue the matter. He provided a witness statement, albeit that this was later than the date ordered for doing so. His email of 15 July 2024 to the Tribunal and Respondent requested a postponement and indicated a preference for the hearing to remain in person. While it is odd that the Claimant was not contactable on 29 July 2024 and has provided no explanation for his behaviour to the Tribunal, I would not go so far as to say that the Claimant’s behaviour, when looked at as a whole, was designed to cause the Respondent significant disruption as it maintains. I therefore do not accept that the Claimant was being intentionally disruptive. What was the effect(s) of the conduct?[48]The Respondent would have required to incur the cost of preparing for and attending the Tribunal on 29 July 2024. Such cost would, however, be incurred whether or not the Claimant attended on that date. The Tribunal would expect no less of a represented party.[49]The costs of copying the bundle would have been incurred before the Tribunal decided on 26 July 2024 to convert the hearing to CVP. This meant that only digital copies were ultimately needed. Threshold requirements[50]The threshold requirements for consideration of a costs award are met. The question is whether the Tribunal should exercise its discretion to make a costs award. Whether to make an order[51]In considering whether or not to make an order, I reminded myself that costs are the exception in employment tribunals and that they are not designed to punish the paying party.[52]The Claimant was not in receipt of a costs warning. He had not been ordered to pay a deposit order. He is acting without legal representation.[53]The Claimant was invited to make submissions on his ability to pay but has not done so. While the Tribunal is not obliged to consider the Claimant’s means, it may do so. In this case I had limited evidence upon which to form a meaningful view on the Claimant’s ability to pay. The Claimant noted in his claim form that he had found employment after leaving the Respondent and was, at the time he submitted his claim, earning £26,000 per year. This is a modest but regular income. I had no evidence before me about whether the Claimant’s means may have changed since then.[54]I have looked at the matter as a whole when considering whether to exercise my discretion to order costs. I have decided that it would not be appropriate for me to exercise my discretion to make a costs award in respect of the Claimant’s failure to attend the hearing on 29 July 2024.[55]The fact that the Claimant wrongly assumed that the hearing would not proceed on that day was due to his own lack of care in monitoring his emails. This 10.1 Judgment – no hearing - rule 60 February 2018 ignorance, although unreasonable, appears genuine. While it is odd that the Claimant was not contactable on 29 July 2024 when presumably he would have been free to attend the hearing and there has been no further explanation from him regarding his non-attendance, his email of 29 July 2024 appears, on balance, to have been the result of genuine confusion. I reach this view because he had been actively pursuing his case certainly up to 15 July 2024. He had been in touch with the Tribunal then to ask that the hearing remain in person. He was also in touch with the Tribunal on the morning of the hearing. He ought reasonably to have known that an email sent shortly after 6am would not be answered until the working day began, which makes it even more odd that he would not have checked his emails again or telephoned the Tribunal later that morning. There is nothing, however, in his email on the morning of the hearing to suggest that he did not intend to pursue his claim or that he was being intentionally disruptive.[56]Viewed as a whole, this is a case that was being actively pursued by a litigant in person who did not attend the hearing due to an unreasonable but genuinely mistaken assumption on his part that the hearing was not taking place.[57]The Respondent’s application is dismissed.