Ms S Brown v Chief Constable of Thames Valley Police: 3311001/2020 and 3302147/2022

EMPLOYMENT TRIBUNALS

Case No 3311001/2020, 3302147/2022

Between

Ms S BrownClaimant

Chief Constable of Thames Valley PoliceRespondent

Before

Employment Judge George

Self-represented for claimant

Ms D van den Berg (instructed by counsel) for respondent

Date 7 January 2025

JUDGMENT

The respondent’s application for the claims to be struck out under Rule 37 Employment Tribunals Rules of Procedure 2013 is dismissed.

REASONS

[1]At this preliminary hearing in public I have had the benefit of oral submissions from the claimant and from Ms Van den Berg on behalf of the respondent. Those referred to a chronology dated 21 November 2024 prepared by her instructing solicitor. I have also taken into account the skeleton argument from the respondents for today’s hearing (RSA paras.1 to 11) setting out the applicable law. I was also taken to documents in the preliminary hearing file which runs to 368 pages.

[2]The hearing had been listed on the direction of Employment Judge Cowen who had converted what was to have been Day 1 of an 11 day final hearing to a public preliminary hearing to consider the respondent’s application to strike out the claims on three grounds (page 235):a. Alleged non-compliance with Tribunal orders;

b. Alleged failure to pursue the claim;

c. That it was no longer possible to have a fair hearing.

[3]Judge Cowen directed that any medical or other evidence that either party wished to rely on should be sent to the other side and the Tribunal no later than 21 November 2024. In the early hours of the morning of the preliminary hearing, the claimant sent to the Tribunal three documents that she wished to rely on but did not copy that correspondence to the respondent. These were medical reports dated 17 April 2024, 9 August 2024, and 20 November 2024. Her explanation for submitting them late was that she had been waiting for the record of review dated 20 November 2024 which had only been available to her on 3 December because it was posted to her on 2 December, her psychiatrist having approved it on return from leave. She said that she had not deliberately failed to copy correspondence to the respondent but did much of her administration from her phone and may have pressed reply rather than reply all.

[4]There is an important provision in rule 92 ET Rules of Procedure 2013 that requires parties to copy all applications to the other party. This is necessary to avoid delay and to ensure the parties are on an equal footing. If they do not do that, their application may not be considered because they have failed to give the other side an opportunity to comment upon it.

[5]Ms van den Berg stated that the respondent was content for me to read and take into account the late disclosed medical evidence. I was grateful for that constructive approach; the claimant was likely to be more disadvantaged by not being permitted to rely upon potentially relevant medical evidence than the respondent would be by it being admitted.

[6]The claimant also asked to be allowed to put in evidence some correspondence that she sent to the respondent during the course of the preliminary hearing. This arose because I started the hearing by explaining to the claimant the questions which I would need to consider in order to decide the application. The claimant had brought with her a copy of what she described as a receipt from a taxi company which she stated she had used to attempt delivery of hardcopy documents to the respondent and located 4 exchanges of emails which she wished to rely on in argument in addition to the receipt. She stated that she had not known what would be relevant to her arguments until I explained the issues to her – although the respondent has set out in detail in their application their version of events and why they argue the grounds to strike out the claim exist.

[7]Clearly the respondent needed to have the opportunity to consider this application and read the emails before responding to it. I took time to read the medical evidence and for the respondent to consider the claimant’s application. The preliminary hearing had been listed for 3 hours but the first hour and a half were occupied by the consequences of this late disclosure and the hearing ultimately until after 4.00 pm. In the end, the additional documents were admitted by consent but the episode is an illustration of how a failure by the claimant to act in good time has disrupted the smooth running of a hearing. The respondent and the Tribunal were able to accommodate that on this occasion but she cannot take that for granted.

[8]I asked the claimant if there were any adjustments she needed in order to be able to participate in the hearing to the best of her ability. Her only request was for patience and the ability to ask questions if she did not understand the law. I suggested – and the parties adopted – a procedure where Miss van den Berg outlined why she said each of the three grounds were satisfied in turn and Miss Brown responded to the arguments before Miss van den Berg moved onto the next ground. It seemed to me sensible to suggest that course since the claimant complained of concentration difficulties. Applicable Law

[9]Under r.37 of the ET Rules of Procedure 2013 the Employment Tribunal may strike out all or part of a claim or response:a. If the claim or response is scandalous, or vexatious or has no reasonable prospect of success;

b. If the manner in which the proceedings have been conducted by or on behalf of a claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;

c. If a party has not complied with an order of the Tribunal or one of the Rules of Procedure 2013;

d. If the claim has not been actively pursued;

e. If it is no longer possible to have a fair hearing in respect of the claim or response (or relevant part of it).

[10]A claim or response may not be struck out unless the party in question has been given reasonable opportunity to make representations. These may be in writing or, if requested by the party, at a hearing.

[11]The EAT has made it clear that the power of strike out for non-compliance with a Tribunal order under rule 37(1)(c) should only be considered in the most serious of cases. The discretion to strike out should only be used where to allow a case to proceed to a final hearing would mean that any judgment obtained could not be described as fair between the parties: De Keyser v Wilson [2001] I.R.L.R. 324 EAT. However, the question whether a fair trial is possible is not the only material factor. The guiding consideration is the overriding objective: Weir Valves & Controls (UK) Ltd v Armitage

[2004] ICR 371

, EAT. “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 caused 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.” (Weir Valves para.17 paraphrased in RSA para.4)

[12]When considering an application to strike out under r.37(1)(d) of the 2013 Rules, the Tribunal must begin by asking itself whether the claimant has failed actively to pursue her claim. In Rolls-Royce Plc v Riddle

[2008] IRLR 873

, EAT, the EAT held that if the tribunal were satisfied that the claimant had failed actively to pursue his claim then the discretion to strike out arose. There were two different scenarios for failing actively to pursue a claim:(i) where there has been “intentional and contumelious” default by the claimant; and

(ii) where there has been inordinate and inexcusable delay such as to give rise to a substantial risk that a fair trial would not be possible or there would be serious prejudice to the respondent if the claim were to carry on. The first situation involved consideration of whether it would be just to allow the litigant to pursue his claim when his failure to take reasonable steps to pursue his claim is indicative of contempt for the tribunal and its procedures. The second involves consideration of whether there can be a fair trial.

[13]It can therefore be seen that there is the potential for overlap between rule 37(1)(c) and (d) on the one hand and rule 37(1)(e) on the other where the basis for the strike out application is that a fair hearing is no longer possible. The respondent referred to Leeks v University College London Hospitals NHS Foundation Trust

[2024] EAT 134

, a recent decision of HH Judge James Tayler in the EAT in which he analysed the interaction between the different sub-rules. He suggested that when there has been conduct which falls within rule 37(1)(b), (c) or (d), the likelihood of that recurring is relevant to the possibility of a fair trial. He pointed out (para.20) that a claim can be struck out if it is no longer possible to have a fair hearing even where the party against whom the application is made has done nothing wrong. However, if there has been repeated default in the past it is common for it to be repeated in the future which can impact on a judgment about whether a fair trail is possible.

[14]Leeks is also a case in which consideration was given to the degree of risk that a fair trial could not take place which should result in strike out of the claim and HH Judge James Tayler cited a passage from Arrow Nominees v Blackledge

[2000] 2 BCLC 167

CA which is also the basis for the guidance in De Keyser referred to in para.11 above. HH Judge James Tayler suggested that the requirement in rule 37(1)(e) that it be not possible to have a fair hearing might be regarded as a higher threshold than a significant risk that a fair trial could not take place. The point did not arise for determination in Leeks – and does not arise in the present case. I only comment that the emphasis of Chadwick LJ in Blackledge that there is a significant risk that a fair trial is not possible where any judgment in favour of the litigant would have to be regarded as unsafe or “such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice” nevertheless points to a stringent test.

[15]Miss van den Berg rightly points out that the

Article 6 European Convention on Human Rights

right to a fair trial includes the right to a trial within a reasonable time: Peixoto v British Telecommunications plc

EAT/0222/07

. The case of Emuemukoro v Croma Vigilant (Scotland) Ltd

[2022] ICR 327

, EAT was discussed in para.25 of Leeks and that made clear that the power to strike out because a fair trial is not possible may be triggered if it is not possible in a particular trial window. Whether or not the power, if triggered, should be exercised would depend upon whether it was proportionate to do so, including whether less draconian measures are available. Discussion and Conclusions

[16]Before starting the preliminary hearing I ascertained that the next available hearing dates for an 11-day in-person hearing in Reading would be in a window starting on 10 March 2026.

[17]These are two consolidated claims. The issues have been set out in a draft list of issues sent to the claimant on 17 November 2023. No comments have yet been provided on it by the claimant. She has had time to do so but the list is not yet definitive and I read it with that caveat. One can see from looking at it that there is a relatively complex case with a history of alleged incidents with allegations dating as far back as October 2019. The claimant is accepted by the respondent to be disabled by reason of depression, peri-menopause/full menopause and Complex PTSD from dates set out in para.8 of the draft List of Issues (a position set out in writing on 2 October 2023).

[18]There are five separate heads of claim. There are 7 complaints of discrimination arising from disability – some with more than one limb to the complaint. The claimant alleges that the reason for particular treatment was sickness absence and her dismissal but also (in some cases) confusion, forgetfulness and drowsiness causally linked to treatment for the menopause and depression. That is likely to require the tribunal to analyze some less straightforward causation arguments and will require medical evidence of that causation. There are also complaints of a breach of the duty to make reasonable adjustments, harassment related to disability and/or sex, a single allegation of direct disability and/or sex discrimination, and indirect disability discrimination (which relies upon the same factual matrix as one of the s.20/21 EQA complaints). It would appear that the alleged link to sex is because of the sex specific nature of one of the disabilities.

[19]Broadly speaking, the acts in complained of in claim 1 cover action taken by the respondent between October 2019 and May 2020 (culminating in dismissal) in response to their discovery of an incident, which took place in October 2016, where the claimant is said to have removed items from a shop in a shopping village without paying. The claimant was reinstated in February 2021 and claim 2 arises out of failed redeployment; there are specific complaints about the handling of the claimant’s interest in a role at Sulhamstead Training School but claim 2 was not limited to that. It would appear that the alleged acts of the respondent in relation to the Sulhamstead role potentially took place between about July and November 2021 (when the role was offered to an alternative candidate).

[20]This thumbnail explanation of the claims is why I describe them as relatively complex: there are a large number of relevant witnesses on the respondent’s side because of the different individuals involved at different stages and that justifies the 11-day listing. The litigation is likely to be document heavy because the different investigation stages were apparently well documented. However there is some overlap in the sense that the factual matrix to one legal head of claim, in some instances, is common to another. The claimant was legally represented at a preliminary hearing on 30 January 2023 and the draft list of issues was apparently based upon professionally drafted Further and Better Particulars (page 111). The issues are, therefore, tolerably clear and well defined.

[21]I take into account the chronology of the litigation described by the respondent. Some steps in it are particularly noteworthy.

[22]Claim 1 was presented on 24 August 2020 following early conciliation which took place on 11 August 2020. The claimant had also appealed the outcome of her misconduct hearing and, with their grounds of response, the respondent applied for a stay in order that the appeals process could take place. That stay was granted until 26 February 2021 by which time the claimant had been reinstated. In October 2021 the Tribunal listed a preliminary hearing for case management which was scheduled for 25 March 2022. Claim 1 was stayed until 10 February 2022 (page 43) on the application of the claimant (which the respondent consented to). In any event, that stay had no impact on the progress of the litigation because of the date of the scheduled PH.

[23]In the meantime, the claimant contacted ACAS in relation to the matters which are the subject of claim 2: that contact was made on 3 December 2021 and the certificate issued on 13 January 2022 (page 44). Claim 2 was presented on 14 February 2022 (page 45).

[24]When the claimant applied for a 3 month stay of claim 1 and a postponement of the preliminary hearing listed for 25 March 2022, the respondent objected. The basis of the application (page 62) was that she relied on her mental health worker to assist her to complete the documents for the preliminary hearing and that person was on long term sick leave. Additionally, she said that she would be applying for consolidation of the two claims and understood from the Tribunal administration that claim 2 had not yet been processed. The hearing was postponed and rescheduled for 16 August 2022.

[25]On 1 May 2022 the claimant retired from the service of the respondent on grounds of ill health. She applied for a postponement of the preliminary hearing on 28 July 2022 on medical grounds (page 85). This was not objected to by the respondent although the exchange of correspondence surrounding this is an illustration of the difficulties of communication. The claimant’s application is articulate but she states that she is supported by her community mental health worker and in her arguments before me she explained how there have been times where she was only able to deal with necessary correspondence when she was supported in that way. This has sometimes led to delayed responses.

[26]Another point from that correspondence is that when she was asked to provide a password to the medical report she wished to rely on, she said that was trying to obtain it again (page 84) and was having difficulty finding a hard copy because “my home is not functional at the moment so finding things is hard”. It may not have been obvious to the respondent at the time what she meant. However, this is consistent with her description in submissions of the chaos she was living in during early to mid-2024. One of the exchanges of emails she relied on in defence of the application was with her consultant who had asked her to send him photographs of her home and those are attached to the email exchanges from April 2024. I accept that when her mental health is poor, her organization is affected and the disorder in her home resulting would have meant that she found it difficult to locate relevant documents and ashamed of her situation.

[27]The postponement meant that the hearing eventually took place on 30 January 2023. This was therefore the first preliminary hearing in claim 1 which had been presented in August 2020. However, the passage of time until early 2022 had been, in effect, agreed upon by the parties.

[28]Apparently neither party received the written record of the orders made by Employment Judge Eeley on 30 January 2023. I provided them with a hardcopy of them during the hearing before me and asked the administration to resend them electronically. They had been sent to the email addresses then on file with the Tribunal on 1 March 2023. I was able to confirm that with reference to the printed out covering email on the Tribunal paper file. For whatever reason, neither party had apparently received them. Employment Judge Shastri-Hurst on 15 August 2023 was also asked about these orders but I assume that she did not have the paper file available to her on that occasion because, although she said she would ask them to be resent, her record is silent as to what had happened to the orders in the first place.

[29]Judge Eeley listed the final hearing to take place between 6 and 20 December 2024 and made various case management orders including to list a preliminary hearing in public on 8 June 2024 to decide the issue of disability. As Ms Van den Berg said, the parties therefore had two years to prepare for the final hearing. The claimant was professionally represented. The respondent relies upon a number of failures by the claimant to keep to the timetable set by Judge Eeley. The chronology includes the following matters:a. The claimant was to provide Further and Better Particulars by 27 February 2023 but they were provided on 24 May 2023 – the claimant says that she was waiting for them to be provided by her representative.

b. She was to provide a disability impact statement and relevant medical evidence by 13 March 2023. Some was provided on 30 May 2023 and some on 6 June 2023 by which time the respondent had applied to strike out the claims, for unless orders and, subsequently, to postpone the preliminary hearing listed to determine the issue of disability. The claimant provided an explanation in her email of 24 May 2023 (page 108) and there appears to have been a dispute between the parties about whether the disability impact statement had been sent or not (see page 124, the claimant’s email – referred to in the hearing before me – about the possibility that documents had gone astray).

c. The respondent repeated its application for a postponement because they had not yet received a disability impact statement and because disclosure of medical evidence after the specified date was said to mean they were unable to prepare for the hearing or take a view on whether or not to make a concession. Unfortunately, the respondent appear only to have used the case number for the 2022 case and not for the 2020 case which may have caused some confusion.

d. The email from the claimant (page 130) dated 7 June 2023 illustrates the frustration she explained to me she felt because, from her perspective, she had sent some documents which the respondent denied receiving. The email complains that the respondent’s poor organization means she is having to send and re-send documents which have already been sent which is exacerbating her illness and she is unwilling to do so any more “either that or you are deliberately misleading the court to make me look bad and to torment me into suicide”.

e. The preliminary hearing was postponed to 15 August 2023 and the respondent wrote on 14 June 2023 and 26 June 2023, among other things, expressing concern about the email from the claimant of 7 June 2023 and asking for “relevant case management orders … to ensure the wellbeing and safety of all parties. Primarily the wellbeing and safety of the claimant.”

f. The claimant gave a hardcopy of the disability impact statement to the respondent’s counsel at the hearing on 15 August 2023. The circumstances in which it was provided are recorded in para.56 and 59 of the written record of hearing sent to the parties on 3 October 2023 (page 209 and 210). There was apparently a problem in that the claimant had not been provided with a hardcopy bundle and had been sent the electronic copy the previous day (para.57). The claimant had made clear that, as an adjustment because of her Complex PTSD, hearings should take place in person and not by video but the necessary logistics did not appear to have been arranged. The Employment Judge also decided that the issue of disability could not be dealt with since – in addition to those problems – the claimant had mistaken the date of the hearing, attended the previous day with her social worker and the support of the social worker was not available to her on the actual hearing day. Progress was made clarifying the claims and the timetable for preparation was updated.

g. The claimant should have provided a schedule of loss by the revised date of 10 October 2023 and this was extended to 16 November 2023 on her application. In March 2024 the parties were still corresponding about the schedule of loss (see correspondence between pages 343 and 339). It appears to have been provided in early May (see page 345). I note that the claimant explained that she had suffered the loss of her dogs who had had to be euthanized in February 2024 and she was, understandably, badly affected by grief. There is another photograph attached to one of the emails which, as Miss van den Berg said, suggested that the claimant’s living environment was in chaos at that time.

h. Documents should have been exchanged by the end of January 2024 and had not effectively occurred as at the date of postponement of the final hearing. This meant that all of the orders for cooperation on the contents of the hearing file, the preparation of an index and the hearing file itself had likewise stalled. The claimant told the respondent that she had posted her disclosure to them on 15 May 2024 and the respondent’s documents were sent to the claimant on 18 May 2024. However, the respondent has not received any documents from the claimant and the tracking number she provided (page 355) does not provide any information about the delivery status.

i. On 26 June 2024 the claimant emailed the respondent’s solicitor to say that the CAB were photocopying her copy of relevant documents and would send it guaranteed but also that the post office had advised her that “the original bundle still has time to get there and that message is correct that showing”. The claimant was using a borrowed laptop in the hearing before me and emphasized that she relied upon the CAB and public libraries for administrative resources. Correspondence from July 2024 (page 233) shows the claimant informing the respondent’s solicitor that she was having difficulty getting a print out of her psychiatrists letter but has succeeded in contacting her CAB case worker who had been off sick. She says that she will go to the CAB the following Wednesday to photocopy her documents relevant for the claim which were in the CAB’s possession and she would then send it guaranteed delivery to the respondent. In fact her explanation to me was that one of the attempts she made to send the disclosure was by hard copy by taxi courier. She produced a receipt dated 7 July from her postcode to “Thames Valley HQ”. It is curious, if she had sent it by taxi on 7 July that she should not say so in the email dated 21 July. On the other hand, had she not in fact sent the documents by recorded delivery it would be inexplicable that in two emails she should provide a tracking number and an account of a conversation with the post office. Nevertheless, the respondent did not, in fact, receive the expected documents.

[30]The respondent applied for strike out and/or unless orders on 29 July 2024 pointing out the risk to the final hearing (page 235). They followed this up with a further email on 21 October 2024. The situation was referred to a judge through the six week check process when the decision was taken to postpone the final hearing and convert Day 1 to a preliminary hearing in public.

[31]The respondent has done everything it possibly could to have tried to keep this litigation on track by drawing to the Tribunal’s attention where preparation has stalled. There is no criticism of the way the respondent has handled things. I do not minimize the difficulties that the respondent has had, and I understand the challenges that it has faced. However, they have clearly formed the view that the claimant has not sent documents which she, for her part, insists have been sent and must have gone astray. There is certainly one document from the Tribunal which I have confirmed was sent to both parties but which neither party apparently received so it is at least possible that something else has gone astray.

[32]From their perspective, it may be understandable that the respondent formed this view. I am not able to resolve every dispute about whether documents were or were not sent however the claimant’s protestations that she did not deliberately default are consistent with some of the contemporaneous correspondence. That correspondence also supports her explanation that frustration at the situation exacerbated her poor mental health and caused her to form the view that the respondent was deliberately provoking her. However, it seems to me that she has not always been open and proactive about the impact of her difficulties or alternative steps she could take to progress the litigation.

[33]Part of the challenge for both parties has been that the claimant, because of mental health problems for which she is not blame. At one point, She was unable to open the respondent’s emails without a companion present and that would lead to the tribunal and the respondent not knowing when correspondence had come to her attention. I have also been taken to correspondence which shows Ms Brown explaining to the solicitor for the Thames Valley Police her distress at receiving correspondence which she said had led her to self-harm. That is in addition to her email to the Tribunal in which she suggested that the respondent might be seeking to drive her to suicide. That would have been upsetting and alarming for the solicitor to receive. I tend to think that the claimant was genuinely expressing her feelings at the time. The relevance of it for today’s purposes is that it means that, if the claimant is in that frame of mind, there is a risk that she will not read or take action on correspondence because of the impact of her mental health condition. It also means that the normal cooperation between the parties who are preparing for a final hearing is hard or impossible.

[34]The claimant has provided medical evidence about her mental health problems in the form of three updates from her psychiatrist and they chart her progress under his care. Through no fault of her own she has experienced mental health problems which have caused a number of the challenges to organization, communication and cooperation which have affected the progress of the litigation, in particular over the past two years. It appears that the claimant, at times, as she now acknowledges, has been failing to prioritise what was important to progress litigation which is clearly important to her. There is an element therefore of passivity where she would write in wanting further direction when, in fact, what she should do would be obvious from the orders that the Tribunal had sent out in the recent past.

[35]It is an unfortunate reality of the employment tribunal system that the parties need to take advantage of their time in front of a judge and refer back to orders that they have received for their directions. There have been, on both sides, occasions when the parties in this litigation have written in to the tribunal and have not received a response in the timescale that they might reasonably have expected. That is regrettable, but it is unfortunately a function of the system at the moment which has limited administrative resources. Therefore, the parties should take their own initiative and the claimant needs to understand that it is her responsibility to pursue a claim that she has brought.

[36]The series of reports show encouraging improvement in the claimant’s mental health and self-awareness between April and November 2024. Different medication is prescribed in April 2024 and its effect monitored over the period. The psychiatrist’s observations, not only of what is reported to him by the claimant but of her actions and demeanour in the clinic, suggest that over that period the effect of her impairments have becomes more controlled. Her sleep pattern and diet have become healthier. Her mood and self-insight are assessed as improving. Despite her failure to react in good time to the application to strike out, the medical evidence makes me think there is a reasonable chance that history will not merely repeat itself. However, a firm structure must now be put in place with consequences for any further fault that jeopardises a fair hearing.

[37]Having set out some observations on the chronology, and the conclusions I draw from the available medical evidence, I turn to the tests under the three grounds which are said to mean that the power to strike out arises in this case.

[38]Under rule 37(1)(c) all relevant circumstances should be considered including:a. The magnitude of the default and whether it is the responsibility of the party or their representative;

b. The disruption, unfairness or prejudice that has been caused; and

c. Whether a fair hearing is still possible Before considering whether striking out is the proportionate response or whether some lesser remedy would be an appropriate response.

[39]I start with analysing the magnitude of non-compliance and the reasons that have been given for it. It is only the relatively short period of delay in providing the Further and Better Particulars from 27 February 2023 to 24 May 2023 which is attributed by the claimant to her representatives.

[40]I would characterize the progress in the consolidated claim as a whole as halting. It is not delay (certainly not delay by the claimant) which meant that claim 1 had not progressed at the usual pace prior to the first preliminary hearing in it on 30 January 2023 although one previously listed hearing was postponed because of her ill health. I focus on the defaults that caused the immediate problem of the loss of the final hearing date.

[41]Those are, primarily, the claimant’s failure to disclose documents and then the respondent’s consequent inability to progress the directions that follow on from joint, mutual disclosure: agreeing the contents of a hearing file and preparing witness statements. It is relevant that Judge Eeley also directed an impact statement and medical evidence to be prepared by 13 March 2023. Medical evidence was sent piecemeal but the first was more than two months late and the hearing to consider the issue of disability had to be postponed from June 2023 to August 2023 to allow the respondent time to assimilate that late disclosure of medical evidence.

[42]The impact statement was not in fact received by the respondent until in person at the preliminary hearing convened for the purpose of deciding the issue of disability, on 15 August 2023. The claimant has explained that she made attempts to deliver the impact statement but there was in fact no effective delivery, and she was mistrustful if the respondent saying that they had not received it. She now understands that that was part miscommunication but part a reaction of the health condition that she was experiencing at the time.

[43]The claimant may say that this is water under the bridge, that it was unreasonable for the respondent to have continued to contest disability when her ill-health retirement application had been accepted and point to the fact that they have now conceded that she was disabled because of all three impairments relied on. The respondent would nevertheless have needed to know when the claimant argued that she became disabled in the context of alleged discrimination going back 2 ½ years before her ill-health retirement and what evidence there was to support that case. The relevance of this episode is first that the later defaults are not isolated incidents. Secondly, the miscommunication where the claimant asserts she has done what is expected of her and concludes that the respondent is knowingly making a false accusation that she hasn’t is an illustration of how, if she is in that situation, she needs to be more proactive in making sure that she has done everything she can do in order to make sure the hearing takes place. I am satisfied that there was more than one reason why the issue of disability could not be resolved at the 15 August 2023 so the claimant’s delay in fully complying with the order for evidence to support the disability issue was not the entire reason why the purposes of that hearing were not fully achieved.

[44]Judge Eeley had directed an exchange of documents by 31 October. When the parties were in front of Judge Shastri-Hurst in August 2023 she extended that deadline to 31 January 2024.

[45]I refer back to paras.29.g. and h. above. The schedule of loss was over six months late. I have been taken to correspondence that starts at page 337 in the hearing file and, so far as I can see, it is not until May 2024 (five months late) that there is attempted compliance by the claimant with the order to disclose relevant documents. The claimant states that she did send hardcopies of the documents she wishes to rely on in May 2024 (see page 355). She emailed in reassuring terms on 26 June 2024 (page 365). She states that there was attempted compliance in July but there are inconsistencies in the evidence to support which are not fully explained. As Ms Van den Berg says, it is odd that the claimant did not volunteer that she had, as she now says, tried to deliver her hardcopy disclosure by taxi.

[46]Her description of the documents sounds to me like approximately 150 or so pages that need to be handed over and it may be that many are already in the possession of the respondent. However, the respondent does not know that until they see the documents. In the chronology concerning the claimant’s disclosure, quite a lot of the delay in compliance has no full and satisfactory explanation. There is no full and satisfactory reason why there was no attempted compliance until May 2024. There is no full and satisfactory explanation for why, since July 2024, when the claimant knew or ought to have known that the respondent still considered themselves not to have received what they knew was coming and had made an application to strike out the claim, the claimant apparently took no steps to explain in full what she had done. Having said that, the medical evidence that she provides shows that she was significantly unwell in April 2024, was beginning to improve by August 2024 and has made further progress by November 2024. I accept that her poor mental health, the chaotic living environment she was in, the limited times that support was available to her and the long term sickness of her support workers are a genuine (if partial) explanation for the missed deadlines. The reason why that does not provide a full and satisfactory explanation, despite the sympathy I have for the claimant as a person with the evidenced mental health problems, is that despite the August report showing some improvement, the claimant did not volunteer an explanation or response to the respondent’s application for strike out and was not open about the problems and what was realistically achievable to them or to the Tribunal.

[47]The respondent cannot be expected to second guess what might have happened and, similarly, from their prospective, they have been sending things effectively into the ether and getting very little cooperation back from the claimant. I am satisfied that a lot of that is to do with the mental health problems that the claimant was experiencing. Whether it is explainable in part or not the consequences of the default are still the same.

[48]Under rule 37(1)(d), one of the factors that I have to consider is whether the noncompliance is inordinate or inexcusable. This is the sort of case in which there has been reason after reason put forward, but the effect is still that the parties are not in a position to be ready for the hearing. There have been two hearings (or attempted hearings) in this litigation where the purpose of the hearing was not achieved (8 June 2023 and 15 August 2023 – although the latter was not entirely down to the claimant). I urge the claimant to adopt a mindset of what can she do to ensure that the all hearing go ahead and achieve their objectives.

[49]The claimant did not challenge the respondent’s position that she has not made an attempt beyond her asserted attempt in July 2024 to disclose documents despite knowing of the strike out application and despite the evidence that her health improved from August 2024 onward. This does cause me concern about whether things will be different in the future, as does the eleventh hour preparation for today’s hearing. The claimant cannot presume that the respondent will be able to deal with documents produced at the last minute or that the Tribunal will permit her to conduct her litigation in this way in the future.

[50]The conclusion I reach is that there has been an inordinate delay and that the health challenges experienced by the claimant excuse, to some extent, but do not fully explain her failure to take the steps that a reasonable litigant, under threat of strike out, would take. It is no wonder that the respondents have become increasingly anxious and frustrated about the lack of progress of this litigation.

[51]In terms of prejudice, disruption, or unfairness, an 11-day hearing has been postponed and is unlikely to be listed until March 2026 given the long waiting lists that there are in the employment tribunal system at the moment. That is a really unusual situation.

[52]The prospect of a relatively complex case coming to hearing nearly seven years after the first incident would ordinarily be regarded as unacceptable in the employment tribunal. It has certainly caused disruption to the litigation and prejudice and unfairness to the respondent. I do not forget that behind the employer there are individuals facing serious allegations. They have a right to have those allegations determined within a reasonable period of time.

[53]Ms Van den Berg has spoken eloquently about the challenges faced by witnesses of fact giving evidence in those circumstances. Prejudice arising from memory difficulties and difficulties in recollection on the part of all the witnesses, including the claimant, cannot be presumed but should be judged in the context of the circumstances of the specific case. I also take into account the claimant’s points that these are professional witnesses and in many instances there are good contemporaneous records of the relevant events. It is likely that those would have been the best source of information about historic events had the hearing come to trial in December 2024 as originally intended.

[54]There is specific prejudice alleged in relation to three witnesses. It is said that the hiring manager accused of failing to send the claimant a job vacancy list (claim 2, allegation 6 draft list of issues 9.d.) and of failing to redeploy the claimant into the Sulhampstead role (claim 2. allegation 8 draft list of issues 9.f.) has left the service and although contactable is unresponsible and it is likely that a witness order will be needed to secure his attendance. Similarly, the legally qualitied chair said to be responsible for refusal to postpone the gross misconduct hearing (claim 1, allegation 3 list of issues 12.b – a reasonable adjustments claim) would probably only attend in response to a witness order. However they are both contactable and there is no basis to think that individuals connected with the administration of justice would not comply with a witness order. There is limited prejudiced where their relevant actions roles will, no doubt, be well documented.

[55]More problematic is the situation of the decision maker who referred the claimant to a misconduct hearing in October 2019. He has been on long term sick leave and is due to be medically retired. Based upon what I’ve been told, I accept that it is very likely that a loss of the hearing window has meant that he will be unavailable to give oral evidence. There is always the prospect that a statement might be taken soon and that that could be admitted subject to the weight given to it. Nevertheless that is undoubtedly some litigation prejudice to the respondent caused by the loss of this witness. The allegation in question is raised as an allegation under s.15 EQA discrimination arising of a consequence of disability. When deciding whether the litigation prejudice means that a fair trial is not possible, however, in the context of the litigation as a whole, my view is that, even given that very significant difficulty, the likely absence of this decision maker does not mean that a fair trial is impossible. It is one of the claims that is argued to be out of time. No doubt there were relevant processes when an allegation such as the claimant faced in October 2019 was raised and someone could give evidence about those which would be relevant to proportionality. He was not, I understand, the person who decided to dismiss the claimant but only to refer her to the misconduct panel. So, when I consider whether a fair trial is impossible, I have concluded that it is not. Nevertheless, there are adverse effects on the fairness of the trial because of those factors. The adverse effects can be mitigated by seeking to rely on a witness statement in the absence of oral evidence and witness orders.

[56]Looking then at the particular rules and how I apply what I have just found in relation to the circumstances to those, as I have just said, I do not think it is no longer possible to have a fair hearing in respect of the claim as a whole therefore the grounds under rule 37(1)(e) are not made out.

[57]So far as rule 39(1)(c) is concerned, the claimant is responsible for a significant delay that is only partially explained. That has caused disruption, unfairness and prejudice to the litigation and it has adversely impacted the fairness of the hearing in the future. However, a fair hearing is still possible, and I consider a lesser remedy to be an appropriate response, namely a series of unless orders to show that the Tribunal expects compliance in the future and to avoid the need for the respondent to have to enforce compliance.

[58]So far as Rule 37(1)(d) is concerned, the claimant has explained the health problems that she was experiencing at the relevant time and that satisfies me that it was not intentional or contumelious delay. However, it was inordinate and only partially excused but does not lead to a substantial risk that a fair trial is not possible. I do not think that strike out is a proportionate response in all the circumstances.

[59]What I proposed was that I relist the final hearing and make a series of unless orders. After hearing from the parties, I did so and my written record of the unless orders and other case management orders were sent to the parties on 11 December 2024. Employment Judge George 7 January 2025 16/01/2025 For the Tribunal: Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/