Ms M Zawisza v Homes for Haringey Ltd and London Borough of Haringey: 3311699/2021
REASONS
[1]The claims made in these proceedings were the subject of a claim form which was presented on 18 June 2021. The case was the subject of a preliminary hearing on 19 April 2022 which was conducted (co-incidentally) by Employment Judge (“EJ”) Hyams. He made orders for the preparation of the case for trial and listed it to be heard in person at Watford on 9-13 October 2023. At that time the claims were not only as stated in our above judgment. That was because they also included a claim of discrimination because of sex.[2]On 6 October 2023, the case was relisted by Acting Regional Employment Judge (“AREJ”) R Lewis because it was “extremely unlikely that [it] could have been heard on 9th October 2023”.[3]The case was then, on 20 October 2023, relisted to be heard on 15-19 April 2024, again in person and at Watford. The notice of the hearing was sent to the claimant and a named person acting as the second respondent’s in-house lawyer (Mr Anthony Igbinyesu).[4]On 2 November 2023, Ms Ellen Matheson Harley, who was also an in-house lawyer for the second respondent, wrote to the tribunal that she was now the respondent’s contact and asking the tribunal to “remove Mr Ward from your records and direct all future correspondence” to her.[5]On 2 April 2024, the tribunal sent a pre-hearing checklist, and Ms Matheson Harley wrote that the second respondent (which was in reality the only respondent for practical purposes) had not been “served with a Notice of Hearing or other communication referring to a hearing date prior to the letter of today”, and that on 2 November 2023 she had sent the second respondent’s dates of unavailability, which included 15-19 April 2024.[6]On 4 April 2024, the case was relisted to be heard on 22-26 July 2024.[7]On 19 June 2024, in response to a further pre-hearing checklist sent by the tribunal, Ms Matheson Harley wrote that “Regrettably, this case is not ready for hearing despite the Respondents best effort” and that “You will recall that the claim was postponed on 2 October 2023 due primarily to the Claimant’s lack of preparedness and need for more time”. The latter appeared not to be true, given what we say in paragraph 2 above.[8]On 25 June 2024, the claimant wrote to “ask to postpone the hearing and reschedule it to a first available date after 01/11/2024 ... due to medical treatment” which was, we saw from a letter dated 17 May 2024 from the Somer Valley Medical Group, “a course of psychiatric therapy back in Poland” which “does not finish until October 23rd”.[9]That application was “strongly opposed” by the respondents in an email sent by Ms Matheson Harley on 27 June 2024. In that email the respondents invited the tribunal to strike out the claims.[10]On 2 July 2024, EJ Quill concluded that the hearing dates of 22-26 July 2024 should be cancelled and that a preliminary hearing with a time estimate of three hours should be listed as soon as possible from the start of November 2024 onwards to consider the respondents’ application. Such a hearing was listed to take place on 4 November 2024.[11]On 3 July 2024, the full merits hearing was provisionally relisted to take place on 18-22 August 2025.[12]The preliminary hearing of 4 November 2024 was conducted by EJ Partington. During that hearing, the claimant withdrew her claim of sex discrimination, and it was then dismissed on its withdrawal by EJ Partington. However, EJ Partington dismissed the respondents’ application to strike out the rest of the claims.[13]On 5 March 2025, the respondents applied, via new solicitors (Anthony Collins), in an emailed letter for the postponement of the hearing of 18-22 August 2025 because of the unavailability of one of the respondents’ witnesses. The solicitors apologised for the lateness of the application but said that as far as they were aware, “the Tribunal did not take into account witness availability when this final hearing was listed and when conduct of this matter was referred to the Respondent’s current representatives it was discovered that this witness had not been informed of the final hearing date”.[14]On 16 April 2025, REJ Foxwell ordered that the hearing of 18-22 August 2025 be relisted. On 29 April 2025, the parties were notified that the hearing would now take place on 20-24 April 2026, still in person at Watford.[15]On 5 March 2026, the claimant applied for the transfer of the case to Bristol because of “foot pain” and because she “would have to travel from Somerset (and back) and book a hotel in order to attend a five-day hearing in Watford”, which, given that she was living on Universal Credit, would “mean [her] going deeper into debts”. In addition, she wrote: “If previously I thought that now my anxiety is managed relatively well with medication, an unexpected event last year proved me wrong. Traveling long distances and staying in a hotel is a risk I cannot take. I am unable to cope effectively with any additional stress. If anything unexpected happens during this time, I won’t be able to attend the Hearing. For the past six years I have not stayed in locations other than home and my parents’ flat (and later house after they moved).”[16]On 5 March 2026, the respondents’ solicitors wrote opposing the transfer of the case to Bristol.[17]On 13 April 2026, the claimant wrote again, since the tribunal had not determined her application to have the case transferred to Bristol, and that her “anxiety became unmanageable again and I am preparing for the worst”. On 15 April 2026, REJ Foxwell asked the parties “for their urgent comments on whether this hearing could be converted to CVP”. On the same day, the claimant responded: “My anxiety level has increased and things have turned for the worst. The physical symptoms I have been experiencing (Heart palpitations, chest pain and migraines) have become unmanageable. I am currently waiting for my GP surgery to come back to me with an appointment date. I will not be able neither to represent myself at the Hearing nor to attend it. [Sic; the word “not” was plainly an error.] In addition, I am not good with technology in general which is why I asked for my the [sic] case to be transferred to Bristol.”[18]On 15 April 2026, the respondents’ solicitors wrote to say that the respondents were “content for the hearing to be converted to CVP, provided that it proceeds on the currently listed dates. The Respondents take this position because they would strongly prefer the hearing to proceed remotely rather than be postponed, and they object to the postponement of the final hearing”.[19]On 16 April 2025, the tribunal wrote to the parties: ‘Acting Regional Employment Judge Quill directed me to write as follows: “Because claimant has said she is not good with technology, the hearing remains scheduled to be in-person hearing at Watford commencing 20 April 2026. Claimant’s email of 15 April 2026 implies that she is seeking medical evidence to support a postponement request. As things stand, the hearing is not postponed. If claimant does supply medical evidence, a judge will make a decision. Respondent objection is noted.”’[20]At 12:27 on the next day, Friday 17 April 2026, the claimant wrote to the tribunal in the following terms. “I write in response to your correspondence dated 16/04/2026. I ask for the Hearing listed to commence on 20/04/2026 in Watford to be postponed for the following reasons: 1. My anxiety symptoms have increased. I have been experiencing chest pain, heart palpitations, strong migraines and panic attacks, all if which makes me unable to represent myself at the Hearing and even to attend it. On 05/03/2026 I submitted my Application for transfer of the case to Bristol Employment Tribunal. The Tribunal had not have the opportunity to process my application until this week. This delay has caused me additional stress which increased my anxiety to the level that I am no longer able to manage the symptoms with my current medication. I submitted a request to my GP surgery to see a doctor, however the first available appointment is on 21/04/2026. Please see the photograph below as confirmation. I do not complain about the timeframes in which Applications are being processed. I understand that the Employment Tribunal is facing growing backlogs. I also understand that the Tribunal may not be used to dealing with self-represented Claimants with mental health condition and managing such claims may be challenging. I wish that my anxiety and depression symptoms were under better control and more predictable. However, despite of on-going medical treatment it continues to be a major issue for me. 2. Although case has been delayed, the previous applications for postponement were submitted by the Respondent. This is the first time when an application for postponement has been submitted by the Claimant. I hope that the Tribunal can also take into consideration the following facts: - The Claimant was agreeable to judicial mediation (which would reduce the cost of a full hearing), however the Respondent did not agree to it. - The Claimant has been suffering from anxiety and depression since 2019 as a result of stress and treatment at work while she was employed by the Respondent (Medical evidence attached). She does not wish to withdraw her claim in spite of the stress associated with legal proceedings. Seeking justice is an important component of her healing process. - The Claimant has been actively working towards improving her mental health condition (A copy of doctor’s notes from Claimant’s last appointment attached). She hopes that trying different types of medication eventually brings results and in the future she will not be affected so badly by additional stress and external circumstances. - The Claimant has no choice but to represent herself. She cannot afford private legal services. The Claimant sought assistance through legal aid and legal charities, however was unable to secure a legal representation. - If it is not possible to transfer the case to Bristol, the Claimant agrees to attend a CVP Hearing at a future date. Being aware of changes in advance will allow her to manage her anxiety symptoms better. The Claimant would also need to secure a new laptop as her old IT equipment has not been performing well recently. - The Claimant is to undergo a surgery in late spring or summer 2026 (dates to be confirmed) therefore she requests for the Hearing to be postponed until after September 2026. - Further medical evidence will be available after 21/04/26.”[21]That request was put before REJ Foxwell, whose response was sent to the parties less than two hours later. It was in the following terms. ‘Your letter dated 17th April 2026 has been referred to Regional Employment Judge Foxwell who directs: “Postponement refused – the medical evidence does not say that [the claimant] is unfit to attend a hearing. This claim was presented in 2021. It is not in the interests of justice for its resolution to be further delayed. The Tribunal is used to dealing with parties with medical conditions and adjustments can be made in the hearing to accommodate this.”’[22]At 08:28 on Monday 20 April 2026, the claimant wrote to the tribunal in the following terms. “Dear Employment Tribunal, I write in response to your correspondence dated 17/04/2026 and in relation to your correspondence dated 15/04/2026. I am grateful for the offer to make adjustments in the hearing to accommodate my medical condition and also for the offer to covert the hearing to CVP. The reason why it does not meet my disability needs is because what triggers my anxiety symptoms the most is uncertainty and unpredictability. I am unable to cope with any unfamiliar or uncertain situations when I do not know exactly what is going to happen. Such situations lead to me having spiraling thoughts, panic attacks, strong headaches, tightness in my chest and rasing heartbeat. When it happens I am unable think and communicate clearly. It would help me if adjustments can be arranged at least two weeks in advance prior to the date of the Hearing so that I know what to expect and can mentally prepare myself. I previously attended a CVP hearing and it was not an issue for me because it was a Preliminary Hearing, my laptop was performing well at the time and even if it failed, I knew that the hearing could be held by telephone. However, when it was offered for the Final Hearing to be converted to CVP I panicked because the offer came a few days before the Hearing date, I have had problems with my laptop which I have not managed to resolve yet, it is a five-day hearing and many things can go wrong with technology over a period of five days. At this time my anxiety symptoms were affecting me badly already and I was anticipating the worst case scenario. I have an appointment with my GP doctor tomorrow and will provide an upto-date medical evidence shortly. I hope that the Employment Tribunal Hearing today can reconsider my request for postponement and offer me a chance to give my evidence.”[23]That email was forwarded to us before the start of the hearing on 20 April 2026. We then asked our clerk to(1) send the claimant a link so that the claimant could attend the hearing via CVP and(2) inform the claimant that she should press her application for a postponement by attending the hearing via CVP to do so.[24]We then waited until 10.30am to give the claimant time to attend in that manner. She did not do so. We therefore, via our clerk, invited the respondents into the hearing room. Only Ms Crawshay-Williams was attending that day on behalf of the respondents. She came into the hearing room, and we, through EJ Hyams, had a discussion with her about the case and the way forward. Ms CrawshayWilliams said that the respondent’s position was that the claims should be dismissed under rule 47 of the Employment Tribunal Procedure Rules 2024. After that discussion and a short deliberation in the retiring room, we agreed that we should adjourn the hearing until 2pm and inform the claimant that(1) we saw ourselves as being unable to postpone the hearing,(2) we would resume the hearing at 2pm with her being able to be present via CVP, and(3) we would be resuming the hearing whether or not the claimant was present, under rule 47.[25]We then caused our clerk to send an email containing the following passage to the parties. “Employment Judge Hyams is sitting with Mr D Sagar and Ms I Sood on your case today. They have asked me to inform you that they have(1) considered what you have said in your email sent to the tribunal of 08:28 this morning, and(2) heard representations in person from Ms CrawshayWilliams on behalf of the respondents about the way forward, and have adjourned the hearing to give you a final opportunity to attend it. That opportunity is to attend the hearing at 2pm via CVP today, when it will resume, the tribunal informs me, whether or not you are present. If you attend the hearing at 2pm then it will start with your oral evidence. If you do not attend the hearing at 2pm, then rule 47 of the Employment Tribunal Procedure Rules 2024 will apply, and the tribunal will decide whether to dismiss your claim or to proceed with the hearing in your absence. If the tribunal proceeds with the hearing in your absence then it will determine the case on the evidence before it as it stands now. The tribunal emphasises that it has no power in the circumstances to postpone the hearing. That is because your application of Friday 17 April 2026 to postpone the hearing of this week was refused by Regional Employment Judge (“REJ”) Foxwell. In the tribunal’s view, there has been no material change of circumstances since Friday of last week. As a result (see for example Serco Ltd v Wells UKEAT/0330/15, [2016] ICR 768) there is no scope for a variation or revocation of the decision of REJ Foxwell to refuse your application for a postponement.’[26]We then did resume the hearing at 2pm, having read the witness statements and being ready to hear oral evidence from the claimant. The claimant did not then attend the hearing. We discussed the situation with Ms Crawshay-Williams until 14:28, at which point the claimant had still not attended and we had come to the clear conclusion that we should dismiss the case under rule 47 of the Employment Tribunal Procedure Rules 2024. That provides: “If a party fails to attend or to 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 must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.” Our decision and the reasons for it[27]The claimant’s application for a postponement of the hearing of 17 April 2026 had been dismissed by REJ Foxwell on that day, and there was no material change of circumstances between then and 20 April 2026. As a result, in our view we had no power to postpone the hearing.[28]However, in any event we came to the clear conclusion that the claim should be the subject of a final determination now, on the basis that it was in the interests of justice for that to occur. That was because we had no confidence that the claimant would attend a final merits hearing of her claims. In part that was because the claimant had (as we record in paragraph 8 above) sought a postponement of the hearing in June 2024 because of her health and related medical treatment, and she was now seeking the same thing. It was also because of what she was saying (as we record in paragraphs 15, 17, 20 and 22 above) now about her mental health.[29]We could also see that the claimant was putting forward as an obstacle to her being able to participate in a hearing via CVP(1) the fact that she was having “problems with [her] laptop which [she had] not managed to resolve yet”, and(2) a desire, if not a need, for “adjustments [to] be arranged at least two weeks in advance prior to the date of the Hearing so that [she knew] what to expect and [could] mentally prepare [herself]”. However, the claimant’s statement that she could not afford to travel to the tribunal hearing at Watford and stay at a hotel nearby cast doubt on her ability to resolve any problems which she might be having with her laptop, but rather more importantly, adjustments which can be made during a hearing for a participant’s mental health condition are usually limited to giving the person more time to do things than is normally permitted. In addition, it is impossible to predict what will happen during a hearing. Although a seasoned litigator will have a fairly good idea of what will happen, nothing can be assumed or taken for granted about what will happen during a hearing. Those factors also indicated to us that the claimant was unlikely in practice to attend a full merits hearing, even via CVP.[30]We concluded that determining the claim on its merits on what was before us would serve no material purpose given that the claimant was not present to give evidence and to cross-examine the respondent’s witnesses.[31]In those circumstances, we decided that it was in the interests of justice that the claimant’s claims which remained before the tribunal be dismissed. Approved by