Mrs J Russell v Cameron House Resort (Loch Lomond) Ltd: 4101066/2025
JUDGMENT
The claim is dismissed under rule 47 of the Employment Tribunal Procedure Rules 2024 because of the claimant’s failure to attend the hearing. Oral reasons were given in the presence of the respondent’s representative.REASONS
[1]This third preliminary hearing had been intended to be the second attempt to decide jurisdictional time limit issues in this claim, which was commenced 13 months ago. The last hearing was adjourned in circumstances set out in my case management order of 30 March 2026. When planning for this hearing the Tribunal made all the adjustments for the claimant’s disability set out in that order. No other adjustments had been requested or agreed. It had been agreed by the claimant, the respondent’s representative and by me that a full day would be necessary for a fair hearing at a pace which properly allowed for the claimant’s neurodiversity. A 1000 start time was therefore necessary to achieve that. Failure to attend and the claimant’s applications[2]The claimant failed to attend at the notified start time of 1000. Several very late emails from the claimant were drawn to my attention by the Tribunal administration. They largely explained why the claimant was not present, but they also suggested that the claimant had taken matters into her own hands rather than complying with the notice of hearing pending a decision on her applications.a. In an email timed at 16:49 on 14 April 2026 (the day before the hearing) the claimant suggested that she would be relying on additional written medical evidence, but that it would only be available on the morning of the hearing. The claimant also wished to play an audio recording of a call to her GP reception to confirm two dates and two prescriptions.b. At 06:20 on 15 April 2026 (the morning of the hearing) the claimant emailed a partial photograph of a letter dated 10 April 2026 from Renfrewshire Health & Social Care Partnership relating to her care from the Community Mental Health Team from January 2025 until March 2026, but it is not complete. The claimant commented that, “I am committed to proceeding fairly, but this morning I’m feeling a bit off balance. I kindly request a short extension until 12:00 to gather myself and prepare properly”. The claimant also indicated an intention to refer to some additional documents which were not in the joint bundle, but said that she would not produce “anything complex or that the respondent hasn’t largely seen...”c. At 06:30 the claimant forwarded a slightly better version of the same photograph, but it was still not complete. The claimant commented that she was still trying to digest the document, and requested “a short pause, as I’m feeling a little unsteady this morning.”d. At 06:33 the claimant emailed to add some further detail about her appointments with the CMHT.e. At 09:28 on 15 April 2026 (32 minutes before the schedule start time) the claimant requested to join the hearing remotely saying, “I have been struggling to focus and digest a medical document I received myself recently and context for timebar, but committed to take part today.”[3]The claimant’s applications did not come to my attention until shortly before the scheduled start time. The claimant was not in attendance at 1000. She should have been. I therefore heard only from Mr Barratt on behalf of the respondent.[4]He was concerned about the claimant’s correspondence, saying that she had shown a tendency to produce late documents during previous hearings. He was worried about inadequate notice if the same thing happened again, especially given that the claimant had suggested that she might refer to more medical material that had not yet been seen. He also pointed out, correctly, that the medical evidence so far forwarded by the claimant was incomplete. He argued that the claimant had inappropriately redacted documents in the past, so he would need to explore that with her.[5]Mr Barratt also argued that the claimant’s credibility was a significant issue in this case, and that it would be necessary for the claimant to give evidence in person because that was the best way of testing her credibility. He also thought it was likely, based on his past experience, that the claimant would produce additional documents during a video hearing if the mode of hearing were changed to video. He therefore opposed the application to convert the hearing to video. Decision on the claimant’s applications[6]While I think that the supposed difficulty in assessing credibility by video, or the relative advantages of doing so in person, are both often overstated, broadly speaking I accepted the respondent’s submissions. While recognising the need for a Tribunal to be flexible in its management of proceedings, a fair hearing nevertheless requires some minimum level of control and adherence to directions. The mode of hearing had been agreed long ago with the claimant, and the first attempts to change it and to delay the start time came on the morning of the hearing itself. The claimant’s application for a delayed start, and/or conversion to video, were not supported by medical evidence suggesting that she was not reasonably able to start on time, or to participate in person, as directed. I refused both applications because of their timing, the lack of supporting medical evidence and the potential prejudice to the respondent. I was concerned that the claimant had effectively taken control of the start time out of the Tribunal’s hands by deciding not to travel to the hearing venue.[7]I gave oral reasons in the presence of the respondent’s representative and I asked the hearing clerk to relay them to the claimant by telephone, which she did. There is a fast and frequent train service between stations in Paisley and Glasgow Central Station, which is about 5 minutes’ walk from the Tribunal. The claimant has been here before. I also asked the clerk to ask the claimant when she expected to arrive at the Tribunal building. I was told that the claimant expected to be present before 1200. Further failure to attend[8]The claimant was not in the Tribunal building by 1200 so I resumed the hearing. I had not received any message to explain that failure to attend, or problems in transit. At the risk of stating the obvious, the claimant should have attended at 1000 instead of assuming that her applications would be granted or presenting the Tribunal with a situation which amounted to the same thing in practical terms.[9]I considered my powers under rule 47, and invited submissions from the respondent. I decided to dismiss the claim. The claimant was still not present and ready to start the hearing 2 hours after the scheduled start time, or by 1200 (the time by which she had undertaken to appear once notified of the refusal of her applications). The claimant’s failure to attend meant that it was no longer possible to give the hearing the time we had all agreed was necessary for a fair hearing. If the hearing were to be adjourned part-heard then it would probably be August or later before it could be resumed. That would mean a tripling of the respondent’s costs of attendance by the time the preliminary issue of time limits was finally decided and much delay in doing so. In my assessment, the claimant has been given an entirely reasonable opportunity to attend the hearing and there was no sufficient reason for her to be absent.[10]Since it was common ground that the claim had been commenced outside the primary time limit, the claimant had the burden of proving that it was started within a just and equitable other period for the purposes of s.123(1)(b) of the Equality Act 2010. I saw little point in proceeding in the claimant’s absence when the claimant had the burden of proof and the respondent had nothing to prove. On balance, given the lack of explanation or communication from the claimant, I concluded that it was both fair and otherwise consistent with the overriding objective to dismiss the claim.