Case No 4101680/2022Venue GlasgowHearing 14 and 15 September 2022
Between
Mrs Helen McKennaClaimantDrivercheck LtdRespondent
Before
Employment Judge W A MeiklejohnMr S Healy (instructed by Barrister) for respondentDate 30 November 2022
JUDGMENT
The Judgment of the Employment Tribunal is that, the claimant having failed to attend or be represented at the hearing on 15 September 2022, her claim of constructive unfair dismissal is dismissed.
REASONS
[1]This case was listed for a final hearing on 14, 15, 16, 19 and 20 September 2022, to deal with the claim of constructive unfair dismissal brought by the claimant against the respondent. The claimant did not attend on 14 and 15 September 2022. The respondent did attend on these dates and was represented by Mr Healy. Nature of claim[2]The claimant in her ET1 claim form asserted that she had been unfairly dismissed by the respondent. She referred to a “complete breakdown of trust” and to the “breaking point” being when the previous owner of the respondent company (Mr E Eusebi) appeared at her home “on the pretence that he would need to take my computer away due to bugs on my computer”. The claimant also alleged that she had been threatened by Mr Eusebi.[3]In her letter of resignation dated 25 February 2022, the claimant referred to “irretrievable breakdown of trust/victimisation”, citing events said to have occurred between 10 December 2021 and 18 January 2022. The claimant also referred to a “threat”, citing events said to have occurred on 25 and 27 January 2022.[4]In their Grounds of Resistance, the respondent denied that the claimant resigned in response to any breach of her terms of employment.[5]Accordingly, this was a claim of constructive unfair dismissal. This engaged section 95 of the Employment Rights Act 1996 which, so far as relevant, provides as follows: “(i) For the purposes of this Part, an employee is dismissed by his employer if… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[6]For her constructive unfair dismissal claim to succeed, the claimant would need to present evidence showing that there had been conduct of the respondent which amounted to a breach of an express or implied term of her contract of employment, and that the breach had been material, i.e. going to the root of the contract or showing that the respondent no longer intended to be bound by some essential term of the contract. The Tribunal would need to be satisfied that the claimant resigned in response to that breach (i.e. it was a reason for her resignation) and that she did not wait too long before doing so.[7]Because the onus of presenting such evidence to the Tribunal rests on the claimant who asserts constructive dismissal, it is normal practice for such a claimant to give evidence first at the final hearing. The respondent’s representative mentioned this in an email sent to the Tribunal on 7 September 2022, which email referred to the hearing starting on 14 September 2022 and was copied to the claimant at the email address provided by her in her ET1. References below to the “email address” are to this address. Fixing of hearing date[8]The final hearing was previously listed for 20, 21 and 22 July 2022, but this was postponed on the application of the respondent. On 9 June 2022, the Tribunal wrote to the claimant asking her to provide a list of her unavailable dates in September and October 2022. This letter was sent by covering email of the same date, using the email address. The case file contained a number of emails sent by the Tribunal, and by the respondent’s representative, to the claimant at the email address, and also a number of emails from the claimant from the email address.[9]On 16 June 2022, the claimant sent an email to the Tribunal, which appeared to be a reply to the Tribunal’s covering email of 9 June 2022, in which she stated – “I am free whenever”[10]The Notice of Hearing setting the dates of 14 – 20 September 2022 was dated 22 June 2022 and was sent to the claimant, using the email address, by covering email of the same date. Application for postponement[11]On 13 September 2022, the Tribunal wrote to the claimant to advise that following the announcement of the death of HM Queen Elizabeth II, all hearing centres would be closed on 19 September 2022. The letter confirmed that the other dates – 14, 15, 16 and 20 September 2022 – were unaffected. This letter evidently confirmed a telephone call made by the Tribunal to the claimant on 12 September 2022. It was sent by covering email of the same date to the email address.[12]The claimant replied to that email at 15.23 on 13 September 2022 in these terms – “The first I knew of the new arranged date for tribunal was yesterday, when I received a phone call from a lady, informing me about Mondays arrangements. I have heard nothing from yourself or from drivercheck. As it happens, I am not available on dates provided, as am on holiday. Unsure why I thought this, but was convinced the tribunal would not be taking place until jan 2023 (although, admittedly don’t know why I thought this)”.[13]The Tribunal responded to the claimant’s email by email sent at 17.26 on 13 September 2022 to the email address, attaching a letter of the same date. This letter advised the claimant that her application to postpone the hearing had been refused by Employment Judge McManus. The reasons for refusal were expressed as follows – “The Judge’s reasons for refusing the request are that the applying party has made the application late (that is less than 7 days before the date the hearing was due to begin) and therefore for the Tribunal to allow a postponement one of the conditions under Rule 30A(2)(a) – (c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 must be met. The Tribunal is not satisfied that any of the conditions has been met and therefore refuses the application.”[14]The Tribunal’s letter included the following – “The case remains listed for hearing on 14 September 2022” and also – “The postponement request is to be discussed at the outset of the hearing on 14 September 2022.” 14 September 2022[15]At the scheduled start time of 10.00am on 14 September 2022, the respondent (in the person of Mrs M Eusebi) was in attendance, along with Mr Healy of counsel. The claimant did not attend.[16]I asked the clerk to contact the claimant by telephone. Having done so, the clerk reported to me that the claimant had said she was at work and would not be attending the hearing. The claimant told the clerk that(a) she would be unable to attend on 15 and 16 September 2022 for the same reason but(b) she would be available in the following week as she would be on holiday.[17]The hearing on 14 September 2022 commenced at 10.13. I stated what had occurred. I observed that I had noticed in the case file the email of 7 September 2022 (referred to in paragraph 7 above) sent by the respondent’s representative to the Tribunal, copied to the claimant, which referred to – “….the hearing starting on 14th September 2022 and running to 20th September 2022.”[18]Mr Healy told me that there had been other email correspondence from the respondent’s representative to the claimant in which the hearing dates had been mentioned. Mr Healy invited me to dismiss the claim under Rule 47. He submitted that the alternative under that Rule of proceeding with the hearing in the claimant’s absence would not be appropriate since, in the absence of evidence from the claimant, the burden on her of proving dismissal could not be discharged. Mr Healy also submitted that it would not be in accordance with the overriding objective to require the respondent to give evidence.[19]I decided that it would not be appropriate to dismiss the claim under Rule 47, nor to proceed with the hearing (as the onus of providing dismissal was on the claimant). Instead, I directed that the Tribunal should write to the claimant in terms of a draft letter which I prepared. I also directed that the clerk should telephone the claimant again to state that she would require to attend the Tribunal on 15 September 2022.[20]The Tribunal duly wrote to the claimant on 14 September 2022. That letter set out Rule 47 and also quoted part of Rule 90. It concluded in these terms – “The Judge directs that the claimant shall attend in person at Glasgow Tribunal Centre at 10.00am on 15 September 2022. Unless the Judge decides otherwise, the hearing of evidence will commence at that time (with the claimant giving evidence first). If the claimant does not attend on 15 September 2022, the Judge will consider matters under Rule 47.”[21]This letter was sent to the claimant by email, using the email address, at 12.26 on 14 September 2022. The Tribunal’s covering email referred to the telephone call made by the clerk to the claimant at 12.21 on 14 September 2022. 15 September 2022[22]At the scheduled start time of 10.00am on 15 September 2022, Mrs Eusebi and Mr Healy were again in attendance. The claimant was not present.[23]I asked the clerk to contact the claimant by telephone. Having done so, the clerk reported to me that the claimant had said that she would not be attending.[24]The hearing on 15 September 2022 commenced at 10.08. I stated what had occurred. I announced that I had decided to dismiss the claim under Rule 47. My reasons for so deciding are set out below. Application for expenses[25]Mr Healy made an application for expenses (costs) under Rule 76, due to the unreasonable behaviour of the claimant. He submitted that it had been unreasonable to fail to attend a hearing. It showed complete disrespect for the respondent and for the Tribunal. The amount of expenses sought by the respondent was £3300 being Mr Healy’s fees. Having regard to Rule 84, Mr Healy observed that the Tribunal might want to have a further hearing on expenses.[26]I reminded myself of Rule 77. I decided that the claimant should be given an opportunity to make representations in response to the application for expenses. I arranged for the Tribunal to write to the claimant about this. Rules[27]I have referred to various Rules above and, before setting out the reasons for my Rule 47 decision, I will set out the Rules relevant to that decision and also those I have mentioned relating to expenses.[28]The Rules are found in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Rule 2 (Overriding Objective) provides as follows: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[29]Rule 47 (Non-attendance) provides as follows – “If a party fails to attend or to be represented at the 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 reasons for the party’s absence.”[30]Rule 75 (Costs orders and preparation time orders) provides (so far as relevant) as follows – “(1) A costs order is an order that a party (“the paying party”) make a payment to – (a) 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; …”[31]Rule 76 (When a costs order or a preparation time order may or shall be made) provides (so far as relevant) as follows – “(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) a party (or that party’s representative) 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; …”[32]Rule 77 (Procedure) provides as follows – “A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.”[33]Rule 84 (Ability to pay) provides as follows – “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”[34]Rule 85 (Delivery to the Tribunal) provides (so far as relevant) as follows – “(1) Subject to paragraph (2), documents may be delivered to the Tribunal –(a) by post;(b) by direct delivery to the appropriate tribunal office (including delivery by a courier or messenger service); or(c) by electronic communication….”[35]Rule 86 (Delivery to parties) provides (so far as relevant) as follows – “(1) Documents may be delivered to a party (whether by the Tribunal or by another party) –(a) by post;(b) by direct delivery to the appropriate tribunal office (including delivery by a courier or messenger service); or(c) by electronic communication…” (2) For the purposes of sub-paragraphs (a) to (c) of paragraph (1), the document shall be delivered to the address given in the claim form… (3) If a party has given both a postal address and one or more electronic addresses, any of them may be used unless the party has indicated in writing that a particular address should or should not be used.”[36]Rule 90 (Date of delivery) provides as follows – “Where a document has been delivered in accordance with rule 85 or 86, it shall, unless the contrary is proved, be taken to have been received by the addressee –(a) if sent by post, on the day on which it would be delivered in the ordinary course of post;(b) if sent by means of electronic communication, on the day of transmission;(c) if delivered directly or personally, on the day of delivery.” Reasons for Rule 47 decision[37]I considered that, where a party fails to attend a hearing, there are in effect three options available to the Tribunal. Two of these are provided by Rule 47 –(a) dismiss the claim, or(b) proceed with the hearing. These are not obligatory, in the sense that the Tribunal must do one or the other, as the Rule provides that “the Tribunal may dismiss the claim....” It remains open to the Tribunal to use its case management powers under Rule 29 and adjourn the hearing. That was what I did when considering Rule 47 on 14 September 2022.[38]On 15 September 2022, when deciding what to do in light of the claimant’s non-attendance, I considered the same three options. I also reminded myself that I should not make a decision under Rule 47 without first considering any information available to me after enquiries made about the reasons for the claimant’s absence.[39]The information which was available to me included the following –a. The case file which disclosed electronic communication between the Tribunal and the parties, using in the case of the claimant the email address.b. The claimant’s email of 16 June 2022 regarding her availability in September/October 2022 – see paragraph 9 above.c. The fact that the respondent had, in correspondence with (or copied to) the claimant, referred to the hearing dates.d. The claimant’s assertion in her email to the Tribunal of 13 September 2022 that she had heard nothing from the Tribunal or the respondent about the hearing date.e. The conflicting statements made by the claimant about her availability on the dates listed for the hearing – see paragraphs 9 and 12 above – and what she said to the Tribunal clerks.f. The information given to me by the Tribunal clerks on 14 and 15 September – see paragraphs 16 and 23 above.g. The fact that I knew the claimant had been told in a telephone conversation with the Tribunal clerk at 12.21 on 14 September 2022 that she was required to attend the hearing on 15 September 2022.h. The Tribunal’s letter of 14 September 2022, sent to the claimant by email to the email address, which contained my direction that the claimant should attend in person on 15 September 2022.[40]I considered that the enquiries which had been made by the Tribunal clerks on 14 and 15 September 2022 were as much as could practicably be done in the circumstances. Accordingly, the “before doing so” part of Rule 47 was satisfied.[41]In deciding what to do under Rule 47, I believed it would not have been appropriate, nor in accordance with the overriding objective, to proceed with the hearing. The claim could not succeed without evidence from the claimant on the basis of which a finding could be made that she had been constructively dismissed. The onus was on her. It would have been unreasonable, and would have occasioned unnecessary expense, to require the respondent to lead evidence.[42]I also believed it would not have been appropriate to adjourn the proceedings. I considered that was the right course to follow on 14 September 2022, so that my direction to attend on 15 September 2022 could be communicated to the claimant. However, that having been done, a further adjournment would have entailed delay and expense to the respondent, which ran contrary to the overriding objective.[43]That left the remaining course of action under Rule 47 – dismissing the claim, I recognised that this was a draconian step akin to strike out, and it was appropriate to consider any lesser alternatives. That was, in effect, what I had done on 14 September 2022 when I adjourned the hearing to the following day. My reason for not doing so again is set out in the preceding paragraph.[44]Mr Healy had floated the suggestion of an unless order (under Rule 38) during the hearing on 14 September 2022. I did not believe that would have been appropriate. The claimant had been directed to attend the hearing on 15 September 2022 and had been made aware of the Tribunal’s power to dismiss under Rule 47. In any event, proceeding by way of an unless order on 15 September 2022 would have hesitated a further adjournment, the reasons against which I have already articulated.[45]I found myself in agreement with Mr Healy that the claimant had, on the face of it, been disrespectful to the Tribunal by failing to attend the hearing on 15 September 2022 having been directed to do so. A party should follow the Tribunal’s directions, or seek to have those directions varied or set aside. The claimant had not done so.[46]I was uncomfortable with the conflicting information provided by the claimant to the Tribunal as to her availability. She stated initially that she was available “whenever”. When seeking a postponement she said she was not available because she was on holiday on the hearing dates. She then told the Tribunal clerk on 14 September 2022 that she could not attend because she was at work, and would also be at work on 15 and 16 September 2022.[47]I considered the claimant’s assertion, made in her email of 13 September 2022 (see paragraph 12 above) that she had been unaware of the hearing dates. I was wary about making any finding on this in the absence of representations from the claimant. However, in terms of Rule 90, emails sent to the claimant by the Tribunal and the respondent at the email address - being an address given in the claim form per Rule 86(2) - were “taken to have been received” by the claimant on the day of transmission unless the contrary was proved.[48]I therefore came to the view that I was required to proceed on the basis that the claimant had received(a) emails sent to her at the email address by the Tribunal, including the one attaching the Notice of Hearing and(b) emails sent to her at the email address by the respondent including the email of 7 September 2022. If the claimant believes that she can prove the contrary, she may wish to consider an application for reconsideration of this Judgment under Rules 70-72 (Reconsideration of Judgments).[49]In all the circumstances, I came to the view that the appropriate course of action under Rule 47 was to dismiss the claim. My Judgment above reflects this.[1]This case was listed for a final hearing in Glasgow on 14, 15, 16, 19 and 20 September 2022. The date of 19 September 2022 was cancelled following the death of HM Queen Elizabeth II. The claimant did not attend on 14 and 15 September 2022. On 15 September 2022 I dismissed the claim under Rule 47 of the Employment Tribunal Rules of Procedure 2013. My reasons for doing so were set out in my Judgment dated 26 September 2022 (the “Judgment”), which was sent to the parties on 5 October 2022.[2]I detailed what occurred tip to 1 5 September 2022 in the Judgment, and I will not repeat that here. However, what I say below requires to be read in conjunction with the Judgment. Application for expenses[3]I referred to this at paragraphs 25 and 26 of the Judgment, recording that Mr Healy had made an application under Rule 76 seeking expense in the sum of £3300 on the basis that the claimant had acted unreasonably. The claimant was advised of this application in the Tribunal’s letter of 15 September 2022. The claimant sent an email to the Tribunal on the same date opposing the application.[4]In that email the claimant said the following - “Under no circumstances do I feel that I should pay expenses. I knew nothing of the hearing date until 48hrs beforehand. I had received no correspondence from the tribunal or the representatives for Drivercheck. ”[5]The parties were asked by the T ribunal on 21 September 2022 for their views on whether the application for expenses should be dealt with by way of written submissions. Thereafter I decided that the application for expenses should be dealt with by written submissions. The Tribunal’s letter dated 5 October 2022 advised the parties of my direction that they should provide their written submissions within 14 days. Submissions by claimant[6]The claimant provided her written submissions on 10 October 2022. Her main points were expressed in these terms - “I had never received any notification of new date for the Tribunal. The first I knew of it was when I received a phone call, I believe on the 14th Sept, informing me that the Courts would be closed on Monday, 19th Sept due to her Majesty’s funeral. I informed the caller that it would be impossible for me to attend with less than 48hours notice for the following reasons. 1) I would need to take time of(f) work, unpaid and at extremely short notice (somewhere that I am hoping to gain fulltime at the end of October). 2) My witness was down in Preston. 3) I had received NOTHING from the defendant. (Evidence that they had stated they were required to present to me 28days prior to the court date). 4) I was suffering from a chest infection and was on steroids and antibiotics. I informed the caller of this, and she stated that she would inform the Judge. The next day I received another call to ask if I could attend the next day or possibly next week. I replied I couldn’t, as I was unwell, also due to fly out to Portugal the following week.”[7]At the end of her written submissions, the claimant said this - “Can I also ask that any further correspondence be sent by post? I have no personal lap-top and the only means I have of accessing emails is via my mobile. I receive anywhere in the region of 50-1 00 emails per day (99 percent junk).” Submissions by respondent[8]In his written submissions Mr Healy contended that the claimant had behaved unreasonably in her conduct of the proceedings by not attending the final hearing on 14 and/or 15 September 2022. She had known about the final hearing dates since the Notice of Hearing was sent to parties on 22 June 2022. She had stated on 16 June 2022 that she had no dates to avoid. She had ample opportunity to book time off work or annual leave, or to apply for the final hearing to be re-listed.[9]The claimant had used the same email address throughout, without apparent difficulty. The Tribunal had noted in the letter emailed to parties on 14 September 2022 the effect of Rule 90. Email correspondence was presumed to be received unless the contrary was shown. The claimant had provided nothing to suggest she did not receive correspondence sent to her email address.[10]Mr Healy contended that the claimant’s assertions, that she know nothing of the final hearing until 48 hours beforehand and had never received any correspondence from the respondent, were demonstrably false. She had received correspondence from the Tribunal and had been reminded of the hearing on several occasions. It was implausible that she did not receive all the correspondence sent to her. If the claimant had secured work which affected her ability to attend the hearing, it was incumbent on her to tell the respondent and the Tribunal, and manifestly unreasonable not to do so.[11]Mr Healy pointed out that the claimant had not previously mentioned two of the reasons she now advanced for her inability to attend the hearing. These were that her witness was in Preston and that she was suffering from a chest infection. Neither of these had been mentioned by the claimant when she applied to postpone the final hearing on 13 September 2022.[12]Mr Healy intimated that the respondent now sought expenses in the sum of £3675, the additional £375 representing his fee for preparing the written representations for the respondent.[13]With his written submissions Mr Healy provided a bundle of documents and I refer to some of these below (by page number). Applicable Tribunal rules[14]Rule 74 (Definitions) provides, so far as relevant, as follows - (1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party. ...In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses. ...[15]Rule 75 (Costs orders and preparation time orders) provides, so far as relevant, as follows - (1) A costs order is an order that a party (“the paying party”) shall make a payment to - (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented. ...[16]Rule 76 (When a costs order or a preparation time order may or shall be made) provides, so far as relevant, as follows - (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that - (a) a party (or that party’s representative) 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....[17]Rule 78 (The amount of a costs order) provides, so far as relevant, as follows - (1) A costs order may - (a) order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party....[18]Rule 84 (Ability to pay) provides as follows - In deciding whether to make a costs, preparation time or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.[19]Rule 90 (Date of delivery) provides, so far as relevant, as follows - Where a document has been delivered in accordance with rule 85 or 86, it shall, unless the contrary is proved, be taken to have been received by the addressee -(a) ....(b) if sent by means of electronic communication, on the day of transmission....[20]I set out the relevant parts of Rules 85 and 86 in the Judgment and so I will not repeat them here. Claimant’s ability to pay[21]The claimant provided information which indicated that she was currently working 37 hours per week, through an agency, and was being paid £10.54 per hour. She produced a payslip which disclosed weekly earnings of £456.74 gross and £375.11 net. These figures included an element for holiday pay (£66.76 gross). She indicated that her current contract (which was not reduced to writing) ran until March 2023. The claimant stated that she had no savings, no other income and had some family debt which she was currently not able to repay.
Applicable law
[22]I derived assistance from the decision of the Court of Appeal in England in Barnsley Metropolitan Borough Council v Yerrakalva [2012] ICR 420. In that case Mummery LJ, said this (at paragraph 41) - “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. ...”
Discussion
[23]I approached matters on the basis set out by Mummery LJ in Yerrakalva -a. What was the conduct of the claimant said by the respondent to have been unreasonable?b. What was unreasonable about it?c. What effects did it have? What was the conduct?[24]The conduct of the claimant which was in issue here was her failure to attend the final hearing on 1 4 and 1 5 September 2022. It was not in dispute that this conduct had occurred, and so I need say no more about the nature of the conduct. What was unreasonable about it?[25]At the heart of this question was whether the claimant knew about the final hearing dates. This brought Rule 90 into play. In the Judgment I said this - “47. I considered the claimant’s assertion, made in her email of 13 September 2022 (see paragraph 12 above) that she had been unaware of the hearing dates. I was wary about making any finding on this in the absence of representations from the claimant. However, in terms of Rule 90, emails sent to the claimant by the Tribunal and the respondent at the email address - being an address given in the claim form per Rule 86(2) - were “taken to have been received” by the claimant on the day of transmission unless the contrary was proved. 48. I therefore came to the view that I was required to proceed on the basis that the claimant had received(a) emails sent to her at the email address by the Tribunal, including the one attaching the Notice of Hearing and(b) emails sent to her at the email address by the respondent including the email of 7 September 2022. If the claimant believes she can prove the contrary, she may wish to consider an application for reconsideration of the Judgment under Rules 70-72 (Reconsideration of Judgments).”[26]The claimant had not made an application under Rule 71 for reconsideration of the Judgment. This meant that Rule 90 continued to have effect and so, the contrary not having been proved, I still required to proceed on the basis that the claimant did receive emails sent to her by the Tribunal and the respondent. Those included -a. the email sent by the Tribunal on 22 June 2022 attaching the Notice of Hearing;b. the email sent by the Tribunal on 13 September 2022 attaching the letter of the same date refusing her application to postpone the hearing; andc. the emails sent by the respondent (or, to be precise, the respondent’s representative) on 14 July 2022 (31), 11 August 2022 (33) and 7 September 2022 (38) each of which referred to the hearing dates.[27]I noted what the claimant said in her written submissions about the volume of emails she received, and that she could access these only on her mobile phone. It seemed to me more likely than not that, despite the claimant’s assertions that(a) she did not receive notification of the new hearing dates and(b) she received nothing from the respondent, she had in fact received all of the emails listed above. I noted that the claimant’s email to the Tribunal of 13 September 2022 was sent in reply to the Tribunal's email to her of the same date. It was simply not credible that she had received this email from the Tribunal but not others.[28]The claimant referred in her written submissions to the respondent being required to present evidence to her 28 days before the hearing date - the implication being that they had failed to do so. However, I noted that the email sent by the respondent’s representative to the claimant on 1 1 August 2022 contained a link to the respondent’s list of documents. Accordingly the respondent had done what the claimant was in effect accusing them of having failed to do.[29]While I was satisfied that the claimant had received the emails attaching the Notice of Hearing and those from the respondent’s representative making reference to the hearing dates, I considered it more probable than not that she had not read these. I believed that the explanation for this lay in the claimant’s reference to the volume of emails she received, which she described as “99 percent junk”.[30]I noted from the case file that email appeared to be the claimant’s communication method of choice in her dealings with the Tribunal and the respondent. That being the case, it was not unreasonable to expect that she would check her email inbox with a degree of care while her Tribunal claim was ongoing. While I could accept that the claimant had not read the emails referred to in the preceding paragraph, I considered this was more likely than not due to a lack of care on her part. This led me to the conclusion that the claimant was until 13 September 2022 ignorant of the fact that the final hearing was scheduled to start on 14 September 2022, but her ignorance was unreasonable. 31 . I could understand that the claimant would have found it difficult to attend the Tribunal on 14 September 2022. The Tribunal’s email refusing her application for a postponement was sent at 17.26 on 13 September 2022. That was probably too late in the day for her to arrange to take time off work the following day. It was consistent with what she told the Tribunal clerk when she was contacted on 14 September 2022 - see paragraph 16 of the Judgment.[32]However, the claimant could have been in no doubt that her attendance at the Tribunal was required on 1 5 September 2022. My direction to that effect was in bold print in the letter sent to her by email on 14 September 2022 - see paragraph 20 of the Judgment. When contacted by the Tribunal clerk on 15 September 2022, the claimant simply said that she would not be attending - see paragraph 23 of the Judgment. She made no reference to being unwell, nor to her forthcoming holiday in Portugal.[33]I considered that the claimant’s failure to attend the final hearing -a. On 14 September 2022 was unreasonable conduct because of her lack of care in monitoring her incoming emails, but mitigated to a small extent by the fact that her ignorance (until 13 September 2022) of the start date of the final hearing was genuine.b. On 1 5 September 2022 was unreasonable conduct without mitigation. What effects did it have?[34]Here I need to return to what Mummery LJ said in Yerrakalva. The passage quoted above in paragraph 22 continues as follows - “The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances.”[35]This was a reference to the earlier case of McPherson v BNP Paribas (London Branch) 2004 IRLR 558 in which Mummery LJ delivered the leading judgment. At paragraph 40 of that judgment, he said this - “In my judgment, Rule 14(1) does not impose any such causal requirement in the exercise of the discretion. The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring BNP Paribas [the respondent] to prove that specific unreasonable conduct by Mr Macpherson caused particular costs to be incurred. ”[36]In Yerrakalva Mummery LJ makes it clear that a Tribunal should neither disregard questions of causation nor dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as “nature”, “gravity” and “effect”. The correct approach is as set out in the passage quoted above at paragraph 22.[37]I considered that the respondent would have required to incur the cost of preparing for and attending the Tribunal on 14 September 2022, whether or not the claimant attended on that date. The Tribunal would have expected no less of a represented party. The respondent had no choice but to be “ready to go” when the final hearing commenced.[38]It could be argued from the claimant’s side that the respondent was equally required to incur the cost of attending the Tribunal on 15 September 2022 because I had decided on 14 September 2022 not to dismiss the claim under Rule 47, but to adjourn the hearing (see paragraph 37 of the Judgment). However, the respondent was entitled to expect that the claimant would comply with my direction that she should attend on 15 September 2022. The effect of the claimant’s failure to attend was that I did what the Tribunal’s letter to the claimant of 14 September 2022 had stated I would do, namely “consider matters under Rule 47”. Rule 76(1)[39]That takes me back to the applicable Rule - see paragraph 1 6 above. Where, as here, I have found that the claimant acted unreasonably, the Rule requires a two stage approach -a. Firstly I am required to consider whether to make a costs (expenses) order. That is the effect of the words “shall consider”.b. Secondly, I am required to exercise my discretion in deciding whether or not to make such an order. That is the effect of the words “A Tribunal may make”. Whether to make an order[40]In considering whether or not to make an order, I came to the view that it would not be appropriate to do so in respect of the claimant’s failure to attend the hearing on 14 September 2022, but it would be appropriate to do so in respect of her failure to attend on 15 September 2022. My reasons for so deciding are as follows -a. The fact that the claimant became aware only on 1 3 September 2022 that the hearing was set down to start on 14 September 2022 was due to her own lack of care in monitoring her incoming emails. However her ignorance, although unreasonable, was genuine and discovering that the hearing was due to start the next day created a conflict between her attendance at work and her attendance at the Tribunal, at a time of day when it was probably too late for her to contact her 5 employer.b. In contrast, the claimant knew on 14 September 2022 that her attendance at the Tribunal was required on 15 September 2022. I directed her to attend. She had time to make arrangements with her employer to do so. The reasons she has now advanced for not attending were not given at the time. 41 . In deciding that it would be appropriate to make an order, I also took into account the claimant’s ability to pay. I reminded myself that I was not obliged to do so - Rule 84 (see paragraph 18 above) provides that the Tribunal may have regard to the paying party’s ability to pay. I also reminded myself that if I took account of the claimant’s ability to pay, I should explain how I did so - Benjamin v Interlacing Ribbon Ltd EAT 0363/05. I should also explain what impact the claimant’s ability to pay had on the decision to make an award or on the amount of that award - Jilley v Birmingham and Solihull Mental Health NHS Trust EAT/0 584/06.[42]The claimant had a regular, if modest, income and this was likely to continue until at least March 2023. That gave the claimant a reasonable opportunity to seek fresh employment beyond that date if an extension of the contract under which she currently worked was not available. I considered that it was reasonable to proceed on the basis that(a) the claimant would continue for the foreseeable future to enjoy an income of not less than the amount disclosed in the payslip she provided, ie £375.1 1 net per week but(b) it was unlikely that her income would increase significantly. I came to this view because I had no evidence to suggest that the claimant was qualified for and/or competent to undertake better paid employment. In what terms?[43]Having decided that it would be appropriate to make an order in respect of the claimant’s unreasonable conduct in failing to attend the hearing on 15 September 2022, I next considered in what terms that order should be made.[44]I reminded myself that the purpose of an award of expenses is to compensate the party in whose favour the order is made, not to punish the paying party - Lodwick v Southwark London Borough Council 2004 ICR 884. I also reminded myself that expenses should be limited to those reasonably and necessarily incurred, per Yerrakalva. I should also take account of the claimant’s ability to pay (or explain why I did not do so).[45]Given my determination that it would not be appropriate to make an award of expenses in respect of the claimant’s failure to attend the hearing on 14 September 2022, I considered that the expenses incurred by the respondent which remained in scope (for the purpose of an award) were those incurred by the respondent on and after 15 September 2022. These comprised -a. Counsel’s refresher fee of £800.b. Counsel’s fee of £375 for preparing the respondent’s written submissions.[46]I decided that it would not be appropriate to order the claimant to pay any part of the expenses sought in relation to the provision of written submissions. I am grateful to Mr Healy for the evident care taken by him in the preparation of those submissions. However, they were not in my view reasonably and necessarily incurred. It was within my judicial knowledge that the respondent’s representative had the ability and resources to deal with the matter without instructing counsel.[47]That left the fee of £800 incurred by the respondent in being represented at the hearing on 15 September 2022. I considered whether I should award all of this amount or part only and, if the latter, upon what basis.[48]I found that the fee of £800 had been reasonably and necessarily incurred. Mr Healy had to attend the Tribunal on 15 September 2022 and his attendance was only rendered unproductive (in terms of progressing the case) by the claimant’s non-attendance. The only factor mitigating against awarding the full amount was the claimant’s ability to pay.[49]I decided that it would be appropriate to award the full amount of £800 provided the claimant was allowed a period of time within which to make payment. The claimant enjoyed a net monthly income in excess of £1 500 and it seemed to me that it would not be unreasonable to expect her to set aside in the region of £75/1 00 per month towards payment of the expenses of £800. I appreciated that it might take the claimant a little time to organise her affairs in such a way as to cope with the expenses liability she had incurred. She might also face unforeseen outgoings from time to time. Accordingly I decided that she should be required to make payment by 31 December 2023.[50]My decision is that the claimant should be ordered to pay expenses to the respondent in the sum of £800, and that she must do so no later than 31 December 2023. My Order above reflects this.