Employment Judge J G d’Inverno, QVRM, TD, VR, WSDate 15 October 2019
JUDGMENT
Having resumed consideration of parties’ submissions made at Open Preliminary Hearing on 22 August 2019 the Judgment and Determination of the Employment Tribunal is: (First) That the claimant had not, as at 7 June 2019 and, as at 22 August 2019 has not, complied with the Tribunal’s Order of 24 May a written copy of which was sent to parties on 30 May 2019 (“the Order of 30 May 2019”), for the purposes of section 37(1)(c) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. ETZ4(WR) (Second) That the Tribunal declines to strike out the claim at this juncture in proceedings. (Third) (already intimated to parties by first class post on 22 August 2019) That the diet of final hearing, set down in the case to proceed at Edinburgh on 10, 11 and 12 September, is vacated and postponed; and date listing stencils with a return date of 14 October 2019 and canvasing availability for the three day rescheduled hearing in the months of November/December 2019 and January 2020 be issued to parties/their representatives forthwith. (Fourth) That the Tribunal’s Order of 30 May 2019 is reiterated and varied as to dates for compliance as follows:- ORDERS AND DIRECTIONS Made pursuant to the Employment Tribunal Rules of Procedure 2013[1]On or before 9th September 2019 the claimant shall provide further particulars of his claim to the respondent. These further particulars shall specify in relation to each occasion upon which he claims he raised health and safety concerns with someone employed/engaged by the respondent, the following:(a) The name and position of the individual the claimant raised these concerns with;(b) How the concerns were raised (in person, on the telephone, by email etc);(c) Precisely what was said/written/intimated; and(d) When this was done(e) In complying with the requirements of paragraph 1, sub-paragraphs (a) to (d) of the reiterated Order, (Fourth) of 31 August 19, the claimant should include only complaints and or alleged incidents of communication in respect of which he is able to provide and provides all of the particulars required in terms of sub-paragraphs (a), (b), (c) and (d). The claimant should not include in any document tendered as Further Particulars reference to complaints or incidents in respect of which he does not provide the specification directed under each and all of sub-paragraphs (a), (b), (c) and (d) of paragraph 1. Any examples included in respect of which all of the ordered particulars are not provided will not be received by the Tribunal as Further Particulars of Claim.[2]On or before 9th September 2019, the claimant shall confirm to the respondent which if any sub-section of section 100 of the Employment Rights Act 1996 he intends to rely on in relation to his claim of automatic unfair dismissal.[3]On or before 9th September 2019, the claimant shall send to the respondent, copied to the Tribunal, a written statement with supporting documentation setting out:-(a) What the claimant seeks by way of remedy if the claim succeeds;(b) Whether the claimant was a member of the respondent’s pension scheme and, if so, whether that was a defined contribution scheme or a defined benefit scheme;(c) If the claimant seeks the remedy of compensation, how much is sought in respect of each complaint with a detailed explanation of how each sum is calculated;(d) Details of any benefits received;(e) A summary of jobs applied for, details of any interviews attended or jobs obtained and details of any income whether from temporary, casual or permanent employment or selfemployed work; and(f) Details of any other efforts made by the claimant to minimise his loss;(g) Which statement is to be updated 7 days prior to the commencement of the hearing.[4]Within seven days of receipt from the claimant of the written statement directed in terms of paragraph 3 of this Order, the respondent shall write to the claimant, copied to the Tribunal, setting out:(a) Whether it will argue that the claimant has failed to minimise his loss and if so, what further steps the respondent says the claimant should have taken in this regard;(b) Whether the information provided about the pension scheme is correct.[5]The respondent may serve an amended response, so as to arrive with the Tribunal and the claimant on or before 23rd September 2019.[6]On or before 30th September 2019, the parties shall provide copies to each other of any documents upon which they intend to rely at the final hearing.[7]On or before 7th October 2019 the respondent shall lodge with the Tribunal and intimate to the claimant a draft list of proposed issues in the case, including any preliminary issues,[8]On 21st October 2019 the case to be brought up before the sitting Judge for confirmation of issues, direction as to further procedure and or listing of the case for final/further hearing.[9]Following the listing of the case for final hearing the following directions will apply and parties are ordered as follows:(a) Not later than 21 days before the commencement of the rescheduled final hearing the respondent shall prepare a set of documents to be referred to by parties at the final hearing, the same in chronological order and with numbered pages incorporating all documentary productions intended to be referred to at the hearing by either party and shall provide a copy to the claimant;(b) Not later than 10 days prior to the commencement of the rescheduled final hearing the parties shall agree a cast list of persons who are to give evidence at the final hearing or are to be referred to in evidence at the final hearing together with a short neutral chronology of key events and the respondent’s representative shall copy the same to the Tribunal;(c) Not later than seven days prior to the commencement of the rescheduled final hearing the claimant shall provide to the respondent and will copy to the Tribunal, an updated written statement of the calculation of the sum claimed by him (together with copies of any additional supporting documentation vouching the calculation);(d) Not later than 2pm on the second working day prior to the commencement of the final hearing the respondent will lodge two copies of the Joint Bundle with the Tribunal together with further copies of the cast list and chronology.[10]Not later than 10 days prior to the commencement of the rescheduled final hearing, the parties shall agree and lodge with the Tribunal a cast list of individuals the Tribunal are to give evidence or to be referred to in the course of evidence at the hearing, together with a short, neutral chronology of key events.[11]Not later than seven days prior to the commencement of the rescheduled final hearing, the claimant shall provide to the respondent, with a copy to the Tribunal, an updated written statement of the calculation of the sum claimed (together with copies of any additional supporting documentation).[12]This case will be decided at a full hearing lasting three days, before an Employment Judge sitting alone at the Employment Tribunal in Edinburgh, on rescheduled dates to be afterwards fixed in terms of order (Third) hereof. A separate Notice of Hearing will be issued.[13]And the sitting Judge reserves to himself, meantime, the determination of any issue as to whether compliance with these orders has occurred and of any application for variation or supplementary direction in relation to these Orders. (Fifth) The Tribunal further orders and specifies, in terms of Rule of Procedure 38(1), that if the Orders set out at sub-paragraphs 1, 2, 3 and 6 of reiterated Order (Fourth) hereof are not fully complied with by the claimant by the date specified in respect of each, the claimant’s claim shall thereby be dismissed without further Order and without the requirement for further procedure.
REASONS
[1]This case called before the sitting Judge at Edinburgh on 22 August 2019, for Open Preliminary Hearing at which parties were to be heard on and for determination of the respondent’s written application dated 17 June and 4 July, in terms of Rules of Procedure 37, for strike out the claimant’s claim for noncompliance with Employment Judge Sangster’s Orders, made at Closed Preliminary Hearing which proceeded in the case before her on 24th and written copies of which were issued to parties on, 30 May 2019.[2]The claimant, Mr Amos, appeared on his own behalf. The respondent company Pendrich Height Services Limited was represented by Mr Wilkinson of Counsel. The application to strike out was opposed by the claimant on the sole asserted ground that he had fully complied with the Tribunal’s Orders of 24/30 May 2019.[3]The principal sanction sought by the respondents was that of strike out for noncompliance pursuant to Rule 37 which failing, and in the alternative for the making of an Unless Order in terms of Rule 38(1), which failing the making of a Deposit Order in terms of Rule 39. In the event that the Tribunal declined to strike out the claim at this juncture in proceedings, the respondent sought the issuing of direction such as to achieve, if complied with; a narrowing down of the factual allegations, specification of the details of each such allegation in the terms already called for in the uncompiled with Order of 30 May 2019 and full compliance with the outstanding elements of 30 May 19 Order.[4]The Open Preliminary Hearing proceeded against the background of a merits hearing currently set down to proceed in the case on 10, 11 and 12 September that was less than 14 working days from the date of Open Preliminary Hearing. Standing that proximity to the final hearing dates, the respondent’s representative submitted that in the event of any outcome other than the striking out of the claim and given the current state of non-compliance by the claimant with the Tribunal’s Case Management Orders, it would not be possible for a fair hearing to proceed on those dates. In those circumstances he made application, at the bar, for the vacation of the final hearing dates currently set down for 10, 11 and 12 September 2019, with a view to alternative dates being fixed, in due course and if required, thus avoiding the expenditure by parties of what were likely to be wasted costs.[5]The claimant opposed that application stating that as far as he was concerned he had fully complied with Judge Sangster’s Orders and was confident that for his part he could prepare to present his case for the hearing dates already set down. He declined to consent to the application to vacate the dates and invited the Tribunal to refuse the application. He did so notwithstanding the Tribunal’s explanation that in adopting that position, in the knowledge that the respondents would be put to costs of such preparation as they were able to make in the interim, he might expose himself to the risk of being considered to have acted unreasonably in the conduct of proceedings in the event that the Tribunal was to determine that he had failed to comply with Judge Sangster’s Orders of 30 May and that a requirement to vacate and postpone the final hearing dates resulted from that non-compliance.
The Issues
[6]Accordingly the issues requiring determination at Open Preliminary Hearing were:- (First) Whether the claimant had complied with or alternatively had failed to comply with Judge Sangster’s Orders of 30 May 19 as set out below. (Second) In the event that the claimant had failed to comply with the Orders of 30 May whether, in terms of paragraph 37(1)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1, (“Rule 37(1)(c)”), the claimant’s claims should be struck out for non-compliance with an Order of the Tribunal; or alternatively, whether a Deposit Order should be made in terms of Rule 39(1). (Third) Let it be assumed that the Tribunal declined to strike out the claim, at this juncture in proceedings, whether the outstanding compliance with the requirements of the Order of 30 May 19 be made the subject of an Unless Order. (Fourth) Let it be further assumed that the Tribunal declines to strike out the claim at this juncture in proceedings, whether and in what terms there be issued further direction such as to:-(a) narrow down the factual allegations(b) provide specification of the details of each allegation thus identified in the terms set out in the Order of 30 May 2019 and(c) achieve compliance with the remainder of the 30 May 2019 direction such as to facilitate the progression of the case to final hearing, (Fifth) Whether notwithstanding the determination of the application for strike out and the direction of appropriate further procedure the final hearing, currently set down in the case for 10, 11 and 12 September 2019 be vacated on the grounds that the state of non-compliance, as at today’s date 22 August 2019, by the claimant with the Tribunal’s Case Management Orders of 30 May 2019, results in it not being possible for a fair hearing to proceed between the parties or an adequate inquiry to be conducted by the Tribunal, on those dates. The respondent’s counsel lodged a bundle of documents to be relied on at today’s hearing extending to 52 pages and including at pages 1 to 5 Judge Sangster’s Orders of 30 May 2019 (issued verbally at the Closed Preliminary Hearing which proceeded before her on 24th and written copies of which were sent to parties together with her note of output on 30 May 2019); and, at pages 8 to 25 inclusive, the claimant’s email of 8 June 2019 sent by him to the respondents on that date and to the Tribunal, in tendered compliance with the 30 May 19 Order. The respondent’s representative also put up a skeleton argument copies of both of which were provided to the claimant. Background and Summary[7]The respondent provides height work solutions. The claimant was employed by the respondent as a steeplejack. The claimant was employed from 30 January 2017 to 11 December 2018. As at the Effective Date of Termination of his employment (11 December 2018) the claimant, having less than two years continuous service with the respondent, lacked and continues to lack Title to Present, and the Tribunal lacks Jurisdiction to Consider, a complaint of unfair dismissal in terms of section 95 to 98 and section 108 of the Employment Rights Act 1996.[8]In his initiating application ET1 first presented to the Employment Tribunal on 11 February 2019 the claimant alleges, in bald terms that he was dismissed following his raising “health and safety concerns” with his employer, implying that that was the reason for his dismissal and that thus he falls within the qualifying period exception set out in section 108(3)(c) and or (ff) of the Employment Rights Act 1996, or alternatively section 103A of the Employment Rights Act 1996 (protected disclosure).[9]The form ET1, absent further particularisation, failing to disclose a sufficiently specific and therefore relevant complaint and separately failing to give the respondent fair notice of the case which they had to meet, Orders directing further particularisation of the claim together with Case Management Orders designed to progress the case to final hearing were made by Employment Judge Sangster at the Closed Preliminary Hearing which proceeded before her at Edinburgh on 24 May 2019. The claimant was present and the respondent was represented at that hearing.[10]In response to the claimant’s correspondence of 1 August 2019, Judge Macleod directed that he should bring to the preliminary hearing three copies of any documents upon which he sought to rely (at the Open Preliminary Hearing of 22 August 19) and should also send any such documents to the respondent as soon as possible. In the same direction he referred both parties to the Tribunal’s Orders of 24/30 May 2019.[11]The claimant did not lodge any documents at the Open Preliminary Hearing. Neither did he intimate any to the respondent’s representative. At the hearing he made reference only to the Order of 30 May and to his email of 8 June 2019 both of which were produced by the respondent in their bundle.[12]The Tribunal’s Order of 24/30 May 2019, (“the Order of 30 May 2019”) upon the asserted non-compliance with which the respondent founds its application for strike out is in the following terms:- “ORDERS & DIRECTIONS Made pursuant to the Employment Tribunal Rules of Procedure 2013 1. On or before 7 June 2019, the claimant shall provide further particulars of his claim to the respondent. These further particulars shall specify, in relation to each occasion upon which he claims he raised health and safety concerns with someone employed/engaged by the respondent, the following: a) The name and position of the individual the claimant raised these concerns with; b) How the concerns were raised (in person, on the telephone, by email etc); c) Precisely what was said/written/intimated; and d) When this was done. 2. On or before 7 June 2019, the claimant shall confirm to the respondent which, if any. subsection of section 100 of the Employment Rights Act 1996 he intends to rely on in relation to his claim of automatic unfair dismissal. 3. On or before 7 June 2019, the claimant shall send to the respondent, copied to the Tribunal, a written statement with supporting documentation setting out:-(a) what the claimant seeks by way of remedy if the claim succeeds;(b) whether the claimant was a member of the respondent’s pension scheme and, if so, whether that was a defined contribution scheme or a defined benefit scheme;(c) if the claimant seeks the remedy of compensation, how much is sought in respect of each complaint with a detailed explanation of how each sum is calculated;(d) details of any benefits received;(e) a summary of jobs applied for, details of any interviews attended or jobs obtained and details of any income whether from temporary, casual or permanent employment or self-employed work; and(f) details of any other efforts made by the claimant to minimise his loss. 4. Within 7 days of receipt of this statement, the respondent shall write to the claimant, copied to the Tribunal, setting out: (a) whether it will argue that the claimant has failed to minimise his loss and if so, what further steps the respondent says the claimant should have taken in this regard (b) whether the information provided about the pension scheme is correct. 5. The respondent may serve an amended response, so as to arrive with the Tribunal and the claimant on or before 21 June 2019. 6. On or before 28 June 2019, the parties shall provide copies to each other of any documents upon which they intend to rely at the final hearing. 7. On or before 12 July 2019, the respondent shall prepare a set of documents for use at the final hearing, in chronological order and with numbered pages, incorporating all documentary productions intended to be referred to at the hearing by either party and shall provide a copy to the claimant. 8. On or before 2 September 2019, the parties shall agree a cast list of individuals the Tribunal are likely to hear from/about and a short, neutral, chronology of key events. 9. On or before 2 September 2019, the claimant shall provide to the respondent, with a copy to the Tribunal, an updated written statement of the calculation of the sum claimed (together with copies of any additional supporting documentation). 10. On or before 4pm on 5 September 2019, the respondent will lodge two copies of the joint bundle with the Tribunal, as well as the cast list and chronology. 11. The case will be decided at a full hearing lasting 3 days, before an Employment Judge sitting alone at the Employment Tribunal in Edinburgh, on 10 – 12 September 2019 inclusive. A separate Notice of Hearing will be issued.”[13]The document, the terms of which the claimant asserts constitute his full compliance with the above Order, is the 19 page email, dated and intimated by the claimant to the respondent’s representative on 8 June 2019, sent to the Tribunal in tendered compliance with the 30 May 2019 Order and which is copied and produced by the respondents at pages 8 to 25 inclusive of their bundle. Submissions for the Respondent[14]Under reference to his skeleton argument, the respondent’s representative submitted as follows.(a) That a comparison of the terms of the Order of 30 May 2019, on the one hand, with the terms of the 8 June 2019 email intimated in tendered compliance, on the other hand, readily disclosed that the Order had not been complied with; neither timeously, the period for compliance having expired at midnight on 7 June but the tendered document not being intimated to the respondent until 8 June at 1638 hrs, nor in terms of its content.(b) That the Tribunal’s Jurisdiction to Strike Out the claim in terms of Rule 37(1)(c) was thus awakened and that the primary sanction sought by the respondent, for the reasons which he subsequently set out, was that the claim be struck out which failing be made the subject of a Deposit Order in terms of Rule 39(c) In the alternative, let it be assumed that the claim was not struck out, that reiterated direction regarding compliance be made the subject of an Unless Order in terms of Rule 38.(d) That any such further direction issued be in terms which, let it be assumed it was complied with, would have effect to (i) Narrow down the factual allegations (ii) Provide specification of each such allegation in the terms set out in the 30 May 2019 Order and (iii) Result in compliance with the terms of the currently non-complied with elements of the 30 May 2019 Order. Non-Compliance[15]The 8 June 2019 email, relied upon by the claimant and tendered by him in compliance was:(a) Provided only after the expiry of the deadline of 7 June 2019(b) Failed to identify which if any sub-section of section 100 of the ERA the claimant intended to rely upon, something required to properly identify which of the Tribunal’s Jurisdictions was being invoked(c) The numerous instances set out in the 17 page document failed to identify, variously, the identity and positions of each individual to whom the allegations were raised, and or what was said, and or the date of the alleged incident.[16]Neither in the terms of that document, nor otherwise, had the claimant provided the respondent with any of the details as to remedy and or mitigation directed at paragraph 3 of the Order.[17]Neither had the claimant provided the respondent with details or copies of the documents upon which he intended to rely either on or before 28 June 2019 or at any time following the expiry of that deadline; all in non-compliance with the requirements of paragraph 6 of the Order.[18]In summary, the respondent’s representative submitted that there had been no attempt to comply with paragraphs 2, 3 and 6 of the 30 May 2019 order either prior to the expiry of the deadlines prescribed or at all.(a) In relation to paragraph 1 sub-paragraphs (a), (b), (c) and (d) the specification which the claimant bore to provide in the 8 June email.(b) Although contained within a voluminous document in terms of which the claimant sought to rely on some 60 asserted potential incidents, failed variously to provide, in relation to these incidents one or other or more of the specification directed at sub-paragraphs (a) to (d) of paragraph 1 of the Order.(c) The non-compliance with the terms of paragraph 1 was substantial and significant.[19]The non-compliance with paragraphs 2, 3 and 6 of the Order was total.[20]While recognising that the claimant appears as a party litigant it remained the case, in relation to substantial parts of the Order, that he had made no attempt to comply and the responsibility for non-compliance sat squarely with the claimant in that it was he who had the conduct of his case.[21]The respondent’s representative submitted that the impact of the non-compliance was significant in circumstances where the case was currently set down to proceed to a three day final hearing on 10 September 2019. The respondents, in consequence of the claimant’s non-compliance were in a position where they did not have fair notice of the case which they faced, or specification of the statutory provisions relied upon and the particular jurisdiction of the Employment Tribunal which was being invoked.[22]In consequence they were unable to take a proper and fair view of what witnesses will be required, or indeed, in terms of any litigation risk, the quantification of the claim and thus their potential exposure in terms of remedy. All of the above combined resulted in a fair trial of the claim on the current pleadings not being possible. The respondent’s counsel reminded the Tribunal of its obligation to have regard to the overriding objective which test necessitates dealing with cases justly and fairly, that being a requirement which applies in relation to both respondents and the claimant.[23]On the above basis the respondent’s representative reiterated the sanction/remedy sought inviting the Tribunal to determine the same in the primary and alternative order already set out. Submissions for the Claimant[24]With a view to doing justice to the claimant’s submissions I set them out verbatim and as contemporaneously noted by me. Having clarified in answer to inquiry by the Tribunal, that when he made reference to “Judge Macleod” he in fact was referring to the Orders and note of output issued by Judge Sangster on and following the Closed Preliminary Hearing (Case Management Discussion) of 24 May 2019, the claimant, Mr Amos, responded in submission as follows:- “What the respondents say are exaggerated lies. I think I have complied exactly with what the Judge asked me to do. I have made clear. He” [Mr Wilkinson, Counsel for the respondent; Battery Point was a verbal, I missed out the names of the persons. The Hospital – CBRE Livingston was removal of man safety harnesses for being within a metre of the edge, I missed out the names – photographs sent. What I relied on, I am relying on my diary”.[25]In response to inquiry by the Tribunal as to why that intention (to rely on his diary) had not been disclosed by the claimant and copies of the diary not been provided to the respondent on or before 28 June 2019, in compliance with paragraph 6 of Judge Sangster’s Orders of 24/30 May 2019, the claimant continued:- “Because I broke my diary down 2016 I did not work in 2016” [the respondent’s counsel clarified that he had made no mention of 2016.][26]In response to the respondent’s earlier made contention that they did not have fair notice of the case that they were to meet and thus, were unable to take a view on what witnesses they would require to lead in evidence in order to address it, the claimant continued:- “They are going with false allegations so it will be easy for them to get witnesses. About verbal complaints these were always going to be denied so I am going to have to rely on the record of texts and photos sent which I have clearly detailed in my complaints forwarded to the court. That’s basically everything, it is just a lot of exaggerated made up lies about what they are saying I’ve done exaggerated means it’s a lie anyway. I feel I have complied with everything that the Judge ordered and said in my email of 8th June which was sent a bit late.”
Applicable Law
[27]The principal application is one which proceeds in terms of paragraph 37(1)(c) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. That Rule provides as follows:- “37 Striking Out (1) At any stage of proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds (a) … (b) … (c) for non-compliance with any of these rules or with an order of the Tribunal …..”[28]Rule 38(1) provides as follows:- “38 Unless orders (1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.”[29]Rule 39(1) provides as follows:- “39 Deposit orders (1) Where at a preliminary hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1000 as a condition of continuing to advance that allegation or argument. …”[30]Rule 2 is in the following terms:- “2 Overriding objective 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.” Discussion and Disposal[31]The position adopted by the claimant at the Open Preliminary Hearing was straightforward in that the sole ground upon which he opposed the application for strike out and or the alternative sanctions sought by the respondents was that of disputing the predication of fact upon which it was advanced. The claimant denied that he had failed to comply with the Tribunal’s Order of 30 May 2019. He asserted that his email of 8 June 2019, albeit a little late, nevertheless constituted full compliance with the Order. The claimant provided no explanation for the “short delay” in his tendered compliance. Neither did he advance any explanation or excuse for any element of the alleged non-compliance his position being that his email of 8 June constituted full compliance with the Order. The Issue of Non-Compliance[32]A comparison of the terms of the email of 8 June, on the one hand, with the terms of the Tribunal’s Order of 30 May 19, on the other, readily discloses that the tendered document does not constitute compliance with the Order. The 8 June email contains no attempt to comply with the terms of paragraphs 2, 3 or 5 of the Order. No assertion of compliance with those paragraphs, by some other means, is made.[33]Regarding paragraphs 1 sub-paragraphs (a), (b), (c) and (d) of the Order, while the 8 June 2019 email bears to give notice of a large number of instances of asserted communication a substantial number of these fail to include one or other or more of the particulars directed at sub-paragraphs (a), (b), (c) and or (d) of paragraph 1 of the Order.[34]I am satisfied and find in fact that the Tribunal’s Order of 30 May 2019 has not been complied with and that accordingly my discretion to strike out the claim in terms of Rule of Procedure 37(1)(c) is awakened.[35]That discretion, once awakened, falls to be exercised judicially in consideration of all of the relevant circumstances pertaining in any particular case and including in the instant case the fact that:-,(a) As properly recognised by counsel for the respondent, the claimant appears as a party litigant (a litigant in person) whereas the respondent company enjoys the benefit of legal representation, albeit also incurring the associated cost of the same;(b) The Employment Tribunal is a forum created and designed by Parliament as one in which parties may seek to access justice as litigants in person without the requirement to be represented whether legally or otherwise. In a large proportion of cases litigated, before the Tribunal one or other or both of the parties appears in person without the benefit of representation and in doing so successfully access justice.[36]Litigations which proceed before the Employment Tribunal are subject to the application of the Principles of Natural Justice which impose upon each party an obligation to provide the other with fair notice of the case which it is to meet. Parties and their representatives are further under obligation, in terms of Rule of Procedure 2, to assist the Tribunal in furthering the Overriding Objective and in particular to cooperate generally with each other and with the Tribunal. The application of those principles and that Rule include a requirement that parties obtemper, that is to say comply with, Orders and directions issued by the Tribunal for the purposes of furthering the overriding objection, including Case Management Orders such as the Tribunal’s Order of 30 May 2019.[37]The Employment Tribunal is not a court of common law such as the Sheriff Court or the Court of Session. Rather, it is a statutory court possessing jurisdiction to deal only with those cases in respect of which Parliament has given it jurisdiction. It is accordingly necessary that any party bringing a claim before the Employment Tribunal, sooner or later, provides sufficient specification of their claim and of any statutory provisions relied upon such as to place it squarely within one or other of the Tribunal’s many statutory jurisdictions.[38]Recognising that parties bringing and or defending claims before the Tribunal may frequently do so on their own behalf in the capacity of party litigants, the Tribunal has for many years pioneered proactive case management both on paper and at Closed Preliminary Hearings (now increasingly adopted in the civil courts). That case management is designed:(a) to facilitate parties ensuring that each gives the other fair notice of the case to be met,(b) allow the Tribunal to be satisfied as to the competency of its jurisdiction to hear and determine a claim; and,(c) to focus, identify and record the issues requiring consideration and determination by the Tribunal at an appropriate hearing of sufficient duration together with(d) identifying the sources of documentary and oral evidence which will require to be placed before the Tribunal at such a hearing.[39]The Case Management Orders of 30 May 19 issued by Judge Sangster were Orders designed to facilitate the above and which, if complied with:-(a) would have focused the questions of fact and of law requiring determination by the Tribunal(b) would have narrowed and focused the issues of fact upon the proof of which the success or failure of the claim would depend; and, would have further facilitated the preparation, by each party of the case in advance of and for hearing, on the three days currently set down for that purpose on 10, 11 and 12 September 2019.[40]The Orders issued are in clear, concise and comprehensible terms. No issue was raised, either at the Case Management Discussion on 24 May, subsequent to the written copies of the Orders being sent to parties on 30 May or at the Open Preliminary Hearing proceeding on 22 August 2019 as to the meaning/construction/interpretation of the Orders. They were issued to assist parties, not least the claimant as a party litigant, in the discharge of their obligations owed both to the Tribunal and to the other party.[41]The fact that one or other party appears as a litigant in person in no way absolves them of their obligation to comply with the Orders of the Tribunal. Neither is it for parties to determine which parts of the Order in their view need to be complied with and which are in their view unnecessary or can be ignored by reason of an intention on their part to proceed in some other way. A party finding themselves in a position where they are unable to comply or do not wish, for a reason not previously articulated, to comply with the terms of an Order has available the proper course of action of making application, in accordance with the Rules, for Variation or Suspension of the terms of the Order.[42]The claimant has so failed to comply. That non-compliance is, in relation to paragraphs 2, 3 and 6 of the Order complete in the sense of no attempt whatsoever having been made to comply and, in relation to paragraph 1 of the Order, the non-compliance is substantial.[43]The effect of the claimant’s non-compliance is to leave the respondents, at a time less than 14 working days from the commencement of a listed final hearing, in a position where they have not received fair notice of the case which they are to meet including as to the nature of the claim/claims which the claimant seeks to advance and of the relevant statutory provisions founded upon such as to allow them to properly prepare to conduct the hearing; and to leave the Tribunal in a position where it is not possible to identify and record the issues to be determined at the hearing including the preliminary issue of whether the claimant has or does not have Title to Present and of whether the Tribunal has or does not have Jurisdiction to hear the claim.[44]In consequence the case cannot proceed to final hearing on 10, 11 and 12 September and I grant the respondent’s application, made in the course of Open Preliminary Hearing, that the September dates currently set down for final hearing be vacated and that thus parties be spared the expenditure of resource and the incurrence of cost associated with preparing for what would inevitably become an abortive hearing. That application was determined by me in the course of the afternoon of 22 August and parties advised of it by notice consigned to first class post that day.[45]I grant that application notwithstanding the claimant’s opposition to it. That opposition was predicated entirely upon a consideration of his own interests in the matter and upon what appeared to be an erroneous assumption on his part that at such a hearing he would be entitled to advance claims in respect of which he had provided only partial specification notwithstanding his continuing non-compliance with the Tribunal’s Orders; and without any consideration of the position in which his non-compliance has placed the respondents in relation to the conduct of the final hearing.[46]It is not part of the Tribunal’s function, in adversarial proceedings, to sift through the 17 page 8 June email seeking to extract from it elements which have the potential to be compliant with the Tribunal’s Order, and to thus construct Further Particulars by which the claimant’s claim is to be supplemented. To seek to do so would put the Tribunal at risk of acting and of being seen to act partially in the course of proceedings.[47]The email of 8 June, lodged by the claimant in tendered compliance with the Tribunal’s Order of 30 May 19, is not compliant with the order and it is accordingly not received by the Tribunal as Further Particulars of Claim.[48]Absent further particularisation, the initiating application ET1 is one which fails to disclose a sufficiently specific and thus relevant claim in respect of which the Tribunal can be satisfied it has the necessary determinative jurisdiction and fails to give the respondents fair notice of the case which it has to meet.[49]The claimant’s maintained position that he has complied fully with the Tribunal’s Orders is one which it is difficult to credit in circumstances where the noncompliance is evident upon the face of the Orders on the one hand and of the 8 June 2019 email on the other. Particularly so in circumstances where no issue is raised as to interpretation or understanding of the requirements of the Order nor any explanation or excuse tendered for non-compliance. There is a risk, if such non-compliance were to be persisted in, that it may be regarded as a contumelious disregard for the authority of the Tribunal and a disregard of the obligations imposed upon the claimant, under Rule 2, to assist the Tribunal in facilitating the Overriding Objective. Were I able to be satisfied at this juncture in proceedings, that that was indeed the attitude being adopted by the claimant to the conduct of the litigation I would have little hesitation in striking the claim out.[50]The primary function of sanction for non-compliance however is to promote compliance, whereas the sanction of strike out brings with it a finality.[51]I accordingly record the fact of the claimant’s non-compliance with sub-paragraphs 1, 2 and 3 of the Tribunal’s Orders of 30 May 2019 as at 7 May, the date of expiry of the period during which compliance was directed; and separately and further records, as at 22 August 2019, the claimant’s continuing non-compliance with those Orders.[52]On balance, and in furtherance of the Overriding Objective, I decline on balance to strike out the claim, at this juncture in proceedings and afford the claimant one last opportunity of fully complying with the Tribunal’s Orders, as varied as to time for compliance and reiterated by me in terms of Order (Fourth) hereof and, in terms of Order (Fifth) hereof, I make such reiterated order subject to an Unless Order in terms of Rule 38 with the effect that, if paragraphs 1, 2, 3 and 6 of paragraph (Fourth) of the reiterated Orders of 30 August 2019 are not complied with by the dates specified in them, the claimant’s claim shall be dismissed without further order and without the requirement for further procedure.[53]Following the expiry of the period, allowed for compliance with the reiterated Orders of today’s date 30 August 2019 and of the time allowed to the respondent for any adjustment of the ET3 in response thereto the case file should be referred to me for the issue of further direction.[54]Meantime, I reserve to myself the determination of any question as to whether the reiterated Orders of today’s date have been complied with and of any application for supplementary direction related to those Orders. Date of Judgment: 30 August 2019