Miss D Middleton v Mitsubishi Electric Air Conditioning Systems: 4107530/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4107530/2019

Venue Edinburgh

Hearing 6 September 2019

Between

Miss D MiddletonClaimant

Mitsubishi Electric Air Conditioning SystemsRespondent

Before

Employment Judge I Atack

Date 19 October 2019

JUDGMENT

The judgment of the Employment Tribunal is that the claimant’s claims of unfair dismissal and of disability discrimination are dismissed.

REASONS

Introduction

[1]In this case the claimant has brought claims of unfair dismissal and disability discrimination. ETZ4(WR)

[2]This was a preliminary hearing fixed for case management purposes. Parties had been advised of the date and time of the preliminary hearing by letters from the Employment Tribunal dated 5 July 2019.

[3]Following the submission of the ET3 by the respondent letters were sent to both parties on 13 August 2019 advising that the case would proceed as per the letter of 5 July. The letter of 13 August also informed the claimant, on the instruction of Employment Judge Gall “that disability is a matter of dispute, it may be helpful for her to consider prior to the preliminary hearing whether she wishes to authorise release of relevant medical records to the respondents. This would be with a view to persuade the respondents that she was at the relevant time disabled in terms of the Equality Act 2010. This could be discussed at the case management preliminary hearing”.

[4]Both parties had completed and returned their respective Agendas for the preliminary hearing.

[5]When the case was called at 10 o’clock the claimant was not present. I instructed the clerk to try to ascertain the reason for failure to appear at the appointed time. The clerk tried 4 times to contact the claimant between 10 o’clock and 10.30 but was unable to do so.

[6]At 10.30 I had the case called again. The claimant was still not present.

[7]In the absence of the claimant Mr Munro requested me to dismiss the case in terms of Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[8]Rule 47 provides that if a party fails to attend or be represented at the hearing, the Tribunal may dismiss the claims 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 reason for the party’s absence.

[9]The respondent does not accept that the claimant has a disability within the meaning of section 6 of the Equality Act 2010. In this case in view of the absence of the claimant I did not consider it was possible to proceed with the hearing as the matters which should be discussed at a case management preliminary hearing are not capable of being discussed due to her absence.

[10]I raised with Mr Munro the possibility of simply fixing a preliminary hearing to decide the question of the claimant’s disability status but he was against that course of action. Mr Munro submitted that the claimant had been advised in the letter of 13 August to consider whether she wished to authorise release of the relevant medical records but nothing had been heard about that.

[11]I accepted that this is the claimant’s case and she was not present to pursue it. If I simply continued the case to a further preliminary hearing to deal with the question of disability status then that would undoubtedly involve the respondent in further expense which might prove to be unnecessary.

[12]In the circumstances having considered all the information available to me and taking into account the fact that the claimant could not be contacted I decided to dismiss both of the claimant’s claims.

[13]The claimant is entitled if there is a reasonable explanation for her non-attendance to apply for a reconsideration of this judgment within 14 days of its being sent to her, in terms of Rule 71. Date of Judgement: 6th September 2019

[1]This was an application for reconsideration by the claimant of a judgment dismissing her claims of unfair dismissal and disability discrimination, due to her non-attendance at a preliminary hearing on 6 September 2019.

[2]That preliminary hearing had been set for case management purposes. The judgment dismissing the claimant’s claims was dated 6 September 2019 and sent to the parties on 11 September 2019.

[3]On 13 September 2019 the claimant sent an email to the Employment Tribunal advising that she had not been able to attend the preliminary hearing due to medical reasons. That email was treated as an application for reconsideration under rule 71 of the first schedule of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, (the “rules”).

[4]The application was not refused in terms of rule 72 (1).

[5]The respondent was asked to respond to the application and did so by email of 23 September 2019. In that email they stated they opposed the application and set out their reasons for opposition.

[6]The parties were asked for their views on whether the application could be heard without a hearing. They agreed it could so proceed.

[7]The claimant’s basis for the application is that she was unable to attend the preliminary hearing on 6 September 2019 due to medical reasons. Specifically, she claimed she suffered from abscesses which caused her pain when she walked.

[8]She claimed that her phone had been cut off and she was unable to walk, these being the reasons for failing to inform the Employment Tribunal she would not attend the preliminary hearing.

[9]In response to questions posed to the claimant she provided further information.

[10]It was her position that her abscesses can appear without warning and, if they do, she suffers from what she described as “agonizing pain”. She stated she had been on a recent course of antibiotics for the abscesses.

[11]She stated she realised on 5 September that she would be unable to attend on 6 September but could not contact the Employment Tribunal as her phone had been cut off and she could neither make nor receive calls. She stated she does not have access to the Internet at her home. She claimed to have no money to top up the phone.

[13]In response to a question as to whether she could obtain a letter from her doctor confirming what she had stated about her being unable to attend due to a medical reason, she responded that it would cost her £20 to get a letter from her doctor and at present she did not have the money to do so. She stated she was in receipt of universal credit. Her position was that she would obtain the letter as soon as she could pay for it.

[14]The claimant also alleged that she suffered from mental health issues, but these were not further specified.

[15]The basis of the respondent’s objection was that the claimant had notice of the preliminary hearing and was well aware that the issue of disability was disputed. They had prepared for the hearing on 6 September and had incurred costs in attending, which were wasted as a result of the claimant’s failure to appear.

[16]Under rule 70 an Employment Tribunal has power to reconsider its judgment where “it is necessary in the interests of justice to do so”.

[17]It is clear that the “interests of justice” relates to the interest of justice to both sides.

[18]In this case I was satisfied that the claimant had given a prima facie explanation for her non-attendance at the preliminary hearing on 6 September and for her failure to inform the Employment Tribunal in advance that she would not be able to attend. Although there was no corroboration of what she had stated I decided in the circumstances to take she had said at face value. There was nothing to suggest that what she was stating was untrue.

[19]If the application was to be refused the claimant would not be able to pursue her claims, which would remain dismissed. On the other hand, if the application was to be granted she would be put back into the position of being able to pursue her claims and of dealing with a new preliminary hearing at which the same issues would be discussed as had been intended for the preliminary hearing on 6 September.

[20]The respondent on the other hand would suffer the disadvantage of incurring further expense in attending another hearing. That is the only prejudice they would suffer as it has not been suggested that their defence of the case would be disadvantaged by the granting of the application, such as, for example, evidence being lost or witnesses being unavailable.

[21]Taking all matters into account I considered that in this case the interests of justice favoured revoking the judgment of 6 September and thereafter assigning a new date for a preliminary hearing to discuss the matters it had been intended to discuss at the preliminary hearing which had been fixed for 6 September 2019.

[22]In her emails to the Employment Tribunal regarding her application for reconsideration the claimant has repeatedly referred to herself as being disabled. I would remind her that, as previously intimated to her, the respondent does not accept that she is disabled within the meaning of section 6 of the Equality Act 2010. Merely asserting that she is disabled is not sufficient and, given the respondent’s position on the matter, is something which will have to be proved in due course. That can be discussed at the continued preliminary hearing. Nothing in this judgment should be read as indicating that the Employment Tribunal has accepted the claimant is disabled. That is something which will require to be decided at a future hearing. Date of Judgment: 19 October 2019

[1]In this case, a Preliminary Hearing was listed to take place on 30 January 2020 at 10am for the purposes of case management.

[2]The claimant did not attend at the hearing, nor was she represented. The respondent was represented by Mr Munro, solicitor.

[3]The Tribunal issued a Judgment dismissing the claim in its entirety, on the basis that this was the second hearing at which the claimant had not ETZ4(WR) attended, without giving any indication that she would not or could not attend.

[4]The claimant sent two emails to the Tribunal on 30 January 2020, in which she described herself as “at home in a right state scared”, and enclosing a doctor’s letter, in one, and in the other, she said that she was “now at home having panic attacks”.

[5]The first email did not in fact enclose a doctor’s letter, but a short letter from an Advanced Nurse Practitioner at her General Practice. In that letter, Ms Boyle said that she had recently changed medical practice, and therefore that they had very limited information and minimal contact with her. However, she narrated that the claimant had previously had diagnoses of depression and emotionally unstable personality on 15 December 2015. There was no information contained in the letter which described any treatment administered to the claimant in respect of these conditions, and no information as to any recent contact with the practice for advice or support in relation to them.

[6]This was treated as an application for reconsideration by the claimant, and not immediately dismissed. The respondent was therefore given the opportunity to respond to the application, and did so, opposing it in strong terms and pointing out that the claimant had previously been given clear information by the Tribunal as to the steps she required to take in order to allow her to continue with her claim.

[7]A hearing on reconsideration was listed to take place by telephone conference call (due to the constraints in place during the coronavirus pandemic) at 9.55am on 14 April 2020. The claimant did not attend the hearing. Mr Munro attended on behalf of the respondent.

[8]I waited until approximately 10.13am and concluded the hearing. I indicated to Mr Munro that in the absence of the claimant, and on the basis of the information presented by her, I was not minded to grant the application for reconsideration, but that I would invite the clerk to contact the claimant to give her one final opportunity to explain her non-attendance, but with a deadline of 11.30am.

[9]The clerk then emailed the claimant to invite her to communicate with the Tribunal by that time. I did not suggest to the clerk that she should attempt to telephone the claimant, as previous experience has shown that the claimant has not responded to such attempts to contact her, partly due to difficulties in having her phone cut off.

[10]There was no reply from the claimant to that email.

[11]As a result, the application falls. The claimant has clearly struggled to attend to this matter, and to present herself for several hearings. The medical information provided is very limited, and while it does confirm that in 2015 the claimant was diagnosed with depression and emotionally unstable personality, there is nothing available to me to confirm the extent to which such conditions currently affect the claimant, or the extent to which her failure to attend three separate hearings now can be explained by her medical conditions. I have noted the terms of the claimant’s emails, which suggest that she is incapable of attending a Tribunal hearing, but the Tribunal must take into consideration the interests of justice not just for the claimant but also for the respondent, who has now attended three hearings without any progress being made in the case.

[12]The claimant has failed to advance her application for reconsideration, and has failed to provide any basis upon which that application should be granted. In my judgment, it would not be in the interests of justice to revoke or vary the Judgment, and therefore the application for reconsideration is refused.