Ms M Wieteska v HC-One Ltd: 4107851/2020 Ms M Wieteska v HC-One Ltd: 4107851/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107851/2020
Between
Ms M WieteskaClaimantHC-One LtdRespondent
Before
Employment Judge R GallMs L Murray (instructed by Solicitor) for respondentDate 17 March 2022
JUDGMENT
[1]The Judgment of the Employment Tribunal is that the elements of claim relating to incidents of discrimination said to have taken place prior to 11 July 2020 are time barred. The Tribunal has no jurisdiction to hear them. It is not considered just and equitable to extend time to enable those allegations to be considered.[2]The application for strike out of the claim is refused. Orders are issued as now set out. UNLESS ORDER UNLESS THIS ORDER IS COMPLIED WITH BY THE DATE SPECIFIED, THE CLAIM SHALL BE DISMISSED ON THE DATE OF NON COMPLIANCE WITHOUT FURTHER ORDER. The claimant says that acts of direct discrimination have occurred. Her protected characteristic is that of her nationality, being Polish. She says that she has been treated less favourably because of her Polish nationality. Within 28 days of the date of this Note and Order, the claimant is to answer the following questions:-[1]What does the claimant say is the less favourable treatment because of her Polish nationality, the acts of discrimination by the respondents, she experienced in the period after 11 July 2020? Who carried out each of those alleged acts?[3]When after 11 July 2020 did each of those alleged acts take place? (please provide the day and month and the time of day as that is recalled, together with who was there if there were any witnesses)[4]Does the claimant say that she was treated less favourably than another actual employee of the respondents who was not Polish and who was in the same circumstances as she was?[5]If the answer to question 4 is “yes”,(a) Who was that employee and what was their nationality?(b) How was the other employee treated by the respondents in the circumstances which are the same as those of the claimant?(c) Why was that treatment more favourable than the treatment the claimant experienced in those circumstances?(d) Why is it that she regards her less favourable treatment as being because of her Polish nationality?[6]If there was no such actual employee, does the claimant say that had there been an employee in the same circumstances as she was and who was not Polish, the claimant would have been treated less favourably than the other hypothetical employee because the claimant is Polish?[7]If the answer to Question 6 is “yes”, why does the claimant say that?[8]The claimant has specified in her document of 6 March 2021 that she seeks £16,000 for “loss of mental health”.(a) Is that the total sum she asks the Tribunal to award if successful?(b) If not, what sum does she ask for?[9]How has the claimant arrived at the sum of £16,000 or any other amount she states?[10]Does the claimant rely on any medical information in support of her financial claim? If so a copy of it is to be provided within the 28 days for compliance with this Order. IMPORTANT INFORMATION ABOUT ORDERS(1) You may make an application under rule 29 for this order to be varied, suspended or set aside. Your application should set out the reason why you say that orders should be varied, suspended or set aside. You must confirm when making the application that you have copied it to the other parties and notified them that they should provide the tribunal with any objections to the application as soon as possible.(2) If this order is not complied with, the tribunal may make an order under rule 76 (2) for expenses or preparation time against the party in default. If the order is not complied with, the tribunal may strike out the whole or part of the claim or response under rule 37.
REASONS
[1]This Preliminary Hearing (“PH”) took place by video conference call on 29 November 2021. The claimant, Ms Wieteska participated. Ms Murray participated for the respondents. An interpreter who assisted with translation, Ms Szydlowska, was also present on the video call and translated into Polish for the benefit of Ms Wieteska when the Employment Judge or Ms Murray spoke, and into English for the benefit of the Employment Judge and Ms Murray when the claimant spoke. Ms Wieteska can read and write in English, however spoken English is problematic for her, hence the involvement of the interpreter in this and earlier PHs. The Tribunal is grateful to the interpreter.[2]The PH was held by video conference (CVP) with agreement of the parties and given the pandemic.[3]The PH was set down to determine whether elements of the claim made were presented out of time. Those elements occurred in 2014 in the case of one and 2018 in the case of the other. The claim was presented on 14 December 2020. Notification of the claim had been given to ACAS on 7 October 2020.[4]Those 2 elements were the only ones alleged to have occurred prior to events said to have happened on or after 11 July 2020. It was accepted that a claim in respect anything said to have occurred after 11 July 2020 had been presented in time.[5]Whether either or both of the 2 elements referred to could proceed as part of this claim turned upon whether they were part of conduct extending over a period, linked therefore to events after 11 July 2020. An alternative means by which the 2 elements of claim mentioned could proceed would be if the Tribunal was persuaded to exercise its discretion and to extend time for presentation of those elements of claim on the basis that it was just and equitable for it to do so.[6]Prior to the PH the respondents had submitted a bundle of documents. They had also sent in their submission in relation to time bar. Ms Wieteska confirmed that she had those documents and anticipated that the PH would deal at this PH both with the question of time bar and the application for strike out.[7]Ms Wieteska made submissions, as did Ms Murray, on both time bar and possible strike out. Ms Wieteska gave evidence as to any facts she relied upon to persuade the Tribunal that it was just and equitable to extend time, in the event that the Tribunal found that the 2 elements of claim mentioned above were presented out of time.[8]Having heard from parties in relation to time bar, the PH adjourned. This was to enable me to consider the material before me and to come to a view on the question of time bar and potential extension of time on the basis that so proceeding was just and equitable. After the adjournment I announced my decision, with reasons. The reasons set out in this Judgment confirm those given at the PH.[9]The PH then dealt with the question of strike out. Both parties made submissions. The Tribunal adjourned over an extended lunch and, on resumption announced its decision. The reasons given in this Judgment confirm those given at the PH. Time Bar[10]The claim relates, in the main, to events in 2020. It was presented on 14 December 2020, a claim having been notified to ACAS on 7 October 2020, as mentioned above.[11]A claim under the Equality Act 2010 (“the 2010 Act”) requires to be brought within 3 months starting from the date of any alleged discrimination. Unless any earlier events formed part of conduct extending over a period, any alleged acts of discrimination prior to 11 July 2020 would be time barred. This is in terms of Section 123 of the 2010 Act.[12]In assessing whether conduct extending over a period has occurred, a Tribunal should consider the gap between events said to be connected, the nature of those events, whether the personnel involved are the same and also whether the event in question which is said to be connected is a single event or is itself something which continued over a period.[13]A claim which is time barred can be permitted to proceed if the Tribunal is persuaded that it is just and equitable that this happens (Section 123 of the 2010 Act). In making any such assessment a Tribunal properly has regard to the extent of the delay in bringing any such matter to the Tribunal, the reason for any such delay, the knowledge of a claimant and whether a claimant has had the benefit of legal advice at any point, prejudice to each party if time is extended enabling the element of claim to proceed or, on the other hand, if time is not extended and any risk to availability or quality of evidence of the events due to passage of time. The general principles of equity and fairness are to be kept in mind. Case law confirms that the exercise by a Tribunal of its discretion is not automatically in favour of time being extended. In case law the comment has been made and approved that exercise of discretion is the exceptional rather than the rule.[14]The first question to be considered was whether the earlier events were linked to those after 11 July 2020 in that they formed part of conduct extending over a period.[15]The earlier events were in 2014, (the PVG registration issue) and 2018, (the issue over a photograph of the claimant being taken).[16]The people involved were different, albeit they were employees of the respondents. Those involved in 2014 were not involved in either the 2018 or 2020 incidents alleged. Those involved in the 2018 incidents were not involved in the 2014 or 2020 incidents alleged.[17]The nature of the incidents were different. Further, each of the earlier events involved distinct events rather than ongoing conduct. There was no policy or ongoing provision of the respondents said to be involved. The gap in time between 2014 and 2018 was significant. The gap between the incident in 2018 and events from July 2020 onwards was also reasonably large. I also took into account the claimant’s own comments when she had provided further particulars to the Tribunal. She had said in March 2021 that she did not see the events as being related.[18]I appreciated that the claimant says that the conduct overall showed how the respondents treated immigrants, as she put it. I did not see, however, that in law there had been conduct extending over a period to enable the events said to have occurred in 2014 and 2018 to be regarded as having been brought within the relevant time limit when this claim was presented. Possible extension of time[19]I next considered whether it was just and equitable to extend time enabling the claim in relation to the time barred elements to proceed.[20]The onus is on the party seeking such an extension of time to persuade the Tribunal that its discretion ought to be exercised to grant an extension of time.[21]A Tribunal relevantly considers the elements mentioned above, namely passage of time, prejudice to respective parties, any advice taken, any risk to availability or quality of evidence and equity and fairness. As detailed above, exercise of discretion is the exception rather than the rule. Time limits are present in statute for a reason.[22]In this case the claimant confirmed in evidence that she had the benefit of legal advice from a solicitor in both 2014 and in 2018. She took advice in relation to the events she now sought to reply upon. She also had advice about the events of 2014 from Citizens’ Advice Bureau at that time. In her evidence the claimant was unable in my view to explain why it was that she had not pursued any claim of discrimination in relation to the events in 2014 or 2018 and now sought to do that. I certainly heard no information from her upon that point.[23]I realised the significance to the claimant of the events to which she referred and the impact those had had upon her. I also appreciated the impact my decision would have upon her.[24]Nevertheless, I did not see, applying the relevant principles to the facts before me, that it was just and equitable to extend time to enable the claim to proceed in relation to the events of 2014 and 2018. In particular the fact that the claimant had had legal advice was important in my view, as was the passage of time since the events in question. Those involved in the earlier incidents are no longer with the respondents. Evidence therefore is reduced in quality and indeed availability due to the length of time between these alleged events and the claim being made.[25]Time is therefore not extended. The claim will proceed in respect of events alleged to have occurred after 11 July 2020. Possible Strike Out[26]The PH then went on to consider possible Strike Out of the claim.[27]Following upon a PH held for case management purposes in February 2021 Orders were issued. Those were issued with a view to specification of the claim being obtained and to try to obtain details of the loss which the claimant sought as an award if successful.[28]The claimant replied with some information. She did not, however, specify a comparator, actual or hypothetical, or explain why it was that she concluded the treatment she complained of had been because of her nationality, as opposed, for example, to there having been decisions made by her employers which she regarded as wrong. The claimant stated in her reply that her claim (insofar as that is now being heard by the Tribunal) should result in an award to her of £16,000 in respect of damage to her mental health.[29]In July of 2021 another PH took place. The Employment Judge then presiding reissued, in effect, the Orders made following the PH in February 2021. He ordered in paragraph 10 that the claimant detail what she sought by way of remedy if the claim succeeded and how much was sought in respect of each complaint, with information as to how that was calculated.[30]There was no reply to the terms of the Order in paragraph 10. Further information was given by the claimant in August 2021. No comparators were detailed.[31]The Tribunal wrote to the claimant on 3 September and 13 October reminding her of the need to comply with the terms of the Order in paragraph 10 of the Note of 19 July. There was no reply to either of these letters.[32]In those circumstances a Strike Out warning letter was issued to the claimant on 22 October 2021. It required an answer/compliance with the Orders by 8 November 2021. There was a reply objecting to strike out. There was no further information on the claim or in respect of compensation.[33]In those circumstances the respondents maintained that strike out should result. Attempts had been made, they said, to have the claim clarified and specified. The claim was approaching being a year old, however the respondents remained unclear as to the case being advanced. It appeared the claimant was not actively pursuing her case, they said.[34]The claimant resisted strike out. She had replied as best she could and believed she had answered all asked of her. She had given a figure for the sum she asked for.[35]I considered the circumstances and reflected upon the respective positions of parties and the principles to be applied in a situation such as this. I adjourned the PH to do this and thereafter resumed the PH to announce the outcome of my deliberations.[36]The claim is one of discrimination. The allegation is that direct discrimination has occurred, that certain events have happened involving less favourable treatment of the claimant because of her nationality.[37]A claim of that type inevitably involves comparison with other employees. Those might be actual employees compared to whom the claimant says she was treated less favourably, attributable to the fact that she is Polish. The claimant has not however been able to name any such employees. She said she is not aware of other employees who were in the same situation as she was and in comparison with whom she was treated less favourably because of her nationality.[38]It was confusing, in my view, that, despite that position on the part of the claimant, she also maintained that other employees were treated differently to her and that she was singled out due to being Polish. She said that had she not been Polish she would have been treated differently and better.[39]In my view it is difficult, if not impossible, to reconcile those 2 positions – that of not being able to give information about any situations or circumstances in which other employees who are not Polish were treated better than the claimant and yet asserting that as the claimant is Polish she was, in the same or similar circumstances, treated less favourably compared to other employees.[40]There is the possibility of there being a hypothetical comparator if no actual one exists. A claimant can say “if there was an employee in the same circumstances as me, but who was not Polish, then, because I am Polish I would be treated less favourably than that other employee”. A claimant has to be able to explain why they believe this to be so, in relation, in this case, to the events founded upon, being those after 11 July 2020.[41]Orders were issued in February 2021 by the Tribunal. Some material was received in response. The Orders were, in effect, repeated in July of this year. The July Orders spelt out specific requirements in relation to the schedule of loss. There has however been no reply since the July Orders with any further information or supporting documentation in relation to the figure proposed by way of compensation in the event of success. It might be, for example, that medical reports could be produced.[42]It is therefore my conclusion that the Orders as issued have not been met by the replies received from the claimant. That led to the Strike Out warning.[43]It is not my view, however, that the case is not being actively pursued by the claimant. It seems to me, without hopefully appearing condescending, that the claimant has been struggling to grasp the concept of unfairness of treatment as she sees it and the requirements of the 2010 Act for discriminatory conduct to have taken place, as well as the requirements of the principles of fair notice.[44]These are difficult concepts. I keep in mind the claimant’s limited or nonexistent ability to converse in English. As she has previously confirmed, however, she is able to read and write in English, as indeed evidenced by her replies to the Orders and her communications with the Tribunal.[45]Although therefore the Orders have not been met and there has been a Strike Out warning letter issued, I am conscious of all the circumstances. Those include the fact that this is a discrimination claim. Strike out is a draconian, severe step to take. It brings the claim to an end. A Tribunal requires to consider, prior to adopting striking out as the sanction applied, whether there is an alternative step available as a lesser sanction.[46]I was not prepared to strike out the claim in the present circumstances. I am of the view, however, that more specific information is required on order to understand the claim of discrimination being made.[47]I therefore confirmed on 29 November at conclusion of the PH and confirm once more that Unless Orders are issued. I explained the importance of Ms Wieteska considering her position very carefully so that she replied to the Orders with the details asked for. I suggested she might wish to take advice. I confirmed that if no reply was received to the Orders, or if the Orders were not substantially met by any reply, then her claim would come to an end without further procedure. That is the meaning of the term “Unless”.[48]The questions set out in the Order are designed to obtain information as to any actual comparator, failing which information as to the hypothetical comparator replied upon. It is important that Ms Wieteska explains why it is that she thinks the less favourable treatment of which she complains is because of the fact she is Polish. The schedule of loss with any supporting documentation must also be submitted. A lengthier period than might normally be given is provided, with a view to ensuring that any relevant information is received.[49]I understood that the respondents might well not see this step as ideal. It does however seek to have the details of the claim pinned down in order that the case can proceed to a hearing if the reply answers the terms of the Order. In that situation a relatively brief telephone case management PH might be involved to confirm witnesses, fix dates of hearing and agree a method of ensuring documents for the hearing were available for the hearing.[50]I was satisfied that Ms Wieteska understood the Order made and what is now required of her. The PH closed having dealt with these matters.[1]A Preliminary Hearing (“PH”) took place by video conference call on 29 November 2021. Following that PH a Judgment was issued. That Judgment was dated 2 December 2021. It confirmed that elements of the claim could not proceed due to having being brought out of time. For the reasons given, time was not extended enabling those elements of claim to proceed. E.T. Z4 (WR)[2]The Judgment also contained Orders. The respondents had sought strike out of the claim. That application was refused. Given the history and circumstances narrated in the Judgment, the Orders were issued on an “Unless” basis. The nature and effect of the issuing of Orders on that basis was explained at the PH and confirmed in the Judgment.[3]There was an interpreter present at the hearing and I was, and am, satisfied that the claimant understood all that happened at the PH. Ms Wieteska can read and write in English, however spoken English is problematic for her, hence the involvement of the interpreter in this and earlier PHs.[4]The Unless Orders required to be complied with within 28 days of the date of the Note and Orders. The date of the Note and Orders was 2 December 2021. Compliance was required at latest therefore by 30 December.[5]The claimant submitted a response on 31 December, by email timed at 14.14. In those circumstances the claim was dismissed without further Order of the Tribunal due to failure to comply with the Unless Order.[6]The claimant objected to this having occurred, stating her view that she had 28 days from the date when the Judgment and Orders were sent to her. They were sent by attachment to an email from the Tribunal of 6 December.[7]This was treated as an application in terms of Rule 38 (2) of the Employment Tribunals (Rules of Constitution & Procedure) Regulations 2013 to have the Order set aside. That is sometimes referred to as an application for relief from sanctions. That application was made within 14 days as is required in terms of Rule 38 (2).[8]Neither party sought a hearing on the application when that was raised. It was therefore confirmed that the application would be considered in chambers. That has now occurred.
Applicable Law
[9]In terms of Rule 38 (2) an application of this type can result in the Order being set aside if the Tribunal considers it to be in the interests of justice so to proceed.[10]There are various cases which have considered such applications. Those relevant as the Tribunal regards it are Wentworth-Wood v Maritime Transport Limited [2016] UKEAT/0316/15, Kier Highways Limited v Cunning [2018] UKEAT/0008/18 (“Kier Highways”), Thind v Salvesen Logistics Ltd [2010] UKEAT/0487/09 ("Thind”), Enamejewa v British Gas Trading Limited [2015] UKEAT/0347/14, Singh v Singh (as representative of the Guru Nanak Gurdwara West Bromwich) 2017 ICR D7, Morgan Motor Co Ltd v Morgan (“Morgan”) EAT 0128/15 and Polyclear Ltd v Wezowicz and Others 2022 ICR 175.[11]Those cases give guidance as to the principles which an Employment Tribunal should keep in mind in considering whether it is in the interests of justice to set aside dismissal in this scenario. Thind says that the factors “will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial is possible.” Morgan confirms that there does not require to be a “compelling explanation” or “special factor” for relief to be granted.[12]In the cases the significance of an Unless Order is also underlined, together with, in my words, the importance of it having teeth. Nevertheless, the terms of Rule 38 (2) and decided cases make it clear that relief from sanctions can appropriately be given if it is considered by the Employment Tribunal that it is in the interests of justice for that to occur. Position in this Case[13]There was non-compliance with the Unless Order, as previously determined. The claimant states that she regarded the time for compliance as running from the date the Order was sent to her. That is the reason for her failure to comply with the time frame. It is of relevance that there was no evidence of bad faith or ignoring of that Order on the part of the claimant. Rather, she misunderstood the date of commencement of the period for compliance. I take account of the fact that this matter was covered at the time of the PH when the claimant had the benefit of an interpreter. It is also something which is clearly detailed in the Order itself. As mentioned above, the claimant has confirmed at each PH before me that she can read and understand written English and is able to write in English, as indeed evidenced by her various communications with the Tribunal. The Orders and Response[14]The Orders are in the following terms:- 1. “What does the claimant say is the less favourable treatment because of her Polish nationality, the acts of discrimination by the respondents, she experienced in the period after 11 July 2020? 2. Who carried out each of those alleged acts? 3. When after 11 July 2020 did each of those alleged acts take place? (please provide the day and month and the time of day as that is recalled, together with who was there if there were any witnesses) 4. Does the claimant say that she was treated less favourably than another actual employee of the respondents who was not Polish and who was in the same circumstances as she was? 5. If the answer to question 4 is “yes”,(a) Who was that employee and what was their nationality?(b) How was the other employee treated by the respondents in the circumstances which are the same as those of the claimant?(c) Why was that treatment more favourable than the treatment the claimant experienced in those circumstances?(d) Why is it that she regards her less favourable treatment as being because of her Polish nationality? 6. If there was no such actual employee, does the claimant say that had there been an employee in the same circumstances as she was and who was not Polish, the claimant would have been treated less favourably than the other hypothetical employee because the claimant is Polish? 7. If the answer to Question 6 is “yes”, why does the claimant say that? 8. The claimant has specified in her document of 6 March 2021 that she seeks £16,000 for “loss of mental health”. (a) Is that the total sum she asks the Tribunal to award if successful? (b) If not, what sum does she ask for? 9. How has the claimant arrived at the sum of £16,000 or any other amount she states? 10. Does the claimant rely on any medical information in support of her financial claim? If so a copy of it is to be provided within the 28 days for compliance with this Order.”[15]The reply from the claimant adopts the same numbering and is as follows:- 1. “The act of Direct Discrimination was that I was subject to unfounded allegations that I had carried out acts of gross misconduct without any form of investigation. 2. The acts were carried out by my line manager Louise Singh 3. 13th July and 3rd September 4. No – there was no actual comparable employee 5. Not applicable 6. Yes 7. Although there were other employees who were of non-UK origin, I was the only Polish person who worked there. I was specifically singled out for unfounded allegations with no attempt to properly investigate these. The line manager expressly referred to “people like me” could not be trusted. As the only different characteristic that I had from the other employees was my nationality it seems clear that this was the reason for my treatment, 8. Yes 9. This appears to be an appropriate award for the act of discrimination. I do not have legal assistance in this matter. 10. I have been diagnosed with depression. Given the time of year and the restrictions under which GP practices are operating I would seek further time to supply medical reports from my doctor.” Discussion and Decision[16]I keep in mind the history to this claim. The allegations are of direct discrimination. The protected characteristic is that of nationality, the claimant being Polish. There have been various attempts to obtain specification of the claim by way of clarification of the allegations of discrimination. Details of the comparator, actual or hypothetical, have been sought for some time.[17]The claimant clearly believes that she has been badly treated and regards the procedures followed and actions taken by her employer as being wrong. It has been explained to her that the Tribunal can only consider claims under the various statutory provisions giving it authority. In an ongoing employment situation, what might be viewed by her as “bad practice” or “bad management” are not of themselves matters about which the Tribunal can hear as a basis of claim. Information as to why it is that the claimant considers the matters upon which she relies as being discriminatory in nature is essential if a valid claim is to be advanced.[18]At the PH in November which resulted in the Judgment being issued containing the Unless Orders, the respondents had sought strike out of the claim. They referred to the previous Orders which had not been met, despite time for compliance having been extended and the orders having been reissued. The view to which I came was that, whilst Orders had not been met, the lesser sanction of an Unless Order was appropriate, rather than the claim being struck out. The objective was to obtain specification by way of fair notice of the claim.[19]The reply was late, as mentioned. The claim was dismissed as soon as the time specified in the Unless Order for reply passed without there being any reply. There was no need to consider whether there had or had not been material non-compliance with the Order. There had been no compliance whatsoever at that point.[20]A response to the Order was received within a matter of a day of expiry of the time limit for compliance. The fact that the reply was submitted so close to the deadline is of relevance in that it cannot (and is not) suggested that a fair trial is no longer possible due to the passage of time since expiry of the time for appropriate response.[21]In considering the interests of justice, I properly have regard to the reason for default and whether it was deliberate.[22]The reason for default was the misunderstanding of the time frame for reply. I accept the claimant understood the time for compliance to be as she details. She did not in my view deliberately reply late. The time frame is clear however from the Order and was discussed at the PH. On balance, I accept that something may have become confused in the claimant’s mind and she may have genuinely not appreciated the time for compliance being other than as she now sets out.[23]Given the fact that the reply was only marginally late, there is no prejudice to the respondents through time having passed. There is prejudice to the respondents if I permit the claim to proceed by granting the application for the order to be set aside. They face a claim currently dismissed. It is however a claim which they have been gathering information to defend and have been engaged with since it was raised. They have sought and continue to seek information as to the precise allegations made.[24]There is prejudice to the claimant if I do not grant the application to set aside the order. The claim is at an end. That, of course, is only the case due to her failure to reply to the Unless Order within the time permitted for that. That time was not a short time, being 28 days.[25]The balance of prejudice favours the granting of the application, in my view, given the prejudice to the claimant through dismissal of the claim remaining in place.[26]That however is not sufficient to determine the application. I can have regard to the details of the reply to the Order in considering the interests of justice as the key and overriding element in consideration of the application.[27]The terms of the reply are set out above. I see it as of relevance to consider if there has been material compliance or non-compliance with the Order, excluding the time within which compliance was required as it is known that the time given was not met. In considering this, I take account of previous written statements from the claimant and of her claim form in considering her reply to the Unless Order.[28]The answer to question 1 is, in my view, tolerably clear. The claimant does refer to there being no form of investigation. As I understand it, the exchanges to which she refers were at the investigation meetings with her. Her difficulty appears to be that there was no prior checking of the allegations before she was questioned about them. I believe that the acts of direct discrimination are said by the claimant to be the putting to her of what she views as unfounded allegations without those being checked out or investigated prior to that happening. That puts the respondents on notice of the allegations of direct discrimination.[29]The answers to points 2 and 3 confirm that the person who put those allegations to her was Louise Singh and that this occurred on 13 July and 3 September 2020. Those are the two instances when direct discrimination is said to have occurred. It is true that the time of day and whether there were witnesses is not stated by the claimant. The respondents are aware however of the meetings referred to and agree that there were those encounters. They therefore know the times and are able to confirm who attended the meetings.[30]The answers to questions 4 – 7 relate to the comparator. It is now clear that there is no actual comparator. That had been in doubt prior to this. A hypothetical comparator is relied upon. The claimant is next asked why it is that she believes she was subjected to the alleged discrimination due to her nationality and why she believes someone not of her nationality but in the same position would not have been treated in the same way. She refers to being the only Polish employee. She also refers to a remark said to have been made that people like her could not be trusted.[31]It is appreciated that the respondents deny that any such remark was made. It is also appreciated that the respondents say that any employee employed by them in the care setting and about whom allegations of possible ill treatment had been made would have been seen an investigation result. The respondents say that in course of any such investigation any such employee would have been spoken with and transferred to day shift to ensure greater supervision took place. The claimant does not, they say, explain why a non-Polish employee would not have been treated as was the claimant.[32]There is clearly an evidential dispute as to whether the remark was made. The Tribunal would have to hear evidence and find facts on that. It would also have to consider the actions of the respondents and their explanation for those. It is not possible to foresee the view to which the Tribunal might come on the remark being made or not. The context for the remark, if made, and what, if any, implication was properly drawn from all of this would all require to be considered. What I regard as relevant is that the claimant has given her reason for coming to the view that her nationality lay behind the decision of the respondents and that their actions would not have been the same had she not been Polish.[33]The claimant may or may not be successful in her position. I have concluded, however that there was material compliance with the Order in this regard, timing apart.[34]The claimant was ordered to confirm that she sought £16,000 if successful and, if she did, to explain how she had arrived at that sum. She confirms that this is the sum she seeks and says it is in her view an appropriate award. Clarification has been given, therefore, albeit no specific reference to the means by which she reached this sum is laid out.[35]When asked in the Order about any medical information, the claimant seeks further time to provide a medical report. She explains she is affected by depression. This request for an extension of time was not considered given that the claim had been dismissed due to failure to comply with the Unless Order.[36]Given that I have concluded that the Order falls to be set aside and that the claim is not dismissed, it is appropriate to vary the Order to enable more time to be available to obtain the medical report. To be clear, it is the impact on the claimant of the alleged discriminatory treatment which is of relevance. A further 6 weeks from date of this Judgment (by 5pm on 28 April) is given for that information to be supplied by the claimant. The Order of 2 December is varied to that extent. The report is likely to be from the claimant’s GP, it is understood. Knowing the pressures GPs are under particularly at present, if a further extension of time is required, it should be confirmed to the Tribunal when the information was sought from the claimant’s GP and such a request can be made to the Tribunal and considered by it.
Conclusion
[37]In this Judgment I have kept in mind the purpose and effect of an Unless Order, the terms of Rule 38 (2) and the relevant guidance from decided cases as detailed above. I have had consideration of the interests of justice at the forefront of my mind. The claimant put herself in peril by missing the deadline for replying to the Unless Order. She missed that, however, by a small margin. That is not of itself to warrant the setting aside of the Order and granting of relief from sanctions. It is, however, a factor. The terms of the reply, whilst not entirely focussed and clear, when taken with the whole facts and circumstances, lead me to the conclusion that it is in the interests of justice to proceed as stated in the Judgment above. The Order is therefore set aside and the case will therefore proceed.[38]A case management PH should be set down with a view to making arrangements for the hearing.