Mr G Madden v Waracle Ltd and Cathcart Associates Ltd: 4112400/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4112400/2021
Between
Mr G MaddenClaimantWaracle Ltd and Cathcart Associates LtdRespondent
Before
Employment Judge R GallMrs D Reynolds (instructed by Solicitor) for respondentDate 10 November 2023
JUDGMENT
The Judgment of the Tribunal is that the dismissal of the claim which occurred automatically following failure by the claimant to comply with an Unless Order issued on 28 March 2022 stands, the Order not being set aside, it not being in the interests of justice so to do. The claim will remain dismissed.
REASONS
[1]This is a claim of disability, the protected characteristic upon which the claimant relies being disability. At present the respondents do not accept on the information before them that the claimant was disabled at the relevant time. They also say that they did not have actual or “constructive” knowledge of disability. The conditions which the claimant sets out as affecting him and which he maintains constituted disabilities at the relevant time are Charcot Marie Tooth disease and depression and anxiety.[2]The claimant was in a working relationship with the respondents. The precise nature of that relationship and the party with whom any liability may rest has yet to be determined. The working relationship was for the period between 19 July 2021 and 14 September 2021. That is therefore the relevant time in relation to the allegations of discrimination.[3]The claimant clearly has health issues. During the currency of this litigation he has been in hospital from time to time. He has, however, been able to communicate by email with the Tribunal and respondents whilst in hospital.[4]For a claim based on disability as the protected characteristic to proceed, the claimant requires to have been disabled as that term is detailed in the Equality Act 2010 (“the 2010 Act”) at the time when discrimination is said to have occurred. The definition of disability in terms of the 2010 Act is a legal one rather than a medical one. It involves specific considerations as Section 6 of the 2010 Act provides. Someone can be regarded as disabled for other purposes or under other provisions. That, however, does not mean that disability in terms of the 2010 Act follows. The conditions which the claimant refers to as affecting him are not conditions which mean that he is automatically regarded as disabled for the purposes of the 2010 Act.[5]It has been explained to the claimant in correspondence that the onus is on him to persuade the respondents that he was disabled at the relevant time, failing which to persuade the Tribunal of that at a Preliminary Hearing (“PH”) which would potentially be arranged for that to be decided. Exhibition therefore of relevant medical records pertaining to the relevant time and provision of information as to the impact of the conditions on his ability to carry out normal day-to-day activities would be of significance and indeed of fundamental importance.[6]Unless Orders were issued by the Tribunal on 28 March 2022. Those are detailed below. There was a build up to the issue of Unless Orders. That is now set out. Lead Up to Unless Orders[7]A PH held for case management purposes took place on 17 January 2022. Orders were issued requiring information to be provided by the claimant. The claimant was to provide any medical information upon which he intended to rely to establish that at the relevant time he was a disabled person in terms of the 2010 Act by the conditions upon which he relied in that regard, those being as set out above. In terms of the Order he was also to provide, summarising the information detailed in the Order as being required, an “impact statement”. The Order further required that he confirm the basis on which he asserted that the respondents knew or ought to have known that he was a disabled person in relation to the conditions relied upon by him. The date for compliance was 7 February 2022.[8]The information was not provided by the claimant by the date specified. Information was to an extent then provided by the claimant on 9 February. That comprised some information from his GP, information regarding a hospital admission at an earlier time, confirmation that he received personal independence payment and that he was a ”blue badge” holder. There was no information supplied in answer to the other elements of the Order. The only information as to impact on the claimant’s ability to carry out normal day-today activities was a comment by the GP in a letter of 22 May 2017 that walking could be “very difficult and painful”.[9]The respondents had sought an Unless Order That was on 9 February, prior to receipt of the claimant’s email of that date. In the circumstances where some information had been received from the claimant the application for an Unless Order was refused.[10]The respondents reviewed the information from the claimant and renewed their application for an Unless Order on 18 February. This was on the basis that the information provided by the claimant did not meet the Order issued. That application was also refused. The claimant was however reminded of the terms of the Order originally issued. His response was reflected in the letter from the Tribunal of 23 February. It was stated that it did not appear that the information submitted by him met the Order. He was informed of the requirement to meet the Order within 14 days and also to provide information as to the identity of the line manager with whom he said he had spoken as to his medical position, when that was said to have happened and what medical information was said to have been given by the claimant to the line manager at that point.[11]The claimant emailed the Tribunal on 8 March stating that he had been in hospital. He said he was due to have foot surgery. He had, he said, requested a letter from his GP and would ask a family member to collect that for the Tribunal.[12]By email of 9 March the claimant sent on a letter from his GP of 1 March 2022. That read:- “This patient has requested a letter from ourselves regarding his current health. Graham has a history of depression and anxiety symptoms and has been seen at hospital with panic attacks in the past. He is currently suffering from low mood and anxiety. He suffers from charcot marie tooth syndrome and this affects his confidence. He feels that this can cause some difficulties when he is going to take part in video calls and sometimes feel (sic) unable to turn the video camera on.”[13]In its reply of 9 March the Tribunal noted that the claimant was in hospital and that it was unclear for how long that would be the case. It noted that he was able to communicate from the hospital and well enough so to do. It underlined that the factual information required in terms of the Order had not been fully supplied and stated that this information as to be supplied within 7 days or, if that was not possible, that was to be explained, particularly when the information still sought was something within the claimant’s own knowledge. The claimant’s reply of 10 March expressed confusion saying that he believed he had “provided all medical information within the allocated time period”.[14]In a full email of 11 March, the Tribunal detailed the elements in the Order which remained unaddressed by the claimant. It sought to assist by posing questions which might be addressed by the claimant. It stated that a reply was required within 10 days.[15]There was no reply from the claimant within that time. The Unless Orders were therefore issued on 28 March 2022. The Unless Orders[16]The Unless Orders were in the following terms:- “Within 21 days of the date of this Order being sent to parties the claimant will provide the following information or details- 1. Copies of any medical notes, reports, occupational health assessments and other evidence which he intends to reply on to establish that, at the relevant times, he was a disabled person for the purposes of S6 of the Equality Act 2010 as a result of Charcot Marie Tooth disease and depression and anxiety. In the event that he wishes to provide any medical reports/records from his GP, but cannot provide those within 21 days of this Order, he will confirm within the 21 day period the date on which has requested such reports/records and seek an extension of time within which to provide them. 2. A statement confirming the dates between which it is alleged he was a disabled person in relation to each condition and to address, by specific reference to Schedule1 of the Equality Act 2010 and any relevant provision of any statutory guidance or Code of Practice, what the effect of the alleged disability was on his ability to carry out normal day to day activities at the time of the alleged discriminatory treatment. The statement should include the details of what the impact would be on the claimant’s ability to carry out normal day to day activities if he were not taking measures (including in particular medical treatment and the use of a prothesis or other aid) to treat or correct each condition relied upon. 3. A statement confirming the basis upon which he asserts that the respondent knew or ought to have known that he was a disabled person in relation to each of the physical or mental impairments relied upon at the material times. Insofar as that may be said to have occurred by way of a conversation with a line manager, he will state who that line manager was, when (to the best of his recollection) that conversation was and the information (recalled as accurately as he can) which he states he gave to his line manager.”[17]Compliance was required by 18 April given that the Unless Order was dated 28 March 2022. For clarity, the Unless Order was emailed to parties on 28 March 2022.[18]No reply was received from the claimant and by letter of 20 April 2022 the Tribunal wrote to parties in terms of Rule 38 of the Employment Tribunals (Rules of Constitution & Procedure) Regulations 2013 confirming that the claim had been dismissed. Application by the claimant in terms of Rule 38 (2)[19]On 20 April 2022, having received the letter of that date from the Tribunal referred to above, the claimant wrote to the Tribunal. He said:- “I very respectfully ask for this order to be set aside as I was in hospital on the 28 March doped up on morphine where I remained for 7 days. I am still heavily medicated and on a wheelchair permanently with my foot in a “moon boot”. I think it is in the interest of justice that I be granted just a few extra days to comply with the order to compensate for the days I missed due being in hospital undergoing serious surgery. I think it would be very harsh and painfully ironic that a disability discrimination case is thrown out because I missed a deadline due to receiving medical treatment for my disability. I can provide all the information by the end of the week, That includes details of the medical procedure I had recently. For now I have attached two pictures as evidence of recent events.”[20]The content of reply and the pictures sent did not meet the terms of the Order.[21]The Tribunal confirmed to the parties, however, that it was treating this correspondence from the claimant as an application that the Order be set aside. Such an application is possible in terms of Rule 38 as, in effect, an application for relief from sanctions. Submissions[22]Parties were invited to provide any submissions and to state if they wished a hearing, It was confirmed that if no hearing was sought then the application would be dealt with without a hearing. Neither party sought a hearing. The claimant did not comment upon that matter. Th respondents confirmed that they were content that the application be dealt with on the papers. Submissions for the claimant[23]The claimant sent two emails to the Tribunal. Those were dated 4 and 5 May. The email of 4 May said the claimant believed the issue to be consideration of his claim or not on the basis that he was late to supply medical information. He reiterated the position as to his recent surgery. He attached medical information. Insofar as that had not previously been sent to the Tribunal, it included a photograph of what appeared to be medication, and also a picture of a medical form from the claimant’s GP. The date on that form was difficult to read and could not be definitively determined. It referred to someone, presumably the claimant, having “Dropfoot, foot and toe deformities (hammer toes), muscle weakness, fatigue & neuropathic pain. All contribute to difficulty walking i.e. walking to bus stops/train stations is too far.”[24]The email from the claimant of 5 May repeated that he had been in hospital and said that this was a valid excuse for being late. It was one of, if not the best, reason for being late, the claimant said. He referred to documents produced by him as showing that he had “a peripheral neuropathy, several foot and toe deformities, foot drop, a heart condition caused by a heart attack, high blood pressure, depression, anxiety and panic attacks so severe that I have been hospitalised several times” He went on to say that he had had a carer day and night for 10 years. He said he was not doing fantastically well on his best day, had had serious surgery, a one week hospital stay and had been taking strong opioid painkillers. He had a reasonable excuse for missing the deadline, he said. His position was that it was in the interests of justice for his claim to be permitted to proceed. Submissions for the respondents[25]The respondents sent in submissions on 5 May 2022. They narrated the history to the claim. They highlighted the attempts made to obtain information from the claimant on medical matters. An impact statement had been sought from him. Information on how it was that he said the respondents were aware of his disabilities had also been sought. Orders had been issued. Some medical information had been received. The other elements of information had not been provided, whether in response to the initial Orders, in response to correspondence or in response to the Unless Orders.[26]The respondents highlighted that the areas where information had not been provided despite the Orders, involved matters within the knowledge of the claimant. It was true that he had been in hospital. He had remained able to communicate however and had communicated. The required information had not however been provided.[27]There had been various opportunities given to the claimant to provide the information in question. He had said that he would provide that information. It had not however appeared.[28]No compelling reason had been provided for setting aside of the Order, the respondents said. Medical treatment and hospitalisation had been referred to. Numerous chances had been given to the claimant to supply the information and he had not done this. It appeared, in fact, that the claim was not being actively pursued. The Judgment dismissing the claim should not be set aside.
Applicable Law
[29]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.[30]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 EAT 0128/15 (“Morgan”) and Polyclear Ltd v Wezowicz and Others 2022 ICR 175.[31]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 the Order 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.[32]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. Discussion and Decision[33]The Unless Orders had been issued in the terms set out above. In response, some medical information had been supplied by the claimant. It appeared to be that his position was that what was supplied comprised what he had been asked to provide – the medical information upon which he relied in order to establish that he was, at the relevant time, disabled in terms of the 2010 Act. The Orders and correspondence, and ultimately the Unless Orders, required information beyond medical information, however. A statement as to impact of the medical conditions upon the claimant’s ability to carry out normal dayto-day activities was required. Information as to the basis for his assertion that that the respondents were aware of his disabilities was required. There has been no information upon those matters in reply to Orders, including specifically the Unless Orders.[34]In my conclusion there has not been material compliance with the Unless Order and the claim had therefore properly therefore come to an end.[35]Occasionally in that situation and in the context of seeking to have that Order set aside a party will supply information late. The claimant certainly supplied slightly fuller medical information than he previously had. He did not however address the other elements in the Orders and Unless Order.[36]Whilst the claimant provided information as to his hospital Stay, he remained able to communicate and did in fact communicate substantively with the Tribunal during that time. What he had been ordered to provide , an impact statement and specification of a discussion he had referred to as having taken place, were matters which, in my view, could have been addressed by him. He was required to address them in terms of the Unless Order. He did not do so, however. He gave no reason why the questions remained unanswered, other than his reference to being hospitalised, in pain and on medication. I do not seek to belittle those matters. Clearly the claimant’s position was very unfortunate. I do not doubt that he was having a difficult time. He was however communicating as mentioned. He was not being asked to obtain papers or information from third parties. He had been given substantial time prior to issue of the Unless Orders. The absence of reply to those aspects of the Unless Order has persisted. No information has been submitted at time of this Judgment.[37]I considered the prejudice to parties if, on the one hand the Order is not set aside and if, on the other hand, it is.[38]Certainly if it is not set aside the claimant is denied the ability to make a claim. He is, however, unfortunately the author of his own misfortune in that he is in this situation by reason of not having replied to Orders and specifically an Unless Order.[39]If the Order is set aside the respondents will suffer prejudice. They will be facing a claim which they would not otherwise face if the Order is not set aside.[40]The prejudice to the claimant through the Order not being set aside is greater, in my view, that that to the respondents if the Order is set aside.[41]That, however, is not enough, in my judgment, to tip the balance in favour of setting aside the Order.[42]The claimant has, over a period of time and specifically in face of an Unless Order, failed to reply with the information which he was ordered to provide. That information is known to him in that it is as to the impact of the conditions upon which he seeks to reply as disabilities under the 2010 Act. It is also information as to a conversation with someone to whom he says he spoke about his medical conditions.[43]I am sympathetic to the health issues by which the claimant is affected and keep in mind his recent hospitalisation. As mentioned above, however, an Unless Order when issued requires to be met. It is quite clear from its terms that if it is not complied with then the case will be dismissed without further order.[44]An Unless Order can be set aside if it is considered to be in the interests of justice for that to be the case. The unfortunate position of a claimant in not being able to pursue his/her claim will not, of itself, be enough to warrant setting aside the Unless Order.[45]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.[46]The claimant has not explained why he did not answer the Unless Order by providing the required information. I have given careful consideration to the situation and have sought to balance the competing interests of each party and to keep in mind at all times the interests of justice.[47]Having carefully considered the facts and circumstances of this case and the respective submissions by each party, I am not persuaded that setting aside the Order is in the interests of justice. The claim therefore remains dismissed.[48]I have thought long and hard about this decision. It is a matter of fine balance in my view.[49]I am asked to reconsider the Judgment refusing to give relief from sanctions by setting aside the Unless Order.[50]I understand the claimant’s frustration with the situation as he sees it. I note the general medical position as to the drugs which the claimant was taking at the relevant time and the impact and side effects they are likely to have. I also am conscious of information recently provided by the claimant which gives some of the information sought. That information had been sought since January when the initial Order was made.[51]As narrated in the Judgment, the claimant had said on 20 April that he wished a “few extra days” to comply with the Order. He confirmed he could provide all the information “by the end of the week”. The information promised did not appear, however, within that time.[52]The information from the claimant at time of consideration of possible setting aside of the Order was not as full as it now is. As mentioned there is however a conflict in the information provided in that the claimant refers to being hospitalised for 7 days from 28 March, whereas Dr Ma refers to the 7 day period from 9 March. Hospitalisation on 9 March would tie in with the claimant’s emails at that time.[53]I have also had careful regard to the claimant’s position that although he was in email contact with the Tribunal in early March he was impaired at that point. This can be seen from the contrast with his response to the Tribunal in June, he says.[54]There is certainly fuller information given by the claimant in June. How much of that can be attributed to any change in his medical condition is, however, a moot point. By then his claim had come to an end due to his failure to respond to an Unless Order. His application for the Order to be set aside had also been refused.[55]The medical information from Dr Ma does not accord with the claimant’s position as to when he was in hospital. Insofar as it relates to side effects of the drugs prescribed for the claimant, it does not address the side effects as those were experienced by the claimant. That might well be as Dr Ma did not see the claimant or treat him at that time. Whatever the reason, the result is that I have the generalised picture but not a specific picture in relation to the claimant. Those weigh in my assessment, however not as much as they might have if specifically describing the circumstances of the claimant.[56]The claimant certainly has serious health issues from all he says. There is medical support for that. He brings an Employment Tribunal claim which is one of discrimination. Public policy rightly requires that such claims are capable of being advanced at Tribunal and that very serious consideration should be given if such a claim is potentially to be brought to an end without a hearing.
Conclusion
[57]Looking very carefully at all the elements mentioned above, I have concluded that the Judgment will, upon reconsideration, be confirmed.[58]I have had the interests of justice at the front of my mind. It is, as mentioned above, a fine balance when considering the facts and circumstances.[59]The history to the claim is of relevance. That involves the Order earlier issued, the Unless Order issued, the passage of time without information being given to meet those Orders and the communications from and to the claimant. The claimant’s health as confirmed in paperwork provided by him and in the emails from Dr Ma is also of significance. The principle of finality of litigation is also something I have weighed.[60]What, in my view, the claimant now seeks to do is to reopen the case by providing information which he had throughout the life of the case. It is not new information. He seeks to explain its absence thus far by reference to his medical issues. I do not regard there as being information before me that the claimant was impaired to the extent that he did not understand the matters he was to address or questions he was to answer in terms of the initial Order or the Unless Order. Communications with the claimant highlighted the elements to which he was to reply. The matters involved were all factual ones not requiring gathering of information from external sources.[61]I appreciate that the claimant’s view is that he must have been impaired as otherwise he would have replied fully. There is potentially a certain logic in that. Nevertheless, the length of time over which there was no information given by the claimant points to the absence of information being due to something more than side effects of drugs in the post-operative period. Further, the correspondence from the Tribunal was clear as to what remained as elements to be addressed. It opened the door to more time being sought by the claimant. He referred to the involvement of a family member who appears to have assisted him by collecting and passing on a letter from the claimant’s GP.[62]The view to which I have come therefore, taking all of the above elements into account and weighing them carefully, is that it is not necessary in the interests of justice to reconsider and to revoke the Judgment dated 20 May and sent to parties on 23 May, both 2022. That Judgment therefore is confirmed.
Background
[1]There is history to this claim. I have narrated it briefly as it is set out more fully in the Judgments dated 20 May 2022 (“the first Judgment”) and that dated 31 October 2022 (“the second Judgment”)[2]Unless Orders were issued following the failure by the claimant to provide information in response to Orders earlier made. The claimant did not respond to the Unless Orders within the 21 day period permitted for a reply. The claim was therefore dismissed in terms of Rule 38 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.[3]The claimant sought reconsideration of that dismissal, which would involve the Unless Orders being set aside, a process generally described as seeking relief from sanctions.[4]For reasons fully narrated in the first Judgment the application of the claimant for the Unless Orders to be set aside, for relief from sanctions, was refused. In reaching that decision, regard was had to the information supplied by the claimant at that point as to the medical conditions which affected him as he set those out.[5]The claimant sought reconsideration of the first Judgment. He submitted information as detailed in the second Judgment. The respondents also made representations. Both parties agreed that reconsideration could take place on the papers, without an attended hearing. Medical Information at time of the second Judgment[6]With the submission from the claimant prior to the second Judgment he provided medical information. He placed particular emphasis upon communications from a Dr Ma, those being dated 21 and 28 October 2022.[7]In considering the information from Dr Ma, it was of significance, as noted in the second Judgment, that it was unclear whether Dr Ma was speaking from any personal medical examination of, or encounter with, the claimant. A relevant passage in the second Judgment states “She did not offer any specific reflection of how the claimant was affected by the drugs prescribed, describing the generally experienced effects of the drugs.”[8]The Tribunal concluded, on balance, that, for the reasons given in that second Judgment, it would not revoke or vary the first Judgment, but rather would confirm it. Appeal to the Employment Appeal Tribunal (“EAT”)[9]The claimant appealed the second Judgment to the EAT. In course of the progression of that appeal he submitted a further email from Dr Ma, the email being dated 30 November 2022.[10]By a decision dated 26 January 2023, the EAT stayed the appeal to provide an opportunity to the claimant to present a further application for reconsideration of the second Judgment, albeit that such an application would be out of time. The EAT took this step given the information dated 30 November from Dr Ma. It did not express a view on what the Tribunal might do or ought to do in terms of accepting or rejecting any late application for reconsideration and as to what view the Tribunal might or should take upon the substance of any such application, if accepted. Application for Reconsideration[11]The claimant submitted an application for reconsideration, following upon the decision of the EAT of 26 January 2023. That was not rejected as having no reasonable prospect of success.[12]The claimant relied upon the email from Dr Ma of 30 November as well as points earlier made. The respondents were asked for any submissions and did make submissions. The claimant responded to those.[13]Both parties were asked as to whether they wished a hearing. Neither sought a hearing. The application and opposition were considered without parties being present as I considered that a hearing was not necessary in the interests of justice, having regard to the views of parties, the issues involved, and the submissions made.[14]For clarity, I had regard to the application, including specifically the email from Dr Ma, also to the second Judgment and matters which formed the basis of the view reached at that time. I also kept in mind the history to the case and events as narrated in the first and second Judgments.[15]The principles of law set out in the first and second Judgments remained those application to this reconsideration. The test is not as the claimant states it to be, namely “Was the claimant cognitively impaired at the time?” The test is as previously set out.[16]The interests of justice, the fact that this was a discrimination claim and the finality of litigation were all of significance. The fact that the claimant did not respond to Unless Orders, issued after non-compliance with earlier Orders, was of importance. The explanation offered by him for that, with the medical evidence provided by him, was appropriately weighed. The lack of precision in that medical evidence also required to be kept in mind. The medical information, even in the third email, that of 30 November, from Dr Ma, did not state in terms that she had examined the claimant in the period in question or treated him as a patient in that critical time.[17]If I was persuaded to permit the application for reconsideration to be accepted for consideration, although late, I then had to consider whether to reconsider the second Judgment. If I did reconsider it, I then required to consider whether to confirm it, vary or to revoke it. If I revoked it, I then had to consider whether or not to set aside the Unless Orders. Discussion and Decision[18]I have not set out the submissions. It is appropriate however to summarise them, as I understood them. Essentially, the claimant stated in somewhat trenchant terms, that the opinion of Dr Ma was not, and had not been generalised. It related to him, and confirmed his medical position, he said. He was clearly unable to reply to the Unless Order. The respondents maintained that it remained the case that Dr Ma did not say that she had examined the claimant medically. The information remained unsatisfactory. There was no specific medical information to give the Tribunal clear information as to the claimant’s medical health at the relevant time. Insofar as there was any information, it could and should have been provided earlier.[19]I believe it is relevant to set out what Dr Ma says in her email of 30 November 2022. The is the email received after the second Judgment. It reads:- “I clearly and specifically noted Mr Graeme Madden’s physical and mental wellbeing concerns around the time of his surgery and post-operative recovery period in the two previous statements. Please kindly revisit and read carefully. I am under the impression that direct and crucial points were blatantly missed. I saw Mr Madden in the days and weeks following his operation, hence stated what I had written in the previous statements, to confirm the state of Mr Madden’s mind and thought process was “undoubtedly disjointed and incoherent” for the duration of post operative recovery. Once again I would like to highlight the combination of factors which led to Mr Madden’s clouded thought process, and this cannot be ignored. Mr Madden suffered from deteriorating pre-existing mental health conditions, with depression and anxiety, which required medication for:as well as had to endure the side effects of concurrent opioid analgesics use, for the purpose of post operative pain management. Please refer back to the initial statement where common and very common side effects are clearly illustrated as per BNF (British National Formulary). This is a direct statement concerning of Mr Graeme Madden, as were the previous two statements, but not a generalisation.”[20]The respondents have commented on this further information from Dr Ma. The claimant has replied to their comments.[21]The email from Dr Ma of 30 November 2022 does provide some further information in relation to the claimant. The previous emails were, notwithstanding the views of the claimant, generalised. This is so as they did not contain comments or medical information specifically as to the claimant’s state of mind and mental capacity at the time in question with confirmation of how it was that the author was able to provide the comments or medical information in relation specifically to Mr Madden. The reader was left, in my view, potentially to make the connection between the general position expressed and the situation of the claimant. It was unclear whether Dr Ma had examined the claimant or had observed him to enable her to express any view as to his mental capacity at the time.[22]The email of 30 November now contains Dr Ma’s statement that she “saw” the claimant in the days and weeks following his operation. That is helpful and provides a basis for her opinion as to his mental capacity. It is not as helpful as it might have been, however, in that, as mentioned above, it does not state whether she clinically examined him, treated him as a patient at that point or perhaps merely observed him in passing in the hospital. There is no clarification of how it was (and when it was precisely) that she “saw” Mr Madden. If it was after his discharge from hospital, information upon the circumstances of that occurring would have been very useful. These are important matters when Mr Madden relies upon the email from Dr Ma as confirming that he was unable to respond by way of compliance with the Unless Order.[23]Nevertheless, the information in the email of 30 November is more clearly linked to the circumstances and position of Mr Madden than the earlier information. It does state that Dr Ma “saw” Mr Madden. That provides a sounder basis for her opinion to carry more weight in the assessment which the Tribunal has to undertake. Late Application[24]I was prepared to allow the application for reconsideration, although submitted late. Mr Madden obtained the email of 30 November late in the day.[25]I considered the history the interests of justice and the prejudice to each party if the application was permitted to proceed and to be considered, as against prejudice if it was not. The application, whilst late, is made in circumstances where there has not been a huge delay. The claimant has been engaged with the process, albeit resistant to some of the points the Tribunal made in trying to explain to him why more specific information related clearly to himselfn was of significance. Better information is now to hand.[26]I concluded that it was appropriate to extend time to accept the application made for reconsideration. Rule 5 permits such an extension of time. Reconsideration[27]I then turned to reconsider the second Judgment. In addition to the material before me at time of that Judgment I now had the email of 30 November from Dr Ma, with comment from both parties upon that.[28]In the context of this litigation, it has been important that the Tribunal has information as to the situation and capacity of the claimant at the time involved.[29]Subject to the caveats mentioned, the Tribunal now has better information, more clearly related to the claimant and based on the express statement that Dr Ma “saw” the claimant.[30]I therefore considered all the papers before me, the information therein and the submissions advanced by each party. I had regard to the elements mentioned previously in determining whether reconsideration of the second Judgment was appropriate and what to do upon reconsideration if I did reconsider it. Those were the facts and circumstances involved, interests of justice, prejudice to each party if the judgment was confirmed, revoked or varied and the desirability of finality of litigation. The email of 30 November was a new factor and was helpful, subject to the element of reservation mentioned above.[31]On balance taking all the factors together I am prepared to accept that the information I now have is fuller than previously and is such that it now warrants reconsideration of the second Judgment. Further, upon reconsideration I came to the view that it is in the interests of justice to revoke the second Judgment, notwithstanding the desirability of finality of litigation.[32]The decision I have reached results from a balancing exercise. I have reached it with a degree of hesitancy given an element of lack of clarity as to when and in what circumstances Dr Ma became aware of claimant’s mental capacity and the impact of treatment and medication at the time. I understand the respondents’ representations and there is some force in them. I have, however, concluded that there is just enough in the email of 30 November for me to regard the test as being met. General Comment[33]I would urge Mr Madden in future interaction with the Tribunal to consider carefully the tone of that interaction, given that adopted by him in the reconsideration process. I appreciate that this has been frustrating for him and have kept in mind the disability which he founds upon and its potential impact. The approach he has adopted in the reconsideration process has, however, not been helpful to his cause. He did not seem to appreciate the onus which lay on him to supply appropriate information setting out his situation in the period in question for the Tribunal, supporting that with specific medical information personal to his circumstances and based on medical interaction with the practitioner, as sought by the Tribunal for understandable reasons.
Disposal
[34]For the reasons given, the late application for reconsideration is therefore permitted to proceed. Upon reconsideration, the second Judgment is revoked, again for the reasons given. The Unless Orders are set aside and the case is therefore to proceed.[35]A Preliminary Hearing (“PH”) for case management purposes should be arranged. The Clerk to the Tribunals is asked to set down a date for that, being a one hour telephone PH. The agenda is to consider steps to advance towards a hearing of whatever type is appropriate as the next step.[36]The appeal to the EAT was sisted to enable a possible application for reconsideration to be made by the claimant. That was done and has resulted in the Judgment against which appeal was taken being revoked. The Clerk to the Tribunal is requested to confirm these events to the EAT.
Introduction
[1]The Claimant has made complaints of unfair dismissal, disability discrimination and failure to pay notice pay. The complaints are denied by the Respondents.[2]An open preliminary hearing was listed for today to determine the following issues –a. The Respondents’ application for strike out of the complaints of unfair dismissal and/or failure to pay notice on the grounds of no reasonable prospects of success.b. The parties’ application to add PayStream My Max Limited as a Third Party.[3]The hearing was held remotely by CVP (video). The Claimant appeared on his own behalf. The First Respondent had professional representation. Mr Wason appeared on behalf of the Second Respondent.[4]The Claimant stated in his claim that he was uncomfortable with his camera on. He confirmed that he was content for today’s hearing to proceed with his camera on.[5]No witness gave oral testimony at this hearing. Although there was no joint bundle of documents, parties provided copies of relevant documents.[6]The First Respondent and Claimant had made prior written submissions. All parties made oral submissions.
The complaints
[7]Having regard to his claim (lodged on 12 November 2021), the additional information previously provided in writing, and the information provided orally at today’s hearing, the Claimant’s complaints are as follows: Discrimination/ harassment[8]The complaint of disability discrimination proceeds only against the First Respondent only. The First Respondent accepts disability status but denies knowledge at the relevant time.[9]The Claimant has made a complaint of unfair dismissal. In his claim he references being dismissed after he had explained his medical conditions and that he felt very self-conscious on camera. The Claimant accepts that he does not have 2 years. At the Case Management Preliminary Hearing (‘CMPH’) on 17 January 2022 the Claimant was ordered to set out within 21 days the factual and legal basis upon which he asserts that one of the exceptions in Section 106 (3) applies. At the CMPH on 27 September 2023 the Claimant was ordered to provide those further particulars by 11 October. On 10 October the Claimant asserted having made a flexible working request but gave no other details. On 20 October the Claimant advised he made the request to Janice, his line manager. On 7 November the Claimant advised that he was dismissed because he asked for a reasonable adjustment and accordingly he was dismissed for asserting a statutory right. At today’s hearing the Claimant advised that he was dismissed because he asked for a reasonable adjustment, because he complained about being harassed and/or because he complained about the failure to make a reasonable adjustment. Failure to pay notice pay[10]The Claimant seeks payment of 28 days’ notice pay pursuant to a contract with the First Respondent, Second Respondent or Paystream My Max Ltd. (At today’s hearing the Claimant clarified that the reference to 18 weeks’ pay in respect of the remainder of the contract was relevant to remedy in respect of the complaints of unfair dismissal and/or discrimination only and was not brought as a stand-alone pay claim.) Facts not in dispute[11]Having regard to the pleadings and the further particulars (considered with reference to the contemporaneous documents) it is understood that the following facts are not in dispute -[12]The First Respondent required work or services to be performed. The First Respondent entered into a contract with the Second Respondent to identify and supply a consultant to perform that work or services. The Claimant was interviewed and approved by the First Respondent.[13]On 9 July 2023 the Second Respondent sent an email to the Claimant stating: “Congratulations on securing the contract at Waracle [First Respondent]. I am really pleased to have helped out…The contract will begin on 19/07/2021 and this will run for 26 weeks, until 15/01/2022. At the end of the contract, we will discuss possible extension for you. The rate is confirmed at £450 per day (+ VAT if appropriate). Any expenses accrued must be agreed in advance with client and will be paid to you directly by the client. You, as the service provider, will have a 28 day notice period should you wish to serve notice on the contract. The client’s notice period is 28 days…” The Second Respondent sent a further email on the same day stating “Congrats again on the offer…Can you please send over your proof of RTW, [contact details] & I’ll get them over to Waracle [First Respondent] so they can get started on the onboarding process”.[14]On 13 July the Second Respondent sent the Claimant an email asking him “Did you mention you are happy to go through PayStream? Or you can go through Parasol – either will do”.[15]Parasol is an “umbrella company” which employs contractors who are supplied on assignment to clients. The Claimant was unhappy at having to go through an umbrella company but understood it was a requirement. The Claimant felt he had prior negative experience of Parasol and elected to go through PayStream instead.[16]On 14 July the Claimant entered a contract with PayStream My Max Limited (“PSMM Ltd”) in respect of the work or services to be performed for the First Respondent. The contract stated in summary that it was a contract of employment between the Claimant as employee and PDMM Ltd as employer; that PDMM Ltd provides the services of its employees on assignments to customers; that the Claimant would be paid basic pay at the National Minimum Wage; that the Claimant would be paid commission being the difference between the monies paid by the customer and its own costs; that it may be terminated on statutory notice or summarily in certain circumstances; and that it was the entire agreement and supersedes prior representations, etc.[17]The Second Respondent entered into a contract with PSMM Ltd to provide services to supply a consultant, whom it employes, to provide services to a client.[18]The Claimant performed work or services for the First Respondent. The Claimant received payslips from PSMM Ltd in respect of that work. The payslips stated that PSMM Ltd was his employer and that the Second Respondent was the agency. He was paid basic pay and commission. PSMM Ltd charged the Clamant around £20 a week for their services. The law Strike out
The law
[19]Under Rule 37(1) of the Employment Tribunal Rules of Procedure, a Tribunal may strike out all or part of a claim or response on various grounds including- (a) that it is scandalous or vexatious or has no reasonable prospects of success.[20]In light of the severe consequences of strike out, such a decision is considered a draconian step which should only be taken on the clearest grounds and as a matter of last resort. Its purpose is not to punish the conduct but rather to protect the other party from the consequences of the conduct (Bolch v Chipman [2004] IRLR 140, EAT).[21]Before making a strike out order, the tribunal must give the relevant party a reasonable opportunity to make representations, either in writing or, if requested by that party, at a hearing.[22]Strike-out on grounds of no reasonable prospects is considered by means of a summary determination. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts. Exceptional circumstances may arise where disputed facts are totally and inexplicably inconsistent with undisputed contemporaneous documentation. Discrimination and unfair dismissal cases are generally fact sensitive and therefore strike out on this ground is exceptional. Where there are no reasonable prospects the Tribunal must decide whether to exercise it’s discretion mindful that full evidence has not been heard, although the Tribunal should not be deterred in the most obvious of cases.[23]Having regard to the EAT guidance in Cox v Adecco and ors 2021 ICR 1307, EAT - “(1) No-one gains by truly hopeless cases being pursued to a hearing; (2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate; (3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate; (4) The Claimant's case must ordinarily be taken at its highest; (5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can't decide whether a claim has reasonable prospects of success if you don't know what it is; (6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim; (7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing; (8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer; (9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.” Amendment[24]The Tribunal has a broad discretion under Rule 29 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 to allow amendments at any stage of the proceedings either on its own initiative or on the application by a party. Furthermore Rule 34 specifically provides that the tribunal may, on its own initiative, or on the application of a party, add any person as a party, by way of substitution or otherwise, if it appears that there are issues between that person and any of the existing parties falling with the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings. Such discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly under Rule 2.[25]According to the EAT guidance in Selkent Bus Co Ltd v Moore [1996] IRLR 661 the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The following were indicated to be relevant considerations: the nature of the amendment; the applicability of time limits; and the timing and manner of the application. Submissions[26]The Respondents’ oral submissions were in summary that the complaints had no reasonable prospects on the following grounds –a. A dismissal is automatically unfair, and does not require 2 years service, if the reason is that the employee make an application for flexible working under Section 80F. Such an application must be made in writing by an employee with 26 weeks service. The Claimant did not therefore qualify.b. A dismissal is automatically unfair, and does not require 2 years service, if the reason for dismissal is that the employee alleged the employer had infringed a relevant statutory right. Relevant statutory rights do not include discrimination rights under the Equality Act 2010.c. The Claimant had a written contract of employment with PSMM Ltd in respect of the work or services he performed for the First Respondent. The Claimant had no contract with the First or Second Respondent and accordingly no entitlement to notice pay. Adding a third respondentd. The Claimant seeks payment of notice for termination of his contract of employment. The Claimant’s contract of employment was with PSMM Ltd. This is accordingly an issue arising between the Claimant and PSMM Ltd and if this complaint is not struck out it is in the interests of justice to add them to the proceedings.[27]The Claimant’s oral submissions were in summary as follows –a. He was dismissed because he asserted a statutory right and/ or made a flexible working request and accordingly his dismissal is automatically unfair and he does not require 2 years service.b. The Second Respondent advised him he was entitled to 28 days notice in respect of the work or services he was to perform for the First Respondent and that amounted to an contractual agreement. The Second Respondent were acting either on their own behalf or as agent for the First Respondent or PSMM Ltd. Adding a third respondentc. It is in the interests of justice to add PSMM Ltd as a respondent. Discussion and decision Applications for strike out[28]Under Section 108 of the Employment Rights Act 1996 an employee cannot claim unfair dismissal unless he has 2 years service or one of the exemptions applies. Taking his case at its highest (which would require introduced by amendment), the Claimant asserts that he was dismissed because he sought a reasonable adjustment, because he asked for a reasonable adjustment, because he complained about being harassed, because he complained about the failure to make a reasonable adjustment and/or because he made a flexible working application. The Claimant seeks to rely upon the exemptions provided in respect of Sections 104 (Assertion of a Statutory Right) and 104C (Flexible Working Applications).[29]Seeking a reasonable adjustment and/or complaining about the failure to make such an adjustment or complaining about being harassed does not amount to the assertion of a relevant statutory right under Section 104 and accordingly the exemption does not apply. (Dismissal for asserting a right not to be discriminated against under the Equality Act 2010 is protected within that legislation by way of a claim for victimization under Section 27.) For the flexible working exemption to apply the application must be made under Section 80H. Such an application must be made in writing by an employee with 26 weeks service. The Claimant did not therefore qualify and the exemption accordingly does not apply. The complaint for unfair dismissal therefore has no reasonable prospects of success.[30]Recognising that strike out is a draconian step which should only be taken on the clearest grounds and as a matter of last resort, and noting that the Claimant is not without other remedy, it is considered in furtherance of the overriding objective for the complaint of unfair dismissal to be struck out on the basis that it has no reasonable prospects of success.[31]The Claimant understood that the Second Respondent’s use of the phrase “The client’s notice period is 28 days…” meant he would be entitled to 28 days’ notice of termination. Alternatively this may be a reference to termination of their contract with the supplier. It is not possible to make a summary determination of the effect of the relevant email in the relevant contractual nexus without hearing evidence in the context of a proper trial of the legal issues. Accordingly the application for strike out of the complaint of failure to pay notice pay is refused. Application to add PSMM Ltd as a third respondent[32]The Claimant’s original ET1 claim was made against three Respondents including the Second Respondent and PayStream Accounting Services Limited (“PSAS Ltd”). It was rejected in respect of the Second Respondent and PSAA Ltd because there was no ACAS EC Certificate. The Second Respondent was then added to the proceedings under Rule 34 at Case Management Preliminary Hearing on 17 January 2022. The Response provided by the Second Respondent on 10 February 2022 noted, erroneously, that PSMM Ltd had been added as a Respondent to the proceedings. It is not known whether the Second Respondent raised this with PSMM Ltd.[33]On 22 March 2022 an unless order was issued requiring the Claimant to provide further particulars. On 19 April the claim was dismissed for failure to comply with the unless order. On 20 May the Claimant’s application to have the unless order set aside on health grounds was refused. On 31 October 2022 his application for reconsideration of that decision was refused. On 23 March 2023 his application for reconsideration of that decision was successful in light of additional medical information and the decision to dismiss the claim was revoked.[34]According to information available on Companies House, PSAS Ltd provides accounting and payroll services to companies and individuals. Both PSAS Ltd and PSMM Ltd are wholly owned my PayStream My Max Holdings Limited. The Claimant’s written contract is with PSMM Ltd and states that it is a contract of employment and that PSMM Ltd is his employer. The payslips provided also state that PSMM Ltd is his employer.[35]The unamended claim for notice pay was brought within the statutory time limits. The claims against PSMM Ltd would be in the same terms as currently plead.[36]There has been a substantial delay in this case being listed for a final hearing. This delay is largely due to the significant time taken to revoke the decision to dismiss the claim. The issue of the correct identify of the employer was live at the time of the unless order and was reactivated a year later when the decision to dismiss the claim was revoked.[37]Allowing the amendment may give rise to further procedure including a possible application for reconsideration and a further case management preliminary hearing but should not give rise to a substantial delay. Given that this claim was lodged in December 2021 it is however imperative that it proceeds to a final hearing as soon as reasonably practicable.[38]Refusing the amendment may prevent the Claimant from having recourse to a remedy in this forum in the event of a finding that PSMM Ltd was his employer. However, it is noted that he could bring a claim for breach of contract in another forum within 5 years. In either case PSMM Ltd may seek to rely upon the entire agreement clause.[39]Allowing the amendment would put PSMM Ltd to cost and inconvenience but no greater than if they had been included as a respondent within the original claim.[40]Taking into account all the circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it, the application to add PSMM Ltd as Third Respondent is granted in respect of the complaint for 28 days’ notice pay. There are issues between PSMM Ltd and the Claimants falling with the jurisdiction of the Tribunal which it would be in the interests of justice to have determined in the proceedings.[41]This decision has been reached in the absence of PSMM Ltd who may apply for reconsideration of this decision under Rule 71.