Employment Judge Ayre, sitting aloneNot represented for claimantLynsey Howes (instructed by solicitor) for respondentDate 30 April 2024
JUDGMENT
[1]The claims for age and sex discrimination are struck out because:a. They are vexatious; andb. They are out of time and there is no reasonable prospect of the claimant successfully showing that it would be just and equitable to extend time for the presentation of those complaints. Accordingly the Tribunal does not have jurisdiction to hear them.[2]The claim for equal pay is struck out because it has no reasonable prospect of success.
REASONS
[1]The claimant was employed by the respondent as a payroll clerk, from 2 November 2015 until 5 May 2023. Early conciliation started on 26 October 2023 and ended on 7 December 2023. The claim form was presented on 6 January 2024. On the claim form the claimant ticked the boxes indicating that she is making claims for age and sex discrimination and for ‘other payments’. Her claim form appears to include a complaint of equal pay, relying upon a comparator named Jake. PHCM Order 1 of 7[2]The respondent defends the claim. In its response it pleads that:2.1 The claimant admitted to stealing almost £85,000 from the respondent, and was summarily dismissed for gross misconduct as a result;2.2 The claimant has failed to particularise her complaints of age and sex discrimination in her claim form;2.3 The complaints of age and sex discrimination are out of time;2.4 Jake is not an appropriate comparator for the equal pay claim because he was employed as a trainee diver and subsequently a fully qualified diver, whereas the claimant was employed as a payroll clerk;2.5 The claimant did not raise any of the issues referred to in the claim form at any time during her employment with the respondent; and2.6 The claims are without merit and made maliciously and vexatiously.
The hearing
[3]Notice of today’s hearing was sent to the claimant on 9 February 2024 at the email address provided in the claim form. On 13 March 2024 an amended notice of hearing was sent to the parties, including the claimant. In the amended notice of hearing the parties were informed that:3.1 The length of the hearing had been extended to 3 hours; and3.2 At the hearing the Judge would decide whether to strike out all or any part of the claim, and/or whether to order the claimant to pay a deposit as a condition of continuing with all or part of her claim.[4]In advance of the hearing the respondent prepared a Case Management Agenda and draft List of Issues, which Ms Howes told me she had sent to the claimant, without receiving any response.[5]The claimant did not attend today’s hearing and was not represented. The hearing was due to start at 10 am, but the start of the hearing was delayed until 10.30 to give the claimant time to dial in. She did not do so. The claimant had not provided a contact telephone number on her claim form, but the respondent was able to provide one for her. A member of Tribunal staff called the telephone number provided four times in an attempt to contact the claimant but was unable to make contact with the claimant.[6]There was no record on the Tribunal file of the claimant having requested a postponement of the hearing, of having contacted the Tribunal or the respondent to indicate that she would not be able to attend today’s hearing, or indeed of the claimant having taken any action in relation to the claim since filing her claim form in January. PHCM Order 2 of 7[7]In the circumstances, I decided to proceed with the hearing in the absence of the claimant in accordance with Rule 47 of the Employment Tribunal Rules of Procedure. There was no evidence to suggest or reason to believe that if I were to postpone the hearing the claimant would attend on another date.[8]Ms Howes made submissions on behalf of the respondent. In summary she submitted that:8.1 The claims are scandalous and vexatious and being made as revenge for the respondent reporting the theft to the police;8.2 The claims are entirely without merit and have never been raised previously with the respondent;8.3 Jake was doing an entirely different job to the claimant, which was not of equal value to the claimant’s. He worked unsocial hours, away from home, carrying out an important health and safety role, sometimes in a hostile working environment;8.4 There are material inaccuracies in the claim form; and8.5 There is no just and equitable reason for extending time, and it would be an abuse of process to allow the claimant to continue with claims with no merit.[9]Having considered the submissions made by Ms Howes, I decided, for the reasons set out in this judgment, that the claims should be struck out. Having delivered that decision orally, Ms Howes made an application for the costs of preparing for and attending today’s hearing, in the sum of £1,155.[10]Rule 77 of the Employment Tribunal Rules of Procedure provides that no costs order can be made “unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application”. Ms Howes therefore agreed to put her application for a costs order in writing and send a copy of the application to the claimant so that she has the opportunity to comment on it.
The Law
[11]Rule 37 of the Rules provides that: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds –(a) That it is scandalous or vexatious or has no reasonable prospect of success;(b) That the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious; …” PHCM Order 3 of 7[12]Strike out is a draconian sanction and not one that should be applied lightly. Tribunals should be particularly cautious about exercising their power to strike out badly pleaded claims brought by litigants in person who are not familiar with articulating complex arguments in written form on the ground that they have no reasonable prospect of success (Mbuisa v Cygnet Healthcare Ltd EAT 0119/18).[13]The Employment Appeal Tribunal, in Abertawe Bro Morgannwg University Health Board v Ferguson [2013] ICR 1108 commented that whilst in some cases strike out may save time, expense and anxiety, in cases that are fact sensitive the circumstances in which a claim is likely to be struck out are rare.[14]In Cox v Adecco and ors [2021] ICR 1307 the Employment Appeal Tribunal gave guidance to Tribunals dealing with strike-out applications against litigants in person. It held that when considering strike out of claims brought against litigants in person, the claimant’s case should be taken at its highest and the Tribunal must consider, in reasonable detail, what the claims and issues are.[15]In Anyanwu and anor v South Bank Student Union and anor [2001] ICR 391 the House of Lords stressed the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive and can only be determined after evidence has been heard.[16]Section 123(1) of the Equality Act 2010 provides that complaints of discrimination may not be brought after the end of: “(a) the period of 3 months starting with the date of the act to which the complaint relates, or… (b) such other period as the employment tribunal thinks just and equitable.[17]By virtue of section 140B of the Equality Act 2010, ACAS early conciliation will normally extend time, but not in cases where the early conciliation itself starts more than three months after the last act of alleged discrimination.[18]Tribunals have a discretion as to whether to extend time (Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434 and Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640) but exercising that discretion should still not be the general rule. There is no presumption that the Tribunal should exercise its discretion to extend time.[19]When deciding whether to exercise its discretion to extend time, the Tribunal can take into account anything that it considers relevant. Factors that may (but will not always – see Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23) be relevant include:19.1 The length of and reasons for the delay in presenting the claim;19.2 The extent to which the cogency of the evidence is likely to be affected by the delay; PHCM Order 4 of 719.3 The extent to which the respondent cooperated with any requests for information;19.4 How quickly the claimant acted when she knew of the facts giving rise to the claim; and19.5 The steps taken by the claimant to obtain professional advice once she knew of the possibility of taking action.[20]The Tribunal may consider the merits of the case (Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] EAT 1342), the prejudice that would be suffered by either party if the application for an extension of time were to succeed or fail, and the practical consequences of allowing or refusing an extension of time.
Conclusions
[21]I reached the following conclusions having considered the claim form and response form, the submissions of the respondent, and the legal principles summarised above.[22]I have reminded myself that caution should be exercised before striking out discrimination claims, which are normally fact sensitive, and that the claimant’s case must be taken at its highest. That said, this case is one in which in my view the threshold for strike out is met.[23]The claimant has taken no steps whatsoever to progress her claim since issuing proceedings. She has had the opportunity to adduce evidence and to make representations as to why her claims should not be struck out but has failed to do so.[24]The respondent set out clearly its position in its response to the claim. On 13 March the Tribunal wrote to the parties, including the claimant, putting them on notice of the issues that would be considered today, including the question of strike out.[25]Despite being warned that the question of strike out would be considered today, the claimant has not attended, or sent in any evidence or representations. Her non-attendance at the hearing is entirely without explanation. She has made no contact with the Tribunal or with the respondent’s representative since submitting her claim.[26]The respondent has attended today and made submissions which are uncontested by the claimant and which I accept.[27]I am satisfied, having reviewed the claim form and response form, and listened to the submissions of Ms Howes, that the complaints of age and sex discrimination are vexatious. I accept Ms Howes’ submissions that they were not raised during the course of employment, and that they have been raised, belatedly, in response to the respondent reporting the claimant to the police. PHCM Order 5 of 7[28]I also find that the discrimination complaints are out of time, and that there is no reasonable prospect of the claimant establishing that it would be just and equitable to extend time. The claimant’s employment terminated on 5 May 2023, so time for starting early conciliation expired on 4 August 2023. She did not start early conciliation until 26 October and did not present her claim until 6 January 2024.[29]Her discrimination claims are therefore more than five months out of time, taking account of the fact that there is no early conciliation extension, because she started early conciliation more than three months after the termination of her employment.[30]The claimant has provided no explanation or reasons for the delay in presenting her claim, despite having the opportunity to do so. Time limits exist for an important reason of public policy and the Tribunal does not have jurisdiction to hear claims that are out of time. Given the significant delay in this case and the lack of explanation for that delay, there is in my view no reasonable prospect of the claimant establishing that it would be just and equitable to extend time.[31]For the above reasons the discrimination claims are struck out.[32]The equal pay claim appears to have been made in time but has in my view no reasonable prospects of success. Whilst I accept that equal pay claims are fact sensitive, and that it is rare for a Tribunal to find that they have no reasonable prospect of success, this is such a claim. The respondent has provided what appears to be a robust defence to the claim setting out significant differences between the role carried out by the claimant and the role of her comparator. That defence, and the submissions made by Ms Howes today, have not been challenged by the claimant.[33]The claim for equal pay is therefore struck out on the ground that it has no reasonable prospect of success.
Background
[1]The claimant was employed by the respondent as a payroll clerk, from 2 November 2015 until 5 May 2023. On 26 October 2023 she started ACAS early conciliation. Early conciliation ended on 7 December 2023 and the claim form was presented on 6 January 2024. On the claim form the claimant ticked the boxes indicating that she is making claims for age and sex discrimination and for ‘other payments’. Her claim form appeared to include a complaint of equal pay, relying upon a comparator named Jake.[2]The respondent defended the claim. In its response it submitted that:2.1 The facts as set out in the claim form were misleading and materially inaccurate;2.2 The claims were out of time;2.3 Between August 2020 and April 2023 the claimant stole nearly £80,000 from the respondent;2.4 The claimant was dismissed for the theft, and subsequently pleaded guilty to the theft of nearly £85,000 from the respondent;2.5 Jake is not an appropriate comparator for an equal pay claim; and2.6 The claims are without merit and made maliciously and vexatiously. PHCM Order 1 of 7[3]The respondent also, in its Grounds of Resistance, indicted that it wished to apply for the claims to be struck out and that it would be making a costs application.[4]The case was listed for a Preliminary Hearing in public on 30 April 2024. The claimant did not attend the hearing. Attempts were made to contact her, but to no avail. The hearing went ahead in her absence and all of the claims were struck out. The reasons for the decision are set out in the Judgment sent to the parties on 7 May 2024. The costs application[5]At the end of the Preliminary Hearing the respondent’s solicitor made an application for the costs of preparing for and attending the hearing, in the sum of £1,155. The application could not be considered during the hearing because Rule 77 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides that no costs order can be made unless the paying party has had a reasonable opportunity to make representations in response to the application. As the claimant was not present at the hearing, she had not had a reasonable opportunity to make representations on the question of costs.[6]On 7 May 2024 the respondent made a written application for costs, which was copied to the claimant. In the application, the respondent applied for an Order that the claimant pay costs of £1,155.00 in respect of 3.5 hours’ work by the respondent’s solicitor in preparing for and attending the hearing on 30 April 2024, at an hourly rate of £275 plus VAT.[7]The grounds for the costs application, in summary, are that:7.1 Bringing the claims of age and sex discrimination was vexatious and/or unreasonable;7.2 The claims of age and sex discrimination were significantly out of time;7.3 The claim of equal pay had no reasonable prospect of success because the comparator identified by the claimant was flawed. Jake was a trainee diver and subsequently a qualified diver doing skilled work away from home in dangerous environments, whereas the claimant was a payroll clerk; and7.4 The claimant’s conduct of the proceedings was unreasonable including because the claimant failed to attend the hearing.[8]The application was forwarded to the claimant for her comment. The parties were also asked for their views as to whether the costs application could be dealt with on the papers or required a hearing. The respondent indicated that it was happy for the costs application to be determined on the papers without a hearing. The claimant indicated that it would be impossible for her to attend a hearing of any format, and that no hearing was required.[9]In light of the representations of the parties, the costs hearing was listed to take place on the papers, in chambers, and the parties were informed that they did PHCM Order 2 of 7 not need to attend but could submit written representations if they wished to do so.[10]The claimant wrote to the Tribunal on 27 May 2024 setting out her response to the costs application. In summary, this was that:10.1 None of the claims were vexatious or untrue;10.2 Her actions were not vexatious or unreasonable;10.3 The claims were brought together with an equal pay claim that was in time;10.4 The equal pay claim did not rely on just one comparator and she compares herself also with “other managers who work in the office and have no more experience”;10.5 Jake was not a flawed comparator;10.6 Her current circumstances are overwhelming and she was unable to attend the Preliminary Hearing because she was in extreme distress;10.7 She is in severe financial hardship and currently unemployed;[11]The respondent sent written submissions to the Tribunal on the 5 June 2024. In those submissions, the respondent repeated the comments made in its application for costs, and also submitted that It was vexatious and unreasonable conduct on the part of the claimant not to inform the Tribunal that she was unable to attend a hearing, or to withdraw her claims.
The Law
[12]The rules governing applications for costs are set out in Rules 74 to 78 and Rule 84 of Schedule 1 to the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”). The relevant rules for the purpose of this application are:12.1 Rule 77 (Procedure): “A party may apply for a costs order… at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.12.2 Rule 76 (When a costs order or a preparation time order may or shall be made): “(1) A Tribunal may make a costs order…, and shall consider whether to do so, where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted, or(b) any claim or response had no reasonable prospect of success….” PHCM Order 3 of 712.3 Rule 78 (The amount of a costs order): “A costs order may – (a)Order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b)Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles…”12.4 Rule 74 (Definitions): (1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing)…. (2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who –a. Has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in country courts or magistrates’ courts;b. Is an advocate or a solicitor in Scotland; orc. Is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland. (3) “Represented by a lay representative” means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings.12.5 Rule 75 (Costs orders and preparation time orders: “(1) A costs order is an order that a party (“the paying party”) make a payment to – (a) Another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) The receiving party in respect of a Tribunal fee paid by the receiving party; or(c) Another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at the Tribunal.”12.6 Rule 84 (Ability to pay): PHCM Order 4 of 7 “In deciding whether to make a costs…order, and if so in what amount, the Tribunal may have regard to the paying party’s…ability to pay.”[13]Costs remain the exception rather than the rule in Employment Tribunal proceedings (Gee v Shell UK Ltd [2003] IRLR 82). This does not, however, mean the facts of the case have to be exceptional in order for a costs order to be made (Power v Panasonic (UK) Ltd UKEAT/0439/04).[14]In deciding whether to make an order for costs, the Tribunal must first consider whether the conduct of the claimant falls within Rule 76. If it does, the Tribunal must then go on to consider whether to exercise its discretion to make an award of costs and, if so, how much. The mere fact that a party’s conduct has been unreasonable or that a party has pursued a claim which did not have reasonable prospects of success does not mean that a costs award will automatically follow.
Conclusions
[15]In reaching my decision on whether to make a costs order in this case, I have taken account of the fact that the Tribunal has a wide discretion when it comes to making costs orders, but also that costs do not normally ‘follow the event’ in Employment Tribunal litigation.[16]The first question I have had to consider is whether the claimant’s conduct falls within Rule 76, and specifically whether the claimant has acted vexatiously or unreasonably in the bringing or conducting of the proceedings and/or whether any claim had no reasonable prospect of success.[17]At the Preliminary Hearing on 30 April I found, for the reasons set out in the Judgment sent to the parties on 7 May 2024, that the complaints of sex and age discrimination were both vexatious and had no reasonable prospects of success. I also found that the equal pay claim had no reasonable prospects of success. The discrimination complaints were presented significantly out of time, and no explanation was provided for the delay. Although the equal pay claim was presented in time, the defence submitted by the respondent appeared robust.[18]In her response to the costs application the claimant suggests that in the equal pay claim she is relying not just on Jake as a comparator, but also on other managers. This allegation does not appear to be contained in the claim form, however, and is now being made for the first time. The assertion does not bring into question the conclusions I reached at the hearing on 30 April about the merits of the equal pay claim.[19]Whilst non attendance at a hearing is not, in itself, grounds for making a costs order, it can be taken into account when considering the claimant’s conduct overall in bringing and conducting the proceedings. The claimant in this case, having been dismissed for stealing almost £85,000 from her employer, issued proceedings seven months after that dismissal and, having filed her claim on 7 December 2023, took no further part in the proceedings until she wrote to the Tribunal on 29 May 2024 objecting to the costs application. PHCM Order 5 of 7[20]There is no evidence before me of the claimant having made any attempt to contact the Tribunal prior to the hearing on 30 April to explain her nonattendance or seek a postponement, or even to submit written representations if she was not able to attend. She took no further steps to progress her claim.[21]Moreover, the claimant has provided very limited explanation for the manner in which she has conducted the proceedings. In her letter of 27 May she refers in general terms to being in distress and in a difficult situation but provides very little detail or information. Although the claimant writes that she is unable to attend a hearing, she has not suggested that she was unable to write to the Tribunal, and indeed she has done so.[22]For these reasons, I am satisfied that the conduct of the claimant in both bringing and conducting the proceedings has been unreasonable, and that all of the claims had no reasonable prospect of success.[23]I have then gone on to consider whether I should exercise my discretion to make an award of costs and, if so, how much the claimant should be ordered to pay. In so doing, I have taken account of the very limited information before me about the claimant’s ability to pay a costs order if one were to be made.[24]The claimant has provided some information about her ability to pay, stating that she is currently unemployed and in financial hardship. She has not however provided any information about what assets she has (for example, a car or family home) and the respondent suggests that she is likely to have access to some funds. The claimant has not submitted any evidence to support the comments made in her letter of 27 May.[25]The fact that the claimant is unemployed and unrepresented does not prevent a costs order being made (Vaughan v London Borough of Lewisham and others UKEAT/0533/23)[26]The costs which the respondent seeks to recover in its application are, in my view, reasonable. They do not extend to all of the costs incurred in defending this claim but are limited to the costs of preparing for and attending one hearing. Just 3.5 hours of time by the respondent’s solicitor are claimed.[27]The claimant is therefore ordered to pay to the respondent costs in the sum of £1,155.00. PHCM Order 6 of 7