Employment Judge Adkinson sitting aloneNot represented for claimantDate 6 July 2023
JUDGMENT
After hearing from the respondent, and the claimant not attending, And upon reasonable steps being taken by the Tribunal to contact the claimant not being successful And upon considering the respondent’s submission IT IS ORDERD THAT all claims are struck out because of the manner in which the proceedings have been conducted by or on behalf of the claimant, further or alternatively he has not actively pursued them AND FURTHER IT IS ORDERED THAT all future hearings are vacated.
REASONS
[1]The chronology of the case is as follows: 29 June 2021 Claimant commences his employment with the respondent 16 December 2022 Claimant’s employment ends by resignation. or 17 December 4 January 2023 Early conciliation commences 15 February 2023 Early conciliation ends Page 1 of 8 13 March 2023 Claimant presents his claim (ET1) 23 March 2023 The Tribunal writes to the parties to inform them it has listed a telephone case management hearing on 2 June 2023 at 11:30am for 90 minutes. 24 May 2023 The Tribunal writes to the parties to inform them it the case management hearing will now take 2 hours. 26 May 2023 Respondent submits case management agenda 2 June 2023 Claimant submits case management agenda and 12:08am agreement to mediate and occupational health reports. He also wrote: “I would like to inform the court that due to work commitment I will not eb able to attend the hearing via telephone, instead I wish [the ACAS conciliator] to be contact on my behalf” There is no evidence that the ACAS conciliator was his representative or expecting the call (and it is obvious he could not be the representative in any event). Besides, the notice of hearing says “You or a representative must telephone in to the hearing. Even if you have a representative, you are encouraged to telephone in yourself as well. If you do not telephone in yourself, your representative must fully understand your case and be able to answer any questions they are asked about it.” The claimant therefore was aware that it was his responsibility to ensure any representative called in. 2 June 2023 Telephone case management hearing before Employment Judge Fredricks-Boyer. I set out more detail below about the orders at that hearing. It is pertinent to note that the learned judge in his order gave notice of today’s hearing. 19 June 2023 The above order was sent to the parties at the addresses they provided. 4 July 2023 The details of how to connect to the video hearing were sent to the parties at the addresses they provided. 6 July 2023 Today’s hearing.[2]The following specific information is also of importance.[3]The ET1 sets out a lengthy and detailed narrative. It is apparent the claimant is alleging race discrimination and/or harassment because of race. It is possible that he is also making allegations about consequences arising from a public interest disclosure. The issues are that, like with many Page 2 of 8 narrative claims, it is not possible to discern what type of discrimination (direct, indirect, harassment ) the claimant alleges and pick out the key information from it needed for those claims. The public interest disclosure claim (if there be one) is unclear and requires significant clarification.[4]In the telephone case management hearing on 2 June 2023, the Learned Judge wrote the following in his case management summary and also directed as follows (so far as relevant): “1. A public preliminary hearing will be held on video, via Cloud Video Platform, from 10:00am on Thursday 6 July 2023. The time estimate for the hearing is 3 hours…. “Purpose of the public preliminary hearing “4. The claimant did not attend the telephone preliminary hearing today and so progress could not be made with clarifying his claims. This should be done at this public preliminary hearing. “5. Additionally, the respondent has requested this hearing be heard in public because it considers the claim or part(s) of it should be made subject to a deposit order under Rule 39 because the claim of part(s) of it have little reasonable prospect of success. “6. The next hearing will also put into place a new timetable with directions to the final hearing, and to that extent any pre-existing directions (except for the listing date) are revoked replaced with these orders. “7. It is essential that the claimant attends this next hearing. Failure to attend may lead to the claim being struck out under Rule 37 because it is not actively pursued, or alternatively dismissed under Rule 47 because the claimant has not attended the hearing. “The claimant’s protected disclosure / detriment claim “8. The claimant alleges that he made a protected disclosure during his employment and that he has suffered detriment as a result. The claim form is not clear about the factual circumstances which would support such a claim and it is essential that clarity is provided. This was a key feature of the agenda for today’s hearing and the claimant’s absence has the potential to cause a delay to the proceedings. “9. The claimant should provide written clarity about the protected disclosure/detriment part of his claim. Within 14 days of the sending of this order, the claimant must write to the claimant and to the Tribunal to: “9.1 Confirm whether, or not this part of the claim is being pursued. “9.2 Confirm what he said or wrote, when and to whom which he considers to be the protected disclosure and why he considers it to be the protected disclosure; and “9.3 Confirm what he says the respondent did as a result, of that protected disclosure, and why that thing / those things caused him a detriment. “STRIKE OUT WARNING “10. Should the claimant fail to comply with the orders at paragraphs 8 above, then he should be aware that his protected disclosure / detriment Page 3 of 8 claim may be struck out as a result of that non-compliance and/or because the Tribunal considers that that claim is not being actively pursued. “Variation of dates “11. The parties may agree to vary a date in any order by up to 14 days without the Tribunal’s permission, but not if this would affect the hearing date.[5]The following points arise from the Learned Judge’s order: 5.1. Today’s hearing was to be (and was) a hearing in public, albeit it took place by video link; 5.2. The note did suggest that the details of the video link would be provided 2 weeks’ before the hearing. That clearly did not happen. However links are often sent only shortly before the hearing in this region. There is no suggestion any issue arose from this, and I cannot reasonably imagine that it gave rise to any problem, particularly as attempts to contact him on the day failed; 5.3. The claimant has made no contact with either the respondent or Tribunal since that hearing. Therefore it is clear the claimant has not complied with paragraph 9 to provide information and has made no attempt to do so; 5.4. The parties have not agreed any variation of the dates.[6]On the day of the hearing the claimant did not attend. The Tribunal’s clerks tried to contact the claimant by telephone. The only number available to them is that on the ET1. It was disconnected and there was no opportunity to leave a message and no suggestion of an alternative number. They did not email the claimant. I do not consider that a reasonable or practicable step to have taken. It is not instantaneous communication like a call, but sits in an inbox until the user accesses it, and there is no suggestion he would have instantaneously accessed it. In addition the Tribunal has been emailing the claimant at the only address it has, which is on his ET1. It is to that address the Tribunal sent notice of hearing. Since his last correspondence saying he could not attend, the claimant has not sent any emails or shown any response to those sent. There is no suggestion it would have been acted on or it had any effect.[7]The respondent applied for the following: 7.1. That I strike out the claim on the grounds that the claimant has not actively pursued it; 7.2. That I strike out it out because it has been conducted in a scandalous or vexatious or unreasonable manner; 7.3. That I strike it out because the claim has no reasonable prospect of success; 7.4. That I strike it out under rule 47 (non-attendance at hearings); 7.5. That I at least strike out any protected disclosure claims for noncompliance with the orders; Page 4 of 8[8]I begin by reminding myself the Tribunal has warned the claimant he is at risk of his claims being struck out, that he has to attend this hearing, that he has had more than 14-days’ notice of this hearing and that he cannot be contacted.[9]The ET Rules of Procedure provide (so far as relevant) the Tribunal may strike out a claim or part of a claim in the following circumstances: “37.—(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 … 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 … has been scandalous, unreasonable or vexatious; “(c) for non-compliance with any of these Rules or with an order of the Tribunal; “(d) that is has not been actively pursued;…”[10]I can deal briefly with the application that falls under rule 37(1)(a) (no reasonable prospects of success). The claim requires clarification. Until it is clarified I cannot sensibly conclude it has no reasonable prospects of success. That ground must fail. I cannot see that the claim itself can be described as scandalous or vexatious.[11]I turn to the question though how it has been conducted (i.e. under rule 37(1)(b). My conclusions are as follows: 11.1. I start with definitions: 11.1.1. “Scandalous” means irrelevant or abusive of the other side or the Tribunal’s process: Bennett v Southwark LBC [2002] ICR 881 CA. 11.1.2. Bingham CJ described “vexatious” proceedings as follows in Attorney General v Barker [2000] 1 FLR 759, QBD (DC) (adopted in Bennett): “[They have] little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” 11.1.3. For conduct to be considered “unreasonable”, it must either : deliberate and persistent disregard of required procedural steps, or have made a fair trial Page 5 of 8 impossible: see Blockbuster Entertainment Ltd v James [2006] IRLR 630 CA. 11.2. In my view the case cannot yet be said to have been conducted scandalously: the conduct is not irrelevant or abusive of the respondent or Tribunal in my view. It is simply someone not pursing their claim or taking part. I am not satisfied that is enough to cross the threshold. 11.3. I cannot say the claim is vexatiously conducted. There is nothing that allows me to conclude that the claim is motivated to cause harassment or inconvenience or the benefit that might accrue is out of all proportion to any gain. It is not yet an abuse of process. 11.4. I am satisfied the claim is unreasonable. The claimant has failed to attend the first hearing despite having notice and clearly knowing of it, did not make arrangements about his representative but assumed that ACAS would represent him and simply left for the Tribunal to arrange contact, only told the Tribunal he was not coming shortly after midnight on the day of the hearing, has failed to attend a second hearing, has not communicated with the Tribunal since the last hearing either to comply with the Tribunal’s orders or otherwise. The claimant has in my view shown a persistent and deliberate disregard for the Tribunal’s process in the circumstances. 11.5. Therefore I am satisfied that the claim should be struck out for being conducted unreasonably. No lesser sanction is appropriate. There is no reason to believe he will comply with future orders. There is no reason to believe he will attend. The case cannot proceed without clarification. To continue will require further expense on the respondent’s part, will introduce more delay and will impact on the Tribunal’s resources. An unless order is not appropriate because the claimant has already been warned he is at risk of his claim being struck out, that he must attend the hearing, that the claim needs clarification and that is to be done at this hearing, and has already been ordered to clarify in advance part of his claim but has taken no steps to do even that.[12]I deal with this for completeness. I turn to the question of whether the claimant has not actively pursued his claim (under rule 37(1)(d)): 12.1. A Tribunal can strike out a claim where: 12.1.1. there has been delay that is intentional or contumelious (disrespectful or abusive to the court), or 12.1.2. there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the respondent. Page 6 of 8 See Evans and anor v Commissioner of Police of the Metropolis [1993] ICR 151 CA; Birkett v James [1978] AC 297 UKHL. 12.2. I do not consider that a fair hearing is no longer possible. While there has been delay, beyond bare assertion that the delay causes prejudice, there is no real explanation why a fair hearing is not possible. The respondent is aware of the factual matrix on which the claimant relies, even if the details of the claim are to be clarified to know exactly what case they have to meet. They can preserve evidence and capture notes/evidence now. For the same reason I see no serious prejudice. 12.3. However I do consider the delay in this case to be intentional or contumelious. 12.3.1. It is intentional because the claimant has clearly had notice of both the first and second hearings and of the orders and, in short, has not done anything he has been asked to do and has not attended. No progress can be made. He knew of the first hearing but chose not to attend. That is apparent from his email. He knew of the second hearing but again did not attend and was uncontactable. He did not provide the information ordered. The evidence points to the conclusion in my view that he has disengaged from the process he started. 12.3.2. I also consider it contumelious. It is disrespectful and abusive to present the claim and then take no steps to progress it by failing to attend 2 hearings that are needed to clarify the claim the claimant presented in the first place. I do not accept that filing a case management agenda at just after midnight on the morning of the hearing is enough to show otherwise. 12.3.3. I set out above why a lesser order was not appropriate alternative. I consider the same reasoning applies here. 12.4. Therefore I conclude this too is a ground to strike out the claim[13]Finally I consider the alternative in relation to the protected disclosure claim and rule 37(1)(c). I conclude as follows: 13.1. I must consider whether to strike out the claim in light of the overriding objective. The relevant factors are: 13.1.1. the magnitude of the non-compliance; 13.1.2. whether the default was the responsibility of the party or his or her representative; 13.1.3. what disruption, unfairness or prejudice has been caused; 13.1.4. whether a fair hearing would still be possible; and Page 7 of 8 13.1.5. whether striking out is proportionate or some lesser remedy would be an appropriate response to the disobedience. see Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371 EAT; De Keyser Ltd v Wilson [2001] IRLR 324 EAT; Bloch v Chipman [2004] IRLR 140 EAT; Blockbuster Entertainment Ltd; Bennett. 13.2. I note as follows: 13.2.1. The claimant has not in any way attempted to comply with the order 13.2.2. Responsibility lies solely with him; 13.2.3. The consequence is that it is still unclear if he presents a claim founded on a protected disclosure and if so, the key details to understand the legal basis of it; 13.2.4. a fair hearing would be possible if, eventually, it were clarified; 13.2.5. I repeat earlier observations about lesser remedy. 13.3. Weighing up the factors and the circumstances more generally, I would has struck out any protected disclosure claim. I do not believe there is a realistic, lesser alternative.[14]Finally the claimant was not present at the hearing. Rule 47 entitles the Tribunal to dismiss the claim if the claimant is not present, and only after considering information available and after practicable enquiries for their absence.[15]I have already referred to the enquiries made. There is no other information available that assists on this issue or the winder issues of clarifying the claims. If I had not struck it out, I would have dismissed the claims under this rule. He was not present. The only alternative step were as set out above, which are not acceptable in my view.