Mr N Wheelan v South Central Ambulance Service NHS Foundation Trust: 6001018/2023

EMPLOYMENT TRIBUNALS

Case No 6001018/2023

Between

Mr N WheelanClaimant

South Central Ambulance Service NHS Foundation TrustRespondent

Date 10 January 2025

JUDGMENT

The claim is struck out.

REASONS

[1]By an Order dates 2 September 2024, which was made by consent, the Claimant was required to provide certain information about his claim to the Respondent and the Tribunal by 28 October in preparation for the hearing listed for 15 and 16 January 2025. He did not do so.

[2]By a letter dated 18 November, the Respondent applied for an ‘unless order’ in relation to that information. The application was copied to the Claimant but he did not comment upon it, despite the Tribunal’s request for him to do so on 20 November.

[3]Accordingly, by a letter dated 16 December 2024 the Tribunal gave the Claimant an opportunity to make representations as to why the claim should not be struck out because he had not complied with the Orders of the Tribunal and/or the claim had not been actively pursued.

[4]On 22 December, the Claimant wrote to say that he suffered a deterioration in his mental health and he invited the Tribunal to contact a mental health practitioner, Miss Alexander. The Tribunal wrote to indicate that it did not and would not contact a third party on his behalf and that, if he was applying for a postponement, he ought to make such an application with supporting evidence. No such application/evidence has been provided.

[5]The Claimant is therefore in breach of the most recent order and the forthcoming hearing.

[6]The background is significant. At the first Case Management Preliminary Hearing on 13 June 2024, Judge Cadney had struggled to understand the basis of the claim and had made orders for the Claimant to provide further information about it by 26 July. That information was provided late; he sent 376 pages of submissions and evidence on 27 August and a further 266 pages of documents on the 30th.

[7]In the submissions, he set out 8 allegations of harassment which extended from 30 November 2020 to 2 February 2024 and 29 allegations of failure to make reasonable adjustments between 8 July 2020 and 20 July 2023. In the September Order, he had been required to indicate which of the pre-June 2023 he was planning to pursue, where they could have been found in the Claim Form and, if not, whether he was seeking to add them by way of amendment. Details were also sought in relation to the claim of constructive unfair dismissal.

[8]The Claimant’s only response has been to say that had already provided the necessary information in August, which ignored the fact that the Judge had made the Orders in September because the information had been so unclear.

[10]He has failed to actively and appropriately pursue his case and it is appropriate and proportionate to strike the claim out for that reason and his failure to comply with the Tribunal’s Orders.

[11]The hearing fixed for 15 and 16 January 2025 will not take place.

[1]The Claimant’s application for reconsideration is allowed and the claim is not struck out.

[2]Unless either party writes to suggest otherwise and/or supplies dates of unavailability within 7 days of this Judgment being sent to them, the hearing previously listed for 15 and 16 January 2025 will be re-listed within the next six months

[3]The date for compliance with the requirements in paragraph 13 of the Order of 2 September 2024 is now 12 June 2025.

[1]The Claimant has applied for a reconsideration of the Judgment dated 10 January 2025 which was sent to the parties on 13 January 2025. The grounds are set out in his application of 26 January 2025. Relevant principles

[2]Under rule 69 of the Tribunal Procedure Rules 2024, an application for reconsideration must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.

[3]The grounds for reconsideration are only those set out within rule 68, namely that it is necessary in the interests of justice to do so. That allows for a ‘broad discretion’ to be exercised (Outasight VB Ltd-v-Brown

UKEAT/0253/14

) and, although the list of factors that may be relevant will be fact sensitive in every case, it was clear form the decision in Outasight that finality in litigation is invariably going to be one such factor. That has been a thread which has been common to many of the authorities in this area, stretching back, perhaps, to Phillips J’s judgment in Flint-v-Eastern Electricity Board

[1975] ICR 395

. Most recently, in Phipps-v-Priory Education Services Ltd

[2023] EWCA Civ 652

, the Court of Appeal encouraged an approach to rule 70 which involved the weighing of the injustice that the parties would suffer if a reconsideration application was allowed or refused, but by also “giving weight to the public interest in the finality of litigation.” (paragraph 36)

[4]In any consideration of the operation of unless orders and reconsideration of their effects, the case of Wakeman-v-Boys and Maughan and another

[2024] EAT 39

provided useful guidance. A tribunal had to decide what it was right to do in the interests of justice and the overriding objective. A broad assessment was required, including consideration of whether any breach was deliberate, its effects and/or whether a fair trial was still possible. Discussion and conclusion

[5]The relevant background to this case was as follows;5.1 The Claimant issued his claim on 9 June 2023, a complaint of discrimination on the grounds of disability. The Respondent responded on 26 July but an initial Case Management Preliminary Hearing was postponed at the Claimant’s request;

5.2 The relisted Case Management Preliminary Hearing took place on 13 June 2024. A Preliminary Hearing was then listed to determine the outstanding disputed issue of disability (ADHD);

5.3 That Preliminary Hearing took place before Employment Judge Goraj on 2 September 2024. She listed a further Preliminary Hearing to take place on 15 and 16 January in order to determine issues of jurisdiction (time) and various amendment applications which the Claimant had made. Amongst the various orders that she made, was a direction for the Claimant to supply a limited amount of information in answer to four specific questions by 28 October, 28 days after her order was sent (paragraph 13 of the Order);

5.4 In the absence of a reply from the Claimant, the Respondent sought and unless order on 18 November;

5.5 As a result of his further silence Employment Judge Roper issued a strike out warning to the Claimant on 16 December on the basis that he was in breach of the Order and was not actively pursuing his claim;

5.6 That letter did then provoke a response on 22 December; the Claimant apologised for the delay and stated that he had been recently “overwhelmed” because of proceedings in which he was involved in the Family Court. He said that his mental health was poor and he invited the Tribunal to contact Miss Alexander, a Specialist Veteran MH Practitioner for corroboration. He also appeared to have been requesting a postponement of the forthcoming January hearing;

5.7 The Tribunal wrote to the Claimant again on 8 January 2025. He was notified that it did not contact third parties on his behalf and that, if he required an extension of time or wanted to make a postponement application, he needed to do so with some supporting evidence;

5.8 Nothing further was received from the Claimant before the Respondent applied for the claim to be struck out (an application dated 9 January);

5.9 Nothing further was received from the Claimant and, two days before the preliminary hearing on 15 January, the claim was struck out. Paragraphs 6 and 7 of the Reasons to that Judgment contained the following further background;

[6]“The background is significant. At the first Case Management Preliminary Hearing on 13 June 2024, Judge Cadney had struggled to understand the basis of the claim and had made orders for the Claimant to provide further information about it by 26 July. That information was provided late; he sent 376 pages of submissions and evidence on 27 August and a further 266 pages of documents on the 30th.

[9]The case has now had two Case Management Preliminary Hearings, the issues are no closer to being clarified, the Claimant has repeated failed to adhere to comply with Tribunal Orders and, despite the Tribunal’s most recent encouragement, has failed to apply for a postponement with evidence in support.” 5.10 On 26 January, the Claimant indicated that he wished to ‘appeal the decision’ to strike his claim out. He enclosed a letter from Miss Alexander which contained some information about his mental health. The letter was undated and did not identify her qualifications. That letter was treated as an application for reconsideration and the Respondent’s comments were sought; 5.11 The Respondent provided initial comments on 27 February and some further remarks on 27 March 2025. The Tribunal was asked to consider the application on paper. 6 In Miss Alexander’s letter of 23 January 2025, she stated that the Claimant was “currently facing challenges with depression and anxiety, accompanied by a persistent sense of being overwhelmed.” She referred to his PTSD which was substantially impacting his daily life, rooted in a traumatic event whilst serving in Afghanistan at the age of 19. She stated that, because there was parallel ongoing family Court proceedings, he had suffered an exacerbation to “his chronic anxiety and feelings of being overwhelmed.” She wished for the case to be postponed until his symptoms could be managed. 7 As was stated in the Tribunal’s letter of 21 March, Miss Alexander’s letter of 23 January came too late to have avoided the Judgment having been entered and still comes a long way short of that which would ordinarily be expected in such circumstances; it does not contain the details of her qualifications, the nature of her interactions with the Claimant or any prognosis. The Respondent’s criticisms of its tardiness were entirely justified. 8 Nevertheless, there was no reason to gainsay the truth of its contents and the Respondent had not attempted to do so in its correspondence in reply to the reconsideration application. Indeed, they have that they “appreciate that the Claimant has difficulties in his personal life as well as having medical conditions” (its letter of 27 February) and the disabilities of PTSD and ADHD have been admitted within these proceedings. 9 In the round, it was not proportionate or in the interests of justice to deny the Claimant a chance to continue with his litigation. The reconsideration application was granted. His default did not appear to have been deliberate and the hearing which was lost was a Preliminary Hearing. A fair trial is, however, still possible.

[10]The case will proceed in accordance with the direction set out above which include a new date for compliance with the original requirements of paragraph 13 of the Order of 2 September 2024. The Claimant has been provided with a further two months in which to comply with that direction. If he considers that he remains unable to do so, he must write to the tribunal indicating why he cannot do so and when it is expected that he might be able to engage in the process. If further, lengthy delays occur, the Respondent may start to suggest that a fair trial of this matter becomes more difficult.

[11]The Claimant must understand that, having brought this claim, he must comply with case management directions and orders if he has any hope of pursuing it to its conclusion. Both the Respondent and the Tribunal are being significantly inconvenienced by his failures to comply with orders.