Ms A Breslin v Transcosmos Information Systems Ltd: 8000055/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000055/2023

Venue Glasgow

Hearing 13 and 14 March 2024 JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous judgment of the Tribunal is that the claim is struck out under Rule 37 (1)(e) of the Employment Tribunal Rules 2013 on the grounds that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim. Introduction 1. The claimant (C) brings complaints under sections 13, 26 and 27 of the Equality Act 2010 (“EA) for direct discrimination, harassment and victimisation. She avers she was at the material times a disabled person for the purposes of EA by virtue of two impairments, namely (i) depression and anxiety; and (ii) menopause. The respondent (R) continues to dispute that C was a disabled person by virtue of the alleged menopause impairment but now concedes disabled status in respect of C’s depression and anxiety. In addition to disability, C relies on the protected characteristic of age and, specifically, of being in the age group of over 49 years old. R resists the complaints in their entirety. 2. The procedural history is lengthy and convoluted. We do not narrate it in full here but summarise those aspects which are relevant to the strike out decision. Timeline of the acts complained of 3. Early Conciliation was initiated by C on 1 December 2022, the EC certificate was issued on 11 January 2023 and she lodged her claim on 3 February 2023. She was employed by R as Head of Sales from 11 October 2021 until 8 September 2022. Her last working day

Between

Ms A BreslinClaimant

Transcosmos Information Systems LtdRespondent

Before

Employment Judge L Murphy

Date 31 October 2024

JUDGMENT

The unanimous judgment of the Tribunal is that the claim is struck out under Rule 37 (1)(e) of the Employment Tribunal Rules 2013 on the grounds that the Tribunal considers it is no longer possible to have a fair hearing in respect of the claim. Introduction

[1]The claimant (C) brings complaints under sections 13, 26 and 27 of the Equality Act 2010 (“EA) for direct discrimination, harassment and victimisation. She avers she was at the material times a disabled person for the purposes of EA by virtue of two impairments, namely(i) depression and anxiety; and

(ii) menopause. The respondent (R) continues to dispute that C was a disabled person by virtue of the alleged menopause impairment but now concedes disabled status in respect of C’s depression and anxiety. In addition to disability, C relies on the protected characteristic of age and, specifically, of being in the age group of over 49 years old. R resists the complaints in their entirety.

[2]The procedural history is lengthy and convoluted. We do not narrate it in full here but summarise those aspects which are relevant to the strike out decision. Timeline of the acts complained of

[3]Early Conciliation was initiated by C on 1 December 2022, the EC certificate was issued on 11 January 2023 and she lodged her claim on 3 February 2023. She was employed by R as Head of Sales from 11 October 2021 until 8 September 2022. Her last working day before going off sick was 19 August 2022. Her complaints centre on treatment she says she received following her informing her line manager that she had been diagnosed with the menopause on 29 April 2022. The acts complained of are alleged to have taken place between May and August 2022. (In March 2024, C confirmed that, contrary to the List of Issues prepared at the PH on case management, she does not rely upon her dismissal as a prohibited act of any kind). C’s claim was, therefore, lodged outside the ‘normal’ three-month time limit in relation to all the acts complained of. At an Open Preliminary Hearing in March 2024, the Tribunal decided it was just and equitable to grant the extension necessary to 6 February 2023 for the claim to be brought. Hearings listed and postponements/ postponement applications

[4]The case was first listed for a PH on case management (CMPH) in April 2023 and subsequently it has been listed on three occasions in October ’23, March ’24 and ‘October 2024 for a full merits hearing (FMH) diet. C has sought a postponement in relation to each of these hearing diets:a. On 30 March 2023, sought a postponement of the CMPH based on rectal bleeding. The application was refused by EJ McPherson on 4 April 2024 and the CMPH proceeded on 6 April 2023.

b. Following the case management PH, EJ Brewer listed the case for a final hearing to take place over 8 days from 23 October to 1 November 2023. On 17 October, C sought a postponement because of the same medical concern. At the stage the postponement application was made, R stated they had incurred the expense of purchasing a flight from Asia for one of its witnesses. The postponement was granted, and the Tribunal listed the hearing to take place over a further 8-day period from 13 to 22 March 2024;

c. C was initially attendance at the hearing in March 2024 on 13-15 March. The hearing did not proceed to conclusion. R had made arrangements to call 4 witnesses, of whom one, Mr Karadjov, had travelled to Glasgow from Bulgaria to attend. He extended his stay in Glasgow due to delays in the envisaged timetable as a result of C’s illness but ultimately his evidence was not heard. A more detailed account of the events at that hearing is set out in a Case Management Note dated 20 March 2024. C’s mental health deteriorated during the hearing and on Friday 15 March 2024, we adjourned the hearing for the weekend because C advised she was unfit to continue. On Monday 18 March, C attended but advised she was not fit to participate. A further adjournment was granted and on 19 March 2024, C emailed a letter from her doctor requesting that she be ‘excused from the ongoing Tribunal’. We postponed the remainder of the hearing diet listed for 20 to 22 March 2024.

d. On 10 August 2024, after further updates on C’s health, the case was relisted for a further 7 days beginning 1 October 2024. On 30 September 2024 (a public holiday) at 7.07 pm, C sent an email which among other matters said ‘Therefore I request the case be suspended to allow me to understand their defense to therefore present my claim as best I can which I cannot do if I do not understand all of the above …’ This was referred to the panel, along with 4 other emails C had sent over the holiday weekend, when we convened on 1 October 2024. We refused this postponement application. Our reasoning is discussed in the section ‘Decision to proceed with hearing in C’s absence under Rule 47’. C’s health situation

[5]The question of C’s medical situation has arisen in these proceedings in varied contexts, including but not limited to the postponement applications mentioned above. This is a disability case in which, at the time of the case management PH in April 2023, both asserted qualifying conditions were disputed. Orders were, therefore made, in response to which C has sent in in various medical documents.

[6]We have heard some evidence from C about her health and made findings in fact at the open PH on time bar in March 2024 where C relied on ill health issues in relation to the lateness of her claim. As one might expect, these findings relate principally to the period from the acts complained of (ending August 2022) until the dates of early conciliation and the lodging of the claim. We have also heard some of C’s evidence during the part heard final merits hearing (FMH) in relation to the asserted qualifying disability condition of the menopause which remained contested by R at that time. C has not been cross examined on that evidence and no findings in fact have been made.

[7]There is the scope for the medical evidence to be contentious in this case. Not only does R dispute that the menopause was a qualifying condition, but it also avers in the Grounds of Resistance that it dismissed C because it believed she falsified various fitness for work certificates and other correspondence from her GP and other medical professionals.

[8]We heard no evidence at the strike out hearing and have made no further findings in fact about C’s medical position beyond those previously made at the hearing on time bar (when oral judgment was given). In this section, without making any additional findings in fact, we record, in summary, C’s position about her health situation as stated by her either in evidence to the Tribunal or in interlocutory correspondence. We also set out relevant content from some of the documents which C has lodged and seeks to rely upon regarding her health. C asserts this medical documentation is authentic and accurate. What follows is not a comprehensive catalogue of all information provided to the Tribunal about C’s health. Though C has informed us of certain physical conditions, we focus here on information provided in relation to her mental health as we understood Ms Stobart’s submission to be focused specifically on the impact of C’s mental health on the issue of further delay and, in turn, the possibility of a fair hearing.

[9]On 25 May 2023, C advised, among other matters, that she had suffered a psychotic episode in April 2023 and was only just getting herself mentally well again at the end of a traumatic month. On 2 June 23, C produced various pieces of medical documentation regarding her depression and medications. These included a letter from her GP dated 3 Feb 2023 which said C was struggling with her mental health.

[10]On 20 June 23, C emailed further medical reports. These included a letter dated 26 May 2023 from a Dr Josh Cullimore. It referred to a long history of depression as well as self-harming. It recorded that C was ‘currently experiencing suicidal thoughts’. C also sent a report prepared by Dr J Purcell, Counselling Psychologist, following an assessment on 19 June 2023. It referred to diagnoses of Major Depressive Disorder and Generalised Anxiety Disorder. The report recorded that C estimates her history of anxiety and depression had spanned 30 years. It recorded among other matters that C explained that she experiences significant difficulty in controlling her worry and described a vicious cycle of catastrophic thinking which manifests in physiological symptoms such as trembling and gastrointestinal issues. The report also recorded that C experiences lack of concentration to the point she struggles to follow basic conversation and that her anxiety causes her to experience respiratory panic on a daily basis which affects her ability to function effectively and can induce vomiting. Dr Cullimore opined that C required 12-18 sessions of CBT. He opined in that report of June 2023 that on completion of treatment, C would have a complete resolution of her psychological symptoms within 6 to 12 months.

[11]On 4 October 2023, C sent a letter from her GP dated 17 September 2023. The letter advised that C had consulted them on a few occasions between September ‘22 and May 23 ‘suffering from symptoms of anxiety and low mood’. The letter showed Dr Nimmo advised C had complained of poor mental health, being tearful and very emotional and that she had felt suicidal at times over the period.

[12]During the hearing diet in March 2024, the first two days were used for a PH hearing on time bar deciding an amendment application by C. The final hearing commenced on 15 March 2024, with C beginning her evidence at 10.35. We adjourned less than two hours later as C became upset. During the adjournment it was reported to us by HMRC staff that C’s mental state had become very poor. C subsequently described it as a psychotic episode. We were unable to reconvene on Friday 15 March because of C’s ill health. C sent an email to the Tribunal on the Friday evening after 8pm In it, among other things, she advised she had been with the Crisis Support Team since leaving the Tribunal that afternoon, that she was in an extremely distressed state of mind and was contemplating suicide.

[13]On Monday 18 March, both parties were in attendance but C was not fit to participate in the hearing that day. She was on medication with visibly significant effects for her ability to concentrate and recollect information. We did not, therefore, hear either party on C’s recusal application at that time and adjourned the hearing until Wednesday 20 March. On 19 March C emailed a letter from her doctor requesting that she be ‘excused from the ongoing Tribunal’. The letter said ‘We are working with her for some support regarding medication and if symptoms improve – attendance could be revisited.’

[14]C was directed to provide an update on her fitness to participate in the proceedings by 4pm on 9 April 2024. On 8 April, C sent letter from her GP, Dr Sheikh, of that date saying ‘We would appreciate if the above patient could be excused … for a further 4 weeks as she is still struggling with anxiety and low mood and anxiety is being trialled and needs time for effect.” The case was sisted for a further month to 17 June 2023 and parties were asked to provide an update by that date.

[15]On 17 June 2024, C emailed the Tribunal. She said, “My new medication seems to be making a good improvement in my mental health however I do not feel ready to face the Tribunal in person.” She suggested that a legal representative would attend. At various times in the course of the proceedings, C has informed the Tribunal that she either has instructed a solicitor or legal representative or that she is about to do so. However, no representative has at any point been placed on the record.

[16]On 28 August 2024, C wrote to the Tribunal to advise she had been admitted to hospital for a few days due to her mental health and concern over intrusive thoughts she was experiencing. She said she was to be discharged that day. On 6 September, C emailed the Tribunal and said she was being discharged from hospital that day after being admitted due to a psychotic break.

[17]On 21 September 2024, C sent an email which included the following: “… I have not been well enough both mentally and physically to reply to any correspondence for the last few weeks. After another failed suicide attempt I have been told I now have caused irreversible to my kidney’s which will eventually be the cause of my death.” The taking of C’s evidence

[18]Following the PH, EJ Brewer ordered that written witness statements be used at the final hearing. He explained the witness statement should contain everything relevant the witness can tell the Tribunal and that witnesses would not be allowed to add to their statements unless the Tribunal agreed.

[19]C’s witness statement did not cover the preliminary issue of time bar. Oral evidence in chief was taken at the public PH on this issue. Her witness statement also did not cover the preliminary issue of disability status relating to the menopause which remained contested when the final merits hearing commenced on 15 March. Supplementary evidence in chief was taken on this matter. C gave evidence on this issue for approaching two hours. She then wished to give evidence about her feeling that the respondent’s grievance procedure was not followed because she had raised the menopause. This was not a matter identified as part of C’s complaint in the List of Issues.

[20]Ms Stobart opposed the introduction of evidence on this matter. I asked C further questions to understand what legal complaints she wished to make about R’s handling of the grievance process. C became emotional. An adjournment was granted before which I cautioned her against discussing her evidence or her case with anyone during the break as she remained under oath with her evidence incomplete. C suggested she might like to call ACAS during the break and she was warned against doing this in so far as it involved discussing her evidence. Due to deterioration in C’s mental health, C did not in the event return to the witness table and the hearing was latterly postponed.

[21]On 17 June 2024, C emailed the Tribunal. She said, “…I do not feel ready to face the Tribunal in person. I ask the Tribunal to allow me to appoint a solicitor to represent me to allow this case to move forward to conclusion.” On 27 June, R’s representative opposed what they interpreted to be C’s application to have the case heard in her absence, given the lack of opportunity for cross examination. Mr Howse indicated an intention to make a strike out application on the basis that a fair trial was no longer possible (but did not do so at that time).

[22]On 16 July 2024, the Tribunal asked C to clarify by 29 July 2024 whether she indeed was making an application that the hearing proceed without giving further evidence. On 29 July 2024, C emailed the Tribunal but did not confirm. On 9 August 2024, R’s representative emailed the Tribunal and observed they did not believe C had responded to two of the orders in the Tribunal’s letter of 29 July, including her position on whether she proposed to proceed without giving further evidence. On 14 August, the Tribunal wrote to C and directed that she clarify her response by 21 August 2024.

[23]On 21 August 2024, C sent an email as follows: “As requested I am getting in touch to request I can have a Legal Representative to attend my Tribunal hearing on my behalf. My GP advises me attending in person may be detrimental to my mental health. Given the experience I had at the Glasgow Tribunal and how I was treated at my previous hearing, which subsequently resulted in a Mental Health Crisis for me and I need to raise a formal complaint which is now ongoing. I believe attending in person may result in the same outcome with me going into Mental Health crises therefore delaying the proceedings again and I am keen to conclude this process to bring my previous employer to justice who stop I am still taking strong antipsychotic medication which causes me drowsiness in confusion. Please advise if you need anything from my GP to support this request and I will request this directly from my GP as a matter of urgency.”

[24]On 23 August 2024, the Tribunal issued a letter which included the following paragraphs: “It is noted that the claimant does not propose to attend or give evidence at the reconvened hearing in October. The claimant is encouraged to ask her legal representative to notify the Tribunal of his or her contact details so that correspondence can be directed to her representative as well as the respondent’s representative about the arrangements for the hearing in those circumstances.

[25]On 22 August at 17:03pm, C sent a further email to the Tribunal (which hadn’t been referred to EJ Murphy when the above mentioned letter issued by the Tribunal on 23 August. In her email, C included the following: “I have this morning participated in an interview with National Press to highlight the persecution I have felt from my ex-employer also from a Legal System that is meant to protect and support me in self-litigation. I have been to hell and back throughout this whole process and I know if I get put in that witness box again and must subjected to what I have previously experienced I might not be mentally capable of coming back from the trauma of it all.”

[26]The Tribunal issued a letter to parties on 29 August. So far as relevant, it said: “The Tribunal cannot give advice to either party on their rights and obligations. Whether the claimant discusses the case with the media is a matter for her. However, the claimant is reminded that, at the time the hearing adjourned, she had not concluded her evidence. As the claimant was warned at the hearing before each adjournment, there is a requirement is that she should not discuss her evidence while she remains under oath or affirmation. The purpose of the requirement is that the evidence given by a witness must be that of the witness and if others might have influenced the content or manner of that evidence through discussions, subsequent evidence given in the case by that witness may be tainted in a way that is hard to assess and might thus prejudice the fair determination of the case. It appears from recent correspondence that the claimant may not intend to give further evidence in the case. If that were the case, then the requirement not to discuss her evidence during this adjournment of the hearing would lapse as the risk it is designed to address would no longer apply. A further consequence would be that the respondent would not have an opportunity of cross examining her on her evidence. The claimant is encouraged to take legal advice if she is able to do so on the implications of her proposal to give no further evidence and on the implications of any media engagement she may have had or intend to have regarding the case.” R's strike out application and subsequent correspondence (20 September – 30 September 2024)

[27]On 20 September 2024, RR sent an application to strike out C’s claim to the Tribunal. RR invited the Tribunal to strike out C’s claim under Rule 37(1)(e) of the ET Rules 2013 on the basis that it was no longer possible to have a fair hearing in respect of her claim. Alternatively, they sought strike out under Rule 37(1)(d) of the rules on the basis that C had not actively pursued her claim. The letter observed that C did not intend to attend the final hearing and as such, could not be cross examined. The author noted that no indication had been received from C regarding when she might be well enough to participate in proceedings, if at all. Given the history of adjournments, R’s representative maintained that a ‘fair trial’ would not be possible if the case was adjourned further or if C was not cross examined. Alternatively, they pointed out C’s persistent failure to respond to confirm her position regarding the recusal point and asked that the Tribunal strike out the claim based on C’s failure to actively pursue it. RR asserted C had a history of failing to comply with the Tribunal’s orders in a timely fashion or substantively.

[28]On 21 September, C sent an email responding to RR’s strike out application as follows: “My sincerest apologies I have not been well enough both mentally and physically to reply to any correspondence for the last few weeks. After another failed suicide attempt I have been told I now have caused irreversible to my kidney’s which will eventually be the cause of my death. … I have fought my way through a man’s world to establish myself and my career. Transcosmos have taken it all from me and more because I dared to speak out for my rights. … They have taken my career and crushed it, I can’t hold down a job for more than 3 month, my mental health is at breaking point, I am a shadow of my former self. I have lost Friends and Family relationships because I took on this “legal right” of mine, why would anyone who was lying destroy their whole life (literally) for a lie?!?! I have been made bankrupt in danger of losing my home, already lost my car and on benefits because a company with more money and expensive lawyers than I can afford does not want to admit they were wrong in both the treatment of me in my hour of need but the lies and ridicule throughout this entire process. Whatever fight I have left in me is to make them accountable for ruining my life. I therefore object to any such strike out requested by this discriminating employer. I ask you judge why would I put myself through this life changing process if I was telling lies to how Transcosmos treated me. Please look into all of the above in case I don't make the hearing for the rights of Middle Aged Menopausal women with mental health challenges or where does it stop and when will it change?!?”

[29]On 24 September, EJ Kearns ordered that the strike out application be heard at the start of the continued final hearing set down for 1 October 2024.

[30]On 25 September, RR wrote to the Tribunal regarding their application for Mr Karadjov to attend the hearing remotely. Ms Fardell noted C had until 4pm on 24 September 2024 to provide comments and had not done so. On 27 September, EJ Whitcombe directed that Mr Karadjov would be permitted to give evidence by video from Bulgaria. That letter reiterated that, as per the formal notice of hearing issued, the case was listed for an in-person hearing for 7 days to start on 1 October. Friday 27 September 2024 was the last working day before C’s hearing was due to begin on 1 October 2024. The Glasgow Employment Tribunal observes the public holiday which fell on Monday 30 September 2024.

[31]Over the weekend of 28 and 29 September and on the holiday Monday (30 Sep), C sent 5 emails to the Tribunal and RR. On 28 September 2024, her email included the following text (sic): “You don't get access to phones or internet when you are on the Mental Health wards so please accept my apology for my late response however as I had previously mentioned I have been a tad busy keeping my head above water and curb the intrusive suicidal thoughts while in hospital.... ... I have signed myself out to allow me to attend the strike out application on Tuesday remotely. I'm assuming this is acceptable. When the hearing start’s I will have a legal representative represent me at the hearing due to my ongoing mental health issues being exacerbated by the way I was treated at the last hearing. Can you please provide me with dial in details for Tuesday or do I have to come in person? If I do then please advise me to allow me to have my support worker attend with me.”

[32]On Monday 30 September, at 10:58 am, C sent a further email to the Tribunal and RR at 10:58 am. She said: “I will be going Live Today with details of my case and details pertaining to my case via live podcast on LinkedIn this afternoon. Please advise press officers.”

[33]At 7.07pm on 30 September, C sent a further email. She referred to her health and made various allegations about the Tribunal which were, in effect, allegations of bias (discussed in the case management order refusing recusal). With respect to the forthcoming hearing, she said (sic): “…I assume as I have had no dial in details to attend this hearing remotely I need to attend in person despite the detrimental effect previous hearing has on my mental health? I will be in attendance tomorrow at 10:00 AM despite my fragile mental health. I will hold Tribunal services and the Respondent fully responsible for any decline in my Mental Health due to attending another hearing that quite frankly is set up to assist the employer not the employee self-litigating...”

[34]At 11:03 pm on Monday 30 September, C sent a further email to the Tribunal and RR. She copied in an individual with an email address at the Daily Record. She said (sic): “I have continuously tried to get in contact with the Tribunal and the Respondents Representative today as I am at a loss as to why there is a strike out hearing planned for tomorrow and why I have no remote access details for this hearing? I would request any such hearing goes ahead without advising me why there is a strike out hearing when my previous strike out were refused, with no suggestion of a hearing now the respondent has a hearing and nobody has seen fit to of any details. I strongly request any “Strike Out” hearing regarding my case be put on hold until I have access remotely or given time tomorrow to travel to the Tribunal in Glasgow. … I have a legal right to fear, honest an simplified legal process to allow me the bear possible chance of a fair hearing and to date Sir if it has been anything like fair or justice. I await a call or e-mail in the morning to advise of dial in details or hold on the hearing to allow me to attend in person. … I wait your response and have coupled in my press contact for my own protection and sanity.” Relevant Law

[35]The Employment Tribunal Rules 2013 (the Rules) include a provision dealing with a party’s failure to attend a hearing, as follows: Non-attendance 47. If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.

[36]The Rules include provisions relating to postponements of hearings as follows: Postponements 30A.—(1) An application by a party for the postponement of a hearing shall be presented to the Tribunal and communicated to the other parties as soon as possible after the need for a postponement becomes known.

(2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances.

(3) Where a Tribunal has ordered two or more postponements of a hearing in the same proceedings on the application of the same party and that party makes an application for a further postponement, the Tribunal may only order a postponement on that application where— (a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective; (b) the application was necessitated by an act or omission of another party or the Tribunal; or (c) there are exceptional circumstances.

(4) For the purposes of this rule— (a) references to postponement of a hearing include any adjournment which causes the hearing to be held or continued on a later date; (b) “exceptional circumstances” may include ill health relating to an existing long term health condition or disability.

[37]The Rules include powers of the Tribunal to strike out claims in certain circumstances: Striking Out 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 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 the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[38]The Human Rights Act 1998 (HRA) annexes the European Convention of Human Rights which includes Article 6 in the following terms: 6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by and independent and impartial Tribunal established by law

[39]Article 10 of the annexed Schedule is in the following terms: Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the … rights of others…

[40]A Tribunal must apply a two-stage test when considering whether to strike out a claim. It must first consider whether any of the grounds in R37(1) are established. It must then, having identified an established ground, decide whether to exercise its discretion to strike out.

[41]In the case of Peixoto v British Telecommunications PLC

UKEAT/0222/07/CEA

, the EAT upheld a Tribunal’s decision to strike out a claim in circumstances where the claimant was unwell and was blameless but there as no prospect at any time in the future that the claimant would be ready to proceed as the litigation was aggravating her chronic fatigue syndrome. That case was decided under the previous 2004 Employment Tribunal Rules though the relevant provisions were materially the same as those in the 2013 iteration.

[42]In Chidzoy v British Broadcasting Corporation

UKEAT/0097/17/BA

, the EAT upheld a Tribunal’s decision to strike out a claim in circumstances where the employee had participated in a conversation with a journalist during an adjournment in the course of giving evidence at a full merits hearing of her claims. The Tribunal in that case had been entitled to make findings about what had taken place and conclude that the employee had discussed her evidence in disregard of warnings given by the ET not to do so. It was open to the Tribunal to conclude the claimant had conducted the proceedings unreasonably, that a fair trial was not possible, and that there were no alternatives to striking out.

[43]In Hasan v Tesco Stores Ltd (2016)

UKEAT/0098/16/BA

the EAT noted that there is no specified period of notice required for striking out a claim. The Claimant was given 11 days' notice of the decision to canvass striking out the whistle blowing and unfair dismissal claims. The EAT observed that, while fair notice of a hearing at which striking out will be considered is essential, it would be inappropriate and perhaps incompetent to try to “read into” Rule 37 any particular notice period. What is reasonable in any given case depends on the circumstances. The importance of advance notice of a striking out claim is that it allows a party to consider what may occur.

[44]In Birkett v James

[1978] AC 297

, the House of Lords considered the ground for strike out that a claim has not been actively pursued. It distinguished between two types of cases:(1) Where, through intentional and contumelious default, the claimant has failed to comply with an order and it has been made clear that their claim would be struck out unless they complied with; and

(2) Where inordinate and inexcusable delay on the part of the claimant or their representatives has created a substantial risk that serious prejudice has been, or will be, suffered by the respondent, or that it is no longer possible to have a fair trial of the issues. Decision to proceed with hearing in C’s absence (R30A and R47)

[45]On Tuesday 1 October 2024, C did not attend and was not represented at the hearing. Copies of her emails of 28 and 30 September 2024 were passed to the Tribunal after 10 am. The Tribunal asked the Clerk to try to contact C. The Clerk tried to contact her on the number in the Tribunal’s records on two occasions. He advised us he left a message on C’s voicemail between 10 am and 10.15 am.

[46]At 10:15 am on 1 October, the Tribunal sent an email to C as follows: “Dear Ms Breslin I have attempted to call you and left a message on your voicemail for [telephone number] The hearing was due to start at 10am, as per the hearing notice sent on 7/8/24 If you wish to join by CVP the details are below: … Can you confirm if you intend to attend in person or remotely?”

[47]No response was received to the Clerk’s calls or email. R’s representative and two witnesses were in attendance in the Tribunal building in time to commence at 10 am. At 10:49 am, a further email was sent to C by the Clerk: “Miss Breslin, Employment Judge Murphy has directed that I ask you to reply by 11am and confirm if you are intending to attend the tribunal today? Yours faithfully

[48]C did not respond to the email by 11 am. The Tribunal considered Rule 47 of the ET Rules and decided to proceed to have a hearing in C’s absence to consider(i) C’s allegations of bias / de facto recusal application, and if appropriate in light of our determination in relation to recusal

(ii) to consider R’s strike out application.

[49]The circumstances on 1 October were that no postponement had been granted of the hearing and indeed none had been sought until C’s email at 7.07 pm on the holiday Monday on the eve of the hearing. The Tribunal considered the options under Rule 47 and any other case management options including postponing the hearing.

[50]A Notice of hearing had been issued on 7 August 2024 after consultation with the parties over the suitability of dates. That notice made clear that the hearing would take place at the Glasgow Tribunal (as had the previous hearing in March which C attended until it required to be adjourned due to her health). The Tribunal sent letters on 23, 24, 29 and 30 August and 13, 24, 25 and 27 September 2024 each of which reminded the parties that the hearing was listed for a 7-day in person hearing in Glasgow, starting on 1 October 2024 (emphasis added). There was no dubiety in the correspondence about the hearing arrangements. It is true that an application had latterly been made by R for Mr Karadjov to give his evidence via video link because he lives in Bulgaria but nothing in the correspondence granting this application suggested that this accommodation extended to anyone else. On the contrary, the letter granting R’s also reiterated that the hearing was listed as an in-person hearing due to start on 1 October 2024. There had been no application from C that she be permitted to join remotely.

[51]C had emailed the Tribunal on Saturday 28 September to advise she had signed herself out of hospital to allow her to attend the hearing on 1 October. For the first time on that date, she indicated she proposed to attend remotely and asked if she required to come in in person. On Monday 30 September (a public holiday), she said in a further email: ‘I assume as I have no dial in details to attend this hearing remotely I need to attend in person despite the detrimental effect the previous hearing had on my mental health? I will be in attendance tomorrow despite my fragile mental health’ In that email she later alluded to R’s concession in March 2024 that C was disabled by virtue of her depression and anxiety. She went on to say (sic): ‘Therefore I request the case be suspended to allow me to understand their defense to therefore present my claim as best I can which I cannot do if I do not understand all of the above …’ We treated the this as an application to postpone the hearing listed for 1 October 2024.

[52]It was made less than 7 days before hearing. R did not consent to a postponement. The Tribunal had previously ordered two or more postponements in the proceedings on C’s application. The hearing listed to begin on 23 October 2023 had been postponed 5 days beforehand on C’s application due to her health. The hearing in March 2024 had also been postponed due to C’s health. Under Rule 30A, we could only order a postponement where there were exceptional circumstances (R30A(3)). We acknowledge that exceptional circumstances could include ill health relating to an existing long term health condition or disability.

[53]Although C referred to health issues in her email of 30 September 2024 and in other emails to the Tribunal, that was not the basis on which she asked the Tribunal to ‘suspend’ or postpone the case. She wanted time to understand R’s defence to the case and specifically its concession of disability status in March 2024 in relation to one of the two asserted qualifying conditions. She also indicated she wished to understand the reasons for aspects of the Tribunal procedure at the previous hearing (as she perceived it) and a previous refusal of an amendment application for which oral reasons had been given in her presence in March 2024. We did not assess that the reasons put forward for the postponement or extension request amounted to ‘exceptional circumstances’.

[54]C had been aware of R’s concession since March 2024 and knew of it when the hearing was listed for October 2024. She had been consulted on dates for the relisting. Likewise, the refusal of her amendment request. That refusal and R’s position with respect to C’s disability status would in any event have little if any bearing upon R’s strike out application which EJ Kearns had ordered would be heard on the first day of the allocated hearing. With respect to C’s queries about procedural aspects of the hearing in March 2024, we were not satisfied that these formed a sound basis for a postponement six months after the hearing diet to which these queries relate. They did not constitute ‘exceptional circumstances’.

[55]We recognised that these concerns over the procedure fed into C’s allegations of bias. We did not consider that postponing the hearing of that application would serve the overriding objective of dealing with the case justly and fairly. We are mindful such allegations, when they arise should be considered promptly. As mentioned, it had been our intention to do so on 18 March 2024 but did not owing to the postponement of the case as a result of C’s ill health. C had been asked many times in subsequent correspondence to clarify if she insisted on the application. In seeking that clarification, the Employment Judge was mindful that C made the recusal application at a time when she had advised her mental health was very poor.

[56]Though no substantive response was ever received to that question, we identified from C’s correspondence on 30 September 2024 that she continued to assert bias. We assessed that this should be addressed at a hearing in the context of an application for recusal. It was, we felt, imperative that these bias allegations were considered without further delay since the panel would imminently require to make further decisions and give further directions in the case. It would be undesirable to do so without having addressed the recusal point.

[57]Naturally, it would have been preferable that C was in attendance to speak to her application. Nevertheless, we identified that(i) she had had the chance to do so and declined to attend without giving a reason;

(ii) she had had many opportunities to clarify her position on recusal in correspondence; and

(iii) we had available to us her various representations in her email of 15 March 2024 as well as the points she raised in her email of 30 September 2024. We concluded, in relation to the recusal point, the repeated allegations of bias did not give good grounds for postponing a hearing to hear this application at a future date. Nor did the other points raised in the 20 September email.

[58]We were cognisant of the fact that C is a litigant in person and that, although her request for her case to be suspended was not framed on the basis of her ill health, this was something she had mentioned on many occasions, including in the 30 September email. We considered that this ought rightly to be a factor which we weighed in our decision under Rules 30A and 47 regarding whether to postpone or proceed. We noted the relative lack of medical documentation in relation to C’s more recent health situation, particularly in the period from April to October 2024. C had been referred in April 2024 to the Scottish Presidential Guidance on Postponements generally and specifically to paragraph 4 of the Guidance dealing with ill health which provides for the provision of medical evidence.

[59]With that said, our decision to proceed with a hearing on recusal and strike out was not because of any lack of adherence to the Presidential Guidance by C. Notwithstanding the lack of up to date medical certification, we gave careful consideration to the impact of C’s health in deciding whether, under R47, to dismiss C’s claim, to postpone the hearing or to proceed.

[60]We decided in all of the circumstances of the case, the overriding objective would not be served by dismissing C’s claim without hearing the recusal and strike out applications. It seemed to us that this step would be more draconian than assessing a strike out application against the requirements of Rule 37. We took into account the likely influence of C’s health in considering and rejecting this option under R47.

[61]We also considered the possibility of proceeding with the final merits hearing in C’s absence (as R47 empowers us to do). We concluded, however, that proceeding with the merits hearing in C’s absence at the October 2024 diet would be a futile exercise. There would be negligible or no prospects that her claim could succeed without C being there to complete her evidence and cross examine R’s witnesses. This is a case where there is material dispute as to the facts. It is not a case where R broadly admits the treatment complained of but denies it was for a discriminatory reason or because of a protected act. R substantially disputes the acts and omissions which C alleges comprise the prohibited conduct (see paras 39 et seq in R’s amended Grounds of Resistance dated 14 July 2023).

[62]C had adopted her written statement and given some evidence in chief at the part heard final hearing in March 2024 but had not been cross examined. The untested nature of her evidence would inevitably diminish the weight we could accord to it.

[63]We decided that the overriding objective would be best served by proceeding to hear C’s recusal application and, if appropriate thereafter by hearing R’s strike out application in C’s absence. In deciding to proceed in this manner, we considered all relevant factors, including:a. Such information as we had about C’s apparent state of health and medical issues:

b. C’s statements about the effect of the litigation on her health;

c. The medical documentation available to us and the absence of an up to date certification or prognosis from a medical professional;

d. C’s representations in correspondence about the question of whether she would attend a further hearing / give further evidence;

e. The potential prejudice to C in not being present to speak to her recusal application and to R’s strike out application;

f. The prejudice to R if the hearing was further postponed following the two previous postponements;

g. The uncertainty over the likely period of any such postponement;

h. The opportunities C had received to clarify in writing her position regarding the recusal application and to respond in writing to the strike out application;

i. The notice C had had of the hearing and the arrangements for it;

j. The opportunity C had been given to attend the hearing by CVP;

k. The availability of representations from C in her correspondence regarding the basis for her bias allegations and her response to the strike out application;

l. The absence of an explanation for C’s non-attendance on 1 October;

[64]There is overlap between our reasoning for the decision to proceed with the hearing in C’s absence and our reasoning in relation to the substantive decision to strike out the claim. Many of the same factors weighed in both decisions. We avoid unnecessary repetition by adopting the reasoning set out in the sub section of the judgment headed ‘R’s primary application: A fair hearing no longer possible’.

[65]Having decided to proceed, we first considered C’s recusal application. Having refused this application, on giving oral reasons, we considered R’s strike out application. R’s application to strike out C’s claim: Discussion and decision

[66]Ms Stobart gave an oral submission on R’s written strike out application. The entire content of R’s written and oral submission on strike out as well as C’s representations in her correspondence since 20 September 2024 regarding the strike out application have been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of these submissions or representations in this judgment does not reflect a lack of consideration. They are discussed below within the structure of the questions which required to be addressed in deciding an application under the relevant provisions of Rule 37.

[67]Ms Stobart’s primary application proceeds under Rule 37(1)(e) (that a fair trial is no longer possible. Alternatively, she seeks strike out on the grounds of Rule 37(1)(d) (that C has not actively pursued the claim based on the absence of the recusal confirmation). Has C been given a reasonable opportunity to make representations?

[68]Rule 37(2) provides that a claim will not be struck out unless the claimant has been given a reasonable opportunity to make representations either in writing or, if requested, at a hearing. We must be satisfied that a reasonable opportunity has been provided as a prerequisite to any potential strike out.

[69]C had been on notice since August 2024 that the case was due to proceed to a continued final hearing on 1 October 2024. R, in their application of 20 September 2024 complied with Rule 30(2) and informed C in that letter that any objection to the strike out application must be sent to the Tribunal as soon as possible and copied to R’s representative. C could and did write in response to that email. As well as her response dated 21 September, she also referred further to R’s strike out application in her email of 28 September and three of her emails dated 30 September. She did not make any request that she be given the opportunity to make representations at a hearing. That notwithstanding, the Tribunal ordered by letter dated 24 September that the strike out application would be considered at the start of the continued hearing on 1 October.

[70]No specific period of notice is required of a hearing on strike out but the person against whom the application is made must have sufficient time to prepare and a reasonable opportunity to make representations (Hasan v Tesco Stores Ltd). In the circumstances of this case, we are satisfied that C had sufficient time. R’s primary application was based on C’s intention not to give evidence or her inability to do so. The secondary argument concerned a discrete point relating to correspondence about her recusal application between March and September 2024 and C’s lack of response. C had adequate opportunity to prepare to make arguments on these matters. This was not a case in its early stages or one where no hearing at all was listed and then a public preliminary hearing on strike out was listed ‘out of nowhere’ on tight notice. The strike out application came deep into the case and had been trailed for some months.

[71]The question of C giving evidence and of her insistence (or not) on her recusal request were inevitably going to be discussed on Day 1 of the continued final hearing which had been listed for some months. This would have been so even in the absence of R’s written strike out application. This was apparent to C from the Tribunal’s correspondence of 29 August 2024. C had been put on notice of the implications if she did not or could not give evidence in the litigation. As long ago as 27 June 2024, R’s representative had also written to C, advising that if she intended not to give further evidence then it would make a strike out application, given the lack of opportunity for cross examination.

[72]The question at this stage is whether C was given a reasonable opportunity to make representations. It is not whether she took up all such opportunities, or did so effectively. C had the opportunity to and did make written representations. She had the opportunity to attend the hearing and she suggested as late as 7.07pm the day before the hearing that she intended to do so. Although, C made no timely application to attend by CVP, an opportunity was provided for her to do so. The Tribunal delayed the start time for 1 hour to allow C to join late on the link if she so wished.

[73]We are satisfied that the Tribunal afforded a reasonable opportunity to make representations. R’s primary application: A fair hearing no longer possible (R37(1)(e))

[74]Ms Stobart explained her primary submission was that a fair hearing was no longer possible (pursuant to R37(1)(e)). She narrated some of the procedural history of the case. She reminded the Tribunal that this was the third final hearing diet to be listed and that R’s instructing agent and witnesses were in attendance. She argued R was entitled to a fair and public hearing within a reasonable time period. She noted C had sent multiple emails both to the ET and also to R’s witnesses the previous night but that she had given no explanation for her non-attendance at the hearing. She referred to the significant costs R had incurred in preparing for and attending the hearings. At this stage, years after the events said to give rise to the claim, we were, said Ms Stobart, no closer to understanding if the case can go ahead. She said that C had in the past given various updates relating to her health. At times she has said she will attend or that she would do so by CVP.

[75]Ms Stobart acknowledged that strike out is a draconian step and that the Tribunal should consider any other proportionate measure. She asserted that this was one of the rare cases where it was a reasonable measure to take. She said no other measures like an adjournment would be suitable. She cited Peixoto and argued the case was analogous. It was not a question of fault, in Ms Stobart’s submission, but there was no foreseeable timeline for a fair trial.

[76]The Employment Judge referred to the Chidzoy case and invited any submissions Ms Stobart may have on the claimant’s statements about giving a press interview. Ms Stobart said the Tribunal had made clear both orally at the hearing and in writing in the Case Management Note following its adjournment that C must not discuss her evidence while she remained under oath and the reasons for this. She referred to C’s statements in her emails of 22 August and 30 September 2024 about participating in an interview and a live podcast. She noted that in Chidzoy, C’s discussion during an adjournment with a journalist was found to be unreasonable conduct. In the present case, Ms Stobart said the issue goes to whether a fair trial is possible. She said C breaches instructions and feels she can behave as she chooses. This was, said Ms Stobart, another factor the Tribunal could take into account but that her primary submission was that a fair trial was impossible in a reasonable time given the lack of information and medical evidence throughout the case.

[77]We also had available to us C’s representations in her correspondence on 21, 28 and 30 September 2024 in relation to R’s strike out application.

[78]Ak key strand to Ms Stobart’s submission related to C’s health situation and the prospect of the case being concluded at a final hearing within a reasonable time.

[79]As discussed above, we make no findings in fact about C’s health beyond those already made in the OPH. Nevertheless, it would be fair to say the Tribunal had been placed on notice by C of significant health issues, whether or not more recent medical evidence had been provided.

[80]We took into account the representations. We have proceeded on the basis that it is possible, indeed probable, that C’s mental health has caused or contributed to her absence either because of symptoms of her illness / medication or because she had taken the decision that attending the hearing would significantly risk a deterioration in her health.

[81]The question of C’s prolonged poor health would not, in isolation, have inclined us to strike out the claim. We recognise the draconian nature of a strike out, particularly in discrimination complaints which tend to be fact sensitive. As discussed earlier in the judgment in the context of Rule 47, we assessed that the only meaningful alternative to strike out would be postponement of the final hearing once again to a future diet. We identified little or no cause for optimism that C would be fit, willing and able to attend and participate fully in a hearing in the foreseeable future. Of course, we are not qualified to make a medical assessment and that is not the basis of this observation. We fully acknowledge the shortcomings of the medical evidence available to us. It is not up to date and such reports as have been prepared were prepared for a different purpose. Nor has a qualified medical professional provided a reasoned opinion on what period it might take before C would be fit to attend and participate fully in a hearing, if at all.

[82]Our observation about the lack of cause for optimism is based on C’s own comments about the impact she says the proceedings have had / are having on her mental health and wellbeing. It was troubling to witness C’s deterioration and distress at the previous hearing and to receive her updates detailing further serious mental health crises since then.

[83]This falls into the difficult category of cases where, on the one hand, it is clear from her prolific correspondence that C feels very strongly about litigating the issues she raises in her claim but it is equally clear, on the other, that she and her medical advisors, consider the process of doing so is exacerbating her symptoms.

[84]In several emails over a lengthy time span, C has provided insight into the stress and upset the proceedings in general have been causing her and their impact on her mental health.a. On 4 July 2023, C said in an email: ‘After talking through the current state of mind with my Crisis Counsellor this evening, I would like to withdraw my request for information on the appeals process. This whole situation with Transcosmos … hanging over me for 15 months. The added stress and anxiety I am suffering through this whole situation is crippling..’

b. On 17 June 2023, C sent an email which said she did not feel ready to face the Tribunal in person and asked “to be allowed allow me to appoint a solicitor to ‘represent [her].. to allow this case to move forward to conclusion.”

c. On 21 August 2024, C talked about a legal representative ‘attending on [her] behalf’ and said “My GP advises me attending in person may be detrimental to my mental health.” She also said: “I believe attending in person may result in the same outcome with me going into Mental Health crises therefore delaying the proceedings again and I am keen to conclude this process to bring my previous employer to justice ..”

d. On 22 August 2024 to the Tribunal, C said: “I have been to hell and back throughout this whole process and I know if I get put in that witness box again and must subjected to what I have previously experienced I might not be mentally capable of coming back from the trauma of it all.”

e. On 21 September 24 (10 days before the hearing) she said “Whatever fight I have left in me is to make them accountable for ruining my life. I therefore object to any such strike out ... Please look into all of the above in case I don't make the hearing for the rights of Middle Aged Menopausal women…”.

f. On 30 September 2024, she said: “I will be in attendance tomorrow at 10:00 AM despite my fragile mental health. I will hold Tribunal services and the Respondent fully responsible for any decline in my Mental Health due to attending another hearing that quite frankly is set up to assist the employer not the employee self-litigating...”

[85]C’s medical situation and her assessment of the effect of the continued proceedings upon her health casts doubt over the timescales within which she may realistically be able to participate in a hearing. R is entitled to a fair and public hearing within a reasonable time. The events about which C complains are currently over 2 years old. The uncertainty over timescales for any postponed hearing diet due to C’s health is an important consideration.

[86]It had not, however, been the decisive factor in our deliberations. If it were only a question of C’s health and prognosis, we may well have been inclined to sist the proceedings temporarily to order further medical evidence on the question of C’s likely fitness to attend a hearing in the future, and on likely timescales. We considered this as a less draconian alternative to immediate strike out. However, we were mindful that even if a favourable report were received and C’s health improved sufficiently to allow a hearing within a reasonable time, she does not intend to give further evidence. She does not intend to submit to cross examination. In those circumstances, we concluded that proceeding with a postponed hearing would be essentially futile because, as discussed earlier, the claim would have no reasonable prospects of succeeding without further evidence from C.

[87]Our understanding of C’s intention not to provide further evidence was set out in the Tribunal’s letter of 23 August 2024 and C has not contacted the Tribunal to contradict or correct that understanding. R’s representative’s strike out application confirmed it proceeded on the basis that C would not be available to be cross examined at a final hearing. C has given various comments on the strike out application but has not suggested that her position has been misrepresented or misunderstood about declining to give further evidence.

[88]We considered the possibility that C’s representations about giving evidence might have been coloured by her poor health at the time of making them and that she might change her mind about giving evidence if her health were to improve sufficiently. We considered whether a fair hearing might yet be possible in those circumstances and whether justice would be better served by pausing the proceedings for medical evidence and for soundings to be taken from C about that prospect.

[89]We ultimately concluded, however, that even if C’s health improved and she decided she would return to the witness table to conclude her evidence within a reasonable timescale, a fair hearing would still not be possible. In her email of 22 August 2024, C said, ‘I have this morning participated in an interview with National Press to highlight the persecution I have felt from my exemployer.’ It seemed to us that C had, in effect, admitted to having discussed her evidence in the case with a journalist. This seems to us to be the only natural meaning to attribute to her words. When she refers to persecution from her ex-employer, we understand her to be referring to the alleged treatment by R which forms the subject matter of her claim. We asked Ms Stobart if R had any knowledge of whether the interview had taken place or had any more detail about what was discussed (for example because R had been approached by a journalist for comment). Ms Stobart did not, though she noted that C had copied a journalist into various emails to the Tribunal.

[90]On 30 September 2024, C also said in an email: ‘I am going live today with details of my case and details pertaining to my case via live podcast on LinkedIn this afternoon’. It is not known whether this took place or what format any podcast took. However, if it proceeded, it seemed to us again to be likely that C may have broadcasted her evidence and may have received comments or representations from her audience which in turn might feasibly influence any further evidence she might give to the Tribunal in future.

[91]C has, of course, a protected right to freedom of expression under Article 6. Nevertheless, that right must be balanced against R’s right to a fair hearing. The purpose of the warning that C should not discuss her evidence is to ensure her evidence to the Tribunal is her own and is not tarnished in its content or manner by discussions with others. Notwithstanding the Tribunal’s explanation of this requirement in the letter of 29 August 2024, C confirmed on 30 September her intention to discuss the case on a further occasion in a podcast.

[92]Whatever the reason for C’s approach in this respect, it poses what we have reluctantly concluded is an insurmountable obstacle to a future fair hearing. We take at face value C’s own representations about her interview and podcast. It would be difficult if not impossible for the Tribunal to assess at any future hearing how C’s subsequent evidence – should she become fit and willing to give any - might be affected by these interactions.

[93]In all the circumstances we are satisfied that it is no longer possible to have a fair hearing in respect of the claim and there is no alternative order we could make which might reverse that state of affairs. Neither a postponement nor the obtaining of further medical evidence would alleviate the concerns about C’s fitness / willingness to provide evidence and the risk, in any event, of that evidence being tainted. R’s secondary application: Failure to actively pursue the claim (R37(1)(d))

[94]Standing our decision to strike out the claim based on R37(1)(e), it is not strictly necessary to go on to consider Ms Stobart’s secondary application under R37(1)(d). However, for completeness, we observe that, had the strike out application been limited to this basis alone, it would not have succeeded.

[95]The relevant procedural history is as follows:a. C sent an email to the Tribunal on evening of Friday 15 March 2024 asserting bias on the Tribunal’s part. She invited the Employment Judge to recuse herself. She said that on Monday she would be requesting a new judge and panel members.

b. On Monday 18 March 2024, both parties were in attendance and we envisaged hearing her recusal application but C advised she was not fit to participate in the that day and the hearing was postponed.

c. The case was sisted from 17 May 2024 until 17 June 2024 due to C’s ill health. On 16 July 2024, C was ordered to clarify by 29 July if she continued to insist on her application that the Employment Judge recuse herself.

d. On 29 July 2024, C emailed the Tribunal about hearing dates but did not respond substantively regarding the recusal application.

e. On 14 August 2024, C was also ordered to reply by 21 August 2024 regarding whether she wished to insist on her recusal application. Though C sent further correspondence, she did not reply to this call.

f. On 23 August 2024, the Tribunal asked C to respond regarding the recusal application by return. She did not.

g. On 28 August 2024, C wrote to the Tribunal to advise she had been admitted to hospital for a few days, she was to be discharged that day, and would deal with Tribunal emails later that week.

h. On 30 August, the Tribunal wrote to C asking her to confirm regarding the recusal point by 5 August 2024 (when the letter had intended to say 5 September 2024).

i. C did not reply by 5 September but on 6 September, she emailed the Tribunal and said she was being discharged from hospital after being admitted due to a psychotic break. With regard to the Tribunal’s correspondence of the preceding two weeks, she aimed to reply early next week “with my Solicitors [sic] assistance”.

j. On 13 September, EJ Wiseman ordered C to respond regarding the recusal point by Friday 20 September 2024. C did not.

[96]It is plainly undesirable that the requested clarification should not be provided despite multiple requests (and more than one order) and that multiple time limits should not be observed. The Employment Tribunal relies upon the cooperation of parties and representatives to cooperate generally with it to assist the Tribunal in furthering the overriding objective, including avoiding delay and saving expense. The purpose of the Tribunal’s order in relation to the Recusal Confirmation was to ensure the Tribunal and the parties could make case management arrangements for the hearing including timetabling.

[97]C has not explained the reasons for her delay but given her references to hospital admissions and to her mental health in various emails, we allowed for the possibility or probability that her omission may have been substantially caused by her health situation and, potentially, a reluctance to engage meaningfully with the correspondence relating to the proceedings. We made no findings in fact, but we allowed in our deliberations that C’s default may not have been intended to display disdain or a lack of respect for the Tribunal’s authority.

[98]Unfortunate though it was, we were not persuaded that the delay in responding on this point caused substantial or insurmountable prejudice to R. We do not accept that the default in relation to the recusal confirmation as a discrete matter has occasioned a real risk that a fair hearing is no longer possible. We would not have found that R37(1)(d) made out. Even if it were, in the circumstances of the case, we would not have exercised our discretion to strike out C’s case on the ground of a failure to actively pursue it. Conclusion

[99]We strike out all of C’s claim on the ground that it is no longer possible to have a fair hearing (R37(1)(e)). L Murphy