Lord F Smith v McLaughlan Transport (Perth) Ltd: 8001082/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001082/2024Venue DundeeHearing 30 May 2025
Between
Lord F SmithClaimantMcLaughlan Transport (Perth) LimitedRespondent
Before
Employment Judge SutherlandDate 4 June 2025
JUDGMENT
The Judgment of the Tribunal is that the claimant’s application for reconsideration of the judgment dated 10 March 2025 is refused.
REASONS
[1]The claimant had presented a claim which made various complaints including of race and sex discrimination. A final hearing was listed for 3 days starting 10 March 2025. His claim was dismissed because of his failure to attend that hearing. A hearing was listed for today by video to consider his application for reconsideration.[2]The claimant appeared on his own behalf. The respondent had professional representation. Parties had prepared a joint bundle of documents. No witness gave oral testimony at this hearing. Both parties made oral submissions.
Background
[3]On 9 December 2024 the claimant was advised that the 3 day final hearing would commence on 10 March. The final hearing was listed having regard to parties’ availability. The claimant was expressly advised in writing a postponement would only be granted in exceptional circumstances and an application should be made in writing.[4]On 18 February the claimant advised the respondent (but not the tribunal) that he was about to be diagnosed with a number of mental health conditions and he was unsure what to do. On 19 February the respondent’s solicitor noted to him that he may have some intention to request for the final hearing to be rescheduled due to personal circusmtances and that they would have no issue if this application was made but urged him to make that application soon to avoid wasted costs.[5]On Saturday 8 March the claimant made an application for the final hearing to be postponed on the basis that the respondent had refused to provide evidence. The claimant did not make any application for postponement on grounds of his health or give any indication to the tribunal that he was unfit to attend.[6]On the morning of 10 March the clerk advised the claimant by telephone that the final hearing had not yet been postponed and that the failure to attend without reasonable excuse may result in his claim being dismissed. He was given the opportunity to seek a delayed to the start of the final hearing to enable him to attend. Notwithstanding this the claimant was insistent that he would not attend the final hearing, he did not seek a delayed start, and his application should be considered on his written submissions. The application for a postponement was considered and refused. The final hearing required evidence from the claimant and was therefore unable to proceed in his absence. It was considered to be in furtherance of the overriding objective for the claim to be dismissed under Rule 47.[7]On 19 March the claimant made an application for reconsideration of the judgment dismissing his claim predominantly on the basis that the decision to refuse the postponement application was unreasonable but also on the basis of his mental health “I have this week been made aware of a mental health diagnosis” - it was inferred from this that he was asserting that he was unfit to attend the hearing.[8]On 20 March 2025 the tribunal undertook initial consideration of that application. His application for reconsideration on the basis of unreasonable refusal of the postponement application regarding the failure to provide evidence was considered to have no reasonable prospects of success. His application for reconsideration on the basis of his mental health was because on the week of the hearing he had been given access to new medical records which showed that he had been diagnosed with an F60 personality disorder along with autism. The claimant was asked to explain how those conditions or their diagnosis prevented him from attending the final hearing and prevented him from seeking a postponement on those grounds and provide medical evidence to this effect.[9]On 27 March 2025 the claimant provided a fit note from his medical practice advising that he was not fit for work in the period form 10 to 27 March 2025 on account of heightened anxiety and mental health. He did not however provide an explanation as to when and why he became unfit to attend the final hearing and why he did not apply for a postponement on that ground. Nevertheless in light of the fit note the application for reconsideration was permitted to proceed to a hearing. Submissions[10]The claimant made the following oral submissions in summary –a. He had previously raised issues with his mental health with the respondent. He was not fit to attend the hearing. He had provide a fit note showing he was not fit to work that week.b. He had provided an extract from his medical records which showed that had been diagnosed with an F60 antisocial personality disorder. He has not yet had a formal diagnosis of autism. He explained that he struggles with focus and a lack of care for himself and others. He previously advised in writing that it made him paranoid and to commit anti-social acts and he struggled to understand others and to express himself because of a lack of basic cognitive capability. He explained that that he has suffered from an antisocial personality disorder since childhood, that he received a diagnosis in 2015 but that this was not made available to him until January 2025 because he had previously served in the military and latterly in intelligence. He recognized the need to comply with orders in the military but he had struggled to do so.c. The claimant advised taking advice from ACAS and a neighbour who is legal counsel on what steps to take following the request for more information from the tribunal and they told him he should comply.[11]The respondent made the following oral submissions in summary –a. The claimant has wholly failed to explain and evidence his unfitness to attend the final hearing and also his unfitness to make a prior application to postpone on that ground.b. The claimant advised he has suffered from this mental health condition from birth. On 29 November 2024 the claimant was ordered to provide further particulars of his claim. He complied with that order on 10 December 2024. In those particulars the claimant made reference to advising his employers of his mental health condition although his complaints were for race and sex discrimination. He has been able to work and engage in the tribunal process. The claimant complied with other orders of the tribunal.c. The claimant was made aware of the need to make a written application for a postponement as soon as any issue arose.d. The reason he did not attend the hearing was not his health. It was for the reason set out in the postponement request namely that he was not willing to attend the hearing unless the additional evidence was provided. He made no mention in that application or in his call with the clerk of any issue with his health. Of his detailed 4 page application for reconsideration only 1 line concerned his health and even then he did not assert that he was unfit – only that he had on the week of the tribunal just been aware of a mental health diagnosis. This was inconsistent with his further particulars and also inconsistent with his own oral explanation.e. The claimant was required to explain and evidence any unfitness to attend or to apply but he declined to do so despite receiving independent advice encouraging him to comply.f. It is not in the interests of justice to grant the application for reconsideration because there was no medical evidence that the claimant was unfit to attend the final hearing and was unfit to apply for a postponement on those grounds. Discussion and decision[12]The tribunal has the power to reconsider any judgment where it is necessary in the interests of justice to do so. The tribunal has a wide discretion to be exercised in accordance with the overriding objective but it is a power to be exercised cautiously in light of the principle of the finality of litigation. It must include a weighing of the injustice to the applicant if refused and injustice to the other party if granted, giving weight to the public interest in the finality of litigation (Phipps v Priory Education Services Ltd [2023] EWCA Civ 652).[13]The claimant made an application for reconsideration on the basis that he had recently been made aware of a mental health diagnosis of an F60 personality disorder and by inference was unfit to attend the hearing. The claimant was inconsistent about when he had been made aware of the diagnosis. In advance of today’s hearing it was noted to the claimant that he had not explained how that condition or its diagnosis prevented him from attending the final hearing and prevented him from seeking a postponement on those grounds.[14]Also in advance of today’s hearing the claimant was expressly required explain when he became unfit and why he did not apply for a postponement on that ground and to provide supporting medical evidence that he was not fit to attend the final hearing. He declined to do so. He instead obtained a fit note certifying that he was unfit for work. There was therefore no medical evidence that he was unfit to attend the final hearing.[15]The claimant made an application for a postponement 2 days prior to the final hearing and it was therefore apparent that he was fit to do so. That application was made on the basis of a failure to provide evidence and not on the basis that he was unfit to attend the final hearing. The claimant failed to provide an adequate explanation as to why he did not make that application on the basis of his mental health and why he did not raise this with the clerk when he was given opportunity to do so on the day of the hearing.[16]If the application is refused the claimant will not have his claim heard (subject to any appeal) but he had prior opportunity to make an application to postpone. If the application is granted the respondent will incur additional expense and inconvenience which could have been avoided had that application been made.[17]It is therefore not in the interests of justice to grant the application for reconsideration on the basis that he had recently been made aware of a mental health diagnosis of an F60 personality disorder and was therefore unfit to attend and the application is therefore refused. 4 June 2025 Date of Judgment