Ms N E Sepa v Harvey Nichols Regional Stores Ltd: 8001981/2024
JUDGMENT
The claimant’s claim is struck out in its entirely in terms of Rule 38 Employment Tribunal Rules 2024REASONS
[1]The claimant presented a claim to the Tribunal on 27 November 2024 alleging she had been discriminated against on the grounds of race and that the respondent had made unlawful deductions from her wages. Her claim form neither set out the detail of the sums she claimed she was due nor provided specification of the acts she complained amounted to race discrimination.[2]A preliminary hearing for the purposes of case management took place on 11 March 2025. The claimant had not completed an Agenda document in advance of that hearing and the Note did not make any reference to any reason why the claimant had not completed that document. A previous preliminary hearing had been postponed at the request of the claimant. The claimant had been reminded by letter dated 20 January to provide a completed Agenda.[3]In advance of the hearing of 11 March the respondent made an application for the claimant’s claims to be struck out in terms of Rule 38 on the basis that they had no reasonable prospect of success.[4]The Tribunal wrote to the claimant on 10 March suggesting that the claimant consider the draft list of issues which had been provided by the respondent and be prepared to discuss the information which had been highlighted as missing from the claimant’s claim to ensure it was properly understood at that hearing.[5]Following the preliminary hearing, Orders were issued requiring the claimant to provide further and better particulars of her claims of unlawful deduction in wages and discrimination. The Note set out the information which was required.[6]The claimant was also Ordered to provide a schedule of loss and the information to be included in relation to that schedule was set out in the Note. The respondent was ordered to respond to the further particulars by 8 April.[7]A further preliminary hearing was listed for 13 May to make progress in relation to the claimant’s case.[8]The claimant did not comply with the Orders timeously and a reminder was sent to her on 27 March by the Tribunal.[9]The respondent also wrote to the claimant reiterating the information which was required in order to comply with the Orders of the Tribunal. 10.The claimant sent an email on 28 March with what appeared to be a screenshot of an appointment she had at the job Centre which was said to be relevant to her claim. She also sent an email stating that in Spain some of the information required would be provided by court or an ex officio lawyer. 11.The Tribunal wrote again to the claimant on 31 March to inform her that her compliance with the Orders remained outstanding. The claimant had by this time complied with one Order, which was to provide a copy of her CV. 12.The claimant then sent an email on 31 March to the Tribunal (which was not copied to the respondent) requesting a change of judge in her case. 13.The claimant sent an email on 3 April asking for more time to comply with the Orders and by email response to the Tribunal’s enquiry as to how long the claimant was seeking, the claimant indicated a request for 7 days in an email of 4 April. The claimant did not copy her email correspondence to the respondent and on 7 April she was informed by the Tribunal that her correspondence would be addressed once she had confirmed whether she had copied it to the respondent. 14.The claimant sent an email to the Tribunal (not copied to the respondent) on 9 April which did not comply with the Orders. Her failure to comply with the Tribunal rules to copy correspondence was highlighted to her again. 15.The claimant had still not complied with the Tribunal Orders and the Tribunal wrote to the parties on 9 May highlighting that the claimant had not complied with the Orders and that in the circumstances, the hearing listed for 13 May would be converted to a hearing to determine whether the claimant’s claims should be struck out on the basis of her failure to comply with the Orders. 16.No meaningful effort was made by the claimant to comply with the Orders prior to this hearing.Hearing
[17]I explained the purpose of the hearing to the claimant and outlined why the hearing had been listed. The claimant’s position was that she had replied to the Tribunal regarding the provision of a schedule of loss. However, she went on to suggest it was for the Tribunal to assess what sums she was due. I explained that was not the role of the Tribunal. She also indicated that she had explained what had happened at the previous hearing in relation to her claim of race discrimination and did not understand why she had to explain it again. 18.The respondent’s position was that the claim should be struck out. Reference was made to the application the respondent had previously made in that regard. It was said that the ongoing delay in clarification of the claims the claimant was making was causing prejudice to the respondent as it impacted on their ability to investigate matters, both in terms of whether relevant staff remained in their employment and the impact on the potential witnesses’ recollection of events. It was said that in light of the serious and continued failure of the claimant to comply with the Tribunal orders and the absence of justification for that failure, it would be in keeping with the overriding objective to strike out the claim. The respondent also highlighted that the claimant did not appear to be copying correspondence she sent to the Tribunal to them in keeping with the rules. Discussion and decision[19]Rule 38(1)(c) Employment Tribunal Rules 2024 provides that a claim may be struck out for non-compliance with the Tribunal Rules or with an order of the tribunal. The Tribunal should adopt a two-stage approach in relation to any decision to strike out a claim. In the first instance, it should determine whether any of the grounds set out in Rule 38 have been made out and then go on to consider whether to exercise its discretion to strike out the claim. A claim will not automatically be struck out if one of the grounds of Rule 38 have been made out. Regard should always be had to the overriding objective in exercising discretion and the test of proportionality should always be taken into account. Consideration should always be given to whether there is a less draconian step which can be taken. 20.In the present circumstances, I was satisfied that the claimant had failed to comply with two separate orders of the Tribunal: to provide further and better particulars of her claims of race discrimination and unlawful deduction from wages and to provide a schedule of loss. 21.The claimant had been reminded on a number of occasions to comply with the Orders. She continued to fail to do so and did not provide any reasonable explanation as to why she could not do so. 22.The claimant’s claim of race discrimination was vague. She had not set out who was said to have done what or when, which she alleged amounted to race discrimination. She had not explained why she said any such conduct amounted to race discrimination (or whether the complaint was based on her nationality or race). Her claim was wholly unspecified and despite a number of reminders to comply with the order to specify the claim the claimant continued to fail to do so. Indeed, at the hearing today she questioned why she should be required to specify her claim. 23.Her claim for unlawful deduction from wages is also wholly unspecified. The claimant appeared to be of the view that the Tribunal should quantify her claim for her, despite the terms of the Order which had been made. 24.The claimant made no effort to provide a schedule of loss setting out the details of the sums she was seeking. 25.If the only order not complied with was the provision of a schedule of loss, I may have come to the view that the claim should not be struck out and considered giving the claimant a final opportunity to comply with the order. However, the claimant has been given a number of opportunities to provide details of her claim in a manner to which the respondent can respond. She continues to fail to do so. She could give no adequate reason why she had failed to do so. It was also notable that despite being reminded by the Tribunal on a number of occasions that she should comply with the rules of the Tribunal by copying to the respondent any correspondence she sent to the Tribunal she continued to fail to do so. Indeed, the Tribunal received an email from the claimant at 5.45pm on the evening before this hearing which stated “Good afternoon, can you copy the information to the other party? I have a court date at 2 p.m. Would it be possible to finish? And don't start so late. It's an important appointment, thank you very much.” That email was not copied to the respondent. 26.While the Tribunal was mindful that the claimant is not represented and that English is not her first language, it was very difficult not to come to the conclusion that her failure to comply with the Tribunal orders was at the very least cavalier. This was particularly so when considered in the context of the repeated reminders for the claimant to copy correspondence to the respondent and her continued failure to do so. She appeared to approach the rules and orders of the Tribunal in a contumelious manner. 27.In these circumstances, I was of the view that given the claimant’s repeated failure to set out her claim in a manner in which the respondent could understand and respond, there was little likelihood of her doing so if she were given further opportunities to do so. 28.I therefore formed the view that it would be in keeping with the overriding objective to exercise my discretion to strike out the claimant’s claim in its entirely.