United Kingdom Employment Appeal Tribunal

  Appeal No. UKEATPA/0182/14/DA

UKEAT/0156/14/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 23 October 2015

 

 

 

Before

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

(SITTING ALONE)

 

 

 

 

 

MS P B SUD                                                                                                             APPELLANT

 

 

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH

OF HOUNSLOW                                                                                                  RESPONDENT

 

 

 

MS P B SUD                                                                                                             APPELLANT

 

 

 

LONDON BOROUGH OF HOUNSLOW                                                          RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

RULE 3(10) APPLICATION - APPELLANT ONLY (UKEATPA/0182/14/DA)

FULL HEARING (UKEAT/0156/14/DA)

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	No appearance or representation by or on behalf of Appellant
For the Respondent (UKEAT/0156/14/DA only)	MR JONATHAN COHEN (of Counsel) Instructed by: London Borough of Hounslow HB Public Law Civic Centre PO Box 2 Station Road Harrow HA1 2UH

 

 

SUMMARY

PRACTICE AND PROCEDURE - Striking-out/dismissal

PRACTICE AND PROCEDURE - Postponement or stay

PRACTICE AND PROCEDURE - Costs

 

The Appellant obtained, on medical grounds, a last-minute adjournment of a hearing listed for eight days.  It turned out that she had told a lie about her medical condition and falsified a document.  She sought to appeal against the decisions of the Employment Tribunal (“the ET”) (1) to order her  to contribute to the costs of the adjournment and (2) to strike out her claim, on the grounds that the ET considered it had lost trust in her veracity and there could therefore no longer be a fair trial.

 

Her Rule 3(10) application for permission to appeal against the costs order was dismissed, on the grounds that there was no arguable error of law in the ET’s approach.

 

The Appellant’s appeal against a decision of the ET striking out her claim was also dismissed, on the same grounds.

 

THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE

 

Rule 3(10) Application

1.                  This is a renewed application for permission to appeal under Rule 3(10) of the Employment Appeal Tribunal Rules by Ms Sud.  She wishes to appeal against a decision by the Employment Tribunal; that is, Employment Judge Morton, sitting alone.  The hearing was held on 6 December 2013, and the Written Decision was sent to the parties and entered in the register on 16 January 2014.  In that decision, Employment Judge Morton (“the EJ”) ordered Ms Sud, whom I shall refer to as “the Claimant”, to pay a contribution of £18,458.50 to the Respondent’s costs arising out of the postponement of an eight-day hearing that had been scheduled to begin on 8 May 2012.  I do not need to go into the facts in any detail, but, in short, that postponement had been obtained by the Claimant on medical grounds, and, on later investigation it turned out that she had told a lie about her medical condition and had altered the date on a relevant document.

 

2.                  The decision of the sift Judge in this case, HHJ Eady QC, was that there were no arguable grounds for bringing an appeal.  I agree with that.  It is clear from the EJ’s decision that this was a case in which he was obliged to consider whether or not to make a costs order.  It was also a case in which his conclusion that the power should be exercised was correct, and the way in which he exercised the power was also plainly right.  Although under the Rules he had no obligation to take the Claimant’s means into account, he did so, and on the limited information she had provided he decided to award about half of the costs that had been claimed by the Respondent.  I therefore dismiss this application.

 

3.                  Before I finish my observations, I should explain that the Claimant did not attend the hearing this morning.  The history in relation to this is that in June of this year the President directed, in summary, that no further application for an adjournment in this case would be granted save in a medical emergency unless the application was made at least a month before the hearing and was supported by a medical report from a consultant that explained why the Claimant was not able to attend, dealt with her ability to instruct a lawyer and dealt with the long-term prognosis.  The President further directed that in the absence of such a report the case would proceed.  In June of this year he had reluctantly adjourned the hearing of this appeal, and it has been adjourned before.

 

4.                  Earlier this week the Claimant applied by email for an adjournment of the hearing today.  She attached some medical information, which neither suggested that she was unfit to attend the hearing nor complied with the direction given by the President in June of this year.  I refused that application.  Yesterday afternoon she made a further application for an adjournment by email with some further medical material.  I also refused that application on the grounds that it did not comply with the President’s direction and did not suggest that she was so unwell that she could not attend today’s hearing.

 

5.                  This morning the Claimant did not attend.  I waited for ten minutes before starting the hearing.  An ELAAS representative was here to represent her but in her absence was unable to take instructions and so could not represent her for this application.  Having waited until 10.40am I see that the Claimant is not here.  I am satisfied that she was aware of the hearing date and of the time of this hearing, and I am also satisfied that the right course was to carry on with the hearing rather than adjourning it this morning.  In deciding not to adjourn it but to go ahead I have taken into account the observations of the Court of Appeal in Andreou v Lord Chancellor’s Department [2002] IRLR 728.  So, for those reasons, I decided to go ahead with the hearing and to dismiss the Rule 3(10) application.

 

Full Hearing

6.                  This is an appeal against a decision of the Employment Tribunal after a hearing held on 4 October 2012 and 5 February 2013.  The Judgment of the Employment Tribunal was sent to the parties and entered in the register on 29 April 2013.  The Employment Tribunal consisted of Employment Judge Morton sitting alone.  The effect of the decision was that the Claimant’s claim was struck out.  Permission to appeal on one ground only was granted by HHJ Eady QC on 27 March 2014.  She said this:

“The proposed Notice of Appeal is difficult to digest and contains a number of allegations and complaints that I consider disclose no reasonable basis for any appeal - see reasons given under [Rule] 3(7) EAT Rules below.

I do, however, consider that one issue of law with reasonable prospects of success is disclosed and therefore direct that the proposed appeal should proceed to a Full Hearing on one ground only, namely: whether the Employment Judge erred in law in the approach adopted to the striking out of the Claimant’s claim, in particular in determining that the case was no longer triable given the finding that the Claimant deliberately misled the Tribunal in her postponement application (in particular, see paras. 37-39).”

 

7.                  HHJ Eady QC gave reasons for her decision that the other grounds of appeal - in so far as it was possible to discern what they were - disclosed no reasonable basis for appeal, and it is not necessary for me to repeat her reasons now.

 

8.                  This appeal has been adjourned on more than one occasion.  In June of this year the President directed, in summary, that no further application for an adjournment would be granted save in a medical emergency unless the application was made at least a month before the hearing and was supported by a medical report from a consultant that said why the Claimant was unable to attend, that dealt with her ability to instruct a lawyer and that dealt with the long-term prognosis.  He further directed that in the absence of such a report the case would proceed.  On that occasion he had reluctantly once again adjourned the hearing of this appeal.

 

9.                  Earlier this week the Claimant applied for an adjournment by email.  She attached some medical material, but that material did not meet the criteria in the President’s direction and did not suggest that she was too unwell to attend the hearing.  I refused that application.  She applied again for an adjournment yesterday afternoon by email, attaching some further medical material to that email.  Once again that material did not comply with the President’s direction and did not suggest that she was too unwell to attend the hearing.  I also refused that application for an adjournment.

 

10.              This morning the Claimant was not present at 10.30am.  I decided to give her ten minutes in which to appear; at 10.40am she had still not appeared and I dealt with a Rule 3(10) application in relation to a further appeal of hers.  The time is now 11.15am, and she has still not attended.  The first question for me therefore is whether, the Claimant not being present, I should adjourn the hearing or deal with it.  I have decided that the right course would be to deal with the hearing today.  I am satisfied that the Claimant knows both the time and the date of this hearing and that it was open to her given the nature of the medical material on which she relied to have attended.  In the light of that it is appropriate for me to deal with the appeal even though the Claimant is not present, and in that regard I have taken into account the decision of the Court of Appeal in Andreou.

 

11.              Having decided that I should deal with the appeal in the Claimant’s absence, the further question that arises is whether I should dismiss the appeal simply on the basis that the Claimant has not attended or whether I should address the arguments on the basis of the material that I have.  I note here that the Claimant did not comply with this Tribunal’s direction to provide the court with a skeleton argument.  Mr Cohen attended the hearing to represent the Respondent, and very properly he did not seek to persuade me to adopt one course or the other.  In the circumstances, because leave to appeal has been given by HHJ Eady QC, it seems to me right that I should deal with the merits of the appeal, and I do so now.

 

12.              The decision of the EJ was that the case should be struck out pursuant to Rule 18(7)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.  Because of the age of the case, those were the Regulations that applied at the time.  As well as ordering the case to be struck out, he ordered the Claimant to pay the Respondent’s costs arising out of an adjournment of a hearing that had been listed for eight days starting on 8 May 2012.  He gave further directions for the costs matter to be dealt with after his decision on the strike out, and it was his decision in relation to that that gave rise to the Rule 3(10) application to which I have already referred.

 

13.              The EJ explained that the purpose of the pre-hearing review (“PHR”) had been to decide three matters pursuant to a case management order that had been made on 3 May 2012.  Those three matters were: (1) whether the claims should be struck out in the grounds identified in a letter by the Respondent of 1 May 2012; (2) whether the claims should be struck out on the grounds of the Claimant’s non-compliance with Tribunal orders and directions; and (3) whether the claims should be struck out on the grounds that the Claimant had misled the Tribunal in relation to her medical condition.

 

14.              The EJ set out the facts at some length; I shall merely summarise them.  He observed at paragraph 3 of his decision that the case had an unusually complex procedural history.  The claims that the Claimant had brought, which were principally claims of unfair dismissal, disability discrimination and detriment for making protected disclosures, were initiated in a claim form presented on 27 July 2011.  The PHR had been heard over two days, on 4 October 2012 and 5 February 2013.  The Claimant had attended in person, and a solicitor had appeared on behalf of the Respondent.  He observed in paragraph 4 of the decision that there had been much difficulty in getting the matter ready for trial and went on to give a detailed explanation for that statement.  In paragraph 5 of the decision he said that the Claimant had been concerned about various case management decisions that had been made by the ET in the course of the case and had appealed several of them to this Tribunal on each occasion without success.  That had contributed to delays in the case.  A Full Hearing had been listed for eight days to start on 8 May 2012, but that hearing did not in fact take place.  On 5 May 2012 the ET made an order postponing the hearing on the application of the Claimant but listed the matter for a PHR in order to decide the three issues that I have already referred to.

 

15.              The PHR was originally listed for 20 July 2012, but it did not in the event take place on that date.  It was postponed because the Claimant had an accident in her son’s car.  The hearing was re-listed for 4 October 2012.  Part of the hearing on that date was taken up in considering whether the claim by the Claimant that she was involved in a car accident in 20 July was true or not, the Respondent eventually agreeing to accept that it was true.  There was then cross-examination by the Claimant of the Respondent’s solicitor, and the hearing did not finish on 4 October.  As a result, it was necessary to re-list the PHR for a second day in order to enable the Respondent to make submissions.  The Claimant made submissions in reply on that day.  The EJ set out her conclusions beginning with paragraph 11; again, I only summarise those.  She dealt first with the question of medical evidence, and at paragraph 14 she concluded that while the Claimant’s manner of conducting the case seemed “bizarre and inexplicable” it fell short of deliberately misleading the Tribunal as regards her medical evidence.

 

16.              The EJ then set out at paragraph 18 of her decision that on 23 April the Claimant had written to the Tribunal as follows:

“I am respectfully applying for an adjournment in my case for reasons of ill health at this time … I attach a letter from my doctor in this regard.  I have copied this to the Respondent.

I am sorry that I am unable to continue at this time and apologise for this but I feel it is important that I take proper and due regard of medical concerns of my CBT Counsellor and the CPN and my GP.”

 

17.              The GP’s letter said:

“Mrs Sud has been registered with our practice since October 1984.

She is suffering from severe stress and anxiety and is not fit to attend [the] court hearing scheduled from 8^th May.  She is under the care of the CBT Therapist and has been referred by the Mental Health Team for an urgent Psychiatric assessment.

I have advised her to rest for 4 weeks.”

 

18.              The Respondent objected to this application for a postponement and made the point in short that the medical evidence was inadequate by reference to the case of Andreou.

 

19.              That application was refused by EJ Hildebrand by letter dated 26 April.  He made various case management directions along the lines sought by the Respondent, and in particular he indicated what evidence the Claimant would have to produce if she wished to renew her application for an adjournment on medical grounds.  The deadline for the renewal of the application was close of business on 27 April 2012.  Nothing further was heard from the Claimant by that deadline, and she did not respond until 1 May.  She then sent a letter to the Tribunal that said this:

“I have been advised to write to you to update you of my current situation around my ill health.

I attended for an urgent appointment to see a Psychiatrist at the Mental Health Resource Centre yesterday evening.

He agreed with my GP’s medical advice and guidance about my not being fit to attend the hearing from 8^th of May and of my needing to rest for 4 weeks, and that [the] hearing should be adjourned for as a result [sic].  I am willing to provide a report from the Psychiatrist should the Tribunal deem this to be necessary.

Please note I have not been able to proceed on any matters to do with the case, since last Tuesday.  I have not opened any emails or correspondences that may have been sent to me since that time about the case especially as my surgery advise that this could well exacerbate my symptoms of severe stress and anxiety, as I am acting on my own, and set me back on my recovery and treatment plan at this time.

I once again apologise that I am unable to continue at this time but I feel it is important that I take proper and due regard of medical concerns of my CBT Counsellor and the CPN and my GP and now my Psychiatrist.”

 

20.              The same day the Respondent wrote to the Tribunal applying to have the Claimant’s claim struck out on the basis that the Claimant had a history of failing to comply with case management orders and on the basis that a fair trial was no longer possible.  This led to the case management order of 5 May that postponed the hearing and listed the matter for a PHR.  The EJ said at paragraph 25 of her decision that, having considered the factual background up to that point, she was not persuaded that there was evidence that the Claimant had deliberately misled the Tribunal before her postponement application on 1 May, although she was plainly reluctant to “come clean” about her medical history.  As the EJ said, “However matters then changed”.  The EJ said that the Respondent had presented her with evidence that, it submitted, showed that in seeking a postponement the Claimant had indeed deliberately misled the Tribunal.  A number of documents were produced in support of this contention, and the Respondent’s solicitor had prepared a supplementary witness statement.  As the EJ put it:

“25. … The gist of the issue is whether Mrs Sud attended a psychiatrist on 30 April as she maintained in her letter … and what she was advised by that psychiatrist. …”

 

21.              This was crucial, said the EJ, because it was in reliance on that consultation having taken place and the Claimant having been advised to rest that an eight-day hearing for which the Respondent had been fully prepared had been postponed resulting in “considerable prejudice to the Respondent and inconvenience to the Tribunal”.  It was conceded by the Respondent that the Claimant had consulted a Psychiatrist.  A copy of the heavily redacted medical report from Dr Carly Bush confirmed that the Claimant had attended a Psychiatrist on 30 April and that there had been a plan for a review in two months’ time.  At first there had been no indication of what advice the Claimant had received as a result of the redaction of that report, but in the course of the hearing on 5 February the Claimant handed up an unredacted copy of the report.  This was quoted by the ET, and said:

“Mrs Sud has a complex history of mental and physical health problems and as been having [sic] treatment for depression.  Her main concern at the moment is the stress caused by having to deal with two impending court cases. … She has a lawyer for the first court case but she is managing the second one herself and has had to deal with lots of phone calls and e-mails which she finds very difficult.

She has previously [seen] a psychiatrist who did a lengthy report and diagnosed her with mixed anxiety and depression.  Unfortunately we did not have that report to look through today.

Since starting on Paroxetine Mrs Sud has seen some improvement in her mental state.  She is also seeing a counsellor …

Mrs Sud was well kempt and made good eye contact with both of us.  She spoke freely and openly about her problems.  She did speak very quickly.  She describes her mood as stressed.  Objectively she seemed very happy and smiley for most of the conversation.  Towards the end she did become more upset when we were talking about her not being able to visit family due to the stress.  There was no evidence of thought disorder.  Her insight was good.

Mrs Sud is going through a very stressful time at the moment because of her two court cases.  She has no clinical depressive features and no significant clinical features of anxiety at present.  She was acutely anxious last week and responded well to the removal of social stressors …”

 

22.              As the EJ observed, that report seemed to her not to say what the Claimant had told the Tribunal that the report did say, namely:

“I attended for an urgent appointment to see a Psychiatrist at the Mental Health Resource Centre yesterday evening. …”

 

23.              The EJ went on to quote in full from the Claimant’s account of what had happened.  The report, the EJ went on, made no mention of the hearing date on 8 May and no mention of the fact that the Claimant was not fit to attend that hearing, nor even did it say that she had consulted her GP about the hearing; it merely recorded that she was finding the whole process very stressful.  The EJ went on to say:

“27. … So this report is not helpful to Mrs Sud which is perhaps why the copy in the bundle was redacted.  The report plainly does not say what Mrs Sud told the tribunal that it said when she sought an adjournment of her case.  The Respondent says that this is misleading.  I am inclined to agree.”

 

24.              The EJ then referred to another report, from a Dr Nayrouz, a Consultant Psychiatrist in the same team.  That report was dated 7 June and had been supplied directly to the Respondent’s solicitor on 17 July 2012 pursuant to an authority signed by the Claimant.  That report confirmed that Dr Nayrouz had seen the Claimant on 1 June, and the EJ then quoted from that report in paragraph 28 of her decision.  She said in paragraph 29, “That report does not assist Mrs Sud either”, and she explained the reasons for that conclusion in the remainder of paragraph 29.  The EJ then went on to say in paragraph 30 of her decision that there was a second copy of that report in the bundle which had been supplied for the purposes of the PHR by the Claimant herself and was available at the first day of that hearing in October.  That copy had had the date 1 June manually altered to 1 May by the Claimant herself, as she had admitted in her evidence.  The EJ recorded the Respondent’s submission that that was a deliberate attempt to mislead the Tribunal.  The EJ said:

“30. … It is difficult to disagree with that proposition, as manually altering the date on a document is plainly a deliberate act intended to suggest that something happened on a different date from that stated in the original document.  I say that notwithstanding that Mrs Sud altered the date to 1 May, which is not the date on which she actually saw Drs Bush and Nayrouz.  But I will first consider Mrs Sud’s explanation as to why the letter came to have an altered date. …” 

 

25.              The EJ then went on to consider that explanation, and at paragraph 31 of her decision she found that that explanation did not assist the Claimant for three reasons, which she set out in the remainder of paragraph 31 of the decision.

 

26.              At paragraph 34 of her decision the EJ asked herself whether in the light of those facts there was conduct on the Claimant’s part that amounted to misleading the Tribunal.  She said she had before her an admission that the Claimant had tampered with the date on the letter.  She had considered the explanation for that and had found that the Claimant was in fact trying to mislead the Tribunal into thinking that she had a medical report from her Psychiatrist from a date that would be consistent with her application to the Tribunal for an adjournment.  The EJ inferred that as the report written on the date of her actual consultation did not support her adjournment application she had hoped to prevail upon Dr Nayrouz to write a more helpful report at a later date.  She found that Dr Nayrouz’s elaboration of the discussion he had had with the Claimant on 30 April did not assist the Claimant, but even if it had done so it seemed plain to the EJ that the Claimant was trying to mislead the Tribunal in the way she went about conducting the case.  She found that the Claimant had presented to the Tribunal as factually accurate a document on which she had manually altered the date and that she had misled the Tribunal into believing that she had a Psychiatrist’s report that supported her application for an adjournment of the hearing listed for eight days on 1 May 2012 when in fact she had had no such report.  The EJ then said this:

“34. … These are both very serious matters as they undermine the ability of the Tribunal to have trust in Mrs Sud’s veracity.  The substantive matters in dispute in this case will ultimately depend very heavily on Mrs Sud’s own evidence.  The consequences of her showing herself willing to tamper with evidence and mislead the tribunal as to the existence of evidence are thus very serious.  They cast serious doubt on the question of whether there can be a fair trial of the issues in the case.  They also amount to unreasonable conduct of the case.” 

 

27.              At paragraph 35 the EJ said that she had also taken into account the way in which the Claimant had gone about conducting the case more generally.  As the EJ said, it was after all her case and she had made a complaint against the Respondent rather than the other way round.  She said it was plain that the Claimant did not want her case to go to trial in 2012, and she referred to a number of defaults in the conduct of the litigation (which had been set out by the Respondent in the letter of 1 May 2012) in paragraph 35 of the decision.  She recalled the Respondent’s submission that by May 2012 the fair trial of the case was being prejudiced by the Claimant’s conduct of it.  The prejudice to the Respondent arising out of the postponement was made particularly acute by the fact that three of the Respondent’s witnesses had left the Respondent’s employment in or around May 2012.  She also recorded the Respondent’s submission that there had been intentional or contumelious default by the Claimant in relation to case management orders and a submission that there had been “almost total non-compliance” with those orders.  In paragraph 36 the EJ referred to a number of defaults that the Claimant had committed.  She concluded that it was:

“36. … difficult to see the history as anything other than [a] succession of attempts by Mrs Sud to delay the proceedings, if not as the Respondent suggests, to derail them completely.” 

 

28.              The EJ then asked herself whether the history of non-compliance indicated intentional and contumelious default.  She said that in addition to the matter of medical evidence she had to consider whether the remaining concerns identified by the Respondent amounted to wilfully contumelious default such as would in and of themselves justify strike out.  She directed herself that strike out is a power to be used very sparingly and that it should not be used in a discrimination case unless the circumstances were exceptional.  She had been referred to and considered the guidance given by this Tribunal in Bolch v Chipman UKEAT/1149/02 and the decision in De Keyser Ltd v Wilson [2001] IRLR 324.  She then set out the principles that she deduced from those two decisions and that she held were relevant to the case.  She found that the Claimant had acted unreasonably in a number of respects but in particular with regard to the medical evidence in support of her adjournment application and that was unreasonable conduct in the proceedings themselves falling within the scope of Rule 18(7)(c).

 

29.              The EJ directed herself correctly that a finding that the proceedings had been conducted unreasonably was not determinative in and of itself.  While there could be circumstances in which such a finding could lead straight to a debarring order, that would not be automatic.  However, she directed herself, it would follow if there is “wilful, deliberate or contumelious disobedience” of an order of the court.  She referred to the fact that there had been a great many delays and various other failures and concluded that these defaults did amount to such disobedience particularly in the late stages of the trial preparation when, she said, it was clear that the Claimant’s conduct of the proceedings was making the Respondent’s effective preparation for the trial extremely difficult.

 

30.              The EJ went on to direct herself that her finding that there had been wilful disobedience would not allow her to strike out the case on that basis alone.  She said there was also the question of whether a fair trial was still possible.  She reminded herself that she had formed the view that the Claimant’s conduct with regard to the medical evidence had made a fair trial impossible.  She said this:

“37c. … The fact of her having misled the tribunal as to the existence of medical evidence supporting her adjournment application in May 2012 and her having manually altered the date on a document to bolster her position, fatally undermine the trust that the tribunal can have that she is acting truthfully and in good faith.  I can see no way that a fair trial of the issues can take place in such circumstances.  Strike out of a claim should not be a form of punishment for having conducted a case in an unreasonable manner, particularly a case involving allegations of discrimination by an employer.  But strike out where a fair trial is no longer possible because faith in the credibility of the claimant has been lost, is a different matter.”

 

31.              The EJ went on to consider the requirements of the overriding objective, which is to deal with cases justly, including in a case where, as there, one party was unrepresented the requirement to ensure that the parties were on an equal footing.  She also said that she had taken into account the decision of the Court of Appeal in Blockbuster Entertainment v James [2006] IRLR 630 and the requirement placed on the Tribunal to consider the proportionality of the strike out and the need identified by Sedley LJ to ensure as far as possible that triable cases are tried.  She went on to say that that case caused her to hesitate to accept the Respondent’s submission that the Claimant’s case should be struck out for her wilful disobedience of Tribunal orders alone.  She would have had to have considered very carefully in the light of James whether strike out would have been a proportionate response to the defaults that she had found the Claimant had committed, but, she said:

“38. … I return to my finding that Mrs Sud deliberately misled the tribunal with regard to her postponement application in May 2012.  That is conduct from a different order, which in my view renders the case no longer triable, and has led me to the conclusion that, applying the overriding objective, to allow the case to proceed would not be just to the Respondent.” 

 

32.              The EJ had considered the Claimant’s submissions before she had reached that conclusion.  The Claimant denied that she had misled the Tribunal.  At paragraph 39 of her decision the EJ made it clear that she did not accept that denial.  She made no finding about the underlying genuineness of the Claimant’s ill health; she did not consider that it was necessary for her to do so in order to decide the issues that were before her.  She recorded that the Claimant had also elaborated on her reasons for having altered the date of the letter.  The EJ said this:

“39. … Her explanation did not alter my view that her conduct has undermined trust in her credibility and that a fair trial of her case - a case in which her veracity in matters pertaining to her health and alleged disability, will be of critical importance to a fair trial - is no longer possible.”

 

33.              I have set out the reasoning of the Employment Judge in some detail.  That enables me to deal very shortly with the one ground of appeal for which permission was granted by HHJ Eady QC.  In my judgment, when one considers the facts as carefully set out by the EJ, it is absolutely clear that the Claimant’s conduct had been such that a fair trial was no longer possible.  The EJ referred in terms to the fact that the Claimant’s conduct had fatally undermined the trust that the Tribunal could have in her veracity.  For those reasons, it seems to me that the EJ’s conclusion that the appropriate course was to strike out the claim was one that was plainly open to her, and indeed it seems to me that it was on the facts the right decision.  I therefore dismiss this appeal.

 

Costs

34.              Mr Cohen, who represents the Respondent on this appeal, applies for the costs of the appeal.  This is a case in which permission to advance one ground of appeal was granted on the sift by HHJ Eady QC, and normally it would not be appropriate to make a costs order in circumstances where a decision has been made by this Tribunal that an appeal is arguable.  However, I have been persuaded that this is a case where the Claimant’s conduct of the appeal has been wholly unreasonable, and it does appear that she has no real interest in prosecuting the appeal.  The position is that there have been three adjournments of this appeal very close to the hearing dates with the result that the Respondent’s incurred counsel’s brief fee on three occasions and then no hearing took place.  I have already recited the history in relation to today’s hearing in my Judgment.  In short, the Claimant applied on two occasions in the course of the week for adjournments on inadequate grounds, and, those applications having been refused, she did not turn up to argue the appeal this morning.  She has not complied with any of the directions of this Tribunal; in particular, she has not lodged a bundle and she has not lodged a skeleton argument.  In that situation it seems to me that even if the Claimant intended to prosecute this appeal at the stage when permission to appeal was granted she has since decided that she does not have a real interest in pursuing it and as a result of that and as a result of her successive very late applications for adjournments on medical grounds has caused the Respondent to incur the costs of three adjourned hearings and the cost of today’s hearing.

 

35.              Mr Cohen on behalf of the Respondent applies for his fees only in relation to three very late adjournments and today’s hearing; a total of £8,000.  It is clear to me that the Claimant has no assets to speak of.  She appears to have been made bankrupt in 2014 and in previous litigation against a previous employer, the London Borough of Ealing, was ordered to pay a sum of about £50,000 in costs, perhaps more.  She has been ordered to pay over £18,000 by the Employment Tribunal in this case.  The likelihood therefore of the Respondent’s recovering any costs against her is small, but it seems to me nonetheless that this Tribunal’s disapproval of her unreasonable conduct should be marked by an award of costs, and I order her in those circumstances to pay the sum of £8,000 to the Respondent.

 

Postscript

36.              After the hearing, Mr Cohen rightly contacted this Tribunal to say that he had made a mistake about the amount of costs which had been incurred.  The amount was £2,500 plus VAT, rather than £8,000.  The order which I made reflects that correction, and it was my view, when I came to review the transcript, that this, too, should record that correction.