Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Otehtubi v Friends In St Helier (Practice and Procedure: Striking-out/dismissal) [2017] UKEAT 0094_16_0902 (09 February 2017)
URL: http://www.bailii.org/uk/cases/UKEAT/2017/0094_16_0902.html
Cite as: [2017] UKEAT 94_16_902, [2017] UKEAT 0094_16_0902
[New search] [Printable RTF version] [Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
(SITTING ALONE)
FRIENDS IN ST HELIER RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
|
(The Appellant in Person) |
|
|
No appearance or representation by or on behalf of the Respondent |
SUMMARY
PRACTICE AND PROCEDURE - Striking-out/dismissal
The Employment Appeal Tribunal held that the Employment Tribunal had erred in law in striking out the Claimant’s claim when, without explaining why, it had immediately struck out the claim on the Respondent’s application for an Unless Order, and in circumstances when it could not have been satisfied either that it had adopted a fair procedure or of the facts on which it had relied for striking out the claim.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
Introduction
1. This is an appeal from a Judgment of the Employment Tribunal (“the ET”) made on 27 November 2015 and sent to the parties on 1 December 2015. The ET consisted of Employment Judge Andrews (“the EJ”). The Judgment recited that the Claimant’s claim had been struck out. The reasons for that decision were that by a letter dated 20 November 2015 the ET had given the Claimant an opportunity to comment on the Respondent’s application for an Order requiring the Claimant to comply with outstanding directions otherwise her claim would be struck out because it had not been actively pursued. The ET said that the Claimant had failed to make any representations in writing, failed to make any sufficient representations why that should not be done, or to request a hearing. The claim was therefore struck out.
2. As I shall explain, the President ordered, after a Preliminary Hearing, that there should be a Full Hearing in this case. The Respondent, although ordered to do so, did not lodge a Respondent’s Answer. On 9 August 2016 the Respondent wrote to this Tribunal to say that it did not wish to contest the appeal against the strike out any further. It did not appear and was not represented at the hearing today. The Claimant today appears in person. I shall refer to the parties as they were below.
Brief Background
3. The Claimant was employed by the Respondent as a Community Support Worker from 1 August 2012 until she was dismissed by a letter dated 23 January 2015 on the grounds of gross misconduct. She claimed in her ET1 that she was unfairly dismissed and that the Respondent discriminated against her on the grounds of her religion or belief.
The Progress of this Appeal
4. The Claimant’s main original ground of appeal was that she did not receive the letter of 20 November and was therefore unable to respond to it. In April 2016 HHJ Eady QC considered the grounds of appeal on the paper sift. She ordered a Preliminary Hearing at which the Claimant should attend and for which the Respondent could submit written representations. She said that if the Claimant did not receive the letter of 20 November 2015 that might make the EJ’s decision unsafe but that there seemed to be more in the background than that. There was a Preliminary Hearing, accordingly, on 22 June 2016. The Claimant was represented by counsel appearing under the auspices of ELAAS, Mr Kohanzad. The President set this case down for a Full Hearing on grounds of appeal that were to replace the Claimant’s original grounds. The Claimant was given leave to amend her grounds of appeal in accordance with a draft to be approved by the President. The Respondent was ordered to lodge an Answer within 14 days.
5. In the reasons that she gave for making that Order, the President explained that in the skeleton argument and revised grounds of appeal counsel took a number of points by reference to errors in the Respondent’s application for an Unless Order. First, there was a suggestion that the Respondent’s application expressed, or implied, that the Claimant had served no witness statements when in fact she had served two under cover of an email dated 13 November. It was true that she had sent her own witness statement later. If the Respondent had received those two witness statements, the application was factually incorrect. Secondly, in breach of Rule 92 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Respondent did not send a copy to the Claimant of its application. Two points were made about an email sent by the ET on 20 November. First, the email did not look like a formal Unless Order; it was ambiguous and unclear. Secondly, if the Respondent had applied for an Unless Order, the EJ erred in treating the application as an application for the claim to be struck out. The decision of the EJ was arguably wrong in law. First, the decision to strike out under Rule 37(1)(d) misunderstood the application by the Respondent, which was for an Unless Order. Secondly, no one had suggested that the Claimant was not actively pursuing her claim. That conclusion was not supported by the facts and had not been advanced by any party. The Claimant had complied with many of the directions made at the Preliminary Hearing. She had provided Further and Better Particulars. She had given disclosure and agreed a trial bundle and had provided two witness statements, albeit not her own witness statement.
6. The Claimant argued that the Order was made in breach of Rule 37(2) because she was not given a reasonable opportunity to make representations. Regard should have been had to the means of communication for which she herself had asked: post, not email. Indeed, she had had computer problems. In any event, the time given for a response by an email sent on Friday at 12.18pm, which stipulated a reply by 9.00am on Monday, was unreasonable. All those points, the President said, merited full investigation at a hearing as raising arguable points of law with reasonable prospects of success in relation to a decision with “draconian effect”.
7. An amended Notice of Appeal was lodged on 27 June 2016. It was settled by counsel who had represented the Claimant at the Preliminary Hearing. It followed the line of argument set out by the President in her reasons for allowing this case to go to a Full Hearing.
The Respondent’s Position
8. In fairness to the Respondent, although the Respondent has not attended this hearing, I should say something about the Respondent’s position as set out in its written submissions that were lodged for the Preliminary Hearing in accordance with the Order of HHJ Eady QC. The Respondent contended that the decision was correct and that there was no error of law. The Respondent’s written submissions had attached to them a bundle of correspondence. That bundle included emails addressed by the Respondent’s solicitors to the Claimant on 18 and 19 November. The first said that the hearing was the following week and asked the Claimant for a Schedule of Loss and a witness statement from Mr Ling for inclusion in the bundle as soon as possible. The second asked whether the Claimant intended to file a Schedule of Loss or witness statements from her and Mr Ling.
9. On 19 November the Respondent’s solicitors emailed the ET. It does not appear that the email or its attachment were copied to the Claimant. The attached letter, dated 19 November, was headed “*** VERY URGENT ***”. It referred to the hearing listed for 24 and 25 November, i.e. the following week. It said that the Claimant had failed to provide a Schedule of Loss or any witness statements in breach of the Order made at the last hearing, which had provided for mutual exchange. The solicitors said they had phoned the Claimant that day and she had failed to clarify whether she would serve either. They asked the ET to make an Unless Order asking her to provide these, as they did not believe that the trial could take place without them.
10. On 20 November, the Respondent’s bundle shows, the Respondent’s solicitors emailed the Claimant at 12.23pm asking her if she intended to file a Schedule of Loss or a witness statement from her or from Mr Ling. The Claimant emailed the Respondent’s solicitors at 2.07pm. She said she would be filing a Schedule of Loss and a witness statement. She said that she knew that time was very short and that she would try to get those to the Respondent before close of business, when she claimed to collect documents from the Respondent’s solicitors’ reception. She asked what time the office closed. The Respondent’s solicitors replied that the office shut at 5.30pm and that a trial bundle would be left in reception for the Claimant to collect. At 5.30pm the Claimant emailed the Respondent’s solicitors. She said that she had collected the bundle and she thanked the Respondent’s solicitors. She had tried sending her statements, but the files were too large. The office was due to close and she would try to reduce the files she sent. The Respondent’s solicitors replied at 5.41pm suggesting that the Claimant could try to send them via a free large file transfer service. The Respondent’s solicitors included the website address of that service in the email.
11. The Respondent contested that the Order had been made because the Claimant had not complied with the letter of 20 November. The Respondent said that that letter had been addressed to the Claimant and emailed to all of the parties. That email was sent at 12.18pm. The email said that the EJ had asked the author of the email to write to the Claimant. The Claimant’s attention was drawn to the enclosed letter from the Respondent; that is, the letter of 19 November. The author of the email said that the ET had tried to contact the Claimant by phone that day with no success. The Claimant was asked to reply by 9.00am on Monday 23 November with her comments on:
“… the respondent’s application for an order requiring you to comply with outstanding directions failing which your claim will be struck out.”
12. The Respondent submitted in its representations that the ET had emailed all the parties. The Respondent accepted that what it had applied for was an Unless Order. The Respondent said in its representations it did not believe that the hearing could go ahead without evidence from the Claimant. It had made attempts to contact her. Despite this, the Respondent said that the Claimant had not made clear whether she would be providing evidence. That is not an accurate summary of the emails. The Respondent submitted that its only option was to ask the ET to require the Claimant to provide the evidence; so, the Respondent asked for an Unless Order. The Claimant’s suggestion that she did not receive the letter of 20 November was, the Respondent said, “somewhat misleading” as the letter was clearly addressed to all parties. The Claimant did not respond to the last email in the chain or send her witness statement and Schedule of Loss. She had not responded to the ET, so far as the Respondent was aware, or sent a Schedule of Loss or witness statement to the ET by 9.00am on 23 November.
13. The Respondent submitted that the ET was right to strike out the claim; the Claimant had failed to advance her case in the first instance and was given further liberty by the ET to do so. The Respondent said that the Claimant did serve her witness statement on the Respondent. It was an 18-page document. It was difficult to see, the Respondent argued, how it could have been too large to be sent on 20 November. The Respondent did not say in its representations when the Claimant served that witness statement. The Respondent went on to say that the Claimant had still not served a Schedule of Loss. The documents had not been served by 9.00am on 23 November; so, the Respondent said, the ET was correct to strike out the claim. The Respondent also added its opinion that the Claimant’s religious discrimination claim was hopeless.
The Claimant’s Skeleton Argument
14. The Claimant today relied on a skeleton argument, which, she told me, apart from the first page, is the skeleton argument that was prepared by counsel for the Preliminary Hearing. The arguments put forward in that skeleton argument are those highlighted by the President in her Reasons for allowing this case to go to a Full Hearing. The skeleton argument made some further points, which I briefly summarise. First, it was said that the case management Order sent to the parties by post on 24 September 2015 had not stipulated a deadline for the exchange of witness statements. The Claimant accepted that she had not produced a Schedule of Loss. Her case was that she was seeking advice because she did not know how to produce a Schedule of Loss. The Respondent, it was said, by an email dated 22 October, had asked to extend the date for the exchange of witness statements to 9 November. On 9 November the Respondent had asked for a further two-day extension and on 11 November for a further extension. The Claimant had agreed to those requests. On 12 November the Respondent’s solicitors had served three witness statements by email, explaining that a further witness statement would be served the next day. That was done.
15. The Claimant, it was said, had served two witness statements by email on 13 November 2015 at 5.16pm. She had technical issues with her own statement. It was lost when her computer broke, and she had had to rewrite it. The Claimant, it was said, agreed that she spoke to the Respondent’s solicitor on the telephone on 19 November. The Respondent’s solicitor did not say that the Respondent would be applying for, or had applied for, an Unless Order. The Claimant did not receive the ET’s email of 20 November. The first time she saw it was in the bundle for the Preliminary Hearing. She does not know why she did not receive it. It was sent from a different email address from the address from which the other correspondence, which had been sent to her by the ET had come. The first time she knew of correspondence from the ET was when she rang the ET on 23 November to ask for advice about her Schedule of Loss. She was then told that the claim had been struck out. She asked why and was given no reason.
16. The skeleton argument went on to say that the Respondent did not in its email to the Claimant of 20 November refer to its application to the ET. The Claimant’s computer problems were then explained, and reasons were given why the Claimant could not have complied with a 9.00am deadline on 23 November because of her commitments over the weekend. Her case was that she sent her witness statement to the Respondent by email on 23 November at 1.47pm. If that is right, the material submitted to this Tribunal by the Respondent in its written representations was somewhat unhelpful. On 23 November, she said, she received an email from the ET timed at 3.45pm and a text at 3.46pm saying that the hearing listed for 24 and 25 November had been vacated on the instructions of the EJ. She was not told at that stage that a Judgment had been given striking out the claim. On 1 November, however, the ET sent a letter with the Judgment of the EJ attached to it.
The Relevant Rules
17. Rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1 is headed “Striking out”. It reads:
“(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 prospects 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.
(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.”
18. Rule 38 is headed “Unless orders”. It provides:
“(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.
(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.
(3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.”
19. Rule 92 is headed, “Correspondence with the Tribunal: copying to other parties”. It reads:
“Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise). The Tribunal may order a departure from this rule where it considers it in the interests of justice to do so.”
Discussion
20. I consider that the ET erred in law in striking out this claim. The power to strike out is a power, which if exercised, has very severe consequences for a Claimant. It should only be exercised on the clearest grounds and as a matter of last resort. It should not be exercised in a rush or on inadequate information. Its exercise should be tailored to any problem which the Respondent or the ET of its own motion identifies, but there must be a clear factual basis for its exercise. Because striking out a claim has such serious consequences, it is essential that the ET assures itself that the Claimant has been copied into the Respondent’s application, that the Claimant is aware of the Respondent’s application and that the Claimant has had a reasonable opportunity to make representations. The ET’s haste to “do something” in response to the Respondent’s application can be explained by the imminence of the hearing, but that urgency does not excuse striking out a claim in circumstances where the Respondent had not complied with the obligation to copy the Claimant into its application, and it cannot have been clear to the EJ that the Claimant was aware of the application or had had a reasonable opportunity to respond to it. I am reluctant to criticise the Respondent’s solicitors, since they are not present, but the documents they rely on suggest that they did not copy the Claimant into their application and that they did not give the ET the full picture when they made that application. This case shows how important it is for the ET before deciding to strike out a claim to take stock, to ask itself whether it is satisfied that a fair procedure has been followed by the Respondent and by the ET and then to ask itself whether it is satisfied that there is on the facts a substantive basis for making such an Order.
21. The first point, in my judgment, is that the Respondent did not apply for the Claimant’s claim to be struck out. This is clear from the Respondent’s letter of 19 November and, it is accepted by the Respondent in its written representations. It is clear that what the Respondent applied for was an Unless Order not an Order striking out the claim. In my judgment, it would require something exceptional - and the ET would have been required to explain what that was - to entitle the ET of its own motion to impose a more stringent sanction on the Claimant than the sanction for which the Respondent in fact applied.
22. The second point is that even if the ET was justified in imposing a more stringent sanction than the Respondent had applied for, the ET was clearly wrong to say that the claim was struck out on the grounds that it was not being actively pursued. There was no evidence to support that, and the Respondent had not in its letter of 19 November suggested that that was the case. If the ET had enquired about this, as, in my judgment, it should have done, it would have discovered that the Claimant was actively pursuing her claim. Indeed, the emails between the Respondent’s solicitors and the Claimant on 18-20 November showed that that is what she was doing.
23. The third point is that the ET could not have been satisfied on the material before it that a fair procedure had been followed. The Respondent had not copied the Claimant into its application, and the Claimant had not responded to the ET. Moreover, the ET had set an unreasonably short deadline for the Claimant to respond. Finally, the ET’s email of 20 November was ambiguous and unclear. It did not unequivocally alert the Claimant to the possibility that if she did not respond by the unreasonably short deadline that the ET had set her claim would then be struck out.
24. I do not consider that it is necessary for me to say any more. I have not, in deciding this appeal, needed to make any findings of fact about whether the Claimant received the ET’s letter of 20 November or in relation to the difficulties she said she was having with her witness statement as outlined in the skeleton argument to which I have referred. That skeleton argument promised that if leave to appeal were given, the Claimant would make a witness statement setting out her factual case. She has not done so. I do not criticise the Claimant in that regard, as she is not represented. I had no witness statement from the Respondent either, and there has been no Order for cross-examination. I do not consider that in those circumstances it would be safe for me to attempt to make any findings of fact, and I have not done so. As I have already said, in my judgment I do not need to do so. I allow this appeal.
25. I have just been handed an email sent by the Respondent to this Tribunal today at 11.13am. This email was sent in response to a telephone message to the Respondent’s solicitors from this Tribunal. The email says that the Respondent was not attending the appeal today. It made the point that what are described as the Claimant’s failures to comply with various Orders relating to the case still persist. It goes on to say that at the Preliminary Hearing the Judge had indicated that “due to a minor procedural error” the Claimant had not been made aware of the importance of those repeated warnings that her case would be dismissed. The author of the email goes on to say:
“… Whilst I do not necessarily agree with this assessment, this is a matter for the EAT and if that is the indication of their view, then we made a decision after that hearing that we would not contest this matter. This was communicated to the Claimant and indeed to the EAT.”
26. The email says that it is for this Tribunal to decide whether the appeal should be allowed:
“… taking into account the numerous [warnings] given by this firm and the ET during the original proceedings and as a charitable organisation, my client cannot continue to afford to pursue challenges to appeals that are clearly likely to proceed on the face of the Tribunal’s comments.”
27. There was an attempt to communicate with the Claimant with a view to the matter being dealt with by consent the email continues, but the Respondent had not received any substantive response and because of the costs implication they made the decision not to pursue matters any further as “this is ultimately the Claimant’s application”. The email finishes by saying:
“If there has been a misunderstanding from our party to the EAT, I wish to apologise, but this has been our position from the very beginning following the ex parte hearing that took place.”
28. The point is finally made that this set out the Respondent’s position which had been set out some time ago.
29. I make three comments on that email. The first is that, as I had understood the case to be, it does not indicate that the Respondent is in any way seeking to resist this appeal. The second is that what happened in this case is not, in my judgment, properly described as “a minor procedural error”. The third is that it is not apparent from the documents that were attached to the Respondent’s written representations that there had been numerous warnings given by the Respondent’s solicitors to the Claimant, and I am surprised, if that is so, that those numerous warnings were not included in the bundle of representations that was sent to this Tribunal in compliance with the Order made by HHJ Eady QC.