|At the Tribunal|
|On 9 March 2018|
THE HONOURABLE MR JUSTICE LAVENDER
Transcript of Proceedings
|For the Appellant||MS BIANCA VENKATA
Bar Pro Bono Scheme
|For the Respondent||MS ELIZABETH HODGETTS
Government Legal Department
One Kemble Street
PRACTICE AND PROCEDURE - Absence of Party
The Tribunal was not obliged to make any more adjustments to its procedure than it did for a disabled Claimant. The Tribunal erred in not considering whether to cause a telephone call to be made to enquire as to the Claimant's reasons for not attending a hearing. However, that error made no difference to the outcome.
THE HONOURABLE MR JUSTICE LAVENDER
(1) not to reconsider his decision of 20 March 2017 to strike out the Claimant's claims for race discrimination, disability discrimination, notice pay and holiday pay; and
(2) to strike out the Claimant's claim for unfair dismissal.
(2) The Claimant's Employment
"Mr Nyathi does have a psychiatric condition with high levels of anxiety as a main symptom.
I understand that he is representing himself in court. I have had the chance to have a conversation with Mr Nyathi and in my opinion his anxiety disorder is affecting his capacity to represent himself in court. Therefore, representing himself in court is likely to have a detrimental effect on his mental health."
"The suggestion that Ms Brown attempted to force him into ill health retirement is factually inaccurate. It was the Claimant who was in fact seeking ill health retirement and he signed the forms for the application. At the hearing he said that Ms Brown was seeking to pressurise him into early ill health retirement which is simply not the case. Ms Brown simply went through the forms with him as his Line Manager."
(3) The Claimant's Second Claim
"I felt unfairly dismissed from my employment on what was described as dismissal on grounds of medical inefficiency by the Acting Governor Ian West on 16 June 2016. I had been subjected to too prolonged poor performance management by my former line manager Ms Nicola Brown which ran from 10 February 2014 until my dismissal. I was over punished. This was a breach of our work place procedures. The punishment was so severe to me. I became increasingly unsettled most of the time and suffered stress related illness which has had a serious psychological impact on me. Knowing very well I did not have any difficulties in carrying my duties – it is stressful and painful I got dismissed unceremoniously after a good service of slightly over 10 years and having gone past the minimum retirement age of (60). There was no consideration of medical advice given to them – and the fact I was under the care of a psychiatrist, a cardiologist, my GP, notes from our NOMS Employee Support Counsellor and reports from our Occupational Health Adviser. In the first place, I was continuously subjected to different forms of racial harassment by a work colleague of the same grade. He offended me with racial joke, called me a "mole" within the establishment due to being the only black employee, blocking my exit from the staff car park and circulating an embarrassing e-mail to my line manager and his other close associates did the same and therefore – inflicting serious pain on me and heavily discrediting me to a quite a big number of staff members – and thus made my working environment uncomfortable and unbearable. Top management did not protect me in anyway. All my grievances against the work colleague and my line manager were not investigated. I had difficulties in trusting the integrity of the Governor Mr Ian Telfer – as had one day met me along the corridors and made unkind remarks when I was about to greet him and also provided the HM Prisons – CEO Mr Michael Spurr – with misleading facts about my problems at work. At a time when it was known that I was taking the case to the Tribunal Court – there was too much hostility against me and top management, managers and other members – did everything to find faults in regards to my duties. I feel my dismissal was unfair, racial motivated and an act of institutional racism."
(1) He required the Claimant to provide by 2 February 2017 a schedule particularising his claims of race and disability discrimination. The Claimant did not provide this schedule.
(2) He also required the Claimant to provide by 2 February 2017 further details of the pay which he was claiming. The Claimant provided these details by 9 February 2017.
(3) He directed that there would be a hearing to consider certain preliminary issues, including whether the claims would be struck out as having no reasonable prospects of success.
"C observes that he prepared Claim Form without legal advice. I don't have resources to present case as should be. Trying to get legal representation. Condition is such that worrying to do work. Need legal representation to interview me and take everything I want to say. If Tribunal can get Legal Aid, appreciated.
EJ: Can't assist. Independent judicial body. Can't advise re merits. Give judgment. Certain bodies that give assistance – Law Centres. In Nottingham, Law Centre that assists people on free basis if think meritorious. Also enquire with local universities. Nottingham University has Free Representation Unit. They give assistance. Don't know about universities here but may be worth while to contact. There are certain barristers and solicitors who offer help on a pro bono basis. Or look at conditional fee agreement – some solicitors and barristers do work on a conditional fee agreement basis. Depends on their being satisfied that case is winnable. But do not delay in dealing with these matters."
(1) The race and disability discrimination claims would be struck out unless the Claimant provided the particulars of those claims as ordered on 5 January 2017. The Claimant did not provide these particulars.
(2) The monetary claims would be struck out unless by 27 February 2017 the Claimant provided persuasive reasons to the contrary. The Claimant did not provide such reasons.
(1) Dr Alam's report of 27 November 2014.
(2) Dr Vilanova's report of 9 February 2016.
(3) Dr Scott's report of 4 April 2016.
(4) Dr Tosar's report of 27 January 2017.
"Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease."
"Mr poor health is quite concerning. I am less competent in handling this complex matter on my own."
(4) The Hearing on 31 May 2017
"40. The Respondent was represented by Ms Hodgetts of Counsel and the Claimant did not attend and gave no explanation for his non attendance. I waited approximately 15 minutes to see if the Claimant would attend late but he did not. I heard representations from Ms Hodgetts and I considered the correspondence on the file and a bundle of documents produced by the Respondent's. I also considered an email from the Claimant dated 13 May which comprised an urgent application to have his employment matter postponed until he found legal representation. His correspondence still did not comply with the presidential guidance. He acknowledged that he had received the documentation from the Respondent's but did not feel he was well enough to attend.
41. I decided that I should proceed in the Claimant's absence."
(1) The email referred to in paragraph 40 must be the Claimant's email of 30 May, not 13 May.
(2) That email did not contain a statement that the Claimant did not feel that he was well enough to attend.
(3) The Judge appears not to have seen the email of 31 May 2017.
(4) The Judge did not suggest that:
(a) he considered whether to cause; or
(b) he in fact caused,
a telephone call to be made to enquire why the Claimant had not attended.
(1) (in paragraph 51) "I am satisfied that there is no reasonable prospect of the original decision to strike out the claims being varied or revoked. The Claimant has been given ample opportunity to pursue his case and he has not done so. Whilst he says he needs legal advice because of his medical condition there is no evidence to support that contention. There is also no medical evidence to support any contention that he could not attend this hearing."
(2) (in paragraph 54) "I am satisfied that the Claimant has been unwilling to progress his claim and has failed to provide any good reason as to the lack of progress or indeed for his non attendance at the hearing today. …"
(3) (in paragraph 55) "… The Claimant has chosen not to attend the hearing and has not made any representations, written or otherwise. …"
(5) The Appeal
(6) Ground 1: Reasonable Adjustments
"Judges are responsible for the conduct of hearings and should ensure that people with mental disabilities can participate to the fullest extent possible whilst avoiding prejudice to other parties."
(1) On 5 January 2017 Employment Judge Hutchinson:
(a) made an order which informed that Claimant that he needed to provide particulars of his discrimination claims; and
(b) informed the Claimant of potential sources of legal assistance and encouraged him not to delay.
(2) On 15 February 2017 Employment Judge Britton made an unless order which informed the Claimant what he needed to do to avoid his claims being struck out.
(3) The preliminary hearing was converted to a telephone hearing on 3 April 2017 to assess the Claimant's current condition and his fitness to continue to pursue the claim.
(4) On 3 April 2017 Employment Judge Hutchinson:
(a) gave the Claimant more time in which to provide medical evidence in support of his applications for reconsideration of the decision of 20 March 2017 and/or for a stay; and
(b) fixed the preliminary hearing for 31 May 2017.
(1) The Tribunal should have directed that a report be provided of the kind directed in Rackham v NHS Professionals Ltd (2015) UKEAT/0110/15/LA, in which the Judge ordered that a report be obtained from the Claimant's general practitioner stating whether and, if so, how the Claimant would be able to participate in a Tribunal hearing and stating any reasonable adjustments which could be made to assist the Claimant.
In the present case, the Claimant had already conducted one Employment Tribunal claim, including a 14-day hearing. He produced medical evidence in the context of the present claim, but this did not state that he would be unable to present his claim. The Claimant was told that the medical evidence which he had produced did not support his application for a stay of proceedings. The Tribunal was not obliged to direct the production of a report as in Rackham.
(2) The Tribunal should have held an early ground rules hearing.
The purpose of the telephone hearing on 3 April 2017 was to assess the Claimant's condition and his fitness to continue to pursue the claim. No further hearing was necessary.
(3) The Tribunal should have reminded the Claimant of the availability of pro bono legal assistance, including McKenzie friends.
There was nothing to indicate that the Claimant was incapable of remembering, or had forgotten, what he was told on 5 January 2017.
(4) The Tribunal should have suggested that the Claimant obtain help from a relative.
The Claimant knew that he could be assisted by a relative. His daughter attended the hearing on 5 January 2017.
(5) The Tribunal should have made a direction requiring the provision of a McKenzie friend for the Claimant.
It was not for the Tribunal to direct anyone to act as the Claimant's McKenzie friend. He had conducted the hearing of his first claim. He had attended the hearing on 5 January 2017 with his daughter and he been advised as to potential sources of legal assistance, which might have included a McKenzie friend. He claimed that he had been trying to find legal assistance. If he had attended a hearing alone and had been seen to be unable to present his case effectively without help, then the Tribunal, which has a continuing duty to keep the position under review, would have had to consider how to deal with that situation. But that situation never arose.
(6) The Tribunal should have explained the meaning of the Presidential Guidance referred to in the order of 3 April 2017.
Employment Judge Hutchinson told the Claimant that the medical evidence which he had produced to date was insufficient. There was no reason to believe that further explanation was necessary. There was no evidence that the Claimant was unable to tell his doctors why he wanted reports from them.
(7) The Tribunal should have explained that the Claimant was required to attend the hearing on 31 May 2017.
The Claimant received notice of the hearing in standard form. He had attended the hearing on 5 January 2017 and hearings in his earlier claim. There was no reason to expect that he would misunderstand the notice as he says he did.
(8) The Tribunal should have adjourned the hearing on 31 May 2017.
I will deal with this hearing in connection with the Claimant's second ground of appeal. What was required was for the Tribunal to follow standard procedure, not to adjust its procedure.
(7) Ground 2: The Hearing on 31 May 2017
(1) the particulars of his discrimination claims ordered on 5 January 2017;
(2) the reasons for not striking out his pay claims ordered on 15 February 2017; or
(3) any good reason for not striking out his unfair dismissal claim.