At the Tribunal | |
Before
HIS HONOUR JUDGE AUERBACH
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS J MCCARRON (The Appellant in Person) |
For the Respondent | MS L GOULD (of Counsel) Freeths LLP 5 New York Street Manchester M1 4JB |
SUMMARY
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Claimant's claims included disability discrimination. The Respondents did not admit the Claimant's disabled status in law. At a case management hearing, a further Preliminary Hearing was listed, to determine the issue of whether the Claimant was a disabled person in law. The Judge indicated that, on the basis of the current evidence, the Claimant's case on this point looked likely to fail. Orders were made, setting a deadline for her to provide any further impact statement and any further medical or similar evidence, on which she wished to rely at that hearing. That deadline was subsequently extended, but no further evidence was provided. The Respondents then applied for the disability discrimination claims to be struck out. However, the Tribunal made an Unless Order, in equivalent terms to the original order, but setting a fresh deadline. An impact statement was provide by that deadline, but no other evidence. The Tribunal then issued a notice, under Rule 38(1), declaring that the Unless Order had taken effect and the disability discrimination claims had been dismissed. The Claimant appealed that determination.
Held: On a proper construction of the Unless Order, the direction to provide "any" medical evidence or similar evidence relied upon did not require the Claimant to produce such evidence, but required her, if she wished to rely on "any" such evidence, then to produce it by the deadline set in the Order. Accordingly, the Tribunal had erred in determining that, because the Claimant had not provided any such evidence, she was in breach of the order, and erred in declaring that her disability discrimination claim had therefore been dismissed.
HIS HONOUR JUDGE AUERBACH
Introduction – The Tribunal Proceedings
".1 The Claimant is to set out precisely the nature of her disability and to provide medical evidence in support of her disability together with a short statement setting out the impact the alleged disability has on her day-to-day activities and sent to the Respondent and copy to the Tribunal by no later than 24 November 2017."
"Dyslexia has no direct impact on my everyday activities and ability, given that over the years I have adapted and learned various coping strategies in order to overcome the effects, but under extremely stressful conditions and stressful events then my dyslexia will directly impact my abilities."…
"1. The Claimant's claims are for unfair dismissal and disability discrimination. Dismissal is admitted, for the reason of misconduct. Unfairness is denied. The Claimant alleges that she is disabled by reason of dyslexia. However, she has produced no medical or other evidence in support of a diagnosis of dyslexia or in respect of the severity of it. She has provided the Respondent with a disability impact statement, which states that her dyslexia has no direct impact on her everyday activities and ability, as she has adopted coping strategies.
2. Thus, on the basis of the evidence as it stands, it is unlikely that the Claimant will be able to establish that she has a disability. She will be given a further opportunity to obtain the necessary evidence. The Tribunal recognises that she is unrepresented and may not have fully understood what was required of her, The Employment Judge at this hearing endeavoured to make full explanations to her. The first step would be for her to go to her GP and obtain a referral to a specialist for an examination and a report. However, she has not been to her GP complaining of any symptoms of dyslexia, although she has sought consultation with her GP in connection with stress, which she says is related to her dyslexia.
3.The Respondent considers that the Claimant's substantive case on disability discrimination is any event weak and, as against the second Respondent, potentially out of time. They also consider that the Claimant's unfair dismissal case has little merit as the Claimant was already the subject of two live written warnings when further misconduct arose."
"2. On or before 9 February 2018, the Claimant is ordered to disclose to the Respondents any medical evidence or similar relied on to establish that she is disabled within the meaning of Equality Act 2010 by reference to her dyslexia.
3. On or before 9 February 2018, the Claimant is ordered to send to the Respondents any further disability Impact statement.
4. On or before 23 February 2018, the Respondents are ordered to provide to the Claimant and to the Tribunal their grounds for their application to strike out the claims or in the alternative for a deposit order."
"On the application of the respondent and having considered any representations made by the parties, Employment Judge Laldler orders that-
Unless by 4pm on 29 March 2017 the Claimant disclose to the Respondent
1. Any medical evidence or similar relied on to establish that she is disabled within the meaning of Equality Act 2010 by reference to her dyslexia.
2. Any further disability impact statement.
The complaint of disability discrimination will stand dismissed without further order.
The Judge's reasons for making this Order are that:
1. the Claimant did not comply with the original order requiring this to be done by 9 February 2018.
2. She was granted an extension to 1 March 2018 but no compliance has been received."
"Please find attached disability impact statement as requested from the court on 14 March 2018. Unfortunately I am unable to comply with the full Unless Order due to the BDA being unable to give me a definitive date to be assessed and also due to financial constraints that I myself have encountered."
What was attached was a revised version of a disability impact statement.
…
"We now request that consideration is given to striking out her claim for disability discrimination on the basis that the claim is without merit."
"Further to the unless Order sent to the parties on 14 March 2018, which was not complied with by 29 March 2018, the claims have been dismissed under Rule 38."
letter was sent by the Tribunal on 23 May 2018, which began:
"Employment Judge Laidler directs as follows:
The original unless Order of the 14/03/18 provided that if there was further non-compliance "the complaint of disability discrimination will stand dismissed without further Order."
The letter of 29/04/18 therefore contained an error in stating all claims were dismissed. The Unfair Dismissal claim remains to be determined. "
The Appeal
"1. The Employment Tribunal erred in law in failing to have regard to the partial compliance with the order of 29 March 2018 and/or
2. The Employment Tribunal erred in law in failing to properly read the content of the Appellant's email sent at 22.07 on 28 March 2018 as an application for relief from sanctions."
An Answer was then put in and the matter has proceeded to this hearing.
My Decision
"38 Unless orders
(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."
"(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 prospect 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."
Outcome