The claimant brought a disability discrimination claim against the respondent. The ET directed him to make available the substance of a disciplinary hearing between him and the respondent which he had covertly recorded, and produce medical evidence relating to his disability. The claimant failed to comply. An unless order was made after a long history of non-compliance and when the claimant failed to comply with this too, his claim was struck out. The claimant appealed.

The EAT ruled that the judgment made by the relevant judges, that the claimant had failed to produce sufficient material, was one that they were entitled to come to. The unless order was the last resort, which the Judge had made having reviewed the whole history of the case. The Judge had in mind all the factors in the judgment of the Court of Appeal in Abergaze [2009] EWCA 96 (where there was still no compliance three years after that judgment) indicating that striking out orders are extreme, and that in most cases they should be proceeded by an unless order; that is precisely what occurred in this case. 
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Appeal No. UKEAT/0257/11/MAA

UKEAT/0258/11/MAA

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 20 February 2012

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MR E VANDERPUYE (APPELLANT)

TELEFONICA O2 UK (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR EDWARD VANDERPUYE (The Appellant in Person)

For the Respondent
MR MARTIN PALMER (of Counsel)

Instructed by:
Telefonica O2 UK Ltd Legal & Regulatory
Arlington Business Centre
Millshaw Park Lane
Leeds
LS11 0NE

PRACTICE AND PROCEDURE – Striking-out/dismissal

The EAT would not interfere with the decision to strike out the Claimant's disability claim, and the refusal twice to review that decision, when the Claimant failed to comply with an unless order, made after a long history of non-compliance. Abegaze principles correctly applied.

1. This case is about the striking out of claims by a Claimant on the ground that there had been no compliance, or no substantial compliance, with unless orders of the Employment Tribunal. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against the striking out of a claim pursuant to an unless order of an Employment Tribunal in Leeds and the refusal, twice, to review the striking out. The Claimant represented himself during the course of the proceedings, which are principally by case management directions and orders, and the Respondent was represented by its solicitor, Ms Crabtree. Today the Claimant has presented very careful written and oral arguments to me, and the Respondent has the advantage to be represented by Mr Palmer of counsel. Mr Palmer has presented a detailed skeleton submission, which I read with care, and at the end of the Claimant's submissions to me for most of the morning I did not feel it necessary to invite Mr Palmer to elaborate further on his skeleton argument.

1. The procedure in the EAT began with Reasons given by HHJ Peter Clark under rule 3(7) on the sift, and he said this:

"At the telephone CMD held by EJ Lee on 19 October 2010 she made, among others, orders at paras. (1) and (3) to be complied with by 9 November. Appellant did not comply and an unless order was made on 12 November, requiring compliance by 19 November else the claim would stand struck out.

Following further non-compliance a Judgment was issued on 26 November (the first appeal). The Appellant emailed Leeds ET on 26 and 29 November objecting to the strike out judgment. He did not ask for a copy of the unless order until the afternoon of 30 November.

EJ Hepworth refused the Appellant's review application on 3 December (a) because the ET letter containing the unless order, properly addressed, was not returned by the post office and (b) because the Appellant did not contend that he had not received that order in his emails of 26 and 29 November (the second appeal is against that review decision).

In my opinion neither appeal has any reasonable prospect of success. A strike out is automatic under ET rule 13(2) where there has been non-compliance with an unless order. EJ Hepworth gave cogent reasons for refusing the review application. No further reasoning is necessary. There is no evidence of 'bias' in the process described above. The draconic rule is there to ensure compliance with orders in fairness to both parties."

1. Dissatisfied with those Reasons, the Claimant appeared before HHJ Serota QC at a rule 3(10) hearing, where he had the advantage to be represented by counsel, giving his services under ELAA Scheme. The case was transformed in his hands, and an amended Notice of Appeal was approved by Judge Serota indicating the grounds that would now be advanced at the EAT. They, in short, are: that the Tribunal erred in law in striking out the claim because the Claimant had not received the unless order dated 12 November 2010 until after the time for compliance had passed, which was 19 November 2010. He said he received it on 30 November 2010. Secondly, the Judge misinterpreted the exchange of email indicating whether or not he had received the unless order, and that there had by the time of the unless order, or in any event by the time of its due compliance date, been substantial compliance with the orders.

1. What happened at the hearing is important, because Judge Serota made orders that the Claimant should put his criticisms, which include his approach to whether he had received the unless order, in an affidavit. That would then be sent to the Employment Judges, there have been several involved in this, including the Regional Employment Judge, for their comments, and in due course to the Respondent too. All of that has been done, and in addition after all of that material the Claimant has submitted his own further affidavit, which has been the vehicle for his arguments today, in which he makes criticisms of the foregoing material.

1. I indicate how important Judge Serota's order is because Employment Judge Lee, who signed the unless order, has given a very substantial response of 13 pages on 22 August 2011 to the principal grounds of complaint. This gives the complete answer to the appeal. It is significant that the issue as to whether or not the Claimant received the unless order is dealt with by Judge Lee and the other Judges who handled this matter, and the Claimant's account was not believed. She has given cogent reasons why the Claimant's account for not having received this document, when he received many, many others, has not been accepted, and it is not for me to intervene in that. It is seductive, sitting in this court with a Claimant representing himself, to accept at face value what he says, but I am not the person appointed by Parliament to hear this evidence, which is effectively what it is, and to make my own decisions as to the truth of it. These are matters for an Employment Judge, and absent perversity or bias I do not see in this case any grounds for criticising the decisions made as to the Claimant's receipt of the unless order.

1. That being so, the next stage is whether the strike out was proportionate. Judge Lee accepts that any striking out in a claim of this nature, and it is to do with disability, is, as she puts it, a draconian act, invoking for us that well known figure from pre democratic Athens whose short lived regime, of which no words survive, is invoked daily throughout our court system. She was right; it is a very serious step to take.

1. The second issue is whether there was no compliance, or no adequate compliance. It is necessary just to say a short word about what it is the Claimant was required to show. I probably over simplify it, but the Claimant's career with the Respondent began on 1 December 2009, when the Claimant was sent as an agency worker. He was engaged as an employee on 4 March 2010, and was dismissed just three months later. He therefore did not have the one year's service for unfair dismissal, but he raised his claims on discrimination, principally disability. The Respondent was most anxious to know the substance of the disability claim. In essence, what happened at the disciplinary hearing that caused him to be disabled. Therefore there are two issues: what was it that went on at the disciplinary hearing, and what was the effect on the Claimant's health? The Claimant covertly recorded the hearing, but he has not made available, as directed, in an exigible form to the Tribunal, the substance of the meeting. Secondly, the Claimant was directed to produce medical evidence relating to his disability. A number of steps were taken to try and produce medical evidence. The Claimant has demonstrated his falling out with his previous GP, who has recorded that the Claimant misled the GP about information requested by the Employment Tribunal for the purposes of the upcoming hearing.

1. The outcome is that the Claimant has not produced the medical material precisely directed by the Employment Tribunal, and so what Judge Lee records is as follows:

"33. I accept that the striking out of a claim of any type is a draconian act. However, I have to manage limited resources, and stretch them to hear the 12,000 or so claims presented in Leeds annually. Further, the Respondent is entitled to be able to defend a claim in an orderly manner and in accordance with the overriding objective: that is in timely fashion and in a proportionate way, without undue waste of time and expense. In this case there was, in addition, the complicating factor of the Respondent's main witness' likely unavailability for several months if the hearing had to be postponed. By the time of this request, the file had been considered by a Judge on at least twelve occasions, in comparison to the two or three times one might usually expect, and yet there was no significant progress. Despite the number of times that the Claimant had failed to comply with Case Management Orders, I did not, as requested strike out the claim, but instead deemed it proportionate to give the Claimant one last chance and to issue an 'Unless Order'. Had the failure just related to the transcript, it could have been remedied by ordering that the recording be not referred to in evidence. However there was also the crucial issue of the medical evidence, which the Respondent was entitled to see. In those circumstances I considered that an 'Unless Order' was appropriate. Even then I did not word the order so as to strike the Claimant out automatically if he did not comply with the substantive orders, but only if he also did not show sufficient cause for his continued failure.

34. The Claimant failed to comply with that Order and so strike out was automatic. His subsequent applications to review were refused because, on the balance of probability, his explanation of not having received the "Unless Order" was, for the reasons explained above, not believed. This view was also taken by other Judges who considered the file at that time. In addition, when considering an application to review, it is necessary to make an Order which is proportionate to the issues. In this case, the Claimant's central contention that he was a disabled person at the material time was not likely to be supported by his own medical records. The point at which the Respondent would have been obliged to treat the Claimant as a disabled person is the time at which they were alleged to have treated him less favorably [sic]. According to his GP's report, he did not complain of stress or depression until 20 April 2010, and at that time the diagnosis was not of clinical depression. The Claimant was dismissed in June 2010. The prospect of the Claimant being able to show that at any time prior to the dismissal the Respondent had sufficient knowledge of the fact that his ill health was likely to last for a year, and therefore that he was likely to be a disabled person, is, at best, extremely slim. That factor was also a consideration when rejecting his subsequent applications to review the 'Unless Order'. As I understand it, it is only the 'Unless Order' which could be reviewed, not the strike out, which is automatic upon the failure to comply with the 'Unless Order'."

1. The Claimant contends that by reference in detail to the email traffic and the attachments to it together with a Flash drive of material, he had substantially complied. Indeed, he goes further; he had complied. Those are matters for assessment by the Employment Judge who is about to conduct the case. Shadowing all of these proceedings was the need for the hearing to take place in December 2010 because the relevant manager was about to go on maternity leave and all parties were focussed upon reaching a properly constituted hearing in December, which was slipping away.

1. The Judgment by the relevant Judges that the Claimant had failed to produce sufficient material was one that they were entitled to come to. Indeed, in my judgement Judge Lee has been extremely indulgent of the Claimant, preparing to excuse his lack of attention to this matter over many months. The unless order was truly the very last resort, which she made having reviewed the whole history, which she described as including non compliance and with which I agree. Judge Lee had in mind all the factors in the Judgment of the Court of Appeal in Abegaze [2009] EWCA Civ 96 (where there is still no compliance three years after that judgment) indicating that striking out orders are extreme, and that in most cases they should be proceeded by an unless order; that is precisely what occurred in this case. Lest there be any injustice, the two applications for review were refused on what I would see as cogent grounds by Employment Judge Hepworth. There is no error in the application of the relevant rules nor in the exercise of discretion.

1. Mr Vanderpuye has presented the most careful arguments to me. He is plainly articulate, and most concerned about this matter, but the decisions on the facts of this case are for the Employment Judges and not for me. I would like to thank him very much for his courteous and succinct submissions; this appeal is dismissed.