EAT reinstates discrimination claim against law firm

Tribunal: Assumptions criticised

A tribunal was wrong to dismiss a discrimination claim against a law firm on the basis of the claimant’s non-attendance at the hearing, the Employment Appeal Tribunal has ruled.

President Mrs Justice Eady said emails the tribunal had received from Zdenek Sokolik in the run-up to the hearing were not enough to displace the medical evidence.

Mr Sokolik is suing international law firm Kobre & Kim for direct sex discrimination and victimisation after his short fixed-term contract as a litigation assistant was terminated within just five days.

In the days leading up to the four-day hearing, listed for 13 April 2021, Mr Sokolik – who had recently been diagnosed with adult attention deficit and hyperactivity disorder (ADHD) and also suffered from depression and stress – asked for an adjournment on the basis that the law firm’s threat to seek costs should he pursue the claim had made him “loopy” and a doctor had advised him to rest.

He also sought to have Kobre & Kim’s response struck out on the basis on the threat.

Employment Judge Nicolle decided to consider the applications at the start of the hearing but Mr Sokolik did not attend.

The judge concluded that the claimant “had decided that he could not, or would not, participate”.

He noted that the adjournment application did not provide “any specific reliable time” in which Mr Sokolik would make a recovery and did not explain why he could not make his application in person.

It was apparent from the claimant’s “voluminous email correspondence” that he could communicate coherently, the judge continued.

He said it would not be an effective use of time to hold the hearing in absentia, particularly given the tribunal’s preliminary view of the papers that the claim would fail.

The most appropriate course would be to dismiss the claim due to the claimant’s non-attendance. The decision was upheld on reconsideration.

Eady J accepted that the tribunal was entitled to consider that the medical evidence was “not entirely satisfactory”, but it did show his symptoms had worsened and that his anxiety was impacting on his ability to concentrate.

“Although the ET refused to grant the claimant’s application, it seems that it did accept that the evidence showed he would be unable to participate in a full merits hearing of his claims…

“Thus treating the hearing on 13 April solely as a short hearing of the claimant’s application to postpone, the ET was entitled to form the view that there was no clear medical evidence addressing the claimant’s ability to attend.

“The difficulty with that approach is that it presupposed that the full merits hearing would not go ahead, but that was not an assumption that the claimant could make (the ET had, after all, made clear that it would not deal with his application for a postponement in advance of the hearing) and the medical advice he had received was that he should not attend the trial.”

The other difficulty was that the tribunal had made “certain assumptions about the claimant’s ability to deal with the hearing” from his communications with it. There was “no basis” to find that this contradicted the medical evidence, Eady J said.

The tribunal could have sought further medical evidence. “Given, however, that it understood that there was medical evidence to support the claimant’s non-attendance at the full merits hearing, it was not open to the ET to simply proceed to the dismissal of the case; contrary to the requirement under rule 47, that failed to take into account the information available to the ET about the reasons for the claimant’s absence.”

“Unhappily”, the errors were not addressed at the reconsideration stage.

Eady J agreed with the tribunal’s ruling that the costs threat did not amount to bullying or harassment, however.

“While it is no doubt stressful for a litigant in person to receive a letter warning them of a possible application for costs, objectively viewed this could not provide any basis for an application for the response to be struck out.”

She returned the claim to the employment tribunal for onward case management.

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