D Rzezniczak v Torbay and South Devon NHS Foundation Trust: 1400182/2024
JUDGMENT
[1]By ET1 dated 18 1 January 2024 the Claimant pursues a claim for notice pay, arrears of pay and sick pay. The claims are not well particularised.[2]The Respondent, whilst stating that it cannot properly understand the claims as they are poorly particularised, denies them.[3]The parties were provided notice of a telephone preliminary hearing on 27 May 2024. It was sent to the e mail address that the Claimant identified on ET1. The hearing was listed for two hours. The notice attached an agenda that was to be filed with the Tribunal 7 days before the hearing.[4]The Claimant did not file an agenda. The Claimant did not contact the Tribunal to say that he was unable to attend the hearing.[5]The hearing commenced at 2pm on 12 July 2022. Ms Johns appeared for the Respondent. The Claimant was not present.[6]Checking the Tribunal file, the Claimant had not contacted the Tribunal office since the date the hearing notice was sent to him.[7]Ms Johns indicated that she was could not confirm the Claimant was aware of the hearing, but she was not aware of any contact form him.[8]By 2.10pm, the Claimant had still not appeared.[9]Ms John directed me to Rule 47 which provides: If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim …. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[10]Ms Johns invited me to dismiss the claim.[11]In considering whether to dismiss the claim pursuant to Rule 47, regard should be had to the overriding objective set out at Rule 2: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense”[12]There are good reasons to dismiss the claim. The Claimant has not engaged with the Tribunal or Respondent since the notice of hearing was sent to him. The Claimant did not file an agenda, indicate he could not attend the hearing or attend it. Having carried out reasonable enquiries by looking at the Tribunal file and speaking with Ms Johns, there is no explanation for this. The Claimant’s nonattendance has put the Respondent to expense, will lead to delay and has wasted valuable Tribunal time. What is, a very unparticularized claim, will continue to burden the Respondent.[13]I must balance that carefully against the consequences of striking out the claim. It is a draconian step, depriving the Claimant as it does of his claim. Alternatives are possible, such as a strike out warning or some form of unless order.[14]Balancing this out though, and after careful thought, I am exercising my discretion to dismiss the claim under Rule 47. In all the circumstances of this case, this is a fair and just outcome.REASONS
Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.