Mr A Baig v Securicore Ltd: 1800559/2019
JUDGMENT
The claims are dismissed under rule 47 as neither the claimant nor his representative have attended the hearing.REASONS
[1]This is a claim or unauthorised deductions from wages. It had been listed for a preliminary hearing today to consider striking it out on the ground that it had been presented outside the time limits for pursuing such cases.[2]Neither the claimant, nor the representative he had named on the claim form, attended. The tribunal attempted to make contact with the claimant by way of the telephone number on the claim form, but without success. The tribunal was able to contact the claimant’s representative, but he said he was unaware of the hearing.[3]This case had originally been listed for hearing on 28 March 2019. The notice of that hearing was sent to the claimant’s representative on 7 February 2019. The claimant telephoned the tribunal on 15 March 2019 to say that he was unaware of the hearing date until recently contacted by ACAS and that he could not attend Case No. 1800559/2019 because he would be on pilgrimage in Saudi Arabia. He subsequently provided details of the pre-booked flight.[4]Employment Judge Lancaster postponed that hearing and listed a preliminary hearing to determine whether the claim had been presented out of time. His order and the date of this hearing in a separate notice was sent by email to the claimant and by post to his representative. An interpreter was booked pursuant to the claimant’s request.[5]The tribunal is satisfied this hearing would have come to attention of either the claimant or his representative, if not both. The respondent has been put to cost and expense in attending. It had been specifically arranged to accommodate the claimant’s earlier difficulty in attending. In applying the overriding objective in rule 2, and the provisions of rule 47, it is in the interests of justice to dismiss this case.[1]In a Judgment sent to the parties on 10 May 2019 the Tribunal dismissed the claims for unauthorised deductions from wages which had been submitted in a claim form by the claimant on 29 January 2019. The reasons for the dismissal of the claim are set out in the Judgment. The claimant did not attend that hearing. The Tribunal attempted to contact the claimant and his representative. Their telephone calls went to voicemail.[2]On 5 June 2019 the claimant’s representative emailed the Tribunal to state that the date of the hearing was missed and that he and the claimant had not been informed of it. He asked for it to be sorted out. On 11 June 2019 the Tribunal wrote to the parties to indicate I would treat this as an application to reconsider, but that it was more than 14 days from the date of the Judgment and was therefore out of time. In response the claimant stated that he did send an email within 14 days although the Tribunal does not have a record of it. The claimant has not sent a copy of the email from his computer system, which he says was sent unsuccessfully to the Tribunal. The latest communication from the claimant was in a handwritten letter of 16 June 2019. Case No. 1800559/2019[3]The application is resisted by the respondent’s representative. They point out that the hearing of 10 May 2019 had been specifically re-arranged to accommodate the claimant who had been away at the earlier hearing, and it recited the reasons provided by the Tribunal in deciding to dismiss the claim. They also pointed out the cost and expense the respondent had already incurred in attending the hearing.[4]In determining this issue, I must apply the overriding objective in rule 2 to deal with cases justly and fairly; that includes, so far as is practicable, ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay so far as compatible with proper consideration of the issues and saving expense.[5]I recognise that the claimant is not legally represented and is therefore not on an equal footing, albeit he is represented by a lay representative. I also take into account the fact that this claim appears to be considerably out of time such that the Tribunal would not have jurisdiction to entertain it. The arrears of pay date back to July 2018 and the claim was presented at the beginning of 2019. There is no communication indicating that it was not reasonably practicable for the claim to have been presented in time. It would therefore appear that the case has no or little reasonable prospect of success even if the claimant were allowed to be pursued.[6]The claimant has not satisfied the Tribunal that he did send an email to the Tribunal in time, namely within 14 days of the Judgment. A copy from his sent items box would have confirmed a letter had been sent. The extent to which correspondence is, apparently, not being received either by the claimant or his representative or by the Tribunal is extensive, beyond the normal difficulties encountered and stretches credibility. Both the claimant and his representative were put on notice on the day of the hearing that the claimant had not attended. There was no good reason why a request could not have been made in time to reconsider. The respondent is significantly disadvantaged having already incurred costs in respect of a claim which would appear to be out of time in any event. The interests of justice are not furthered by allowing an extension of time to consider the application.