Following consideration of the written responses to the notice to show cause why the claim should not be struck out and the claimant not having requested a hearing at which the issue should be decided, the decision of the tribunal is that: (1) The claimant’s claim should be struck out because it is not being actively pursued (Rule 37 Employment Tribunal Rules of Procedure 2013).
REASONS
[1]The case management summary sent to the parties following the Preliminary Hearing on 27 September 2023 noted the following:[1]The claimant was employed by the respondent, as a Personal Adviser, from 16 September 2021 to 2 April 2023 when her employment ended. By a claim form presented on 28 April 2023, following a period of early conciliation between 22 and 24 April 2023, the claimant brought complaints of unauthorised deduction of wages/breach of contract. The claim is essentially about alleged under-paid wages during the claimant’s employment with various end-users. The respondent denies that any extra pay is due.[2]The claim had originally been listed for a two-hour final hearing. Following receipt of the response form, the tribunal decided to list a preliminary hearing for case management. Notice of that hearing was tribunal on 5 September 2023, saying that she needed time to raise money to pay for a solicitor to represent her. The tribunal responded on 20 September 2023, confirming that the notice of hearing set out the reasons for the hearing, and that it was not going to be postponed. One of the reasons given by the claimant was that she wanted representation at the hearing. It was pointed out to the claimant that the hearing was to take place two months after she first indicated that she wanted representation. In any event, Employment Tribunals are well used to guiding unrepresented parties through the tribunal process.[3]The claimant again emailed the tribunal on 21 September 2023 requesting a postponement, on the basis that due to unforeseen family circumstances she had not been able to raise funds to pay a solicitor to represent her; that her mother [-in-law to be] had passed away; and that she was working today. She asked for the case to be listed in April 2024.[4]Ms Robertson, for the respondent, requested that the claim be struck out because it was not being actively pursued. Having considered those representations, the Judge concluded that it was appropriate to issue a notice to show cause why the claim should not be struck out. The relevant case management orders are set out below. 2. The orders made as a result were as follows: 5.1. By 4pm on 18 October 2023, the claimant is to write to the tribunal, with a copy to the respondent’s solicitors, to explain why the claim should not be struck out because it is not being actively pursued. The claimant should explain at the same time why she did not attend the hearing today. Employment Tribunals are used to parties representing themselves, as noted above. If the claimant wants a hearing before the claim is struck out, she should request a hearing at the same time as sending her written response. 5.2. If the claimant still wants to pursue her claim, she must also write to the tribunal and to the respondent by 4pm on 18 October 2023, setting out in detail, the basis of her claim of unauthorised deduction of wages. In particular, in relation to each week she says that unauthorised deduction were made, the claimant must to set out the hours worked; the hourly rate applicable; the gross pay payable; the gross and net pay she received, according to her payslips; and what she says the gross and or the net pay should have been, on the basis of her own calculations. 5.3. By 4pm on 1 November 2023, the respondent shall provide a response to any representations made by the claimant about the proposed strike out. Both the claimant’s and respondent’s representations will then be considered further by Employment Judge James and a decision made as soon as possible. 3. Although the orders were made on 27 September 2023, the order was not timescales. It is not clear whether they were formally changed, but the claimant could not be criticised for asking for more time in the circumstances. In any event, on 31 October 2023 the claimant emailed the tribunal, with a copy to the respondent’s representative as follows: I have clearly several times advised the court that I do not wish to represent myself. I also highlighted several times that due to financial constraints I cannot afford a solicitor at the moment, I will be stable in the month of April, but it seems that this is not taken into consideration. The solicitor will be able to do so by the April the 30th. I believe that it is a reasonable adjustment that the court can be able to take into consideration. 4. The respondent wrote to the tribunal, copying in the claimant, on 8 November. They say: The Respondent contends that it would not be in accordance with the overriding objective to postpone this matter until April 2024, as this would not be dealing with the case fairly, justly or proportionately. The Respondent contends that the Claimant has had time since she submitted her claim in April 2023 to instruct a solicitor to represent her, but that she has failed to do so. It is the Respondent’s position that if the Tribunal did postpone the case until April 2024, that this would have a prejudicial impact on the Respondent. To date the Respondent is still not aware of the particulars of the case against them and as such they are not able to preserve any of the evidence that may needed to defend this claim. The claim may also involve obtaining information from a third party because the Claimant was employed by the Respondent but worked on site for a third party end user, without understanding the nature of the claim, the Respondent is unable to request the necessary information.[5]The claimant responded on the same day as follows: I would like to challenge Bigfish (sic) statement of saying that it is common for the claimant representative themselves as this is statement that puts everyone under one umbrella. I do not wish to represent myself. My circumstances have changed financially. My question is why would be represented as a Company if they feel it is easy for me to do so. lt cannot be classed being treated unless I am given a fair opportunity to be represented by the Employment lawyer when I can afford one. The second is why is Bigfish (sic) determined to deprive me the opportunity to be represented? I therefore wish to be given the opportunity to be represented[6]Although Rule 37(1)(d) Employment Tribunal Rules of Procedure 2013 is drafted in the form of a general discretion, it was held, prior to the CPR, that the exercise of that discretion was subject to the same qualifications that applied to the striking out of a claim for want of prosecution in the High Court (Evans' Executors v Metropolitan Police Authority [1992] IRLR 570, [1993] ICR 151, CA). Under the CPR there is no provision for striking out for want of prosecution as such, the powers of strike out on the ground of delay being limited to a failure to comply with a rule, practice direction or court order (see CPR 3.4(2)(c)). However, as the concept of want of prosecution (or, as it is now called, not actively pursuing a claim) has been retained in the tribunal process under the 2013 Rules, the principles derived from the pre-CPR case law in the High Court will continue to apply to employment tribunals (see Rolls Royce plc v Riddle [2008] IRLR 873 at [19], and Balls v Downham Market High School & College [2011] IRLR 217 at [5]). These principles were set out by the House of Lords in Birkett v James [1978] AC 297. The Evans' Executors case established that the Birkett v James principles should apply to the case brought in the employment tribunal. Birkett v James holds that claims should not be struck out unless there has been intentional and contumelious default (i.e the default is disrespectful or abusive to the tribunal), inordinate and inexcusable delay leading to a substantial risk that a fair trial is not possible, or serious prejudice is caused to the respondent.[7]In my judgment, the claimant’s conduct, as outlined above, is disrespectful to the tribunal. Her insistence that no progress can be made until she can afford representation is unreasonable. The claimant’s claim is for unpaid wages. The claimant has provided no explanation as to why she is unable to clarify, as requested by the tribunal after the last preliminary hearing, what wages are owed to her, in relation to particular periods.[8]Employment Tribunals (Industrial Tribunals as they were previously called) were set up in order to provide a relatively quick and informal method of resolving employment related legal disputes. Although Employment Tribunal proceedings have over the subsequent decades become more complicated, wages claims still remain relatively simple and straightforward. Further, Employment Tribunals are used to dealing with people representing themselves. The overriding objective, obliges tribunals to try and put the parties on an equal footing, so far as practicable. Under this rule, tribunals often provide guidance to a person representing themselves.[9]The claimant is in effect saying that no progress can or will be made in this case until she has secured representation, which will not be until 30 April 2024. To use a colloquial expression, it is ‘her way or the highway’. Such an attitude is disrespectful to the procedures of the tribunal. In addition, for the reasons set out in the respondents representatives email to the tribunal of 8 November, the respondent is put to serious prejudice by the claimant’s conduct, because the respondent is still not aware, over six months after the claim was submitted, exactly what amounts are due for what periods. In such circumstances, the respondent is unable, to secure the necessary documentation from the third party end user. In such circumstances, there is also a clear danger that a fair trial is no longer possible.[10]In deciding whether a not to exercise my discretion to strike the claim out in the circumstances, I have considered whether lesser alternatives might be appropriate, such as making a Deposit Order, or an Unless Order. However, I am not convinced in the circumstances that those alternatives are appropriate, particularly in light of the claimant’s refusal to engage with the tribunal unless and until she is legally represented.[11]In the circumstances, I consider that the claimant’s claim should be struck out because it is not being actively pursued.