Ms K Foster v Debenhams Retail Ltd and Estee Lauder Cosmetics Ltd: 2206960/2018 Ms K Foster v Debenhams Retail Ltd and Estee Lauder Cosmetics Ltd: 2206960/2018
JUDGMENT
The claimant having failed to attend the hearing the claims are dismissed under the Employment Tribunal Regulations 2013, Rule 47.REASONS
[1]The Claimant did not attend the hearing and there was no message or email from her explaining her absence. The Notice of Hearing had been sent to the correct address and she knew the hearing date, see below.[2]The respondents had made efforts to engage with the claimant in the run up to this preliminary hearing. The second respondent served its agenda and draft list of issues on the claimant by email on 3 May and drew attention to what further information was needed from her. It gave the date of this preliminary hearing and requested a reply by 9th May, but no reply was forthcoming. The second respondent has heard nothing from the claimant since the claim was served.[3]The first respondent sent the claimant a request for further and better particulars and a draft list of issues on 3 May and served its agenda on 7 May. The 1 ph outcome re case management 1.5.14 version claimant sent an email to the first respondent 8 May said that she was “trying to rearrange the court day” because she was doing an exam and “would like the venue moved to Ashford. I spent 20 minutes ringing yesterday and haven’t been able to facilitate my request as yet”. However, the claimant did not make contact with the Tribunal by email (or as far as I know by telephone either, if she had she would have been told to put her request for a postponement in writing which she has not done). This shows that the claimant fully aware if the hearing date. By email copied to the claimant dated 13 May the respondent told the Tribunal that it objected to the postponement, but still the claimant made no contact, and she could not have been under the illusion that the hearing would be postponed. 2. The Employment Judge considered whether to dismiss the claim under rule 47 or continue with the hearing. She decided to dismiss it both because of the claimant’s failure to pursue her claim and because of her failure to attend today without good cause. This is illustrated by:2.1 The claimant’s complete failure to cooperate with the respondents in run up to today’s hearing despite efforts of the respondents to engage with her and clarify the issues, and approach which was helpful to the claimant as a litigant in person.2.2 Her unexplained non-attendance today at a hearing she definitely knew about. She had made no email contact with the Tribunal at all to explain her situation and ask for a postponement. She had provided no direct explanation of her absence, simply a passing reference to the first respondent of an exam, with no proof attached. She had also made no attempt for example to rearrange the time of the hearing, send a family member to explain her absence or to ask if we could conduct the hearing by telephone. This showed disrespect for the process which she had initiated.2.3 The details of claim in the ET1 are exceptionally thin and do not begin to explain what the claimant’s disability discrimination case is about. The respondents had given her the chance to clarify her case before the hearing, but she had not engaged. The claim is half-hearted and the failure to come today emphasises that the claimant is not pursuing her claim as would reasonably be expected, if at all.2.4 The respondents were fully ready for the hearing today. It would not be fair on them to expect them to incur further costs in coming to a reconvened hearing. I could not say that a further preliminary hearing could be dispensed with because the case is so poorly pleaded that work would be needed before it was ready for the full merits hearing. Outcome 3. The claim has been struck out and the September-October hearing will not go ahead. If the claimant applies for this decision to be reconsidered, Employment Judge Wade might be prepared to do so. However, a condition of a decision to reinstate would be the claimant’s full participation in providing her response to the request for further and better particulars and clarification of the list of issues. 2 ph outcome re case management 1.5.14 versionOutcome
[4]Note that the name of the first respondent is Debenhams Retail Limited (the principal under section 41) and the second respondent Estee Lauder Cosmetics Limited (the employer).