Employment Judge A.M.S. GreenNot represented for claimantDate 10 March 2025
REASONS
[1]The claimant brought a claim alleging pregnancy and disability discrimination against the respondent. A three-day final hearing was scheduled for 10 March 2025, starting at 10 am.[2]The hearing was originally listed as an in-person hearing, but on the morning of 10 March 2025, the tribunal decided to convert it to a CVP (video hearing) and notified the parties accordingly. The hearing was scheduled to start at 2 pm.[3]Neither the claimant nor her representative, Mr. Elmoussati, attended the hearing via CVP. The tribunal clerk attempted to contact both the claimant and Mr. Elmoussati via email and telephone, but no response was received.[4]The claimant had previously written to the tribunal on 27 December 2024, requesting to submit written representations instead of attending in person, citing severe mental and physical health issues. These were cited as reasonable adjustments for the final hearing. However, she did not subsequently submit any written representations, nor did she provide an explanation for her absence. Mr. Elmoussati had indicated that he could attend in person if required, but he also failed to appear.[5]The claimant’s medical evidence concerning her inability to attend an inperson hearing consisted of:a. A GP note dated 13 January 2025, stating that the claimant could not attend the tribunal in person because she was unable to leave her house. However, the GP is not a psychiatrist and provided no explanation for why the claimant could not attend remotely via CVP or telephone. The GP’s note indicates that she had attended the GP appointment by telephone.b. A letter from NHS London North West University Healthcare dated 14 October 2024, which detailed the claimant’s bilateral thumb MCP and PIP joint arthralgia, shoulder pain, and mild inflammatory markers but did not suggest that these conditions prevented her from attending a remote hearing. The letter recommended hand therapy and physiotherapy but did not confirm any long-term disability diagnosis.[6]The respondent opposed the claimant’s request to proceed by written representations alone, arguing that this was not a reasonable adjustment, and that the claimant had been offered alternative reasonable adjustments, such as a CVP hearing, which she refused. The respondent maintained that it was doing all it could to allow the claimant to give evidence, and that her refusal to engage with a reasonable alternative undermined her case.[7]Given that the hearing was converted to CVP on the day and the claimant was notified, her failure to attend could not be justified based on her inability to attend in person. There was no medical evidence suggesting that she was unable to attend via video or telephone, and indeed the claimant had been able to attend medical consultations by telephone.[8]Under Rule 47 of the Employment Tribunal Rules 2024, the tribunal has the discretion to:a. Proceed with the hearing in the absence of a party.b. Dismiss the claim if the claimant is absent and no valid reason is provided[9]Before dismissing the claim, the tribunal must consider any information available about the reason for non-attendance and, where practicable, make enquiries into the claimant’s whereabouts (Southwark LBC v Bartholomew [2004] ICR 358, EAT; Cooke v Glenrose Fish Co [2004] ICR 1188, EAT).[10]In this case, the tribunal clerk made reasonable efforts to contact the claimant and her representative but received no response. The GP’s note only supported non-attendance in person, not for a CVP or telephone hearing, and there was no psychiatric evidence justifying total non-attendance. The tribunal considered whether to adjourn the hearing, but determined that there was no good reason to do so because:a. The claimant had been given the opportunity to attend remotely and was notified of the change to CVP.b. The medical evidence did not justify her non-attendance at a remote hearing.c. Mr. Elmoussati had indicated he could attend but did not, with no explanation.d. The claimant had failed to submit written representations despite promising to do so.[11]In Quashie v Methodist Homes Housing Association [2012] ICR 1330, EAT, the EAT held that failure to make reasonable enquiries about non- attendance could vitiate a decision. Here, however, all reasonable efforts to contact the claimant have been made, and the claimant’s own inaction contributed to the lack of evidence before the tribunal.[12]The burden of proof for establishing disability under the Equality Act 2010 section 6 rests with the claimant. Given that disability was disputed, the claimant was required to present evidence showing:a. She had a physical or mental impairment.b. It had a substantial adverse effect on her ability to carry out day-to-day activities.c. It was long-term (lasting or likely to last at least 12 months)[13]The claimant must also establish her substantive claims under the Equality Act 2010.[14]The claimant has provided some medical records, but these did not cover the relevant period (December 2023). Her GP and hospital letters contained no conclusive evidence of a substantial long-term impairment. Her failure to attend meant that her witness statement could not be tested under crossexamination, significantly limiting its weight (Duffy v George [2013] ICR 1229, CA).[15]Where factual disputes exist, tribunals generally give little weight to untested written representations (Rule 42 Tribunal Rules 2024). Given that the respondent challenged the existence of a disability, it was crucial for the claimant to give oral evidence. The same rational applies to the substantive claims.[16]The respondent applied to strike out the claim under Rule 47, arguing that:a. The claimant had failed to attend without valid justification.b. The claimant bore the burden of proof of both claims but failed to provide sufficient evidence.c. The only available evidence was her untested witness statement, which should carry limited weight.d. There was no reason to adjourn as the claimant had refused a reasonable alternative (CVP hearing)[17]Having considered all the circumstances, the tribunal concludes that:a. The claimant failed to attend despite being notified of the change to a CVP hearing.b. Her medical evidence did not support total non-attendance or explain why a CVP hearing was not an option.c. Her failure to provide written submissions or engage with the process left the tribunal with insufficient evidence to make a determination.d. The burden of proof was on the claimant, and she failed to meet it.e. Dismissing the claim under Rule 47 is justified, as an adjournment would serve no practical purpose and would prejudice the respondent.[18]Accordingly, the claims are dismissed.