Miss S Jamil v Compass Group UK & Ireland Ltd: 2300019/2024
JUDGMENT
The claimant is struck out for breach of Tribunal directions and because it has not been actively pursued.REASONS
[1]Today should have been the first day of the final hearing which was listed for 5 days. Instead it has been converted to an open preliminary hearing to consider whether to strike out the claim on the basis that it has not been actively pursued, or because the claimant has failed to comply with Tribunal directions.[2]The company made that application in their letter of 22 June 2026, in which they informed the Tribunal that they had had no contract with the claimant or her representative since 16 March this year, that she has not complied with any of the Tribunal’s directions and has not responded to the prehearing checklist; in the circumstances it appeared that the claim was not being pursued at all. That case is reinforced by the fact that there has been no response from Miss Jamil to that application, or to the decision by the Tribunal to cancel the final hearing and list this preliminary hearing.[3]Reviewing the file, the respondent runs a contract catering service at a school and Miss Jamil worked there as a catering assistant from October 2020 onwards. In early 2023 it was reported the school that her manager had been behaving 1 of 3 inappropriately towards and shortly afterwards she went off sick. The investigation revealed that he had been guilty of sexual harassment. As a result he was disciplined and dismissed in April. However she remained off sick throughout 2023. Towards the end of the year she commenced early conciliation and submitted this claim on 3 January 2024. There was therefore an obvious time-limit issue with the claim.[4]The first preliminary hearing was on 6 November 2024. Miss Jamil did not attend although her friend Miss Bell appeared for her as a lay representative. She was directed to provide further information about the allegations, essentially to specify what happened and when, but she failed to do so. There was a further preliminary hearing on 24 February 2025 when she was given a second chance to comply with that direction, on the basis that the final hearing was not until today, and the usual directions were given for the exchange of evidence. However, the tribunal file does not record anything being received from Miss Jamal since then. In short, there is nothing to set against the respondent’s application.[5]Rule 38 of the Employment Tribunal Rules of Procedure provides that: (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).[6]In the circumstances, it is clear that the claim has not been actively pursued. In fact, it has not been pursued at all. Equally, there has been a failure to comply with any of the tribunal’s directions. It might be added that the way in which Miss Jamal has conducted proceedings has been unreasonable, since the respondent has been put to cost and effort in defending a claim which she does not appear to have had any intention of pursuing. 2 of 3[7]The use of the word “may” in the opening line of this section indicates that the Tribunal has a discretion whether to strike out a claim, even where one or more of these tests are satisfied. So one possibility would still be to re-list this case for a future hearing and give further directions to each side so as to be ready for a fair hearing next time, but there is nothing to suggest that Miss Jamil would take advantage of that opportunity, even if it could be said to be fair on the respondent to put them to further cost and effort in that way.[8]Miss Bell, who has represented Miss Jamil till now, emailed the Tribunal at 1005 this morning to say that she was no longer acting as a representative, and so she did not attend. However, even if she, or both of them, had attended, it is difficult to see what could be said to explain away the lack of activity to date.[9]This is a rare case in which an order striking out the claim is the only proportionate response, given that lack of engagement and the undoubted fact that a fair trial is no longer possible in the time allocated by the Tribunal.[10]There was, however, no application for costs against Miss Jamil.