Mr A Clarke v London General Transport Services Ltd: 2301068/2023

EMPLOYMENT TRIBUNALS

Case No 2301068/2023

Between

Mr A ClarkeClaimant

London General Transport Services LtdRespondent

Before

Employment Judge McCann

Not represented for claimant

Date 31 July 2025

REASONS

[1]The Claimant’s ET1 Form/claim was presented to the Tribunal on 7 March 2023, asserting claims for disability discrimination and unlawful deduction from wages. His employment as a bus driver with the Respondent, a London bus operator, commenced on 30 January 2007 and he continues in his employment.

[2]In his ET1 Form, the Claimant gave a postal address and an email address for himself and he named a representative, John Reed, of the RMT Trade Union. A postal address and mobile phone number were provided for Mr Reed, but no email address.

[3]The Respondent duly submitted its Response/Grounds of Resistance on 19 April 2023.

[4]It made clear in that document that the legal entity employing the Claimant is not “Go Ahead” (as referenced by the Claimant in his ET1) but “London General Transport Services Limited”. That matter was discussed at the Preliminary Hearing for case management, before Employment Judge Hart, on 8 May 2025 and an application was made on behalf of the Respondent to change its name in these proceedings to London General Transport Services Limited. The Claimant was required to inform the Tribunal within 7 days of the Preliminary Hearing Summary/Case Management Orders if he objected to that application. He has not objected (or, indeed, been in contact with the Tribunal at all); accordingly, I direct that the name of the Respondent is amended to London General Transport Services Limited.

[5]Regrettably, following the Respondent submitting its Response Form/Grounds of Resistance, there was an regrettable, unexplained and lengthy delay on the part of the tribunal service. The Respondent’s Solicitors sent an email asking for confirmation of the status of the claim on 18 June 2024. That appears to have prompted the Tribunal to take action. It sent correspondence to the parties confirming acceptance of the Response Form. The Tribunal file indicates that this correspondence (dated 21 June 2024) was sent to the Respondent’s Solicitors, the Claimant’s representative (John Reed of the RMT) (by post) and to the Claimant himself (by email).

[6]A Notice of Hearing was sent to the parties on 2 August 2024, listing a Preliminary Hearing for case management on 8 May 2025. That was sent to the Respondent’s Solicitors and to John Reed (the Claimant’s representative).

[7]The matter came before EJ Hart on 8 May 2025, via CVP. Neither the Claimant nor his representative, Mr Reed, attended. Enquiries were made by tribunal staff that morning, by emailing the Claimant and by telephoning Mr Reed. The start of the Preliminary Hearing was pushed back to 10:35am to see if the Claimant or Mr Reed attended. No contact was made by either of them and they did not join the CVP hearing. EJ Hart decided that, under Rule 47 of the Employment Tribunal Procedure Rules 2024 (“the 2024 Rules), the Hearing should go ahead in the absence of the Claimant and his representative.

[8]EJ Hart made various orders including, materially, that within 14 days of her Order being sent to the parties (which happened on 13 May 2025), the Claimant needed to provide written reasons (accompanied by evidence) for the failure to attend the Preliminary Hearing on 8 May 2025; and to provide written reasons as to why the claim should not be struck out on the grounds that it had not been actively pursued, or request a hearing in order to give those reasons. She stated that the Tribunal was considering striking out the claim under Rule 38(1)(d) of the 2024 Rules on the grounds of it not being actively pursued.

[9]I have been told today by Tribunal staff that EJ Hart’s Preliminary Hearing Record and Case Management Orders document was sent to the Claimant by email on 13 May 2025; but not to his representative because there was no email address for the rep on tribunal file. The file does not indicate whether or not the document was sent by post to Mr Reed. I note that it was also sent to the Claimant (by email) on 5 June 2025 when the Respondent’s Solicitors emailed the Tribunal and the Claimant to apply to strike out the Claimants’ claim on the grounds that he had not been actively pursuing it.

[10]At the hearing on 8 May 2025, EJ Hart listed the case for a one-day Preliminary Hearing in public to take place on 31 July 2025 and for the Tribunal to determine the following issues: whether the claims was presented out of time in respect of both the complaints under the Equality Act 2010 and the unlawful deduction from wages claim and, if so, whether time should be extended; and/or whether the claims had no or little reasonable prospect of success, such that they should be struck out or deposit orders should be made. Careful case management orders were made by EJ Hart to enable the parties to prepare for this Public Preliminary Hearing, including for the Claimant to provide some specific, crucial but fairly limited Further Information in respect of his claims, by 29 May 2025.

[11]The CVP details for today’s hearing were sent out via email to the Claimant to the email address on his ET1, yesterday (30 July 2025).

[12]Neither the Claimant nor his representative, Mr Reed, have been in contact with the Tribunal and none of EJ Hart’s orders have been complied with at all. Non-attendance at today’s Hearing of Claimant and/or his Representative

[13]I had to first decide, today, under Rule 47 of the 2024 Rules, whether to adjourn the hearing, dismiss the claim or proceed in the Claimant’s absence.

[14]Tribunal staff phoned John Reed’s mobile number four times. On each occasion, it rang but then went to voicemail. On the fourth occasion, just before 10:15am, a message was left by a Tribunal Clerk, informing Mr Reed that there was a tribunal hearing via CVP in Mr Clarke’s case and that an employment judge had directed that the hearing would begin at 10:30am (a delay of 30 mins from its listed start time). The Clerk also informed Mr Reed that the Claimant had been sent the CVP joining details and that he might like to contact the Claimant for further information. The Clerk staff also emailed the Claimant at 09:57am to note that the hearing today was due to start at 10am, that the Clerk had called the Claimant’s representative but that there had been no response and asking the Claimant to contact the Tribunal if he could not make the hearing today. By 10:30am, neither the Claimant nor his representative had joined the CVP link and had not made contact with the Tribunal and the hearing duly started. Mr Maccabe, of Counsel, attended to represent the Respondent, as he did at the Preliminary Hearing on 8 May 2025.

[15]I decided that it was in accordance with the Overriding Objective, and the overarching interests of justice to proceed with the Hearing today in the Claimant’s absence, rather than adjourn the case or dismiss the claim outright, the latter being – in my view – disproportionate and unfair to the Claimant, but a postponement being entirely contrary to the Respondent’s interests and other Tribunal users, undermining the important need to avoid further delay and to save expense, and I also had no real confidence that the Claimant would attend on another occasion. Issues for determination at this Hearing

[16]I then needed to determine what issues could be dealt with at today’s hearing. Mr MacCabe noted that it was impossible to address any of the issues that had been listed for today as they were contingent upon the Claimant having complied with the various Case Management Orders, including those directing him to provide Further Information, disclosure of documents and a witness statement. I agreed.

[17]Mr MacCabe noted that the Respondent had an outstanding application, made by email on 5 June 2025, to strike out the Claimant’s claim on the grounds that it had not been actively pursued by the Claimant or his representative and he asked for that application to be determined today. I agreed, it being proportionate and in the interests of justice to do so and otherwise in accordance with the Overriding Objective; and I note that the application can come as no surprise to the Claimant since,(i) the Record of Preliminary Hearing stated that the Tribunal was considering striking out the Claimant’s claim on the basis that it had not been actively pursued (and gave the Claimant the opportunity to provide written reasons why it should not be struck out, or to request a hearing), and

(ii) the Claimant was copied in, on email, to the Respondent’s application for strike out on 5 June 2025, followed up on 17 June and 15 July 2025. Application to strike out

[18]The Respondent applies for strike out under Rule 38(1)(d) of the 2024 Rules on the basis that the Claimant has taken no steps at all, since submitting his claim, to pursue it. There has simply been no contact whatsoever from the Claimant or his representative since the ET1 was submitted on 7 March 2023 – that is, nearly two and a half years ago. Furthermore, the Respondent points out that the Claimant and his representative have failed to attend two hearings now; and have not complied with any of the orders made by the Tribunal. Counsel for the Respondent also makes the point that, without the Claimant taking the required steps to move the litigation forwards (including the important step of providing Further Information), the Respondent cannot have a fair hearing because it does not even know the case against it which it is expected to respond to.

[19]In those circumstances, there could not be a clearer case, it is said by Mr Maccabe, of a failure actively to pursue a claim. I agree. However, that is just the gateway to enable strike out to be considered; and I remind myself that striking out a claim is not an automatic consequence of a claimant’s failure actively to pursue their claim. I must exercise my discretion, judicially and rationally, having regard to all relevant factors and ignoring anything irrelevant; I must apply the overriding objective to deal with cases fairly and justly, including the need to deal with cases proportionately, saving expense and avoiding delay. I must consider whether it is in the interests of justice, to these parties and to other tribunal users, to strike out or not to strike out the Claimant’s claim. I must consider whether a fair hearing remains possible in respect of some or all of the complaints in the Claimant’s claim, as was made clear by Griffiths J in the recent EAT judgment in Forrest and Amazon Web Services EMEA Sarl UK Branch

[2025] EAT 81

. I note in particular, the exhortation of Griffith’s J that “It is hard to think of a case in which it would be right to go directly from non-compliance with a case management order to striking out for non-compliance, without first trying the effect of an unless order”. I also note, of course, that strike out should not be “punitive” (per Simler J in her judgment in Baber v Royal Bank of Scotland

UKEAT/031/15

(18 January 2018), in which she also outlines important factors as including the extent to which any failure to comply with tribunal orders causes unfairness, disruption or prejudice, whether a fair hearing is still possible and whether striking out or a lesser remedy would be an appropriate response).

[20]I note also the EAT Judgment in Leeks v University College London Hospitals NHS Foundation Trust

[2024] EAT 134

where the EAT overturned a Tribunal’s decision to strike out for failure actively to pursue a case, where a claim had made no progress in almost three years; although I note that the claimant in that case had taken some steps to pursue his case, albeit that his efforts were pretty minimal. Here, there has been no action at all taken by the Claimant or his representative. In Leeks, the Tribunal had struck out the case largely on the basis that a fair trial was no longer possible due to the departure of a witness from the respondent’s employment. The EAT considered that the Tribunal had not properly considered all the circumstances around the witness’s availability and had failed to have regard to the fact that witness statements had already been exchanged.

[21]I have also considered the EAT Judgment in Khan v London Borough of Barnet

UKEAT/0002/18

where the EAT upheld a Tribunal’s decision to strike out a claim just under five months after it had started on the basis that it was not actively pursued. Mr Khan had failed to attend a case management hearing, saying that he was unwell. He was asked by the Tribunal to give reasons why his claim should not be struck out or to request a hearing; and was asked for details of his illness and relevant medical evidence. He did not reply to either of the Tribunal’s requests. Upon application to strike out by the respondent, the Tribunal did strike out the claim and this was upheld by the EAT, which noted the complete lack of engagement with the progress of his claim in any meaningful way.

[22]I have considered this matter carefully. I also note the incredibly scant details in the ET1 form, which have not been supplemented by the Further Information ordered by the Tribunal. Without those details, the claims are extremely difficult to understand, the legal heads of claim not even having been identified. There is no detail of when the deductions from wages were said to have been made, nor in what amount. Understandably, the Respondent has been unable to plead a meaningful response, other than to provide background context which tends to suggest that the claims might be substantially out of time. Consequently, the merits of the claims, as pleaded, look very weak; but, more than that, it is extremely difficult to see how a fair trial could be possible, even in May 2026 when it is currently listed, as the parties and the Tribunal have not even been able to identify the issues, a vital first step in litigation such as this.

[23]I remind myself that the overriding objective requires me to deal with cases justly and fairly, having regard to the need to avoid delay and save expense (not just for the parties but for other tribunal users). I fully recognise that striking out the claims is draconian and that, for discrimination claims, there is a public interest in hearing them on their merits. Strike out should be viewed as a last resort.

[24]However, the Claimant has shown a complete lack of interest in pursuing his claims. There has been no contact from him at all in more than two years. I am told by Counsel for the Respondent that the Claimant remains in his employment so the information available to me is that he has neither disappeared nor become very unwell.

[25]I acknowledge that an Unless Order is a less draconian option than striking out and I acknowledge that such an Order would normally have the effect of focussing minds and should normally be attempted first, before a claim is struck out. I have carefully considered whether I should issue an Unless Order, rather than moving to strike out the Claimant’s claim at this time.

[26]In the end, however, I have concluded that this is an exceptional case, given the complete lack of engagement by the Claimant with the progress of his claim. He has been given the opportunity to attend two hearings and to explain his reasons for not actively pursuing his case, but he has completely failed to do so. I have concluded, regrettably, that there is no realistic chance at all of the Claimant now engaging with the tribunal process and that an Unless Order would, in this very rare case, serve no useful purpose but simply delay the inevitable, which undermines the overriding objective.

[27]I have, therefore, decided to strike out the Claimant’s claims under Rule 38(1)(d) on the grounds that they have not been actively pursued and that it is in accordance with the overriding objective to deal with cases justly and fairly to bring this litigation to a conclusion. Approved by: