Miss J Sawyer v Ms A Baskerville and Oyster Bay Ltd: 2302199/2023
JUDGMENT
The judgment of the Tribunal is as follows: The claim and responses are struck out under Rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024 because they have not been actively pursued.REASONS
[1]Today was intended originally to be the first day of the four-day final hearing. It was listed for these dates on 8 January 2024. It was converted on 26 February 2025 to an Open Preliminary Hearing at which the Tribunal would consider striking out the claim on the basis that it has not been actively pursued. By 10.10 am none of the parties had attended the hearing.Background
[2]The claim was presented on 22 May 2023 and relates to events which took place from at least January of that year. The Claimant is a litigant in person. At the time she was still employed by the Second Respondent. The First Respondent is a Director of the Second Respondent. The claim is one of pregnancy discrimination. The Respondents were represented by solicitors and presented responses dated 23 August 2023 in which they denied the claim. Page 1 of 4[3]A Preliminary Hearing for Case Management was conducted by Employment Judge Clarke on 12 March 2024 at which the dates of the final hearing were confirmed, the complaints and issues were identified and the dates of suggested case management orders previously sent to the parties were confirmed. A further order for the Respondents to serve an amended response was also set.[4]The Claimant’s complaints in respect of unlawful deduction of wages, statutory maternity pay and other payments, in both this claim and under case number 2303169/2023, were dismissed on withdrawal.[5]By email dated 7 April 2024, the Claimant provided her Schedule of Loss. This should have been provided by 2 April 2024 but the claimant cited illhealth and personal issues for the delay.[6]Thereafter, nothing further was received from any of the parties either by way of correspondence or in compliance with the Case Management Orders.[7]On 7 February 2025, the Tribunal sent a Pre-Hearing Check Letter to the parties asking for a response to a number of questions by 21 February 2025. The questions were designed to determine whether the case was ready for the hearing and made it clear that a failure to respond could result in the claim or response being struck out for non-pursuit.[8]None of the parties responded and so by letter dated 26 February 2025, the Tribunal wrote to them advising that the hearing had been converted into a 3 hour Open Preliminary Hearing to consider whether to strike out the claim because it has not been actively pursued. The remaining dates were postponed.[9]By emails dated 7 and 10 March 2025, the Respondents’ solicitors wrote to the Tribunal advising that they were no longer acting for them and to forward all correspondence to the First Respondent directly.[10]By email dated 10 March 2025, the Claimant wrote to the Tribunal (not copied to the Respondents) stating that the case was ongoing and she wished to proceed but would ask that the dates be changed because she has family court proceedings around the same time and it was quite a lot to deal with.[11]By email dated 13 March 2025, the Tribunal wrote to the parties asking the Respondents for their comments on the Claimant’s postponement request (which was attached) and the Claimant to provide evidence of her other commitments.[12]By email dated 14 March 2025, the First Respondent wrote to the Tribunal (not copied to the Claimant) stating that she was no longer represented and did not have the relevant documents ready for the hearing at present. She asked to be contacted to be advised.[13]By email dated 15 March 2025, the Claimant wrote to the Tribunal stating that she would not be able to attend the hearing today because she has work commitments and has started a new job. She also attached the documents Page 2 of 4 in respect of a family court hearing scheduled for 20 March 2025. She initially asked not to reveal this to the Respondents but subsequently relented. The attached document is a court order which was made on 6 November 2024 and among other things sets a date for the next hearing which is on 20 March 2025.[14]This morning I asked my clerk to write to the parties explaining that I expect them to attend the hearing by 10 am. The Claimant responded stating that she cannot attend because she has started a new job. I asked my clerk to send her a further email asking why she did not inform us sooner and what reason could we disclose to the Respondents for her non-attendance. In a further email, the Claimant explained that she had only just started a new job and her training dates were given to her last week. She also indicated that it was fine to let the Respondent know why she was unable to attend. Law[15]Under Rule 38 of the Employment Tribunal Procedure Rules 2024, the Tribunal may on its own initiative strike out all or part of a claim, response or reply on a number of grounds, including where it has not been actively pursued. Case law has determined that this power must be exercised in accordance with the Civil Procedure Rules which are used in the County and High Courts. Accordingly, a Tribunal can strike out a claim where: there has been delay that is intentional or contumelious (disrespectful or abusive to the court); or there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or is likely to cause serious prejudice to the respondent. Conclusions[16]I have considered this matter under the first of these grounds. From the above circumstances, it is clear that none of the parties have actively pursued this matter and it appears to me that their behaviour is both intentional and contumelious.[17]The Claimant has not complied with any of the Case Management Orders (save for sending a Schedule of Loss) and offered no explanation for this. She has done nothing to pursue her claim since then. Further, she did not respond to the Pre-Hearing Check Letter or the notice of this strike out hearing. She belatedly wrote on 10 March 2025 referring vaguely to court proceedings, which her subsequent correspondence reveals to be a date that was set as long ago as November 2024. Yet she did not advise the Tribunal of this until over four months later. Her subsequent correspondence also refers to new employment which appears somewhat surprisingly to have arisen last week and she only advised of it last Saturday.[18]The Respondents’ have not complied with any of the Case Management Orders and have offered no explanation for this. Their solicitors only informed the Tribunal that they were no longer acting belatedly, and after both the Pre-Hearing Check Letter and notice of this strike out hearing were sent. The First Respondent wrote subsequently citing lack of representation and lack of documents, and asking for advice, but has not even attended Page 3 of 4 today. There has been no correspondence from the Second Respondent, although it might be that the First Respondent as a Director of that limited company could bed writing on its behalf as well as her own.[19]I have considered this matter carefully and have reached the conclusion in the absence of anything more that the behaviour of all of the parties is both intentional and contumelious.[20]The Claimant has made almost no attempt to prepare the case for what was supposed to be a four day hearing. The record of the Preliminary Hearing for Case Management made the position absolutely clear as to what needed to be done and what might happen if it was not done. No explanation for noncompliance was provided. She has only responded to correspondence from the Tribunal after being given notice of this strike out hearing and then in bland terms requesting the final hearing dates be changed. She relies on a court date that was set in November of last year. She has not attended citing new employment as a further reason.[21]Similarly, the Respondents have done nothing to prepare for the final hearing also having the very clear record of the Preliminary Hearing for Case Management. No explanation has been given for this. Their solicitors only came off the record after notice of this strike out hearing was given.[22]I find this behaviour to be most disrespectful and abusive to the Tribunal system particularly given the administrative and judicial time and resources used in processing and case managing the claim and having booked 4 days for the final hearing. This region is particularly overloaded with claims and is listing multi day cases as far ahead as 2027/28. To simply not do what is required and then belatedly put forward bland excuses is not acceptable and denotes a lack of appreciation or forethought by the parties as to their responsibilities to the Tribunal as well as to each other.[23]I therefore strike out the claim and for that matter the responses.[24]As a footnote, I would add that having made enquiries of our Listing Section as to when a further four-day hearing could be accommodated I was informed that this would not be until the week commencing 2 March 2026. That would be over three years since the events in question took place and in a claim which certainly on the face of it neither party has prepared for. Employment Judge Tsamados Date: 17 March 2025 Date: 18 March 2025 Public access to Employment Tribunal Judgments All judgments and written reasons for the judgments are published online shortly after a copy has been sent to the Claimant(s) and Respondent(s) in a case. They can be found at: www.gov.uk/employment-tribunal-decisions. Page 4 of 4