Miss S Plange v Symbol Family Support Services Ltd: 2302863/2019
JUDGMENT
[1]The Claimant’s Claim is dismissed;[2]The Respondent is awarded damages of £438.01 in respect of its Counterclaim, payable by the Claimant.REASONS
[1]This CVP hearing was due to start at 10 am. By that time, the Claimant had not attended and was not represented. My Clerk emailed the Claimant and telephoned her multiple times on two telephone numbers she had previously provided but received no response.[2]I commenced the hearing at 10.45 am. The Claimant was still not present or represented at the hearing and had not contacted the Employment Tribunal.[3]Rule 47 of schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 states as follows: “If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence.” Page 1 of 2 Case No: 2302863/2019 (V)[4]Given that the Claimant has the burden of proving her Claim, has not attended and has not contacted the Tribunal to explain her lack of attendance or responded to attempts to contact her, I have decided that it was appropriate to dismiss her Claim.[5]With regard to the Respondent’s Counterclaim, the Claimant has not presented a Response to this despite it being served on her by letter dated 14 January 2020. As a result, the Claimant would only have been entitled to participate in this element of the hearing to the extent I permitted. Having considered the documents before me, I find that the Counterclaim is made out and so I award the Respondent the amount it seeks from the Claimant in the sum of £438.01.[1]The CVP hearing on 16 April 2021 was scheduled to commence at 10 am, the claimant was not present, unsuccessful attempts were made to contact her by telephone and in her absence the hearing started at 10.45 am and ended at 10.54 am.[2]I gave Judgment dismissing the claim because the claimant did not attend the hearing or provide any advance warning of or explanation for her absence. I also awarded £438.01 to the respondent in respect of its counter-claim (which in any event the claimant had not presented a response to).[3]After the hearing, the claimant emailed the Tribunal at 11.20 am apologising for not attending and requesting a new hearing date because “her depression and anxiety are a problem, more so at the moment I am struggling”. That email also contained what appeared to be email correspondence relating to a matter involving a separate court hearing regarding confiscation of property.[4]Later on 16 April 2021, the claimant sent a further email at 5.58 pm attaching a “without prejudice and subject to contract” email from the respondent’s solicitors. She requested a reconsideration of my Judgment in essence because the respondent had made an offer of settlement shortly before the hearing, she thought she had sent a letter accepting that offer, but in error had not actually sent that email and so she did not attend the hearing believing that having accepted the offer the hearing was not going ahead. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 2302863/2019[5]Whilst I requested further information from the parties and some was provided, I have to bear in mind that the discussions as to settlement are privileged, that is private, and not normally matters that can be revealed to the Tribunal unless both parties agree.[6]But doing the best I can from the information provided I believe the position to be as follows. The respondent made its offer to settle by email on 16 April 2021 at 9.25 am, the claimant emailed an acceptance timed at 11.14 am and the responded replied at 11.22 am that the offer had been withdrawn as per the most recent email (which I do not have a copy of). As a result the respondent attended the hearing but the claimant did not, erroneously believing the claim been settled.[7]The Tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 73 of the Rules of Procedure. A judgment may be reconsidered where “it is necessary in the interests of justice to do so.” Applications are subject to a preliminary consideration. An application will be refused if an Employment Judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the Judge considers it in the interests of justice, without a hearing. In that event the parties must have a reasonable opportunity to make further representations. Upon reconsideration the decision may be confirmed, varied, or revoked and, if revoked, may be taken again.[8]Whilst I have some sympathy for the claimant, I am concerned that her initial reason for not attending was in broad terms attributed to her health but without any evidence to support this and subsequently her reason for reconsideration was her belief that the claim had been settled. However, this later reason is not supported by the information provided to me, which indicates an acceptance at 11.14 am on the day of the hearing, after the offer of settlement had been withdrawn and indeed after the hearing had concluded. Further there is no explanation as to why the claimant did not advise the Tribunal of her health issues before the hearing or respond to our attempts to contact her by telephone between 10 am and 10.45 am.[9]For these reasons I have concluded that the Judgment has no reasonable prospect of being varied or revoked and the claimant’s application is refused.