Mrs H Fryer v G D Long and Adverweb 57 Ltd (in voluntary liquidation): 2304109/2023
JUDGMENT
[1]The second respondent Adverweb 57 Ltd (in voluntary liquidation) is to be added as a party to this claim pursuant to Rule 34 of the Employment Tribunal Rules of Procedure.[2]The claimant’s claims against the respondents are dismissed pursuant to Rule 47 of the Employment Tribunal Rules of Procedure.REASONS
[1]Today was the first of two days listed to hear the claimant’s claims. The claim had been lodged on 6 August 2023 and a response filed on 24 August 2023 by the first respondent. That response identified a company name of Adverweb 57 Ltd although it did not explain the connection between the claimant, the first respondent and the named company.[2]The claimant and first respondent, Mr Long, were notified of the hearing by letter dated 28 February 2024.[3]Case Management Orders were sent to the parties by the Tribunal on the same day, requiring the claimant to send details of the compensation sought to the first respondent by 10 April 2024, and the parties to exchange documents by 8 May 2024 and witness statements by 22 May 2024.[4]The first respondent contacted the Tribunal on two occasions, by emails of 10 and 18 April 2024, to notify that the claimant had not complied with the Case Management Orders and that the first respondent had difficulty complying with the Case Management Orders as the second respondent was now in liquidation and all records were with the liquidator.[5]The Tribunal sent a pre-hearing check letter to the parties on 18 April 2024, reminding them of the need to comply with the Case Management Orders, and asking the parties to respond to the Tribunal by 2 May 2024 to confirm if the hearing was still required, if the parties intended to attend the hearing and, if so, to confirm that they were ready to proceed with the hearing. Neither party responded to this letter.[6]At 10am today, the scheduled start time, the first respondent was in attendance, together with three witnesses.[7]The claimant did not attend at 10am. The start time was postponed until 10.15am today. The Tribunal could not contact the claimant by telephone as no telephone number was held on the Tribunal file. The Tribunal therefore emailed the claimant stating “As notified to you in the notice of hearing sent by the Tribunal on 28 February 2024, and Pre-Hearing Check letter sent on 18 April 2024, today's hearing is due to start at 10 this morning. The hearing start time has been put back until 10.15 today to enable you to join. Please join the conference - details again below or respond to this email by 10.15. The hearing may otherwise proceed in your absence.”[8]At 10.15 am the claimant was not in attendance.[9]I heard representations from the first respondent, who confirmed that he had not prepared witness statements for his witnesses and did not have access to any documents as these were with the liquidator of the second respondent. He expressed a readiness to proceed today and had three witnesses in attendance to give evidence, albeit no witness statements had been served. He said that he had made attempts to obtain clarification from the Tribunal as to what was required of him in these circumstances, which was evident from his emails to the Tribunal. He confirmed his position that he was not the employer of the claimant. He says that the company Adverweb 57 Ltd, which had been named by the first respondent on the ET3, was the employer of the claimant. At the time the claim was issued and the response lodged, it is apparent from Companies House that the first respondent was a Director of that company. However, the company entered into voluntary liquidation on 6 December 2023. The first respondent says that he passed details of the claim to the liquidator. He says that he has no paperwork relating to the claimant’s employment as it is all with the liquidator.[10]There is no documentation before the Tribunal to determine the identity of the employer of the claimant. As the company Adverweb 57 Ltd is in liquidation, the first respondent does not have authority to act on behalf of that company.[11]The Tribunal directed that the company Adverweb 57 Ltd (in voluntary liquidation) be added as second respondent. Copies of the claim form, response form and this Judgment are to be sent to the liquidator of that company as recorded at Companies House.[12]Pursuant to Rule 47 of the Employment Tribunal Rules of Procedure, 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. There was no such information available to me, despite practicable enquiries having been made about the claimant’s absence.[13]I considered whether to proceed with the hearing in the absence of the claimant. The claim form asserts claims for unfair dismissal, unpaid holiday pay, notice pay, arrears of pay and other payments. It does not detail the compensation the claimant is seeking. The response form asserts that the claimant was dismissed for gross misconduct and that there were numerous stock losses. The claimant has not complied with the Case Management Orders dated 28 February 2024. In the absence of information from the claimant as to what is claimed, and the lack of any documentary evidence due to the fact of the liquidation of the company, proceeding with the hearing in the absence of the claimant and any documentary evidence that she could provide would clearly pose significant difficulties.[14]In all the circumstances, the Tribunal determines that it is in the interests of justice to dismiss the claimant’s claims pursuant to Rule 47 of the Employment Tribunal Rules of Procedure.