Mr A R Ramezani v MZ Fibres Ltd: 2404042/2022
JUDGMENT
The Judgment of the Tribunal is that the claimant’s claim is struck out under Rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024 because it has not been actively pursued.REASONS
[1]The claimant presented his claim claiming constructive unfair dismissal, race and religion or belief discrimination and monetary claims on 1 June 2022, after ACAS Early Conciliation from 13 April to 24 May 2022. He relied on a constructive dismissal on 18 February 2022 or 7 March 2022 and contended he had been harassed and abused by his employer throughout his employment and that he was underpaid wages. The claimant was legally represented by Mr Oti when presenting his claim. 2.Whilst admitting laying off the claimant for a short period through lack of work, the respondent denied his claims entirely and contended he had had declined to return to work and had formally confirmed his resignation afterwards.[3]There was a case management preliminary hearing before Employment Judge Johnson on 19 May 2023, when the final hearing dates of 11-13 October 2023 (which had already been listed) were confirmed; case management orders to be complied with ahead of the hearing were made.[4]The claimant provided Further Particulars of harassment and discrimination together with his Schedule of Loss on 9 June 2023 and then provided his list of documents on 6 July 2023.[5]Whilst an application by the respondent to postpone the hearing on the basis of its representative’s ill health and lack of preparation for the hearing was refused on 5 October 2023 by Employment Judge Butler, the claimant’s representative applied that day for postponement also on the basis of lack of preparation. The respondent supported the application on 6 October 2023, with its representative making clear he was standing down through ill health. This time, Regional Employment Judge Franey granted the application. His decision was confirmed by letter dated 9 October 2023 sent by email to Mr Oti at his new firm, Lincolns Legal Solicitors, and also to the respondent’s then representative. That letter listed the new hearing dates as 15-17 April 2025 and concluded: “We can confirm we remove Mr Dave Roberts from our records. Please provide new contact details for the respondent as soon as possible.” It appears that the respondent never notified details of a new representative.[6]On 14 April 2025, the Tribunal administration notified Mr Oti, the claimant’s representative, (copying in the respondent’s former representative at the email address he had given, none being provided for the respondent) that this hearing was converted from an in person hearing to a video hearing. Only then, did the claimant’s representative write to the Tribunal applying for a further postponement: “Regrettably, the parties are not in the position to conduct the hearing as scheduled. I have to sincerely apologise for our failure to apprise the tribunal of our own readiness for the hearing. I note that the claimant is keen to make a formal application for a rescheduling of the trial date, and for the parties to complete all necessary pre-hearing steps.” There was no reference to how granting the postponement would assist to further the overriding objective or whether the claimant’s representative had sought to discuss the matter with the respondent. REJ Franey refused the application, noting that the claimant said he was not ready but referring back to the adjournment of the earlier hearing.[7]At the hearing, Mr Oti renewed the application to postpone. He set out more detail to the renewed application stating that the claimant had been difficult to contact the previous year, in 2024. He believed the claimant had been away travelling possibly when he was depressed or dealing with family bereavement. Mr Oti confirmed there had been no further contact with the respondent or its representative since August 2023. He said he had last had contact from the claimant on 17 March 2025, when he was himself absent abroad until 30 March 2025. When pressed as to the active progress in the proceedings since 6 July 2023, Mr Oti said he and the claimant had started work on preparing the claimant’s witness statement but not finished it. He apologised profusely and contended that he had not previously been aware of the hearing date but he understood that the claimant wished to progress to a hearing. However, he had been unable to contact the claimant by telephone on 14 April 2025.[8]The Law The Tribunal applied the Employment Tribunal Procedure Rules 2024, in particular its overriding objective at Rule 3:(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing, (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues, (c) avoiding unnecessary formality and seeking flexibility in the proceedings, (d) avoiding delay, so far as compatible with proper consideration of the issues, and (e) saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction.(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.[9]Rule 32 deals with postponements, with guidance also to be found in the Presidential Guidance - Seeking a postponement of a hearing (4 December 2013). Rule 38 provides for striking out:(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).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing…[10]Conclusion Having particular regard to the current volume of caseload in Employment Tribunals including the North West region, the Tribunal was very concerned at the late application for postponement based upon lack of preparation by the claimant. Whilst the Tribunal approached this matter on the basis of whether the claimant had actively pursued his claim, it might equally have concluded that his and his representative’s conduct of the proceedings was unreasonable or that it was no longer possible after such a long delay to hold a fair hearing. There had been no significant progress on the claimant’s part since he provided his list of documents in July 2023 and no preparation of a bundle of documents or finalisation of a witness statement for this hearing. Whilst the Tribunal appreciated the courtesy and frankness of the claimant’s representative, Mr Oti, in attending and explaining the position, it overwhelmingly concluded that the claimant who had brought the proceedings had made no serious or sufficient effort to bring them to a conclusion. There was no medical evidence to support any illness or impediment on his part and, if his representative was ignorant of the date of re-listed hearing, no effort or enquiry by or on behalf of the claimant to ascertain a new hearing date. By the time any new final hearing could be listed, it would be several years since the events in issue had taken place.[11]The Tribunal concluded that the fact that the respondent had also manifestly failed to engage with the proceedings and comply with its case management orders did not absolve the claimant of his own responsibility. The claim was struck out because it was not actively pursued. Approved by: