Mr M SangareClaimantNomad Digital LimitedRespondent
Before
Employment Judge GowlandIn person for claimantMr G Vials (instructed by solicitor) for respondentDate 19 September 2025
JUDGMENT
The complaint of direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex and victimization are struck out.
REASONS
Background
[1]The claimant was ordered to pay a deposit of £480 following a preliminary hearing held on 13 March 2025. The Order was sent to the claimant on 20 May 2025. The claimant has failed to pay this deposit. The complaint of direct race discrimination, direct sex discrimination, harassment related to race, harassment related to sex and victimisation are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.[2]The remaining complaints of breach of contract and wrongful dismissal and notice pay will proceed to a hearing on 15 – 19 September 2025. Approved by: Employment Judge Gowland 11 August 2025 Case Number: 2501278/2024 1 THE EMPLOYMENT TRIBUNALS Claimant Mr M Sangare Respondent Nomad Digital Limited Heard at Newcastle upon Tyne Hearing Centre On 15 September 2025 Before Employment Judge Langridge Representation: Claimant No attendance Respondent Mr G Vials, solicitor[1]These claims have been the subject of previous preliminary hearings and case management orders, in which the nature of the claims and the respondent’s defence have already been summarised. At a public preliminary hearing on 13 March 2025 the claimant's claim for constructive unfair dismissal was struck out, on the grounds that he was employed by the respondent for less than the required two year period. On the same date the claimant was ordered to pay a deposit of £480 in order to pursue his various claims under the Equality Act 2010 (claims of race discrimination, Case Number: 2501278/2024 2 sex discrimination, harassment and victimisation). This was on the grounds that those claims had little reasonable prospect of success. The deposit order was sent to the claimant on 20 May, giving him a deadline of 4 June 2025 to pay a deposit. No deposit was paid by that date and on 11 August 2025 Judge Gowland struck out the Equality Act claims as a result. That decision is the subject of an appeal to the EAT which is to be listed for a preliminary hearing on an unknown future date.[2]The next preliminary hearing in the Newcastle Tribunal took place on 15 August 2025, again before Judge Gowland, to deal with the only surviving claims: breach of contract, wrongful dismissal, and notice pay. Today was a final hearing listed in person over two days to determine those claims. The claimant did not attend and this decision was made in his absence.[3]The Tribunal did not hear evidence on oath today nor was it in a position to make findings of fact. It was, however, able to review the relevant content of the claimant's witness statement and his signed contract of employment, so as to have regard to the nature and value of the surviving claims. This information formed part of the factors taken into account in reaching this decision, alongside the overall circumstances of the case. Submissions were also made on behalf of the respondent.
The claims
[4]It was clear to the Tribunal that the factual basis for these overlapping live claims is essentially the same. The claimant alleges that his probationary period was successfully completed on the last day of the initial 3 month period, and that the respondent had no contractual right to extend probation (which it did twice) or to do so retroactively. In his witness statement the claimant alleged that any extension had to be done on formal notice. Had the respondent complied with his contract, the claimant says he would have been entitled to a longer notice period of one month, whereas he was paid for one week’s notice on termination. That came about as a result of the claimant's resignation. The claimant’s employment with the respondent began on 9 October 2023 and ended on 19 March 2024, by which time he was off sick and in receipt of SSP rather than wages.[5]The express terms of the claimant's contract include the following: “1.2 The first 3 months of your employment shall be a probationary period and your employment may be terminated during this period at any time on one week’s prior notice. We may, at our discretion, extend this period for up to a further 3 months. During this probationary period your performance and suitability for continued employment will be monitored. Successful completion of the probationary period will be deemed confirmed only upon receipt of a probationary period confirmation letter from HR. 8.1 After successful completion of the probationary period referred to in clause 1.2, the prior written notice required from you or the Company to terminate your employment shall be as follows: 8.1.1 6 weeks prior written notice until you have been continuously employed for six complete years […]” Case Number: 2501278/2024 3[6]It was therefore clear from the Tribunal's limited review of the papers that the central issue was how much notice the claimant was entitled to on his resignation. He was initially paid one week’s pay in lieu of notice based on SSP rates. More recently the respondent topped up the payment to a full week’s pay to bring it in line with the minimum notice requirements under sections 86-88 Employment Rights Act 1996.[7]Had the claimant attended today’s hearing, the Tribunal would have had to determine the disputed extensions to the probationary period and the resulting consequences for the notice entitlement. On the claimant's own case his claim concerns non-payment of the balance of around 3 weeks’ pay in respect of the more generous notice entitlement, or alternatively 5 weeks’ pay based on clause 8.1.1 of the contract. The amount would possibly be limited to SSP rates of pay based on ongoing sickness absence. The claimant's non-attendance[8]Having had numerous previous postponement applications refused, the claimant did not attend this hearing. At 8am today he emailed the Tribunal in the following terms: “The Employment Appeal Tribunal is seized of my appeal (EA-2025-001074-BA) and my urgent stay/adjournment application has been circulated to the Respondent for comment. I am unfortunately medically unfit to attend today's listing (15 September 2025) following the serious assault I suffered on the 6 September 2025; my A&E note (8 Sept 2025) and Police CRN have been provided to the EAT. I have notified all parties of the above and asked the EAT for protective directions. Accordingly, I will not be attending the Newcastle ET today. Please place this on the administrative record. For the avoidance of doubt, this message is not an application to the ET; the issue is before the EAT.”[9]The claimant has not provided either the Tribunal or the respondent with the ‘A&E note’ or the police CRN, or indeed with any other medical evidence as to his fitness to attend the hearing of his claims. History of postponement applications[10]A significant factor in reaching this decision is the history of prior postponement applications made by the claimant.[11]The relevant correspondence followed the claimant's Notice of Appeal to the EAT dated 21 July 2025. This sets out extensive grounds of appeal amounting to 25 pages. The grounds cover numerous complaints about the Tribunal's handling of the preliminary stages, including delays in sending out case management orders. The claimant alleges that the late service of the deposit order effectively denied him a realistic opportunity to comply with it. In its reasons for fixing a preliminary oral hearing the EAT has indicated that, “if there is a proper reasonably arguable claim the Notice Case Number: 2501278/2024 4 of Appeal will need to be amended so that it is not so diffuse, repetitive and confusing”. It does not appear that the EAT has yet fixed a date for the preliminary hearing.[12]In his many and lengthy emails to the Tribunal and the EAT the claimant has also complained about the conduct of the respondent's solicitor, Mr Vials. One example relates to Mr Vials obtaining a verbal update from a Tribunal clerk on the status of the deposit order and the related potential for the claims to be struck out. This was at a time when he was preparing the bundle for the final hearing. In another such email dated 31 July the claimant refers to the stress caused by the respondent’s conduct of the case, as well as the fact that he was taking heart medication. This was all in the context of his complaints about the timeliness of the respondent’s compliance with case management orders.[13]The first postponement application was made to the Employment Tribunal on 12 August, requesting an order to stay the enforcement of the strike-out judgment pending determination of his appeal, or alternatively, an order rescinding the strike-out judgment. The claimant alleged that the judgment was made in error given the existence of a live appeal. This is patently not the case and shows a misunderstanding on the claimant's part about the relationship between proceedings in the Employment Tribunal and appeals to the EAT.[14]The postponement application was considered at the preliminary hearing on 15 August when Judge Gowland refused it.[15]There followed a second postponement application dated 16 August and addressed to the Regional Employment Judge (REJ). This was referred to Acting Joint REJ Davies who responded on 26 August. She explained that the REJ is not a point of appeal against a decision made by an employment judge, and that she could not interfere in Judge Gowland's decision. She told the claimant he could apply to Judge Gowland to vary or revoke his decision, or he could appeal to the EAT. The claimant did not apply to Judge Gowland for a reconsideration of his decision.[16]On 31 August the claimant wrote to the EAT requesting an urgent stay of these proceedings pending determination of his appeal. This was his third postponement application. Sitting in the EAT, John Bowers KC, Deputy Judge of the High Court, indicated in his Reasons dated 5 September that he was not prepared to stay the proceedings in the Newcastle Tribunal and could see no reason for doing so.[17]A fourth email followed from the claimant, addressed to the Newcastle Tribunal and copied to the EAT. The claimant said his purpose was not to invite the Tribunal to adjudicate the case but to make it aware of what he described as the “procedural risks now arising”, given the involvement of both the Employment Tribunal and the EAT. He described this as a “jurisdictional conflict” which carries a risk of “catastrophic duplication and invalid decisions”. The claimant concluded: “Respectful Request: I do not ask you to interfere in judicial decisions, but I respectfully invite you to note the administrative and reputational risks identified above and to ensure that, Case Number: 2501278/2024 5 pending the EAT’s determination, steps are taken to avoid further procedural irregularity.”[18]It is clear from the wording of this email that the claimant wished the Newcastle Tribunal to take steps not to allow the hearing listed for 15 September to go ahead.[19]A fifth request was made on 9 September, this time addressed to the EAT and copied to the Newcastle Tribunal, in which the claimant made an urgent request for an immediate stay. He explained the urgency by reference to three matters:19.1 The EAT being seized of the appeal;19.2 The Newcastle Tribunal insisting on the hearing remaining listed for 15 September 2025; and19.3 There being new exceptional circumstances.[20]The new exceptional circumstances were described as follows: “On 6 September 2025 I was the victim of a racially-motivated assault, during which I was struck violently on the back of the head; Police have made an arrest. On 8 September 2025 I was seen at Forth Valley Royal Hospital (A&E) and advised by Dr L Hammell to start an immediate period of recovery away from work, computers in general or anything related owing to head injury and associated symptoms. I can provide the medical note and the police reference immediately.”[21]In a separate paragraph the claimant set out the “practical and legal grounds for an immediate stay”. He relied on four points, three of which related to the existence of the appeal. He also invoked “health and safety / fair trial (Article 6) and said: “Following the assault and medical advice, a 15 September appearance is not medically possible for me. Proceeding regardless would deny me an effective opportunity to be heard.”[22]This Tribunal is not aware of any response from the EAT to this or any other correspondence from the claimant, other than the orders and reasons dated 5 September 2025.[23]The sixth postponement application was addressed to the Newcastle Tribunal on 9 September. The claimant requested that the hearing listed for 15 September should not proceed. In support of this he referred to three matters:23.1 Appeal pending before the EAT;23.2 Applications to the EAT made on 31 August and 9 September seeking an immediate stay of the Tribunal proceedings;23.3 “Medical inability to attend”. The claimant gave the same explanation as above, relating to the assault on 6 September. Case Number: 2501278/2024 6[24]The email concluded: “Given these circumstances, I respectfully request that the Newcastle Employment Tribunal does not proceed with the hearing listed for 15 September 2025 pending the outcome of the EAT appeal. To do otherwise risks conflicting jurisdictions, wasted resources, and serious prejudice to me, particularly in light of my current medical condition.”[25]Notwithstanding the new medical issue, the emphasis in the claimant's emails remained focussed on the pending appeal.[26]The respondent’s solicitor replied to the above on 10 September referring the claimant to the Presidential Guidance on seeking a postponement, which was provided. The claimant was also asked to provide copies of all documents relevant to his application, particularly medical evidence.[27]This correspondence was referred to Joint Acting REJ Davies. On 11 September she replied to the claimant, noting his “medical inability to attend” and also his correspondence with the EAT. REJ Davies referred back to her letter of 26 August in which she had explained that Judge Gowland's refusal to postpone the hearing was not something in which she could interfere. She also noted that the claimant had not made any application for a reconsideration of Judge Gowland’s decision.[28]REJ Davies concluded: “If the claimant seeks a postponement of the hearing on medical grounds, he must make an application supported with medical evidence. I note that the respondent’s solicitor has already referred him to the Presidential Guidance and provided him with information about making such an application. Unless and until any such application is made and granted, the claimant must assume that the hearing of his claims will go ahead on 15 September 2025.”[29]The seventh and final email from the claimant on the subject of postponement was sent to the EAT on 11 September. He drew attention to the above letter from REJ Davies and asked that an EAT judge make an urgent order “preventing” the hearing listed for 15 September from going ahead, “pending the outcome of the appeal and/or further EAT directions”. Explaining why the matter was urgent, the claimant reiterated what he described as a “live and serious jurisdictional conflict” and added: “For clarity: I cannot for medical reasons following a racially motivated assault on Saturday last week attend Newcastle ET on 15 September 2025, for medical reasons. Also we have the situation that this matter is now properly before the EAT.”[30]The email sent to the Tribunal today at 8am concluded this correspondence. Legal principles Case Number: 2501278/2024 7
Legal principles
[31]The starting point for the Tribunal's decision is the terms of Rule 47 of the Employment Tribunal Procedure Rules 2024: 47 Non-attendance If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence.[32]Given the Tribunal's wide powers to manage its proceedings it was also important to consider the factors identified in some key legal authorities dealing with cases where there is non-attendance by a claimant in circumstances where medical issues are relied on as a reason for seeking a postponement. While this claimant did not renew his application to the Tribunal to postpone the hearing today, his position indirectly made clear that that was the outcome he was looking for.[33]The EAT’s decision in Sokolik v Kobre & Kim (UK) LLP [2022] EAT 111 was particularly helpful to the Tribunal, as were the Court of Appeal authorities referred to in that judgment.[34]In paragraph 47 of her judgment, Eady, J said this (emphasis added): “Whether or not to grant an application for a postponement falls within the ET's general case management powers. Presidential Guidance on Seeking a Postponement of a Hearing explains the procedure that is to be followed and makes clear that any application on the ground of ill-health will require medical evidence to show that the party concerned is unable to attend. The ET has a broad discretion as to whether to grant a postponement but, when considering an application made on medical grounds, the approach it should adopt has been the subject of guidance laid down by the Court of Appeal in Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040, [2002] ICR 1471 and Andreou v The Lord Chancellor's Department [2002] EWCA Civ 1192, [2002] IRLR 728.”[35]The EAT also referred to O'Cathail v Transport for London [2013] EWCA Civ 21 when considering the question of fairness, saying that the ET must carry out its assessment in the round.[36]In Teinaz (paragraphs 21 & 22) the Court of Appeal stated as follows (emphasis again added): “A litigant whose presence is needed for the fair trial of a case, but who is unable to be present through no fault of his own, will usually have to be granted an adjournment, however inconvenient it may be to the tribunal or court and to the other parties. That litigant's right to a fair trial under art 6 of the European Convention on Human Rights demands nothing less. But the tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine, and Case Number: 2501278/2024 8 the onus is on the applicant for an adjournment to prove the need for such an adjournment. If there is some evidence that a litigant is unfit to attend, in particular if there is evidence that on medical grounds the litigant has been advised by a qualified person not to attend, but the tribunal or court has doubts as to whether the evidence is genuine or sufficient, the tribunal or court has a discretion whether or not to give a direction such as would enable the doubts to be resolved. Thus, one possibility is to direct that further evidence be provided promptly. […] I do not say that a tribunal or court necessarily makes any error of law in not taking such steps. All must depend on the particular circumstances of the case. I make these comments in recognition of the fact that applications for an adjournment on the basis of a medical certificate may present difficult problems requiring practical solutions if justice is to be achieved.”[37]Andreou was a case where medical evidence was provided, though deemed by the Employment Tribunal to be insufficient to warrant postponing the hearing. In paragraph 41 the Court of Appeal stated: “The fact that a person is certified on medical grounds as not fit to attend work does not automatically entail that that person is not fit to attend a tribunal hearing, though very often that will also be the advice of the medical practitioner.”[38]The Court made clear that a balancing exercise has to be carried out, ensuring fairness not only to a claimant but also the respondent to the claim.[39]In paragraph 46 the Court said: “The tribunal also had to take into account the fact that other litigants are waiting to have their cases heard. It is notorious how heavily burdened employment tribunals are these days. Fairness to other litigants may require that indulgences given to those who have had the opportunity to justify an adjournment but have not taken that opportunity adequately are not extended. It was a matter of particular concern that no indication was given in the evidence of Mrs Andreou either as to when the medical evidence which she required from the consultant would be available, nor as to when it might be that this case could come on for trial.”[40]In her observations Lady Justice Arden added some remarks which have a bearing on the present case: “Where a party seeks an adjournment on the basis of stress or anxiety, he should expect to produce details of the symptoms, the causes, severity, and so on, or to explain why those details cannot be supplied to the tribunal. When a party applies for an adjournment he must bear in mind the need for complaints to employment tribunals in these sorts of matters to be heard promptly, the need to consider the interest of other parties to the proceedings and the need to avoid unnecessary waste of tribunal time and scarce resources.”[41]Rule 3 of the Procedure Rules 2024 is also an important consideration: Case Number: 2501278/2024 9 3 Overriding objective(1) The overriding objective of these rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with the 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 is 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) cooperate generally with each other and with the tribunal.[42]For completeness, the Presidential Guidance dated 4 December 2013 provides the following guidance on the postponement of hearings (paragraph 7 and example 1): “Set out below are some specific examples of additional information that would be of assistance depending on the nature and the basis upon which the application for postponement is made. When a party or witness is unable for medical reasons to attend a hearing. All medical certificates and supporting medical evidence should be provided in addition to an explanation of the nature of the health condition concerned. Where medical evidence is supplied it should include a statement from the medical practitioner that in their opinion the applicant is unfit to attend the hearing, the prognosis of the condition and an indication of when that state of affairs may cease.”[43]The added emphasis draws attention to the concerns the Tribunal had in mind when reaching this decision.
Conclusions
[44]After careful consideration of all the available information, and the legal guidance summarised above, the Tribunal was satisfied that it should exercise its power under Rule 47 by dismissing the claims. Case Number: 2501278/2024 10[45]The claimant's absence was not unexplained, as he made his position very clear in this morning’s email. In all the preceding correspondence relating to postponements, the claimant's strong emphasis was on the importance of this hearing not proceeding until the EAT has determined his appeal. That is generally not a sufficient reason for postponing a hearing in the Employment Tribunal, and it is certainly not automatic.[46]The more recent emails referring to his medical fitness remain focussed mainly on the appeal, with the recent assault being an additional – rather than predominant – reason for postponing. That this is the case is apparent from the fact that the claimant has at no time provided the Tribunal or the respondent with any medical evidence in support of his contention that he is medically unfit to attend. Although he has copied in the Newcastle Tribunal to all the correspondence with the EAT, and mentioned the “A&E note” dated 8 September and “Police CRN”, neither of these documents was attached to the copy emails. The “A&E note” would appear to show that the claimant attended hospital on that date, but it would not amount to evidence about his fitness to attend this hearing. Dr Hammell may well have advised the claimant to “start an immediate period of recovery away from work, computers in general or anything related owing to head injury and associated symptoms”, but that is insufficient to explain the claimant's absence today. The hearing was listed in person, using paper documents. All the witness statements and a paper bundle were ready. if the claimant has been absent from work (which he has not said), then he has had a period of rest and recuperation to help him prepare to attend today. In any event, being advised to take time away from work is not the same as being advised he is medically unfit to participate in the hearing of his claims.[47]The Tribunal considered whether to request the missing medical evidence from the claimant but concluded that such a request would serve no purpose. The claimant told the EAT on 9 September that the two documents mentioned above could be provided immediately. The respondent’s solicitor requested medical evidence on 10 September, and the following day Joint Acting REJ Davies made it plain to the claimant that any further postponement application must be supported by medical evidence. None has been provided, nor is there any explanation for its absence.[48]Despite the clear terms of REJ Davies’ letter of 11 September, the claimant did not renew his postponement application to this Tribunal. Indeed, he expressly stated that his email at 8am this morning was not an application.[49]The Tribunal concludes that the claimant chose not to attend this hearing and that the principal reason for this is that he wishes the EAT and only the EAT to adjudicate his claims for the time being. A claimant who makes successive unsuccessful postponement applications cannot simply take matters into his own hands, by not attending the hearing and by ignoring the Tribunal's clear directions and the Presidential Guidance on the provision of medical evidence. Non-attendance at the final hearing of his own claims carries a risk of consequences, one of which is the dismissal of the claims under Rule 47.[50]Other factors the Tribunal has taken into account are the expense and potential delays involved in postponing the final hearing to another day. There is clear prejudice to the respondent, which has been put to additional expense by arranging for its Case Number: 2501278/2024 11 witnesses to attend today, one of whom travelled from London. The public expense of dealing with claims is significant, and the Tribunal's resources are under great pressure. Considerable time and cost has already been expended in dealing with the claimant's detailed and repetitive applications, of which there have been seven in the last four weeks. The claims, if successful, have limited financial value as they relate only to the question of the claimant's entitlement to the balance of his notice period.[51]One option available to the Tribunal under Rule 47 was to hear the case in the claimant's absence. This was considered but rejected. This was partly because of the wider circumstances and partly because the claimant bears the burden of proof in relation to these claims. It was neither desirable nor practicable to hear his arguments or evaluate his evidence based only on the papers.[52]The onus was on the claimant to prove, with evidence, why the hearing should not go ahead today. Even without a doctor’s opinion, he made no effort to provide any information about the seriousness of the assault or its impact on his fitness to attend. His emails contained no description of his symptoms nor any explanation as to specific obstacles preventing him from taking part in the hearing – not even to apply to postpone. Instead the Tribunal was provided with a bare statement that he was unfit. The claimant said nothing about how long it may take for him to recover to attend on another occasion. Delaying the hearing to an unknown future date, would add to the prejudice to the respondent, which is entitled to have the case heard within a reasonable period of time and without duplication of costs.[53]In the overall circumstances, the Tribunal infers that even with the benefit of time to recover, the claimant would still not be prepared to attend this hearing, given the intransigent stance he has adopted in respect of the pending appeal. His expectation that his appeal should prevent the hearing of his other claims is not a reasonable one.[54]All claimants are entitled to have a fair hearing of their claims, and this claimant was offered that opportunity but he chose not to attend. Taking account of the overriding objective to deal with matters fairly and justly, I am satisfied that dismissal of the claims is appropriate in this case.[55]Finally, the respondent's solicitor indicated that it intends to apply for costs arising from this decision. The procedure for any such application is set out in Rule 75 and may be made up to 28 days after the judgment is sent to the parties. If that is pursued, the respondent proposes to provide full written details to the claimant. SE Langridge Employment Judge Langridge