Mr M Salami v Barclays Bank UK plc: 3200458/2024
JUDGMENT
The judgment of the Tribunal is that:- The Claimant’s claim is dismissed for non-attendance under Rule 47 of the Employment Tribunal Procedure Rules 2024.REASONS
[1]The Claimant has not attended this Final Hearing. His application for postponement has been refused for the reasons already given orally. In these circumstances, the Tribunal must decide how to proceed applying Rule 47 of the Employment Tribunal Procedure Rules 2024. Non-attendance 47. 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.[2]The most likely reason for the Claimant’s non-attendance at today’s hearing is that the Claimant is currently working in a new role and did not want to interrupt his training probation period to attend a three-day Tribunal hearing. This is the obvious inference from the wording of the Claimant’s postponement application. Attempts were made by the Tribunal clerk to contact the Claimant by telephoning the number provided by the Claimant on his Claim Form. There was no response despite the number being called on three occasions and a voice message being left. There was a delay to the start of the Final Hearing to allow the Claimant to attend. The proceedings lasted from 10.15am to around 12pm and there was no attendance from the Claimant or any call or further email communication.[3]The Respondent’s position is that the Tribunal should dismiss the claim, rather than conduct the Final Hearing in the Claimant’s absence. Mr Watson, counsel for the Respondent, has directed the Tribunal to the details of the complaints in paragraph 8.2 of the Claim Form, which is worded in general terms and to the list of issues set out by Employment Judge Massarella at the Preliminary Hearing on 5 August 2024. There were ten discrete allegations that the Claimant was making of both race and sex discrimination. In respect of four of them Employment Judge Massarella ordered that the Claimant provided further and better particulars by 26 August 2024. Two of them have since been clarified by the Respondent, concerning the dates of emails. But two remain unclear. These are: 1.2.2 [NAME – DATE – HOW] pressurised the Claimant in the lead up to the disciplinary hearing. 1.2.4 During the meeting Ms Aslam repeated other questions [C TO IDENTIFY WHAT QUESTIONS][4]They have not been clarified subsequently as required by Employment Judge Massarella’s subsequent order dated 4 September 2024, requiring that this be done by 11 September 2024, nor any reason has been given for this failure to comply with this order. In refusing the Respondent’s subsequent application for an unless order, EJ Massarella stated: “The Respondent’s application for an unless order is refused. An unless order is only likely to give rise to further procedural complexity. If the Claimant has not provided the information ordered, those claims are unlikely to succeed at the final hearing. The burden is on him to prove the basic facts of each of his allegations. The Respondent should do its best to deal with the allegations on the limited information provided thus far. If it is unable to do so, it should explain why in its witness statements. The Tribunal will take into account any prejudice it has suffered because of the Claimant’s failure to comply with the order for further information.”[5]The Claimant’s allegations have not been clarified in the Claimant’s witness statement. That is a very brief document which does not provide any factual material in support of the matters set out in the Claim Form and in the issues as identified by Employment Judge Massarella. As a result, not every issue to be determined at this Final Hearing is currently clear, despite repeated attempts to achieve this as ordered by Employment Judge Massarella.[6]Furthermore, Mr Watson has referred me to the very general way in which paragraph 8.2 of the Claim Form has been drafted, and to the subsequent clarification of the particular complaints that the Claimant clarified during the case management hearing. These document, by themselves, do not provide any basis for drawing an inference that the actions of the decision maker, Ms Aslam, were influenced by the Claimant’s race or sex. No further detail is provided in the Claimant’s witness statement, which does not even address each of the complaints in turn. Instead, it appears to state that his “potential witness statement, withdrawn, due to potential implications”. As a result, his witness statement does not even provide hearsay evidence in support of his own case.[7]Applying the overriding objective in the light of the history of these proceedings, the state of the Claimant’s evidence, and all the circumstances, I consider that the appropriate consequence of the Claimant’s absence is to dismiss this claim for nonattendance at this hearing under Rule 47 ET Rules 2024. I agree with the Respondent’s submission that hearing evidence from the Respondent’s two witnesses and making findings of fact would not serve any useful purpose given the lack of detailed evidence capable of supporting any inference of discrimination in what has been put before the Tribunal by the Claimant.