Mr P Remenar v Lemon Groundwork Solutions Ltd: 3201140/2024
JUDGMENT
[1]The claims are struck out under Rule 38(1)(d) because they have not been actively pursued.REASONS
[1]The claimant brought a race discrimination complaint to the Employment Tribunal on 19 January 2024 in relation to a dismissal on 13 October 2023 after a period of ACAS Early Conciliation.[2]On 10 May 2024 parties were sent notice of a Preliminary Hearing. Neither attended. The Respondent has since informed the Tribunal that it did not receive notice. It may well be that the Claimant did not therefore receive it either. The Claimant had not complied with an order sent to the parties on 6 June 2024 to provide a schedule of loss.[3]In order to ensure that the claim was being actively pursued, EJ HowdenEvans ordered the Claimant to inform the Tribunal in writing by 21 August 2024 to ‘confirm whether [he] wished to continue with this claim’ and to explain why he did not attend the hearing.[4]EJ Howden-Evan’s order was sent to the parties on 29 July 2024. It stated in bold, ‘If the Claimant has not confirmed they wish to continue with the claim, the Employment Judge may consider striking out the claim (without further communication with the parties).[5]The Respondent wrote to the Tribunal, copied to the Claimant, on 31 July 2024 explaining their lack of attendance at the hearing and seeking a strike out including on the basis of failure to actively pursue the claims. The Respondent had emailed the Claimant on a number of occasions seeking his schedule of loss (as per the earlier order) and his comments on their draft list of issues but had heard nothing. The Claimant’s Trade union representative had written to the Respondent’s solicitors stating that he was not on the record, hence the Respondent’s communication with the Claimant directly.[6]I have checked the file and all the Tribunal correspondence with the Claimant has been to the email address he provided on his ET1 form, his stated preference being email. Case Number: 3201140/2024[7]The file shows that the Claimant has not communicated with the Tribunal since EJ Howden-Evans’ order.[8]Rule 38 of the Employment Tribunal Rules 2024 provides that on its own initiative or in response to an application a Tribunal may consider striking out a claim including on the basis of a party not active pursuing the claim.[9]The Claimant must be given a reasonable opportunity of making submissions in writing prior to a decision. EJ Howden-Evan’s order it seems to me achieves this: if there has been no confirmation from the Claimant that he wishes actively to pursue the claim then he is informed the Judge may consider striking out the claim. He had ample opportunity to state he was pursuing his claim and explain his non-attendance and equally to object and give his reasons why the claim should not be struck out. Even if I am wrong about that, the Claimant had every opportunity to respond to the Respondent’s application to strike out which was sent to him. The Claimant has had 2 opportunities in writing to respond to the prospect of strike out and has not taken either.[10]The Claimant still has not provided the schedule of loss in breach of the order of 6 June 2024 to do so.[11]We are now 18 months on from the dismissal. The issues in the claim have not even been clarified. The Claimant has done nothing apart from presenting his claim to further his complaint. He has plainly not actively pursued the claim despite a clear order from the Tribunal to confirm whether he was doing so. He has not responded to the polite and useful correspondence by the Respondent’s solicitor.[12]I take into account the overriding objective of dealing with cases fairly and justly. This includes avoiding delay and avoiding expense. I must take into account the public expense: the Tribunal process is free for the users but it costs taxpayers money and the active pursuit of a case is expected of those who wish to bring claims before the Tribunal. I have considered now whether a fair trial is possible: it seems to me the significant delay puts that in question. The complaint is about the reasons for selection for dismissal some 18 months ago. Memories may well have faded. Delay is the enemy of justice. Taking all of those factors into account I have decided to strike out the claim.