Dr S Shah v The Redundancy Payment Service: 3300660/2022
JUDGMENT
The claim is dismissed under rule 47.REASONS
[1]This case was listed by order of my colleague Employment Judge Ord, via an order for postponement by my colleague Employment Judge Alliott, for a preliminary hearing to determine the issue whether the claimant was an employee of Articulate Finance Ltd, an insolvent company for which the claimant was the sole director and shareholder and which employed nobody or, depending on the result of the determination by the Tribunal, nobody but the claimant. If the claimant was an employee, he would be entitled to claim a redundancy payment etc. from the respondent; if he was not an employee he would not be so entitled.[2]The claimant did not attend the hearing today. My clerk tried both the telephone numbers which the Tribunal has for the claimant and was unable to get through.[3]On 29 January 2024, the claimant had emailed the Tribunal to say that that his representative had sadly died, enclosing proof. Unfortunately, despite that, further correspondence from the Tribunal, including the original notice of this hearing, continued to be sent to the late representative’s address rather than to the claimant personally, so it does seem clear, as Mr Soni for the respondent fairly pointed out, that the claimant was initially unaware of the date of today's hearing. In the normal run of things, of course, that might be a good reason for postponing the case, but there is more here.[4]Mr Soni told me the following. On 24 April he emailed the claimant (at the email address which the claimant used on 29 January and which indeed the claimant had provided on the claim form). The email made clear to the claimant that there was to be a hearing today. Mr Soni sent other emails over the course of the week. He received no response.[5]I understand from my clerk that “joining instructions” for this video hearing were sent to the claimant last Friday and this morning.[6]I considered rule 47: Non-attendance 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.[7]In my judgment the appropriate course in this case was to dismiss the claim under rule 47. It was not appropriate to attempt to determine the preliminary issue on the evidence in the claimant’s absence, since the determination would require evidence from the claimant which had not been provided. The other alternative, a postponement, was not in the interests of justice, for the following reasons.[8]I considered that the claimant was or should have been aware of the hearing date. I also took some account of my preliminary view that the claim was, in my judgment, fairly unlikely to succeed, though I stress that this was not determinative. More significant, in my view, was that this is a case that has been going on since early 2022 (in the Tribunal; even earlier than that from the parties’ point of view). This hearing had already been postponed once on account of the claimant being unwell (though clearly he was not at fault for that).[9]I took account of the fact, as Mr Soni fairly told me, that the claimant had, at least until January, been engaged with the case. I noted also that the claimant does appear to have been genuinely and seriously unwell in the past. Although his 29 January email stated that he would be undergoing surgery for leg ulcers and vascular complications "the recovery of which can take several months if [he could] manage to recover", no update since then appears to have been provided to the Tribunal.[10]Ultimately I accepted the submission made on behalf of the respondent that no further delays were appropriate in this case; the parties were entitled to a resolution without further delay. In the absence of good grounds for a postponement, and given that it was also not appropriate to attempt to proceed with the substantive hearing, balancing the factors in paragraph 7 against those in paragraph 8, I considered that it was in the interests of justice to dismiss the claim.[11]Of course, if it turns out that the claimant was unwell, and that there were good reasons both for him(i) not attending the hearing and(ii) not informing the Tribunal in advance about that, then it will be open for him to ask me to reconsider this decision, though this should not be taken as any indication about what the result of any such request would be. Any such request would likely need to be accompanied by evidence as well as an explanation covering (i) and (ii) above.[12]I had indicated at the hearing that, having given oral reasons I would not provide written ones, but on reflection, given the claimant’s absence I thought it better to provide reasons in writing.[1]On 29 April 2024 I issued a judgment with written reasons dismissing the claim under rule 47. This was not sent to the parties until 12 June 2024. I need not repeat the reasons for that decision here.[2]The claimant applied for a reconsideration of that judgment on 26 June 2024 (i.e. the application was within the time limit specified in rule 71). The application was passed to me on 11 July and I dealt with it on 18 July. I directed that the parties should be written to in the following terms and the letter was sent out on 26 July: I have considered the claimant's application for reconsideration dated 26/6/24. In my reasons dated 29/4/2024 I noted that the claimant had been emailed about the hearing on 29/4/24 on several occasions in the week approaching the hearing. He had not contacted the Tribunal since January, when he had explained that his representative had died, enclosing proof, and said that he would be undergoing surgery, the recovery from which could take several months. The application of 26/6/24 had a number of attachments that were before me when I made the original decision and/or which are not relevant to the reasons for the claimant's absence at that last hearing. There are also photos of leg ulcers, which appear to have a December 2023 date in the filename (the hearing was of course some months after that). In the application itself, the claimant says that he did not attend the hearing due to "heavy bleeding painful leg ulcers". He refers to correspondence which was before me in April. Regarding the emails about the hearing, he says he had "no stamina left" to check emails due to his illness and says that he had "already notified that [he] could not check emails daily" (I cannot see any such notification, although his email of 5/1/24 does say "Please provide sufficient time for me to reply"). The claimant essentially appears to take the view that the evidence he provided in January was sufficient, without further contact from him after that, to have meant that the April hearing should not have gone ahead. But that evidence had already been considered by REJ Foxwell when he listed the April hearing. The claimant has not provided any new evidence to support his assertion that he was too unwell to attend the April hearing, though I note his email of 11 July 2024, where he says that he has requested and still awaits further medical evidence. I apply rule 72(1). Given what I have said above, it does not seem to me that the application is particularly likely to succeed, though I would not go so far as to say that the application has no reasonable prospects of success, given that the claimant says he is awaiting further evidence. Accordingly I make the following orders:[1]By 16 August the claimant must send the Tribunal and the respondent any other evidence on which he wishes to rely in support of the application for reconsideration.[2]By 13 August [the person who typed the letter meant to say 6 September](a) The respondent is to respond to the application in writing.(b) The claimant and the respondent should send the Tribunal their views about whether the reconsideration application can be determined without a further hearing.[3]The case was passed back to me on 10 October 2024. Since the Tribunal’s letter of 26 June had been sent, the following correspondence has been received: 3.1. An email from the claimant, dated 1 August. The claimant said that it was “humanly impossible” to get all the evidence by 16 August since he was reliant on various health authorities to send him all the medical evidence in chronological order although he had made requests. He said it could take on average 90 days and sometimes even longer for a response despite many reminders. He requested a further six months to receive collate and send the evidence for reconsideration. He said that his treatment was in continuance since he was not fit at all. He said that putting so much time pressure on him for things that were out of his control “praying on [his] vulnerability” only put him into “additional stressful paranoia”. This he said was “unfair consumer detriment”. He made some further submissions about the merits of his case and concluded with the following remarks: “For this leaning on the side of the RPS and exploiting my vulnerability is a imbalance judgment besides making prejudged remarks that there is no winning chance. Please avoid conflict of interest in all honesty.” The claimant did not include any views on whether the application could be determined without a further hearing. 3.2. An email dated 12 August from the respondent. The respondent was content to have the application determined without a hearing and summarised its position on the merits of the case. The respondent pointed out that the claimant had not provided any evidence beyond his email dated 24 June and submitted that there was no reasonable prospect of the original decision been varied or revoked. 3.3. An email dated 12 August 2024 from the claimant. So far as his health and medical evidence are concerned, the claimant said that he was in continuing treatment awaiting medical evidence. He referred to his request to the “hospital authorities” and meant, I think, to say they were taking their time. Otherwise the email deals with the merits of the claim.[4]I understand that no further correspondence has been received from the claimant.[5]In the circumstances, including the fact that neither party has opposed me doing so, I consider that I have sufficient material to decide the application without a hearing – a hearing is not necessary in the interests of justice. The parties have had ample opportunity to provide evidence and to make written submissions.[6]For the following reasons I decline to allow the claimant further time to provide evidence in support of his application and I refuse the application to reconsider the April judgment.[7]Rule 70 reads as follows: A Tribunal may… reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.[8]Although I have some doubt about whether it is in the interests of justice to reconsider the judgment, I give the claimant the benefit of that doubt. Upon reconsideration I confirm the original decision.[9]It is now almost six months since the hearing that the claimant did not attend. It is over four months since the claimant received my reasons, which made clear that the claimant, if seeking reconsideration, should provide evidence and an explanation relating both to the reasons for him not attending the hearing and for him not informing the Tribunal in advance that he would not be attending. It is almost three months since I made the order for any further evidence from the claimant in support of his application for reconsideration. What medical evidence the claimant has provided relates to January, i.e. four months before the hearing which he did not attend (beyond what the claimant has said as set out above). No further evidence, medical or otherwise, has been received. I consider that the claimant has had long enough to provide some. While it may not have been possible to get everything he might have wanted, that does not explain why nothing has been provided. What the claimant says in his August correspondence does not change the preliminary view I expressed on 29 April.[10]In short there is no significant information before me that was not before me when I made the original decision. Nothing which I have been provided with since suggests to me that the decision was wrong, either on the basis of the information available to me at the time or in hindsight. The parties are entitled to some finality in this litigation. There are no grounds to vary or revoke the decision. I therefore confirm it.