Ms A Singh v Slough Borough Council: 3302821/2022
JUDGMENT
The claimant’s claim is dismissed.REASONS
[1]This was the final hearing (by video) listed by the Tribunal on 19 June 2022 to decide the claimant’s claim for unfair dismissal. The claim was listed to be heard over 2 days, starting at 10am on 27 April 2023.[2]On 26 April 2023, at 17:26 the claimant’s representative emailed the Tribunal as follows: HEARING 27 & 28 April 2023 - Case No: 3302821/2022 - Singh v Slough BC Good evening Consocia & Watford ET court, it is with deep regret my client has decided not to proceed ahead with the hearing tomorrow. So please cancel the said proceedings for the next two days. There will be no need to send the link for the hearing. Apologies for any inconveniences this may have caused anyone. Kind regards Narinder[3]This email was passed to me at 9:27am on the first day of the hearing. I instructed the clerk to write to the claimant and her representative as follows: Reference your email of yesterday, 26 April 2023 at 5:26pm, you should join the hearing at 10am. If you wish to withdraw your claim you will need to confirm that to the Judge at the hearing. If you do not join the hearing, the hearing may proceed in your absence, your claim may be dismissed and you may be ordered to pay the respondent’s costs.[4]At 10am neither the claimant nor her representative joined the hearing. The respondent’s representatives and witnesses joined the hearing. The clerk confirmed that she had written to the claimant and her representative, as instructed, marking the email as “high importance”. She also telephoned both of them, but neither answered the phone. The clerk left voice messages repeating my instructions.[5]I decided to delay the start of the hearing until 10:30am to give the claimant and/or her representative more time to join the hearing. I asked the clerk to inform the respondent’s attendees about the delayed start.[6]At 10:30am, I opened the hearing. Neither the claimant nor her representative joined the hearing. I asked the respondent’s representative if the respondent had received any communication from the claimant concerning the hearing today. Mr Amunwa said that the respondent had not received anything from the claimant or her representative, except a copy of the email of 26 April 2023 the claimant’s representative had sent to the Tribunal.[7]As can be seen from the content of that email, it was not clear whether the claimant wished to withdraw her claim or was asking for a postponement of the hearing. The clerk said that when she had spoken with the claimant’s representative around 9:40am he had told her that the claimant wished to proceed with her claim.[8]I instructed the clerk to call the claimant and her representative again and tell them to join the hearing immediately and warn them again that if they did not join the hearing, it would proceed in their absence, the claimant’s claim would likely to be dismissed, and she may be ordered to pay the respondent’s costs for attending the hearing.[9]At 10:38am, the clerk was able to get through to the claimant. The clerk passed that information to the claimant. The claimant told the clerk that she would speak with her representative and ask him to join the hearing as soon as possible.[10]I waited until 10:45am. Neither the claimant nor her representative joined the hearing.[11]I asked the clerk to call them again and tell them to join the hearing immediately and warn them that the claimant case would likely to be dismissed if they did not attend the hearing, and the claimant might be ordered to pay the respondent’s costs. The clerk tried to call them, but neither of them answered the phone. The clerk left voice messages.[12]I started the hearing at 10:50am. Neither the claimant nor her representative joined the hearing.[13]I asked Mr Amunwa for the respondent’s representations on how to proceed in the circumstances. Mr Amunwa said that there were no grounds for postponing the hearing. He said that the Tribunal could either dismiss the claim outright or proceed to determine the claim on its merits by the respondent calling its witnesses and making them swear their evidence.[14]First, I considered whether there were grounds for postponing the hearing. The claimant’s representative email of 26 April was ambiguous as to whether the claimant wished to withdraw her claim or sought a postponement of the hearing. Although the claimant’s representative told the clerk on the phone that the claimant wished to continue with her claim, there was no proper application for a postponement made. Neither in his email nor in the telephone conversation with the clerk did the claimant’s representative explain why he and the claimant were unable to attend the hearing today, and on what grounds they sought the hearing to be postponed.[15]Accordingly, in the absence of any such information, there were no proper grounds upon which I could reasonably decide that it would be in the interests of justice to postpone the hearing. The respondent’s representative and all its witnesses were in attendance, all witness statements (including the claimant’s) and the hearing bundle were available. The claim was ready to be heard.[16]I then considered whether the claimant’s claim should proceed to be heard on its merits without the claimant and her representative in attendance. I decided against that.[17]The reason for the claimant’s dismissal, namely related to conduct, was not in dispute. The critical issue in the claim was whether in the circumstances the respondent acted reasonably or unreasonably in dismissing the claimant for that reason. The burden of proof on the issue of reasonableness is neutral. Accordingly, if the claimant was not present to give her evidence, and the claimant and/or her representative were not present to cross-examine the respondents’ witnesses, proceeding to hear and decide the claim on its merits was meaningless. This would have meant simply going through the motions of swearing in the respondent’s witnesses, accepting their uncontested evidence, and not having the claimant’s evidence to the contrary. That would have led to the inevitable result of the claimant’s claim being dismissed.[18]Accordingly, I decided that in the circumstances it was just and proper to exercise my powers under Rule 471 of the Employment Tribunals Rules of Procedure 2013 (“the ET Rules”) and dismiss the claimant’s claim for failure to attend the hearing. I was satisfied that all practicable enquiries about the reason for the claimant’s absence had been made, and based on the information available to me this course of action was in accordance with the overriding objective.[19]Accordingly, I ruled that the claimant’s claim must be dismissed.[20]At the end of the hearing Mr Amunwa said that the respondent was considering whether to make a costs order application. I reminded that under Rule 77 of the ET Rules, such an application can be made at any stage up to 28 days after the date on which the judgment was sent to the parties. It was agreed that if a costs order application were made it should be marked for my attention.[21]The application (if made) will be determined on paper, unless the Tribunal decides that it will be necessary in the interests of justice to consider it at a hearing. If the claimant wishes to make any representations on the respondent’s application (if made), including as to her ability to pay, she must write to the Tribunal and the respondent within 14 days of the date of the respondent’s application. The claimant’s attention is drawn to Rules 74-78 and 84 of the ET Rules.