Mrs S Alleyne v Miajac Ltd (T/a Zappas): 3303300/2019
JUDGMENT
[1]The correct name of the respondent is Miajic Limited (trading as Zappas).[2]The claim is dismissed.REASONS
[1]In a claim form presented on the 24 January 2019 the claimant made a claim, complaining of unfair dismissal, notice pay and holiday pay.[2]The claimant’s employment commenced on 1 September 1989 and came to an end on the 27 July 2018.[3]The primary limitation period for the claimant’s claims was 26 October 2018. On the 25 October 2018 the claimant approached ACAS about early conciliation. The claimant was issued with an early conciliation certificate on the 25 November 2018. The time for presenting the claim was therefore extended to the 25 December 2018.[4]The respondent presented a response to the claim on the 28 February 2019, denying the complaints and contending that the employment tribunal did not have jurisdiction to consider the claimant. The respondent also clarified that the correct name of the respondent was Miajac Limited (trading as Zappas).[5]A notice of preliminary hearing was sent to the parties on the 19 May 2019 giving them notice of listing of the preliminary hearing to consider whether the employment tribunal has jurisdiction to consider the claim. (J) Page 1 of 3[6]On Friday 27 September 2019 employment tribunal staff made attempt to contact the claimant about the hearing listed to take place on Monday, 30 September 2019. There was no answer on the telephone number provided by the claimant. The employment tribunal staff sent an email to the claimant reminding the claimant of the preliminary hearing listed to take at 10 am on Monday, 30 September 2019.[7]At about 3.31pm on the 27 September 2019 a telephone call was received from a person who identified herself as a friend of the claimant and stated that the claimant was due to go into hospital on Saturday, 28 September 2019 for “a planned C-section”, she further stated that she would scan and email evidence of this to the employment tribunal. There was no specific request for a postponement of the preliminary hearing.[8]The promised evidence has not been provided.[9]There has been no previous application for a postponement made by the claimant. I note that the claimant’s friend stated that the claimant was going into hospital for “a planned C-section”. I am satisfied that the claimant could therefore have notified the employment tribunal of this prior to 3.31pm on 27 September 2019 had she been seeking a postponement.[10]I take into account that the purpose of the preliminary hearing was to consider the question of jurisdiction having regard to the time limits for the presentation of the complaints and note that the claimant’s claims all appear to be presented out of time. I note that the claimant has not put forward a basis from which it might be possible to conclude that the claims although appearing to be out of time in fact are in time, or that if out of time, it was not reasonably practicable to present the claims within time and they were presented within a reasonable period so that there is jurisdiction for the employment tribunal to consider the complaints.[11]Rule 47 of the Employment Tribunals Rules of Procedure 2013 provides that: “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.” Rule 37 (1)(b) provides that an employment tribunal may strike out a claim where the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; and that Rule 37(1)(d) provides that proceedings may be struck out where the claim is not being actively pursued.[12]I am satisfied that the claimant has had notice of the preliminary hearing to consider the issue of jurisdiction and has not attended the hearing. The conduct of the proceedings has been unreasonable in that the claimant has failed to make an application for a postponement of the preliminary hearing once she knew that she was not going to the able to attend the hearing. The manner in which the claimant’s friend informed the (J) Page 2 of 3 employment tribunal that the claimant was not going to attend failed to make it clear that she was a seeking a postponement (although it may be implied) and further failed to follow through the promise to provide evidence.[13]To the extent that the claimant’s friend was a seeking a postponement I refuse such an application. The claimant has failed to provide the medical evidence to support the position. The claimant’s friend has failed to provide the information she promised. There is no indication when the claimant would be available for any postponed hearing.[14]I therefore dismiss the claim.