Regional Employment Judge FoxwellNo appearance for claimantMs Proteasa (instructed by Solicitor) for respondentDate 3 June 2025
JUDGMENT
[1]The claim is struck out.[2]The hearing listed to commence on 16 June 2025 is vacated.
REASONS
[1]The claimant, Mr XY, presented claims of race discrimination, victimisation and breach of contract against the respondent, the London Borough of Brent, on 12 April 2023. The claim was defended and it came before Employment Judge Dick on 22 September 2022 for case management. Judge Dick made orders for the claimant to serve a schedule of loss and for the parties to disclose documents, agree a bundle (file of relevant documents for the Tribunal), and exchange witness statements (the case management orders). This preparatory work was to be done by 29 January 2024. Judge Dick also listed a final hearing with a time estimate of seven days commencing on 16 June 2025.[2]On 7 and 15 May 2025 the respondent applied for the claim to be struck out and the final hearing vacated on the basis that the claimant had not complied with the case management orders and was not actively pursuing his claim. Notice of a hearing to decide this application was sent to the parties on 21 May 2025 and a CVP link was sent to them by email on 2 June 2025.[3]The application has come before me today for hearing. The claimant has not attended nor contacted the tribunal to explain his non-attendance. The respondent has been represented by Ms Proteasa, the respondent’s in-house solicitor. I delayed the start time of the hearing in case the claimant was experiencing connection problems but considered it to be in the interests of justice to proceed in his absence given the imminent seven day final hearing. I am satisfied that the claimant has been given a reasonable opportunity to make representations. Accordingly, I heard submissions from Ms Proteasa only. I also considered the documents she took me to in a 75 page bundle. References to page numbers in these reasons relate to this bundle. The legal framework[4]Rule 38(1) of the Employment Tribunal Procedure Rules 2024 (the Rules) says as follows: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that 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;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).[5]Ms Proteasa said that the respondent relies on limbs (c) and (d) of this rule and referred me to the relevant test set out by the Employment Appeal Tribunal in Weir Valves and Controls (UK) Limited v Armitage [2004] ICR 371. The questions for the Tribunal are:a. The magnitude of the non-compliance;b. Whether this was because of a party or their representative;c. What disruption, unfairness or prejudice has been caused;d. Whether a fair hearing would still be possible;e. Whether some lesser remedy than striking out would be an appropriate response to the defaulting party’s disobedience.[6]These principles are subject to the overriding objective in Rule 3 to deal with cases fairly and justly; central to this is proportionality, so the Tribunal must always have regard to whether the serious sanction of strike out is proportionate to a party’s default and whether a fair trial on the merits might still be possible. Evidence of non-compliance[7]Ms Proteasa submitted that the claimant had not provided disclosure, engaged with the respondent in preparing the trial bundle or agreed a date for exchange of witness statements. She could not say whether the claimant had complied with the order to provide a schedule of loss.[8]The documentary evidence showed that on 23 July 2024 the respondent contacted the Tribunal saying, among other things, that the claimant had not disclosed his documents (page 56). It is clear from this email that there had been some correspondence between the parties regarding disclosure and I note that in April 2024 the claimant emailed a list of documents to the respondent (page 57). On 23 October 2024 the respondent contacted the Tribunal again to say that it was still yet to receive the claimant’s disclosure documents (page 60) and it wrote similarly on 12 December 2024 (page 63). On each of these occasions the email was copied to the claimant as required under the Rules. On 11 February 2025 the respondent contacted the claimant again about disclosure, warning that it would pursue an application to strike the claim out if there was no response (page 67). A chasing email was sent on 22 April 2025 (page 69). There was no response to either. Finally, the respondent applied for strike out by emails to the Tribunal dated 7 and 15 May 2025 both copied to the claimant.[9]I am satisfied based on this evidence that the claimant has not complied with the orders for disclosure (at least, not fully), preparation of a bundle, or exchange of witness statements. I am also satisfied that he is not actively pursuing his claim. I regard this as a serious default now that we are so close to the final hearing date.[10]The claimant is a litigant in person and is therefore responsible for complying with the orders of the Tribunal himself: there is no question of the delay being the fault of an advisor.[11]This case is presently not ready for final hearing and I do not consider that there is any realistic prospect of the claimant engaging to comply with the outstanding orders to preserve the current hearing dates as this would require intense activity by him in the next few days. The only option short of strike out therefore would be to postpone and relist the hearing; there is insufficient time for an unless order to be effective. I have considered whether postponement and relisting, perhaps with unless orders, would be a proportionate response having regard to the disruption, unfairness and prejudice it would cause. I have decided that it is not proportionate for the following reasons:a. There is a history of non-engagement by the claimant with preparations for this hearing for over a year;b. There is no evidence before me to suggest that he is likely to engage with this were the case to be postponed and relisted;c. A postponement will result in further cost and delay for the respondent and its witnesses for a claim relating to events prior to April 2023.[12]In short, I am satisfied that the prejudice to the respondent in refusing the order they seek far outweighs that to the claimant who in my judgment has not actively pursued his claim. Accordingly, the claim is struck out for non-compliance with the Tribunal’s orders and because it is not actively pursued. The hearing listed to commence on 16 June 2025 is vacated. Approved by: