Mr J Reuben and Mrs E Oboyle v Hallett Retain Services Ltd (In Voluntary Liquidation): 3306389/2022 and 3306390/2022
JUDGMENT
All claims are dismissed.REASONS
[1]Following a period of conciliation which lasted between 26 May 2022 and 30 May 2022 the claimant presented a claim form on 30 May 2022. No response was received from the respondent, a company in voluntary liquidation.[2]The claim arises out of the claimants’ employments as, respectively the Head of Trade and Data and the Head of Finance. The length of their employment was, in the case of the first claimant, more than five years and, in the case of the second claimant, more than seven years. Their employment was terminated when the company ceased trading and all staff were dismissed, on the face of it by reason of the closure of the business.[3]The case was originally listed for a final hearing which took place on 22 May 2023 when it was case managed by Employment Judge Alliott. He decided that the claimant should have an opportunity to set out precisely what they were claiming their complaints were. He categorised them as unfair dismissal, redundancy payment/protective award, age discrimination, and sex discrimination/harassment. He also recorded that there was a claim for breach of the equal pay term contrary to s.65 Equality Act 2010. Having read the particulars of claim it appears rather that the first claimant argues that he was paid less than he would have been had he been older and his complaint is of pay discrepancy based on age. It appears that the second claimant argues that she was not promoted and, as a result of not being given a more senior role, was paid less over a long period of time or alternatively that she would have been paid more had she been a man. Neither of those are claims of a breach of the equal pay term which requires there to have been an actual comparator. The claimant would have to argue less favourable treatment in terms of promotion pay relying on hypothetical comparator.[4]Judge Alliott listed the hearing for a two-day final hearing on an unopposed basis on 18 and 19 September 2023 and made case management orders. These included for the claimants to provide the documentation on which they wish to rely by 15 September 2023. On that day the case was postponed because no judge was available to here it, but no documentation had been received by the tribunal from the claimants in any event. A notice of today’s hearing was sent to the correct email address of the first claimant; that was the email address nominated in the claim form on 2 October 2023.[5]The tribunal emailed the first claimant on 4 December 2023 asking for any documentation on which the claimants intended to rely. There was no response. The tribunal has not had correspondence from the claimants since prior to the postponed hearing in September 2023. There was no attendance today and no explanation whether by telephone or by email of that non-attendance. The respondent had replied on 4 December 2023 indicating that they did not intend to be at the hearing or to defend the claim. I caused the clerk to try to telephone the first claimant at the time allocated for the start of the hearing but there was no response.[6]This is a claim in which the claimant are required to prove certain elements before they succeed. It is presumably for this reason that judgement was not entered when the respondent failed to enter a response. The details of their age discrimination sex discrimination and harassment claims in particular require them to provide evidence and they have not attended to do so.[7]When a party fails to attend a hearing rule 47 of the Employment Tribunal’s Rules of Procedure 2013 provide that the tribunal may dismiss the claim or proceed with the hearing in the absence of that party. I have no information available to me about the reasons for the claimant’s’ absence. There has been no communication from the claimant’s since before the postponed hearing in September 2023. There is no evidence before me which would enable me to proceed with the hearing in their absence. Those reasons I decided to dismiss the claimant’s.