A Halili v Kwik Fit (GB) Ltd: 3307833/2023
JUDGMENT
[1]The claim is struck out under Employment Tribunal Rules 37(1)(b) and (d) because the manner in which the proceedings have been conducted by the claimant are unreasonable and because the claim has not been actively pursued.REASONS
[1]The claim was listed to be heard on 18 and 19 July 2024. In advance of the hearing the respondent sought a strike out of the claim as no witness statement had been filed and there was a history of the claimant’s then lay representative, and the claimant, failing to respond to communications. At the commencement of the hearing the claimant sought a postponement. The postponement was granted by EJ Manley who ordered the claimant to file a witness statement. Mr Flood said the judge explained clearly to the claimant at the hearing that he must file a witness statement.[2]At the commencement of the hearing this morning the claimant agreed that he had not filed a witness statement and said that he had been in discussion with the respondent since June about withdrawing the claim. He said he was unwell and had no representation. The tribunal adjourned for twenty minutes to give the parties the opportunity to discuss this matter.[3]The claimant’s connection had been very poor from his arrival at the hearing. When the hearing reconvened, he was not in attendance. Mr Flood said that they had tried to talk but the claimant had lost connection. He had called the claimant on the number provided by the claimant, but the phone did not ring. The clerk to the tribunal confirmed that when he had tried to call the claimant earlier on the number provided there was no dial tone.[4]The tribunal adjourned until midday, sending an email to the claimant telling him that he should be available to receive a call or an email from the respondent’s solicitor and ordering him to attend the hearing at that time. The tribunal and respondent reconvened at midday, but the claimant did not attend. Mr Flood said that contact from the claimant was required to progress matters outside of the hearing.[5]The tribunal adjourned again until 2pm, sending an email to the claimant telling him that if he did not attend the hearing at 2pm or explain why he could not, the tribunal would hear submissions from the respondent on the disposal of the claim and the outcome could be that his claim was dismissed.[6]The tribunal reconvened at 2pm. The claimant did not attend. He did not contact either the respondent or the tribunal during the adjournment. Mr Flood requested that the claim be struck out. He said that it was the respondent’s view that the criteria for strike out were met in relation to reasons (a) to (d) of Rule 37 (1) of Schedule 1 to the ETs(Constitution and Rules of Procedure) Regulations 2013 and made submissions on each point.[7]After deliberation the tribunal decided that the claim should be struck out for the following reasons:[1]The manner in which the proceedings had been conducted was unreasonable. The claimant had failed to file a witness statement on two occasions despite there being two case management hearings at which orders were made for the filing of such a statement. The tribunal is in no doubt that a clear explanation of the need to file a statement would have been provided to the claimant at each of those hearings. He provided no reasons for not filing a statement and failed to respond to the respondent’s communications about the claim on many occasions, leading it to seek a strike out in June 2024. He has failed to attend the hearing today (after his first brief appearance) and has failed to provide an explanation for his absence. Even where his internet connection is poor so that an online hearing is difficult, the tribunal is not aware of any reason why he could not make contact by email or telephone either with the tribunal if he wished to continue the case or the respondent if he did not. The number he provided today at the tribunal’s request does not appear to be working.[2]The claim has not been actively pursued. While the claimant appeared at 10am, the hearing was listed for two days and the claimant did not return after the first short adjournment. He offered no explanation for his absence.