Mr K Hall-Hussain v Wickes Building Supplies Ltd: 3307843/2023
JUDGMENT
[1]The claim is struck out under Rule 37(1)(d) of the Tribunal’s Rules of Procedure as it has not been actively pursued.REASONS
[1]The claimant was employed by the respondent at its building supplies depot in Oxford between 1 November 2022 and 26 June 2023 when he was dismissed with pay in lieu of notice.[2]Having gone through early conciliation via ACAS between 29 June and 3 July 2023, on 10 July 2023 the claimant presented claims of unfair dismissal, for a redundancy payment, unpaid wages and holiday pay, and of race discrimination and discrimination on grounds of religion or belief to the Tribunal.[3]The proceedings were served by the Tribunal on the respondent in the usual way and it filed a response denying the claims.[4]The Tribunal issued case management orders on 10 January 2024 for the provision of a schedule of loss, disclosure of documents, preparation of a file of documents for the final hearing and an exchange of witness statements. The Tribunal also listed a case management hearing which took place on 9 February 2024 before Employment Judge Dick. 1 of 3[5]The claimant attended the Case Management hearing in person and Judge Dick was able to clarify the basis of his claim. The claimant withdrew his complaints of unfair dismissal, for a redundancy payment and for unpaid wages; Judge Dick issued a judgment dismissing these on withdrawal. Judge Dick also issued revised case management orders and listed a final hearing. This was to take place over 4 days starting on 5 September 2024. The new dates for compliance with case management orders were as follows: schedule of loss, 1 March 2024; disclosure, 29 March 2024; file of documents, 19 April 2024; exchange of witness statements, 15 July 2024.[6]On 18 July 2024 the respondent’s representative contacted the Tribunal by email to say that there has been ‘slippage’ in compliance with the Case Management Orders and that the claimant was ‘currently working on a Schedule of Loss’. A request was made for extra time to confirm readiness for the final hearing and this was granted to 16 August 2024.[7]On 19 August 2024, after the additional period for confirming readiness had passed, the respondent’s representatives emailed the Tribunal (copied to the claimant) to say that the claimant had failed to comply with any of the Tribunal’s orders. They requested that the final hearing be vacated as it was not ready to proceed but to be replaced by a 1 day public preliminary hearing to decide whether the claim should be struck out because it was not actively pursued. This application was granted by Employment Judge Cowen but the public preliminary hearing had to be postponed shortly before 5 September 2024 because there was no judge available to hear it. The hearing was relisted and that is what has come before me today.[8]The claimant has not attended this hearing. At my request the clerk contacted the claimant by telephone and was able to speak to him. The clerk informed me that the claimant told him that he was unaware of the hearing as he was ‘locked out’ of his email account but that he wished to withdraw his claim in any event. The clerk said that he informed the claimant that notice of withdrawal would need to be sent to the Tribunal in writing. There was no suggestion that the claimant would attempt to attend today’s hearing.[9]I considered that it was appropriate to proceed in the claimant’s absence. There was nothing on the Tribunal’s file to show that the claimant had informed it that he could not receive email through the address he had given. In fact, there was no correspondence from him on file whatsoever. Notably, he had not attended on 5 September 2024 which suggests either that he did receive the postponement notification from the Tribunal by email or that he had decided not to attend in any event.[10]I considered a helpful skeleton argument prepared by Mr Malik and a bundle of documents prepared for the respondent. This included correspondence between the respondent’s representatives and ACAS in which they ask ACAS to contact the claimant to provide up-to-date contact details. On 17 July 2024, for example, an ACAS officer replied to say that she had been unsuccessful in contacting the claimant despite making several attempts. There are similar examples on 8 and 19 August 2024. I am satisfied that the respondent made reasonable efforts to 2 of 3 make contact with the claimant with a view to preparing this matter for final hearing.[11]I am also satisfied that the claimant has failed to comply with the Case Management Orders made by Judge Dick.[12]In these circumstances I find that this claim has not been actively pursued and that it is proportionate and in the interests of justice to strike it out under Rule 37(1)(d) of the Tribunal’s Rules of Procedure 2013. I find that a fair trial of the issues within a reasonable period is unlikely.