S Virgo v Lets Deel Ltd and others: 3308211/2023
JUDGMENT
[1]The Claimant failed to comply with the Unless Order of 6 March 2024. Accordingly, the Claimant’s claims against the Second, Third and Fourth Respondents are struck out.REASONS
[1]The claimant was ordered to pay two deposits of £100.00 each, following a preliminary hearing held on 25 July 2024. The Order was sent to the claimant on 18 September 2024.[2]The claimant has failed to pay this deposit (by 16 September, or at all).[3]The complaints mentioned in the judgment are therefore struck out under (what was previously rule 39(4) of the Employment Tribunals Rules of Procedure 2013, but is now) Rule 40(4) of the Employment Tribunals Rules of Procedure 2024. Approved by: Employment Judge QUILL Date: 26 March 2025[4]A clerk attempted to phone him at 10am. On the first occasion, the call went unanswered. It rang out, but there was no reply, and it did not go to voicemail.[5]An email was sent (at 10.08am) telling him the hearing was starting, but there was no reply.[6]I had a brief discussion with the Respondent's representative at 10am, who informed me that her client had had no further contact from the Claimant since he submitted his email on 26 May.[7]We adjourned from 10.08am to 10.25am. During that time, the Claimant did Case No: 3308211/2023 Page 2 of 3 not enter the video lobby for the hearing.[8]During that time, the clerk made two further attempts to contact the Claimant by phone. The automated message now said that the phone was switched off. That message does not necessarily demonstrate that it was turned off by deliberate human intervention, rather than because the battery had ran out. However, it did render any further efforts to contact the Claimant by phone futile.[9]I am satisfied that the Claimant knew about the hearing. The circumstances in which the hearing started, but did not finish, on 26 March 2025 are as set out in my summary and orders from that occasion, and I do not need to repeat all of that information here. I will say that when we resumed at 10.45am that day and I said I was postponing, but ordering the Claimant to provide proof of what he had written to the clerk during the break, the Respondent asked me to make that an Unless Order. Part of my reason for declining to do so was that the Claimant’s email seemed to accept that he would be required to supply proof, and, in any event, it expressly said “I will submit evidence of the emergency as soon as possible.”[10]The Claimant has never supplied that evidence, even to the Tribunal alone (that is, without copying in the Respondent). The order was that he supply the evidence to the Tribunal and the Respondent by 16 April, and that order was sent to the parties on 26 March 2025.[11]The Claimant did not respond to the order at all until after the Respondent had written (on 29 April) drawing attention to his failure to comply, and even then, he replied by seeking a variation, rather than by complying.[12]The Tribunal’s 17 June letter said that the correspondence would be discussed at today’s hearing. I do not understand the Claimant’s assertion that he could not comply with his own suggested variation to the order (to send the information to the Tribunal, not the Respondent) until after the Tribunal had decided whether to grant the variation “(simply in case I am out of pocket)”. On the face of it, the cost to him would be identical whether(i) he emailed the evidence to the Tribunal and the Respondent at the same time, as had been ordered or(ii) he emailed the evidence to the Tribunal only (his suggested variation) or(iii) he emailed the evidence to the Tribunal and then, later, if his application was refused, to the Respondent. This is a matter he would have been able to comment on if he was here. However, the order made on 26 March 2025 has not been varied. He was required to supply the evidence by 16 April, and has not done so.[13]In those circumstances, I have formed no view about whether the Claimant does have any evidence of his reasons for leaving the hearing on 26 March, or about what conclusions might be drawn from such evidence, if any.[14]On resumption at 10.25am, the Respondent's representative invited me to dismiss, and I do so. I am satisfied that the Claimant has been aware of this hearing date since 26 March 2025, and has been reminded of it recently, by the Respondent’s correspondence to him, by the Tribunal’s 17 June letter, Case No: 3308211/2023 Page 3 of 3 and by the link being sent last Friday. His own 26 May email confirmed he had received the orders and had (by that date, at least) now read them.[15]A postponement is not appropriate as there is insufficient reason to think that the Claimant would attend the resumed hearing in circumstances in which he has had ample opportunity to request postponement and/or explain his nonattendance on this occasion, and has not done so. I acknowledge that his 26 May email implied an intention to participate in this hearing, but the fact is that he has not turned up to it. A second d adjournment, would not be fair to the Respondent who was ready and able to proceed today, as it was on 26 March 2025.[16]I was not invited to conduct the hearing in the Claimant’s absence, and my decision is that it would have been pointless to try to do so given the matters which required the Claimant’s input.[17]I have taken into account that dismissal under Rule 47 brings the claim to an end on procedural grounds, without a full hearing of the merits. However, having taken all the circumstances into account, my decision is that such a dismissal is appropriate.