Mr A Borsellino v GXO logistics UK Ltd: 3310752/2024

EMPLOYMENT TRIBUNALS

Case No 3310752/2024

Between

Mr A BorsellinoClaimant

GXO logistics UK LimitedRespondent

Before

Employment Judge Codd

Not represented for claimant

Date 24 July 2025

JUDGMENT

[1]The claim is struck out under Employment Tribunal Rule 38(1)(c) and 38(1)(d) because the claimant has not complied with the Tribunal Rules or a Tribunal order and because it has not been actively pursued.

REASONS

[1]The claimant was employed as a warehouse operative and forklift truck driver for the respondent. He was employed between the 19th of August 2013 until his dismissal for misconduct on the 2nd of April 2024. The claimant engaged in early conciliation between the 21st of June 2024 and the 2nd of August 2024. His ET1 claim was issued on the 26th of September 2024.

[2]The claimant brings a claim of unfair dismissal and has provided a very limited explanation for this claim. He has also ticked the relevant box in his claim to indicate he relies on a whistleblowing claim, (presumably a S43B Employment Rights Act 1996 claim), but he has not explained any particulars about this claim in his form.

[3]The respondent issued its response in time and sought the matter to be listed for a preliminary hearing, to consider strike out. It argued both that there were insufficient particulars of claim and that the claim was out of time.

[4]Having considered the response, the Tribunal listed today’s hearing to determine whether the claim was in time and whether the Tribunal had jurisdiction to hear the claim. It also issued a series of case management orders to the claimant which required compliance by the 28th of February 2025. The claimant has not complied with those directions and has not communicated with the Tribunal in any way, following the issue of his claim.

Hearing

[5]The respondent joined the hearing promptly. The claimant did not attend. Mr Sands confirmed that he had not received any communication from the claimant.

[6]I asked for an email to be sent to the claimant requesting he join the hearing by 10.15am. The Tribunal does not hold a telephone number for the claimant.

[7]The claimant failed to attend and I heard brief submissions from Mr Sands, who invited me to strike out the claim on the basis of the non compliance and failure to pursue the claim. His submissions were brief and self evident from the pleadings.

Legal Principles

[8]The relevant rules in respect of strike out are contained in Rule 38 of the Employment Tribunal Rules of Procedure: 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;

(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).

[9]As an alternative to strike out, in the case of non-compliance, I can also make an unless order under Rule 39.

[10]The standard of proof is the balance of probabilities. Analysis and Findings

[11]The claimant has not complied with the orders of the Tribunal. He has not attended the hearing or participated in the proceedings in any way. His claim form is deficient in that it is not in a form that can sensibly be responded to.

[12]Accordingly the onus was on the claimant to produce further material to explain his claim and why it should continue. He had a burden to explain why he felt the Tribunal had the jurisdiction to hear his claim. In short he had a good opportunity to salvage his claim and he has not taken that opportunity.

[13]Even with that non-compliance, he has not attended today’s hearing. There is no explanation as to why not. He has missed two opportunities to explain his case to the Tribunal.

[14]Although not an Employment law decision, the decision in Barton V Wright Hassall LLP

[2018] UKSC 12

, sets out the Supreme Court’s view with regard to the need for litigants in person to fully comply with the rules and orders of the court and that they should not be afforded special treatment, on account of their lack of representation.

[15]Although the Employment Tribunal is perhaps a more flexible Tribunal than those bound by the civil procedure rules, in my finding nothing within Rule 3 of the Tribunal Rules of Procedure 2024 (which sets out the overriding objective) is inconsistent with the position in Barton V Wright Hassall. Flexibility and avoiding formality are adjustments to the process, they are not a justification for a different standard or treatment.

[16]Whilst there has been some encouragement of late that the Employment Tribunal should consider issuing an unless order, where there has been issues of non-compliance, such an approach does not constrain the Tribunal’s power to strike out a claim. This is particularly the case where strike out is a furtherance of the overriding objective.

[17]I find that this is the case, with regard to the claimant. He has not complied with two essential requirements upon him and no explanation has been provided. He has not attended the hearing. Were I to make an unless order, I have no confidence that it would be complied with, and it would simply add to the administrative burden of the Tribunal and the costs to the respondent. Application of the law to the facts

[18]I consider the only realistic option in the circumstances and facts of the case, is to strike the claim out as the claimant has not complied with the directions of the Tribunal and he is clearly not pursuing his claim. The circumstances described in Rule 38 are made out and I have no evidence before me to suggest that the claimant would comply if given a further opportunity.

[19]The claim is struck out.

[20]It is of course open to the claimant to apply for a reconsideration of this decision (under Rule 69), however, to do so he would need to justify why he has not attended or complied with directions.

[21]That is my Judgment