Ms S Loredana v Fortel Service Ltd: 3315316/2023
JUDGMENT
[1]The claim is struck out under rule 37(1)(c) & (d) Employment Tribunal Rules of Procedure 2013 for non-compliance with tribunal orders and because the claim has not been actively pursued.REASONS
[1]In this hearing I have had available a hearing file prepared by the respondent of 135 pages. A witness statement had also been prepared for the hearing by Ms Smith-Carter, HR and Payroll manager.[2]Following a period of conciliation between 17 September 2023 and 29 October 2023, the claimant presented a claim form on 28 December 2023. There appears to be one complaint: the claimant complained that she had not been paid for periods of leave. In box 15 of her claim form it appears that the totality of the claim is an allegation of a failure to pay for periods of annual leave. She alleged that £2,882 was owing.[3]The respondent presented an in time response on 11 March 2024. In their grounds of response they set out their calculations of the leave accrued and payments that they said they had made for leave taken. At that date they accepted that on the termination of employment there had been a shortfall which meant that £129 before deductions for tax and National Insurance Contributions was due to the claimant, on their case.[4]Shortly before the scheduled 10.00 am start the clerk reported that the respondent and their representative were in attendance but that there was no attendance by the claimant. He managed to contact her by telephone and the following was reported to the employment judge by him and relayed to the respondent.[5]The claimant informed the clerk that she had heard nothing from the tribunal since her claim had been presented in December 2023. She referred to moving house and said that she had provided an updated postal address. This communication could not be located.[6]However, her preferred method of communication was by email not by post and the clerk checked with her that the tribunal had been using the correctly spelled email address. In those circumstances, the change of postal address was irrelevant.[7]The hearing had originally been listed to take place on 2 September 2024 and case management orders made (page 27). It is these orders which the claimant has not complied with. It was then postponed for non availability of judicial resource to the 29 October. The respondents applied for it to be further postponed because it had been listed without the availability of the parties being taken into account. The notice of hearing for today was sent by email to the parties on 28 October 2024.[8]The respondent applied for an order striking out the claim under rule 37(1)(c) or (d) Employment Tribunal Rules of Procedure 2013 and a strike out warning letter was sent to the claimant on 7 November 2024. clerk checked the Watford Employment Tribunal email inbox from August 2024 onwards and specifically from 7 November 2024 when the strike out warning letter was forward any objections to the claim being struck out for non-compliance with tribunal orders or because she was not actively pursuing the claim. Nothing was received from the claimant in response to that warning letter.[9]The Tribunal Clerk checked the email system and confirmed that the notice of hearing sent on 28 October 2024 and the strike out warning letter sent on 7 November 2024 both were sent to the email address which the Tribunal have on our system and that the email addresses had been spelled correctly. There was no bounce back saying that the email address was invalid.[10]The claimant informed the clerk that she had not received the emails (she apparently checked her junk folder) and would not be attending today because she had worked late last night and would not have time to attend today.[11]In circumstances when the tribunal has communicated with the claimant through her preferred method of communication by an email address correctly spelled and the system does not reveal that the two most recent emails were rejected, I am satisfied that the claimant has had notice of today’s hearing and was sent the strike out warning letter on the dates born by those communications. She does not, in my opinion, have a satisfactory reason for not attending and has not replied to explain why her claim should not be struck out.[12]I have been taken to a payslip in the hearing file at page 127 - supported at by paragraph 8 of Ms Smith-Carter’s witness statement – which shows that the respondent paid the sum they accept was outstanding on 28 June 2024.[13]In those circumstances, Ms Dowey asked me to strike out the claim for noncompliance with case management orders sent to the parties on 10 June 2024 and for failure to pursue the claim.[14]Since there is evidence that the undefended element of the claim has now been paid, and the claimant has not put forward any reason why the claim should proceed and taken no steps to pursue it, I am satisfied that the grounds in rule 37(1)(c) and (d) for strike out are made out.[15]The claimant has not put forward any reasons why the claim should proceed and has not attended without good reason. It is not in the interests of justice that the claim should be adjourned further. It should be concluded without further delay or expense. The claim is struck out.[16]I voluntarily provide written reasons for the decision because the claimant was not present.