Mr D Aziz v S Nugent and Bruce 1886 Ltd: 4100236/2022
JUDGMENT
[1]In respect that the claimant and the respondents failed to attend or to be represented at the Hearing on 1 February 2023, the Tribunal, after having made enquiries including e-mailing and telephoning parties, dismissed the claim in accordance with Rule 47 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. E.T. Z4 (WR)[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL The Tribunalgrants the reconsiderationand revokes the Judgment dismissing the claims. E.T. Z4 (WR)REASONS
[1]The claimant raised claims for race discrimination. The case was subject to case management. Ultimately a hearing was arranged for 1 February 2023. A Notice of Hearing was sent to the claimant on 14 November.[2]There were a number of significant events that occurred following the hearing being arranged. In particular there was a case management hearing before Judge Hosie on 9 January. Judge Hosie noted as follows:- “Police involvement[7]The claimant confirmed that he had made a complaint to the Police and the first respondent Mr Nugent confirmed that he had been interviewed. As I understand it, however, there had been no further developments since January/February 2022. Accordingly, I further direct the claimant to make enquiries of the Police and to advise the Tribunal by no later 12 noon by Friday 13 January as to whether the Police investigations are still ongoing or whether they are at an end and there will be no criminal proceedings.[8]I explained to the parties that if the Police investigation was still ongoing it would not be possible to proceed with the final hearing on 1 & 2 February as scheduled.” 3. We would record that the claimant has not failed to follow Tribunal Orders or instructions in the past. 4. On 24 January 2023 Judge Hosie wrote to Mr Aziz in the following terms:- the hearing scheduled to start on 1 February cannot proceed until such time as it is established that there will be no criminal proceedings.” (Our emphasis) 5. Mr Aziz responded on 29 January:- ‘I went to the Police station they said the case was closed. They said they will call me if anything changes.” 6. The claimant’s position was simply noted by Judge Hendry in an e-mail on 31 January. He was not advised that there would be now be no impediment to the case proceeding on that date. The claimant was unsure if his information was enough to allow the case to proceed. He did not query the matter. 7. The claimant did not attend the hearing on 1 and 2 February 2023. The consequence of this is that the claim was struck out by the Tribunal because of his non -attendance. The other parties did not attend. 8. The claimant sought a reconsideration. By e-mail on 1 February he wrote:- “I got an e-mail on 24/01/2023 saying that the hearing scheduled for the 1 February 2023 cannot proceed until such time it is established that there will be no criminal proceedings that’s why I did not attend today as I did not get an e-mail saying it was going ahead. I can forward the e-mail to you if you like. I can come tomorrow as there was one scheduled then aswell. Thanks”Judge Hendry arranged for the claimant to receive the following e-mail on same date:
[9]- ‘I refer to the above case. Employment Judge J Hendry has asked me to write to you following receipt of your e-mail dated 1 February at 13:38. He was advised that before sending the e-mail you spoke to a member of staff that you had been told by the other parties the case wasn’t proceeding today. Is that correct? If so who said what, to and when? You say in your e-mail you were told that the case cannot proceed until it was established whether criminal proceedings were going to take place. The email from Judge Hosie said ‘The hearing scheduled to start on 1 February cannot proceed until such time as it is established that there will be no criminal proceedings’. He did not put off the hearing but asked for the matter to be clarified. You responded on 29 January advising as that the Police had said that the case was closed. In other words, there were no criminal proceedings because the case closed. That response from you meant that there was no difficulty in the hearing going ahead which it did. Because neither you nor the others attended the case was dismissed....”[10]Mr Aziz responded on 10 February asking for the judgment to be reconsidered indicating that his understanding was that he was told by the court that it was not going ahead on 1 February until such time as it was established there was no criminal proceedings “which led me and my representation to believe that there would be no hearing to attend that day as I had no other notice of it”.[11]I take account of the fact that the claimant requires an interpreter and does not have a full understanding of English. It is quite clear that a misunderstanding has arisen otherwise he would have attended the hearing. The terms of the letter sent to the claimant on 24 January 2023 are in retrospect perhaps unfortunate. We are prepared to accept that the claimant understood that the case could not proceed until it was established that there were no criminal proceedings. Many people in these circumstances might have asked if the information he had received from the Police which he had passed on was sufficient but he did not. He seemed to expect some additional confirmation that the case could now proceed in the light of the information he had provided. The e-mail simply noting the terms of the claimant’s e-mail is also in retrospect unhelpful as, given that the claimant is a party litigant unfamiliar with the procedures and not a native English speaker it would have been clearer to have indicated that there was now no bar to the hearing on 1 and 2 February proceeding. I also note that the claimant was available for the second day of the hearing and intimated that he was willing to attend when he made contact with the clerks later that day after having picked up the telephone messages from that morning enquiring as to his whereabouts. Unfortunately, by that point the case had been dismissed and the panel dispersed.[12]In the particular circumstances of this case we are prepared to give the claimant in effect the benefit of the doubt. The Judgment of the 1 February will be set aside and the case relisted for a hearing.