S Smith v The Office of the Advocate General for Scotland as representing the Ministry of Defence: 4100641/2025
JUDGMENT
The judgment of the Tribunal is that the claim is dismissed under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024 for failure to attend or be represented at the preliminary hearing.REASONS
[1]The claimant had presented complaints of disability discrimination. A preliminary hearing was listed for today at 10am by video to determine the respondent’s application for strike out failing which deposit.[2]No communication had been received from the claimant in the period from 5 January until this morning. The respondent made an application for strike out failing which deposit on 3 March 2025.[3]A Case Management Preliminary Hearing took place on 6 March which the claimant did not attend. The claimant was ordered to comply with outstanding directions by 10 April and a preliminary hearing was listed for 2 June (today) to determine the application. Case No. 4100641/2025 Page 2[4]On 6 and 9 March the claimant was advised of the requirement to attend the preliminary hearing on 2 June (today).[5]On 22 April the respondent repeated its application for strike out and a strike out warning was issued on 19 May to which the claimant did not respond.[6]Early this morning the claimant advised that the respondent had made an offer of settlement but that she cannot agree to the terms because she has insufficient time and experience (she explained she had an operation on Sunday and was kept in longer than expected).[7]Today’s hearing commenced at 10.25am. The respondent had professional representation. The claimant did not attend. The clerk tried to call the claimant without success on two occasions and left a voicemail urging her to get in contact without reply.[8]At the hearing the respondent explained that an offer was made a few weeks ago and was accepted in principle subject to agreement on the terms of settlement which were provided on Wednesday. The respondent advised that the claimant remains in their employment and was not scheduled to be off work. The respondent is mindful that the claimant is a litigant in person and accordingly proposed to contact the claimant to advise that if the terms of settlement were not accepted by 1pm today the offer would be withdrawn automatically and the application for strike out failing which deposit would be insisted upon. The hearing was then adjourned until 1pm to allow that step to be taken.[9]Around midday the tribunal emailed the claimant noting that today’s preliminary hearing has not been vacated or postponed and no such application has been made by either party. It further confirmed that both parties were expected to attend the hearing at 1pm today to advise whether terms of settlement have been agreed and if not to determine the application for strike out, etc. The claimant was warned that if she failed to attend the hearing without reasonable explanation her claim may be dismissed for nonattendance under Rule 47.[10]When the hearing resumed at 1pm the respondent continued to have professional representation and the claimant did not attend. The respondent confirmed that they had communicated with the claimant as proposed and having heard nothing from her the offer was now withdrawn. The clerk also attempted to contact the claimant again without success.Relevant law
[11]Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024 (“ET Rules”) provides that if a party fails to attend or be Case No. 4100641/2025 Page 3 represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, the Tribunal shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence. Discussion and decision[12]Considering the information available I noted that the claimant has not complied with the orders of 6 March and has not been in contact with the tribunal since early January (bar this morning’s email); the Claimant was advised on multiple occasions of the date of today’s hearing and had not advised of any difficulty in attending or made any application to postpone; the Tribunal tried to contact the claimant on the morning of the hearing by telephone and by email without success; and the Claimant made contact with the Tribunal advising that she cannot agree to the terms of settlement but not making any application to postpone.[13]Taking into account the overriding objective within the ET Rules, and all the information available to me, it is considered fair and just in the circumstances of this case for the claim to be dismissed in its entirety because of the claimant’s failure to attend.[14]The claimant has a right to seek a reconsideration of this decision in the interests of justice under rules 69 and 70 of the ET Rules within 14 days of the issue of this judgment to parties. However, such a reconsideration may be subject to the claimant giving proper explanation to the Tribunal for her failure to either attend or to seek a postponement of today’s hearing.