Miss R Gibbin v Innovations in Care: 6001777/2025
JUDGMENT
The Claimant’s claims are dismissed pursuant to Rule 47 of Schedule 1 of The Employment Tribunal Procedure Rules 2024.REASONS
[1]Today’s hearing was listed as a case management preliminary hearing. Notice of that hearing was sent to the parties on 24 March 2025. It was sent to the Claimant’s postal address specified on her ET1. On that ET1 the Claimant requested that correspondence be sent to her via email, rather than by post or post and email. It does not appear as though the notice of hearing was sent by email unfortunately.[2]An email was sent to the Claimant with a link to access the CVP hearing. Unfortunately, that link said that the hearing was due to start at 10am rather than 2pm. The Claimant did not however attend at 10am.[3]The Claimant also did not attend today’s hearing at 2pm.[4]The clerk informed me that no emails had been received by the Tribunal from the Claimant’s email address throughout these proceedings. This included no documentation needed for today’s hearing, such as a completed case management agenda. She also informed me that there were no attendance notes on the Tribunal’s systems showing the records of any conversations had with the Claimant.[5]The clerk was able to make contact with the Claimant via telephone at around 2.05pm. The clerk informed me that the Claimant acknowledged receipt of the notice of hearing and the email with the access link for today’s hearing. However, she did not plan on attending because she was at work. She did not ask for the hearing to be postponed.[6]The Respondent asked me to dismiss the claim. Its reasons for doing so included the fact that they believed that the Claimant no longer wished to pursue her claim, given that the outstanding wages had been paid. Although the Claimant alleged age discrimination in her ET1, she had not mentioned any alleged discrimination related to her age prior to her resignation.[7]Rule 47 of Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2024 (the “Rules”) states: “If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence”.[8]This must be considered in accordance with the overriding objective at Rule 3 of the Rules which states: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal”.[9]I did not consider it appropriate to proceed with the hearing in the Claimant’s absence. A principal purpose of the hearing was to clarify the Claimant’s claim. It would therefore have been pointless to proceed without the Claimant being there.[10]Therefore, my options were to either dismiss the claim or issue a strike out warning. I say a strike out warning was an option even though not specified explicitly in Rule 47. This is because Rule 47 needs to be considered in conjunction with Rule 3 and in particular the requirement to exercise powers proportionately.[11]I decided to dismiss the claim. I recognised that this is a draconian step and often a more proportionate alternative is for the Tribunal to issue a strike out warning. In this case, however, I considered it to be more compliant with the overriding objective to dismiss the claim. The reasons for this are as follows:a. The Claimant's claim for age discrimination has no clear particulars. She simply stated: “i left the employment on immediate effect due to feeling pushed out due to age discrimination”. She did not say what the Respondent did which she considered to be discriminatory or why she saw a link between the treatment and her age. Although there is no expectation on litigants in person to particularise these claims as a lawyer would do in their ET1s, and these were points that I was going to seek to clarify with the Claimant today, it was clear to me that no real effort on the Claimant’s part went into preparing her ET1 prior to submission;b. The Respondent’s position regarding her wages claim was that these had been paid in full, after the ET1 had been submitted. The Respondent confirmed this in its ET3 which the Claimant would have received on or soon after 13 May 2025, when the Tribunal sent this to her via email, to her email address as specified on her ET1. The Claimant has not sought to challenge this assertion; andc. The Claimant did not attend today's hearing. The Claimant received the notice of hearing (even though it wasn’t originally sent to her by email as she had requested) and knew it was taking place today, albeit she may have been confused about whether it was taking place at 10am or 2pm. However, she did not seek to clarify the position nor attend at 10am. She has not emailed the Tribunal to say that she could not attend. At no point did she request a postponement. She did not contact the Tribunal at any stage prior to today nor did she complete the preparation requested of her before the hearing. In this regard, the notice of hearing stated: “An agenda for the hearing is attached. You must fill it in and return it to the Tribunal, with a copy to the other side, seven days before the hearing. You should try to agree the agenda with the other side”. When the clerk spoke with the Claimant today, she said she would not be attending because she was in work. She did not, at this point, ask for the hearing to be postponed. This cements my view that the Claimant is not demonstrating an active interest in pursuing her claims.[12]As stated above, the overriding objective involves dealing with a case fairly and justly. This applies to both parties.[13]Both parties are and have been on an equal footing so far. It’s not the case that the Claimant has not been sent correspondence and the Respondent has. Had the Claimant not received the notice of hearing because it had been sent in the post, rather than via email, contrary to her request, the position may have been different. However, the Claimant confirmed to the clerk today that she had received the notice of hearing and was aware the hearing was due to take place. The Claimant has chosen not to engage. She has also chosen to not attend today’s hearing without informing the Tribunal or the Respondent or requesting a postponement. When asked why she had not attended, she said that she wouldn’t be attending because she was working.[14]The overriding objective requires me to avoid unnecessary formality and seek flexibility. However, this does not extend to unreasonable leniency to a party.[15]The overriding objective also involves avoiding delay, saving expense and acting proportionately. The Respondent has no doubt already incurred time and/or costs associated with instructing legal support, drafting and filing the ET3, preparing for today’s hearing and attending it too. In this regard, the Respondents did state in their ET3 that costs had been incurred. A strike out warning would have resulted in delay and, likely, the incurrence of further cost for the Respondent.[16]Although I recognised that a strike out warning is often seen as the more proportionate response, I did not consider it to be the case here. In my judgment, the Claimant has demonstrated no interest in pursuing her claim against the Respondent and in these circumstances it would not be proportionate for the Respondent to be required to incur further time and cost associated with defending it. Further, it would not be proportionate for these proceedings to be delayed any further.[17]The claim is therefore dismissed.