D Andrew v Marks and Spencer plc: 6004335/2025
JUDGMENT
[1]The Claimant’s claim is dismissed pursuant to Rule 47 (Non-attendance) of The Employment Tribunal Procedure Rules 2024 (“the Rules”).REASONS
[2]The Claimant presented his claim form on 9 February 2025 and ticked the boxes for unfair dismissal and ‘other payments’. The claim form included only the following particulars: “I was sighed off of work by my GP for 4 weeks with stress. Marks and Spencer did not pay sick pay for this period even though I provided them with sick notes from my doctor.” “Compensation: "l am seeking the 4 weeks sick pay that was not payed. Amount requested: £1800"”[3]The claim form was accepted and standard directions were issued on 27 February 2025 together with notice of a final hearing to take place on 2 and 3 October 2025. 1 of 4[4]On 2 March 2025 the Claimant applied to amend his claim form to better particularise his claim with the following details: I am adding the details of my unfair dismissal claim. I was dismissed on the 21st November 2024 for gross misconduct. I feel this was unfair as they fired me for an having an argument was a manager. This incident happened at the end of August and was not investigated until October. The manager said I was aggressive and tried to intimadate her which I dispute. They have no evidence of the incident just a statement from her. I was not informed the manager made a complaint until 6 weeks after the incident happened. I was not given any warnings and was also allowed to continue working with this manager with no problems. I have worked for the company for 14 years with no complaints or warnings about my behaviour. I was signed off of work by my doctor for 4 weeks because of the stress and anxiety this has caused me. During this time the manager went round to other members of staff to make complaints about me which also have evidence. During this time another colleague was accused of the same thing he was given a warning but I get dismissed. They said my behaviour was so bad but I have never had a talk or warning about it.[5]The Respondent did not know of the application but it was granted on 11 May 2025.[6]The response was accepted and served on the Claimant on 2 April 2025.[7]On 17 April 2025 the Respondent asked for the Claimant’s schedule of loss which had been due on 10 April 2025. The Respondent asked for it again on 24 April 2025 and 6 May 2025.[8]On 8 May 2025 that Claimant replied to say “Sorry for not replying to you sooner I have been dealing with some family issues. I have been trying to contact the tribunal to get you the information you requested, but I am having a problem with the online form. I should be hearing from them soon”.[9]On 22 May 2025 the Respondent contacted the Claimant again advising the Claimant of the requirements of Rule 90 and proposing a revised timeline for case management orders. The Respondent had had no reply and contacted the Claimant again on 14 July 2025.[10]On 24 July 2025 the Respondent contacted the Tribunal (with the Claimant on copy) pointing out the Claimant’s failure to comply with the directions. It applied for strike out of the Claim. The Respondent followed up on its application on 11 August 2025.[11]On 28 August 2025 EJ Lewis wrote to the Claimant as follows: Further to the Respondent's email dated 24 July 2025, the Claimant is required to inform the Tribunal, with a copy to the Respondent, by 11 September 2025, whether he intends to continue with his case and, if so, why he has not been complying with the Tribunal timetable. 2 of 4 The Claimant is further required to supply the respondent, by 11 September 2025, copies of all documents in his possession which are relevant to his case. He must also inform the Respondent whether he has had any earnings since the end of his employment and if he has a new job, and if so, how much he is now earning. If the Respondent does not receive this information by 11 September 2025, it should inform the Tribunal, which will then consider further action.[12]On 12 September 2025, having had no contact from the Claimant, the Respondent repeated its application for strike out. The Respondent again received no contact from the Claimant.[13]The Claimant failed to attend the hearing on 2 October 2025. The hearing clerk tried to reach the Claimant by phone just before 10am but the call rang through to voicemail and she left a message asking him to attend the hearing. The Clerk also sent an email to the same effect to the Claimant.[14]Mr Neaman said that the claim should be struck out under Rule 38 pursuant to the Respondent’s earlier application (on which the Claimant had had a number of opportunities to comment, but had not done so) or equally that the Claim should be dismissed under Rule 47 (non-attendance). He agreed to give the Claimant 30 minutes to attend and we waited, with the CVP hearing room unlocked (except for a few minutes) until then. The Claimant did not attend and the clerk confirmed at 11:06am that she had had no reply to her message from the Claimant.[15]Rule 47 of the Rules provides: Non-attendance 47. If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.[16]At the Hearing, taking into account the information available to me as set out above, I concluded that it was in the interests of justice to dismiss the claim pursuant to Rule 47 because:16.1 the Claimant had been given notice of the Hearing on 27 February 2025;16.2 the Respondent had reminded the Claimant of the Hearing on a number of occasions (in correspondence of 22 May, 14 July, 24 July, 11 August and 12 September 2025);16.3 the Claimant had then failed to respond to or to engage with the Respondent and failed to comply with the Tribunal’s directions of 28 August 2025; 3 of 416.4 the Claimant made no contact with the Respondent after the Claimant’s email of 8 May 2025;16.5 The Claimant’s email of 8 May 2025 did not provide an explanation for his subsequent failure to comply with the Tribunal’s orders or his failure to attend this hearing (it gave no suggestion, for example, that the Claimant was himself in poor health).16.6 the Claimant failed to attend the Hearing despite being asked to do so on the morning of the hearing (in voicemail/email messages) by the Tribunal clerk.[17]The hearing concluded at 11.13 pm after I had dismissed the claim.