Mr D Nixon v CAE Parc Aviation Ltd: 6009104/2024
JUDGMENT
The claim is struck out pursuant to Rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024.REASONS
[1]Oral reasons for the decision to strike out the claim were given at the hearing today. I record the written reasons for the decision below, mindful of the following:a. The claimant did not attend today’s hearing, or the hearing which took place on 5 February 2025; andb. The claimant is not legally represented.[2]The Rules referred to in these reasons are rules set out in the Employment Tribunal Procedure Rules 2024, the “Rules”. The rules referred to in these reasons are copied below for ease of reference and mindful the claimant is not represented.[3]The claimant was employed by the respondent, an aviation company, as a cabin crew member from 29 May 2023 until 22 May 2024. Early conciliation started on 15 July 2024 and ended on 12 August 2024. The claim form was presented on 21 August 2024. The claim is about unfair dismissal, age and race discrimination and whistleblowing. The respondent’s defence is the claimant was not telling the truth about the grievances he had.[4]The ET3 states the respondent’s correct name as CAE Parc Aviation Limited. The claimant has not objected to this. Accordingly, the respondent’s name in these proceedings is changed to CAE Parc Aviation Limited.[5]At a case management hearing on 5 February 2025, which the claimant did not attend, without explanation, Employment Judge Young listed this public preliminary hearing “to consider the respondent’s application to strike out the claimant’s claim or a deposit order in respect of the claimant’s claim.” The case management order also stated: “the claimant must also provide an explanation for his nonattendance at today’s hearing on 5 February 2025.”[6]I had the benefit of a 139 page electronic hearing file prepared by the respondent, which was sent to the claimant at the email address stated by the claimant in his ET1.[7]This case management order was sent to both parties on 6 February 2025. It was sent to the claimant’s email address on the Tribunal file, which is the same email address from which the claimant sent an email to the Tribunal at the start of today’s hearing (referred to below and identified subsequently as “Today’s Email”).[8]On 18 February 2025 the respondent’s representative sent to the claimant and the Tribunal a letter repeating the respondent’s application for strike out (Rule 38) and, in the alternative, a deposit order (Rule 40). This letter was sent to the same email address from which the claimant sent Today’s Email.[9]The claimant did not attend the hearing on 25 February 2025. Just prior to the start of the hearing the Tribunal clerk telephoned the claimant to make enquiries as to why the claimant was not attending the hearing, as the Tribunal is required to do pursuant to Rule 47. The claimant did not answer the call; the Tribunal clerk left a message for the claimant. Following this call the Tribunal received an email from the claimant (from the email address on the Tribunal file and to which Tribunal administration have sent all correspondence to the claimant, including the case management order notifying the claimant of this hearing and the reasons for it (sent to the claimant on 6 February 2025). The claimant’s email was sent at 10.00; it is unclear whether it was sent before or after the telephone message was left. If it was sent before, the claimant’s suggestion he had no knowledge of today’s hearing is simply wrong. If it was sent after, it was sent in response to the clerk’s message.[10]Today’s Email states the following: “hello I hope you are doing well. I wanted to reach out as I am unable to attend todays scheduled meeting due to an emergency that I need to attend to. I sincerely apologize for the short notice, but given the circumstances, I would really appreciate the opportunity to reschedule at a time that works for you. Please let me know when would be suitable. Additionally, I wanted to flag that I have not received any formal documentation or information regarding the hearing. The only communication I have received was an email yesterday, which did not provide any further details or supporting documents. I want to ensure that I have all the necessary information in advance so that I can properly prepare. If there is any documentation that I should have received, could you kindly forward it to me at your earliest convenience? Once again, I apologize for the inconvenience and appreciate your understanding. I am keen to cooperate fully and ensure that this meeting takes place as soon as possible. Please let me know the next steps and any available dates for rescheduling. Looking forward to your response. Best regards, Daniel”[11]The tribunal clerk telephoned the claimant for a second time at 10.10am; again there was not answer.[12]The claimant has not provided the Tribunal with the following information:a. An explanation as to why he did not attend the hearing on 5 February 2025 or any evidence to support any reason for his non-attendance, despite the fact Employment Judge Young ordered the claimant to do so.b. An explanation as to why he did not attend the hearing on 25 February 2025 (the hearing link having been sent to him 24 February 2025 as is apparent from Today’s Email, which replies to this link), specifically details of the emergency, when it arose and any evidence to support the claimant’s assertion this was the reason he was unable to attend the hearing today.[13]I find the claimant’s statement in Today’s Email “I have not received any formal documentation or information regarding the hearing” simply not feasible. The case management order of Employment Judge Young, which informs the claimant of the date and reason for today’s hearing, was sent to the email address from which the claimant sent Today’s Email. I have seen from the hearing file the respondent prepared for today’s hearing that today’s hearing file, the respondent’s letter of 18 February 2025 and the correspondence referred to below were all sent to the email address from which the claimant sent Today’s email.[14]I find the claimant did receive this correspondence; the fact he has not engaged with it at all is a matter for him. I find it disingenuous of the claimant to seek to explain his failure to engage with the Tribunal and the respondent by suggesting he did not receive the correspondence from either when it is apparent on the face of the correspondence that it was sent to the correct email address.[15]In fact, the claimant has not engaged with any correspondence sent to him (at the email address from which he sent Today’s Email) by the respondent’s representative on the following dates: 20 September 2024, 2 October 2024 102, 16 January 2025, 3 February 2025, 4 February 2025, 18 February 2025.[16]Taking account of the fact the claimant did send an email to the Tribunal at the start of the hearing, I decided to proceed with the hearing in the absence of the claimant. Had he not done so, his claim would have been dismissed under Rule 47 given his failure to attend the hearing on 5 February 2025 and today’s hearing.[17]The claimant’s failure to attend on 25 February 2025, without explanation, and failure to attend today without advance explanation and offering no details of, or evidence to support, his assertion that he was suddenly experiencing an emergency does not warrant a second rescheduling of this hearing. To do so would be at odds with the overriding objective of the Employment Tribunals, and specifically Rule 3 (2) (d) (the requirement to avoiding delay, so far as compatible with proper consideration of the issues) and Rules 3 (2)(e) saving expense.[18]Therefore I decided to strike the claim under Rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024 as the claim is not actively pursued for the following reasons:a. The claimant’s failure to engage with any correspondence sent to him by the respondent’s representative.b. The claimant’s failure to attend the hearing on 5 February 2025.c. The claimant’s failure to provide an explanation as to why he did not attend the hearing on 5 February 2025.d. The claimant’s failure to attend the hearing on 25 February 2025.e. The claimant’s failure to provide an explanation of or evidence to support his assertion he was dealing with an emergency and this is why he did not attend the hearing on 25 February 2025.[19]I am satisfied that, pursuant to rule 38(2) the claimant has had reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. The case management order sent to the claimant on 6 February 2025 and the letter from the respondent’s representative dated 18 February 2025 satisfy this requirement. Employment Tribunal Procedure Rules 2024[20]The following rules are referred to in, and relevant to, these reasons. Overriding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) 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. (3) The Tribunal must seek to give effect to the overriding objective when it— (a)exercises any power under these Rules, or (b)interprets any rule or practice direction. (4) The parties and their representatives must— (a)assist the Tribunal to further the overriding objective, and (b)co-operate generally with each other and with the Tribunal. Striking out 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c)for non-compliance with any of these Rules or with an order of the Tribunal; (d)that it has not been actively pursued; (e)that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). Deposit orders 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a)the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order. 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. APPROVED BY: