S Shah v London Borough of Newham: 6011215/2024
JUDGMENT
The judgment of the Tribunal is as follows: Strike out of claim[1]The claim is struck out under Employment Tribunal Procedure Rule 38(1) (a) (c) and (d) due to no reasonable prospect of success, non-compliance with Tribunal orders and the claim not being actively pursued.REASONS
[1]The Respondent is a London Borough. The Respondent employed the Claimant as a Product Manager between 3 April 2023 to 17 July 2024, the Respondent dismissed the Claimant for gross insubordination.Background
[2]By an ET1 claim form presented on 10 September 2024, the Claimant presented five claims: 1. Unfair dismissal, 2. Disability discrimination, 3. Race Discrimination, 4. Religious discrimination and 5. Whistle blowing.[3]On 30 September 2024 the Claimant by email withdrew the unfair dismissal claim.[4]On 18 October 2024 the Respondent filed an ET3 in summary the Respondent’s case is that The Claimant took unauthorised leave from 15 August to 21 August 2023. He was invited to attend a meeting to discuss the issue on six occasions: 6 February 2024, 27 February 2024, 1 March 2024, 6 March 2024, 17 April 2024 but did not attend. On 8 July 2024 the Claimant was invited to disciplinary hearing. The Claimant failed to attend and was dismissed for gross insubordination[5]A preliminary hearing was listed for 17 February 2025.[6]On 27 November 2024 the Claimant emailed the Tribunal and Respondent explaining that he has not been well and his health continues to worsen requesting an extension of up to 3 months replacing the 14 days deadline that was provided in order to find a solicitor.[7]On 5 December a judge directed that the hearing on 17 February was only for case management and at the hearing the parties can discuss the issues with the judge who will clarify matters. 8. 14 February 2025 the Claimant emailed the Tribunal and Respondent stating ‘…Once I receive the DSAR under the GDPR from Newham Council I expect to find a Solicitor and/or maybe able to write to the court detailing the discrimination, whistle blowing and/or other matters…’[9]On 17 February 2025 the Claimant did not attend the CVP preliminary hearing. The Claimant explained to the clerk that he was at the doctors. The judge proceeded with the hearing in his absence.[10]The judge noted that the Claimant claim was based solely on paragraph 8.2 of the ET1 stating:- “The matters had been going on for a number of months causing me immense distress. I believe I have been discriminated against on various grounds. I was a whistle-blower. I had raised an initial grievance - this was not dealt with in accordance with the appropriate policy. I have no access to any documentation/communication regarding my grievance or anything. I have requested a DSAR under the GDPR many weeks ago - I have been chasing but I'm still waiting. If I did receive the above I would be able to attach it here. I have and continue to feel extremely depressed as I have no job and I'm not on any benefits. Hopefully if I receive all documentation/communication from them, I can upload some of it here…’[11]The judge took the very practical view that the Claimant does not need a Solicitor, or the documents requested in the DSAR to explain what facts he relies upon in respect of each of his claims.[12]There was insufficient information provided by the Claimant for the Respondent or the Tribunal to know the exact issues in the claim.[13]The judge ordered the Claimant to provide further information by 17 March 2025 in a typed word document in numbered paragraphs. It was stated that if the Claimant does not recall an exact date that something happened, he should give his best estimate of the relevant date. The judge set out in simple terms at paragraph 17 of the order the information that would be required.[14]The judge also directed that whether to strike out all or part of the Claimant claims or whether a deposit order be made would be decided at the preliminary hearing listed for 16 May 2025.[15]On 14 May 2025 the Claimant emailed the Tribunal requesting an adjournment of the hearing explaining among other things that he was suicidal and he attached a fitness to work note dated 11 April 2025 from Dr Shahia Ahmad for the period 31 March 2025 to 31 May 2025 due to mental health. Strike out Application[16]When considering whether to strike out a claim, a tribunal must first consider whether any of the grounds set out in rule 38(1)(a)–(e) of the Employment Tribunal Procedure Rules have been established; and then, having identified any established grounds, it must decide whether to exercise its discretion to order strike-out.[17]In Bahad v HSBC Bank plc 2022 EAT 83 the EAT noted that in many cases it may be a ‘relatively short step’ from determining that a claim has no reasonable prospect of success — which is a ground for strike-out relied on in that case — to exercising the discretion to strike out. Nevertheless, the step must be taken before the claim can properly be struck out[18]In deciding whether to order strike-out, Tribunals should have regard to the overriding objective of dealing with cases ‘fairly and justly’, set out in rule 3 of the Tribunal Rules 2024. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay.[19]I take into account the Claimant’s application to adjourn made on 14 May 2025 and the fitness to work note. However, I observe that the fitness to work is for the period 31 March 2025 to 31 May 2025 which is after the 17 March 2025 the date on which EJ Shore directed the Claimant to provide further details of his claim. Moreover, a fitness to work note does not mean the Claimant cannot attend the hearing. I am not satisfied that the Claimant’s current issue prevented him from providing the information requested by EJ Shore.[20]The Claimant has failed to provide any further details of his claim despite the orders of the Tribunal. At this stage the Respondent is unaware of the issues in the claim against them as well as what remedy is being sought and how much compensation.[21]I find that the without any of crucial further details requested by EJ Shore the claim has no reasonable prospect of success and Rule 38 (1)(a) is satisfied.[22]The Claimant has now failed to attend two separate hearings to progress the case and has not complied with ET orders to provide the crucial particulars for the purpose of Rule 38(1) (c) and (d).[23]In exercising my discretion, I remind myself that proportionality should be borne in mind. But I do not believe the parties are on equal footing the Respondent is at a severe disadvantage and no one is stood to gain from a hopeless claim going to final hearing.[24]I order that the whole of the Claimant’s claim be struck out.