H Burns v Hopkinson and Sons Ltd: 6016723/2024
JUDGMENT
(1) The name of the respondent is amended to Hopkinson and Sons Ltd.(2) The claimant’s claims are dismissed under rule 47 of the Employment Tribunal Procedure Rules 2024, because the claimant failed to attend the hearing, without providing any explanation why she failed to do so.(3) Alternatively, the claims are dismissed under Rule 38, because they are not being actively pursued.REASONS
[1]On 14 April 2025, the private preliminary hearing which had been listed in relation to this claim for the purposes of case management, was converted to a public preliminary hearing to determine whether the Tribunal had jurisdiction to hear the claims, which have been brought outside the applicable time limit. This is because the claimant did not commence Acas Early Conciliation until just under five months after the normal time limit to do so had expired.[2]The claimant was ordered in the letter notifying the parties of that change to the hearing, to provide a statement setting out the reasons for the lateness of the claim being submitted, no later than 14 days prior to the hearing. The claimant failed to do so. It would have been necessary to spend time at the hearing taking live evidence from the claimant about time limits, had she attended. 1 of 2 Case Number: 6016723/2024[3]The claimant failed to attend the hearing today. The clerk to the hearing telephoned the mobile telephone number provided by the claimant in the claim form, but the claimant did not answer the call.[4]The Judge explained to Ms Hopkinson that there were two main options available to him in these circumstances. These were, to adjourn the hearing to another day, to give the claimant a further opportunity to attend and provide a witness statement in support; or to dismiss the claim under Rule 47 because of the claimant’s nonattendance. Ms Hopkinson invited the Judge to dismiss the claim under rule 47.[5]The Judge decided that dismissal was the appropriate course of action in the circumstances. The claimant was given notice of this hearing over two months ago, but has failed to attend. It is noted that following her dismissal, the claimant submitted an appeal. An appeal hearing was arranged, but the claimant did not attend that either.[6]The claim itself has been submitted nearly 5 months late. The claimant has not submitted a witness statement as she was ordered to do. That failure, coupled with her failure to attend today, demonstrates that the claimant is not actively pursuing the claim.[7]In addition, the claims brought by the claimant are not at all clear from the claim form. She has ticked the disability discrimination and unfair dismissal boxes. However, the claimant does not have the necessary two years service to bring an unfair dismissal claim. In so far as she is claiming that her dismissal was linked to any disability she may have, the claim form does not identify the disability relied on, save that the claimant states that she has dyslexia. There is no information as to how her dyslexia may have been linked to her dismissal, if at all. It appears from the response, that the claimant raised issues of anxiety, although the claim form does not identify anxiety as a disability. In box 8.2 of the claim form, it is stated that the dismissal was pre-emptive; but nothing further is stated, to link any disability she may have with the dismissal.[8]Box 8.2 does refer to a wrongful dismissal. A wrongful dismissal claim is therefore before the tribunal, because the claimant was dismissed without notice. Again however, there is a strict three month time limit for wrongful dismissal claims, and there is no explanation from the claimant as to why Acas Early Conciliation was commenced nearly 5 months later than it should have been. As noted above, due to the claimant’s non-attendance today, it has not been possible to clarify the basis upon which the claimant wants to pursue any claims which are before the tribunal.[9]Bearing in mind all of the above, the Judge determined that it was just to dismiss the claim under rule 47, because of the claimant’s failure to attend, without any explanation having been given. In the alternative, the claims are dismissed pursuant to rule 38, because they are not being actively pursued.