Mr D Weir v Transport UK East Anglia Ltd and Ms S Tinubu: 6017091/2024
JUDGMENT
[1]the Claimant’s case is dismissed under Rule 47 because of the Claimant’s non-attendance at the hearing.REASONS
[1]In accordance with Rule 60(3) of the Employment Tribunal Procedure Rules 2024, I announced the judgment set out above at the hearing but reserved my reasons which are provided in writing below for the benefit of the Claimant, who was not present.The hearing
[2]The Claimant was employed by the First Respondent, Transport UK East Anglia Limited, as a Senior Ticket Gate Operator between 7 July and 19 September 2024, when he was dismissed while still in his probationary period. He was paid in lieu of notice. An appeal against dismissal was rejected on 14 October 2024. The Second Respondent, Ms Tinubu, is employed by R1 as an Area Station Manager.[3]The claim form was presented on 14 November 2024, following an ACAS early conciliation period between 21 and 25 October 2024. The claims were of race discrimination (the types of claim were not specified) and unfair dismissal.[4]The Claimant says that he was dismissed for wearing a head covering (durag) at work, which he says was necessary because of his hair type. He says that other employees were permitted to wear similar head coverings and that his requests for clarification of the uniform policy were met with hostility and refusal. He contends that the disciplinary process was procedurally flawed and that the appeal failed to remedy the unfairness. He further alleges that the First Respondent abused her managerial authority and that the Respondents failed to engage with his concerns in a respectful or inclusive manner.[5]The Respondents assert that the Claimant was dismissed on 19 September 2024 for failing to comply with the uniform policy, specifically by wearing a durag while on duty. The Respondents maintain that the durag was not permitted under the company’s dress code and that the Claimant was repeatedly advised of this.[6]The Respondents contend that the Claimant’s wearing of his head covering was not related to his race but to his haircare routine. R2 understood the purpose of a durag because her son wore 12, although not at work. The Respondents deny that the dismissal was discriminatory or an act of victimisation. Respondents contend that the decision to dismiss was based solely on conduct and noncompliance with policy. They also deny that the Claimant suffered any detriment or that any protected disclosures were made.[7]The unfair dismissal claim was struck out by EJ Gardiner on 20 February 2025 owing to lack of qualifying service.[8]On 24 February 2025, the Claimant applied to amend his case. He provided details of the proposed amendment on 26 February 2025. The Respondent responded on 27 February 2025, suggesting that the amendment application be dealt with at a forthcoming preliminary hearing on 26 March 2025. That hearing was postponed because of lack of judicial resources.[9]It was relisted to 13 June 2025, when it came before EJ Allen KC. The Claimant did not attend the hearing; the Respondent was represented by counsel. It emerged that the Claimant had applied for a postponement in May, which had not been dealt with.[10]Judge Allen relisted the preliminary hearing to today’s date; he listed it for three hours to include consideration of the Claimant’s amendment application, identification of the issues and case management. The preliminary hearing summary, confirming the date of 20 August 2025 for this hearing, was sent to the parties on 18 June 2025.[11]The Judge made orders requiring the Claimant, by 11 July 2025, to formally identify the protected characteristic relied upon and to clarify his reasons for not having articulated his case in the original claim form in the way that he now sought to do so in the amendment application. He was also required to clarify aspects of the existing direct discrimination claim and the proposed harassment and victimisation claim.[12]The Claimant submitted an email on 10 July 2025 providing further details of his claims.[13]The notice of hearing for this hearing was sent to the parties on 24 July 2025, together with details of how to join the CVP hearing.[14]The last communication the Respondent received from the Claimant was on 31 July 2025, in which he complained about the fact that he had not yet received the Respondent’s completed case management agenda.[15]The Respondent considered that further information was still required of the Claimant’s proposed amendment and requested it in a document sent to the Clamant on 12 August 2025. The Claimant did not reply.[16]There was no application by the Claimant for today’s hearing to be postponed.[17]The preliminary hearing came before me this morning. At 10 a.m. Mr BidnellEdwards was present as Counsel for the Respondent; the Claimant was not present.[18]I asked my clerk to phone the Claimant. The call was not picked up and there was no option to leave a voicemail, simply a message saying that the call could not be connected. I asked my clerk to email the Claimant, reminding him that the hearing was taking place this morning and that I was waiting for him in the CVP room; there was no reply.[19]I then asked my clerk to send a further email to the Claimant, informing him that I proposed to put the hearing back to 11:15 a.m. and explaining that, if he did not attend at that time or provide an explanation for his non-attendance before that time, I would consider dismissing his case under rule 47 for non-attendance at a hearing.[20]The Claimant did not reply. I resumed the hearing at 11:15. I explained to Mr Bidnell-Edwards that I was considering three options: making an unless order, requiring the Claimant to explain his absence; requiring the Claimant to show cause by a specific date why his case should not be struck out for nonattendance of the hearing; and dismissing the case under rule 47. I invited him to address me.[21]Mr Bidnell-Evans submitted that the last option would be the most appropriate. He observed that the Tribunal’s time is scarce and the Respondent’s time valuable. Time and costs should not be wasted on cases which are not pursued; it places an unacceptable burden both on the Tribunal and the Respondent. If there was a good explanation for the Claimant’s failure to attend the hearing, he would be informed of his right to make a reconsideration application.The law
[22]Rule 47 provides: 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.[23]We had regard to the Court of Appeal case of Roberts v Skelmersdale College [2004] IRLR 69. Although it was decided under the old rules, there is sufficient similarity between the two rules that it remains good law. The following principles emerge (so far as they apply to new rule 47): 23.1. the rule confers a very wide discretion; 23.2. the rule does not impose on an employment tribunal a duty of its own motion to investigate the case before it, nor to satisfy itself that on the merits the Respondent has established a good defence to the claim of the absent employee; 23.3. the Tribunal has a discretion to require the employer to give evidence, but no duty to do so; 23.4. before making a decision the Tribunal shall have regard to the information required under the rule.Conclusions
[24]This is the second occasion on which the Claimant has failed to attend a hearing. On the first occasion, it is right that he made an application for a postponement which was not dealt with by the Tribunal; on the other hand, in circumstances where a postponement has not been granted, the hearing remains listed and he should have attended, even if only to renew his application.[25]This hearing was specifically listed for three hours so that the Claimant’s application to amend his case could be considered. There was no application for a postponement; he did not attend. This is waste of the Tribunal’s scarce resources; it is also a waste of the Respondent’s time and put them to unnecessary cost.[26]The Claimant did not provide any explanation for his absence; he did not respond to the Tribunal’s attempts to contact him.[27]I considered whether I should conduct the hearing in his absence and concluded that I could not: it is for the Claimant to clarify his case; he has not provided the additional information the Respondent sought in its communication to him of 12 August 2025; the burden is on him to persuade the Tribunal to permit him to amend his case; I considered that the application could not be dealt with justly – and the case definitively clarified - without further input from him. That would require yet another preliminary hearing to be listed, in circumstances where there are many other parties waiting for hearings in their cases.[28]I have concluded that, in the circumstances, it is appropriate to exercise my discretion to dismiss the case under rule 47.[29]I draw the Claimant’s attention to the fact that he is entitled to seek a reconsideration of this judgment under rules 68 to 70 of the 2024 Rules. Attached to this judgment there is guidance on how to make an application for reconsideration. I draw his attention to the fact that there is a time limit for doing so, which is contained in rule 69 of the Tribunal Rules 2024. I remind him that it will be for him to persuade the Tribunal that reconsideration is necessary in the interests of justice. If he relies on there being a good reason for his nonattendance today, he must provide a full explanation for his absence, supported where appropriate by evidence. For example, if there is a medical reason for his absence, he should provide medical evidence (GP record, hospital record etc.) in support.[30]The Claimant also has a right to appeal to the Employment Appeals Tribunal; the attached guidance deals with that.