Mr L Gould v United Living (North) Ltd: 6022772/2024
JUDGMENT
The claimant’s application to postpone this hearing was not complaint with the requirements of rule 32 of the Employment Tribunal Rules of Procedure 2024 and is refused. The claimant’s claim of automatic unfair dismissal is dismissed pursuant to rule 47 of Employment Tribunal Rules of Procedure 2024, the claimant having failed to attend this hearing.REASONS
[1]Relevant Circumstances 1.1. The claimant did not appear at the hearing. 1.2. At 8:17 am on the day of the hearing the claimant emailed the Employment Tribunal to state that he was unable to attend the hearing. The reason given was that a family pet had died, following a long illness, some 5 days earlier. 1.3. That email was not copied to the respondent as required by rule 90 of the Employment Tribunal Rules of Procedure 2024. Whilst it is noted that the claimant is a litigant in person, it is also noted that the requirement of rule 90 was explained as part of the case management note produced and sent to the parties following a previous preliminary hearing. 1.4. The respondent sent to the claimant copy papers for use at this hearing on 20 September 2025. The claimant did not respond to that communication. 1.5. This hearing was listed by Employment Judge Slater, after the respondent sought an unless order to require the claimant to provide an explanation of the basis for his automatic unfair dismissal claim. This was in response to the claimant having failed to provide the ordered explanation, that order having been made by Employment Judge Parkin at a preliminary hearing on 19 March 2025.[2]Postponement Application 2.1. Rule 32 of the Employment Tribunal Rules of Procedure 2024 governs postponements. The relevant parts of that are as follows: 32. Postponements(1) An application by a party for a postponement must be received by the Tribunal as soon as possible after the need for a postponement becomes known. 2.2. In this case the claimant was aware of the passing of the family pet on 27 September 2025. No action was taken by the claimant until the morning of the hearing, on 2 October 2025. Even then, the claimant failed to copy in the respondent, who then attended the hearing unaware that the claimant was not going to attend. In addition, it is noted that the claimant’s email to the Employment Tribunal suggests he had been aware for some months that his family pet was very ill with a rare form of cancer. 2.3. Accordingly, the application for postponement was not received by the Employment Tribunal at a time that could be described as being “as soon as possible after the need for a postponement becomes known”. 2.4. Rule 32 goes on to state as follows: 32. Postponements(2) In the circumstances listed in paragraph (3) the Tribunal may only order a postponement where— (a) all other parties consent, and— i. it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement, or ii. it is otherwise in accordance with the overriding objective, (b) the application was necessitated by an act or omission of another party or the Tribunal, or (c) there are exceptional circumstances.(3) The circumstances are— (a) a party makes an application for a postponement less than 7 days before the date on which the hearing begins, or (b) the Tribunal has ordered two or more postponements in the same proceedings on the application of the same party and that party makes an application for a further postponement.(4) In this rule— (a) “postponement” means a postponement of a hearing including any adjournment which causes the hearing to be held or continued at a later date; (b) “exceptional circumstances” may include ill health relating to an existing long term health condition or disability. 2.5. One of the circumstances referred to in paragraph (3) of the rule is where the application to postpone was made less the seven days before the hearing. The claimant’s application to postpone was made on the day of the hearing, accordingly, rule 32(2) is engaged. 2.6. It is noted that rule 32(2) states that an Employment Tribunal “may only order a postponement” (emphasis added) where one of the criteria in that rule are met. This is directive. It does not appear to build in any discretion if the criteria are not met. 2.7. There was no consent to postponement from the respondent, so rule 32(2)(a) is not applicable. The need for postponement did not arise from any failure by the respondent or by the Employment Tribunal, so rule 32(2)(b) is not applicable. The only ground for a postponement under rule 32(2) that could be applicable is therefore that “there are exceptional circumstances”. 2.8. Whilst it is understood that the claimant is distressed by the loss of a family pet, the information provided by him does not suggest that this would fall within the definition of an exceptional circumstance. The loss of the pet does not appear to have been sudden or unexpected and was some days ago. The loss of a family pet several days previously is not something that would normally amount to an exceptional circumstances without a significant aggravating feature. There is no supporting evidence (medical or otherwise) to suggest there is any such aggravating feature here. The purpose of this hearing was for the claimant to explain his claim, something he had been ordered to do by a date many months ago. Nothing in the claimant’s brief email to the Tribunal explains why he could not have attended the hearing to provide the necessary explanation or instructed someone to do so on his behalf. 2.9. Accordingly, it is found that the application does not meet the exceptional circumstances requirement for a late postponement application established by rule 32 and the application is therefore refused.[3]Dismissal of the automatic unfair dismissal claim 3.1. As explained above, the hearing was not postponed. 3.2. This hearing was listed to consider the claimant’s potential automatic unfair dismissal claim only. The purpose of the hearing was for the claimant to explain the basis of his automatic unfair dismissal claim. The hearing could not achieve that purpose in the absence of the claimant, or anyone representing the claimant, or any written representation setting out the necessary explanation. 3.3. Under rule 47 of the Employment Tribunal Rules of Procedure 2024 a claim can be dismissed by the Employment Tribunal when a claimant fails to attend or be represented at a hearing. 3.4. That rule is applicable here in relation to the claimant’s automatic unfair dismissal claim. The claimant has failed to attend the hearing and has failed to provide an explanation that is found to be adequate for that non-attendance. It was not possible to proceed in the claimant’s absence given the purpose of the hearing, and in the circumstances the claimant’s automatic unfair dismissal claim was dismissed.[4]The Overriding Objective 4.1. Consideration was given to rule 3 of the Employment Tribunal Rules of Procedure 2024 when determining the application of rules 32 and 47 at this hearing. Rule 3 states as follows: 3. Overriding objective(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. 4.2. Consideration was given to the interests of justice and prejudice to both parties in the application of rule 32, when the hearing was not postponed, and the dismissal of the claimant’s automatic unfair dismissal claim under rule 47. The following relevant points were noted: 4.2.1. The claimant failed to alert the Employment Tribunal that he would not be attending the hearing until just before the hearing. 4.2.2. The claimant failed to inform the respondent of this at all, the respondent was alerted by the Employment Tribunal at the hearing. 4.2.3. The claimant had known of the difficulty with attendance for several days and did not act. 4.2.4. The reason given for non-attendance whilst no doubt upsetting to the claimant, did not evidence an exceptional circumstance that would justify the postponement of the hearing. 4.2.5. This was a video hearing and did not require the claimant to travel in order to attend. 4.2.6. This hearing was supposed to allow the claimant to provide an explanation of his allegation that his redundancy was an automatically unfair dismissal. The claimant was dismissed a year ago. There have now been two preliminary hearings that the respondent has attended, and such a claim is still not explained. This represents a significant prejudice to the respondent both in terms of cost and inconvenience. If this hearing was relisted for a future date, and the claimant then explained the basis of the claim, the respondent would, following that, be required to present a defence to the claim. At that point the allegations would be significantly historic in nature. 4.2.7. The listing of a further preliminary hearing would cast significant doubt over whether the listed final hearing of the claimant’s claims would be able to proceed on the date set. This is likely to cause significant further delay in proceedings. 4.2.8. The claimant has a pleaded claim of ordinary unfair dismissal. That claim can proceed regardless of the intended discussion at this hearing, which was supposed to be about a different legal claim. The fact that his ordinary unfair dismissal claim can proceed significantly mitigates the prejudice to the claimant of the dismissal of his automatic unfair dismissal claim under rule 47. Noting the schedule of loss the claimant has provided; it does not appear that the amounts claimed would engage the statutory cap applicable to compensation for ordinary unfair dismissal. 4.3. Taking the above into consideration, it is found to be in accordance with the overriding objective not to grant the late application for a postponement of this hearing and to dismiss the claimant’s automatic unfair dismissal claim under rule 47 because he failed to attend this hearing. Approved by: