Mr J Ball v Bournemouth Cycleworks Ltd (In Creditors Voluntary Liquidation): 6026850/2025
JUDGMENT
Rules 38 and 47 The Claimant’s claims of unfair dismissal (s.98 Employment Rights Act 1996), accrued holiday pay, notice pay, unlawful deduction of wages and breach of contract (sales commission and arrears of pay) are dismissed in accordance with Rule 47 of the Employment Tribunals Rules of Procedure 2024 (‘the Rules’) and is struck out accordance with Rule 38(1)(d) of the Rules because the claim has not been actively pursued because the Claimant failed to attend the hearing.REASONS
[1]The Tribunal sent a notice of hearing to the Claimant on 22 January 2026 (via the portal) informing him that the final hearing would take place on 29 May 2026 at 2 pm by Cloud Video Platform (CVP). Within that notice, the Claimant was informed that the hearing was to determine the claim and decide what compensation or other remedy should be awarded if the claims succeed.[2]The Tribunal sent an email to the Claimant on 28 May 2026 with the CVP link for the final hearing and joining instructions.[3]The Claimant did not contact the Tribunal to indicate that he was not or could not attend the hearing on 29 May 2026.[4]The Claimant failed to log on to the hearing at 2 pm on 29 May 2026. The Tribunal Clerk contacted the Claimant by telephone and it went straight through to voicemail. The Tribunal clerk also sent an email to the Claimant reminding him of the hearing and providing the link and joining instructions again.[5]The Claimant had not attended by 1428 and had not otherwise contacted the Tribunal to explain why he had not done so. The Tribunal clerk therefore telephoned him again, but the number went straight through to voicemail.[6]The Tribunal has contacted the Claimant as set out above using the email address and mobile telephone number that he provided on his ET1 claim form as recorded on the Tribunal’s file.[7]As there was no attendance by the Claimant at 2:30 pm on 29 May 2026, and the Tribunal had made all the enquiries of the Claimant which were practicable to find out the reason for his absence, the Tribunal considered whether it could proceed in his absence under Rule 47 or should adjourn the hearing to another date.[8]This is a claim where the Respondent is not actively participating in proceedings and is in Creditors’ Voluntary Liquidation (CVL). Therefore, all of the information about the claims has been provided by the Claimant in these proceedings. Whilst the Claimant had provided a Schedule of Loss and witness statement, the claims (liability and remedy) could not be fairly determined without his further participation in proceedings. The documentation provided was very limited and did not clearly explain the basis of all of his complaints or calculations. The Tribunal therefore needed additional evidence from the Claimant to understand the legal grounds of the complaints and/or to calculate appropriate compensation. This would have been obtained in the final hearing. The Tribunal concluded that it was not possible therefore to conduct a fair hearing of the complaints in the listed hearing by proceeding in absence.[9]In addition, the Claimant had had approximately 4 months' notice of the hearing, has been complying with orders until recently and therefore was on notice and understood the hearing was to take place. There was no explanation whatsoever from the Claimant for his non-attendance and he was unresponsive to the Tribunal’s communications on 28 and 29 May. There was no application to postpone or adjourn the hearing from the Claimant and an adjournment would have caused delay in resolving proceedings with no assurance that the Claimant would continue to participate in proceedings. Therefore the Tribunal concluded that it would not be proportionate or otherwise in the interests of justice to adjourn to another date.[10]Therefore, taking into account the overriding objective, the Tribunal concluded that it could not reasonably proceed to determine the complaints in his absence and concluded that the complaints would be dismissed under Rule 47.[11]In the event that the Tribunal was incorrect about that, it also considered whether the complaint should be struck out under Rule 38(1)(d) of the Rules, taking into account of the guidance in Evans and anor v Commissioner of Police of the Metropolis 1993 ICR 151, CA.[12]The Tribunal concluded, for the aforementioned reasons, that the Claimant’s nonattendance and lack of explanation for it amounted to him failing to actively pursue his complaints, was disrespectful and abusive of the Tribunal and taking into account the overriding objective concluded that the complaints would be struck out under Rule 38(1)(d).[13]This brings proceedings to a conclusion.