Mr A Wallace v New Gorbals Housing Association Ltd: 8002200/2024
JUDGMENT
The judgment of the Employment Tribunal is that the claim is struck out under rule 38(1)(d) of the Employment Tribunal Procedure Rules 2024 for a failure to actively pursue.REASONS
[1]The claimant lodged a claim in the employment tribunal on 23 December 2024, claiming unfair dismissal, redundancy pay, notice pay, holiday pay and arrears of pay.[2]A final hearing was due to take place by CVP on 13 June 2025 at 10 am.[3]The claimant, not having attended by approximately 10.10, was contacted by the clerk by telephone. His response was that he had been busy, that he had forgotten about the hearing, and that as he was due to start a new job he could not attend by video. He advised that he could attend by telephone. ETZ4(WR)[4]Following consultation with me, the clerk contacted the claimant again by telephone to advise that he should join the hearing by audio, and then sent him the relevant links.[5]By approximately 10.30, the claimant had failed to join the hearing by video or audio. The clerk contacted the claimant again by telephone. It transpired that he was not at home, that he was outside, and that he could not connect to the internet, and therefore would not be joining the hearing.[6]At the conclusion of the call, the claimant said to the clerk, words to the effect of “To be honest with you, I’ve had enough of this, I’d just be happy taking a week’s wage and calling it a day at that”.[7]When the case called, Ms Taylor made an application to strike out the claim.Background
[8]Following initial consideration, a Notice and Order dated 28 January 2025 was issued to the claimant under rule 28(1) of the 2024 Rules of Procedure. Employment Judge MacLean thereby ordered that the complaint of unfair dismissal and redundancy payment be dismissed on 11 February 2025 (the claimant not having the requisite two years’ service) without further order unless the claimant made written representations before that date.[9]In relation to the other claims, the claimant was asked to confirm:a. does he accept that holiday pay has now been paid. If not, what other sums are due and why? Andb. What further sums does the claimant say he is due for arrears of pay and notice pay and how are these sums calculated?[10]No response having been received, the Tribunal confirmed to the claimant on 18 February 2025 that the claims of unfair dismissal and redundancy payment were therefore dismissed as at 11 February 2025.[11]The claim was re-referred for initial consideration on 19 February when Employment Judge Wiseman listed the case for a final hearing on the outstanding claims, to take place on 17 March 2025, and issued standard case management orders requiring documents and a schedule of loss, and required the claimant to provide a calculation of the sums due by 5 March 2025.[12]By e-mail dated 26 February 2025, the claimant stated only “Yes I would like to continue with this and that date suits me perfectly”.[13]By e-mail dated 3 March 2025, the respondent advised the Tribunal that the claimant had not complied with any of the above orders, that they did not have fair notice of his claims, and that absent further details intended to apply for an unless order.[14]In a response dated 3 March 2025, the claimant confirmed that he accepted that no holiday pay was due, but was “continuing with this due to being unfairly dismissed”, confirming his position that he had been dismissed and did not resign.[15]By letter dated 4 March 2025, the claimant was asked to confirm that his claim for holiday pay was withdrawn and what he was due for arrears of pay and notice pay.[16]The claimant replied on 4 March 2025 confirming he was just looking for notice pay and unfair dismissal, and in another e-mail that he “never received the full weeks wage”.[17]By letter dated 5 March 2025, the claimant was advised to confirm the exact sums confirmed for notice pay and arrears of wages by 12 March 2025.[18]By e-mail dated 7 March 2025, the respondent made an application for an unless order on the grounds that the claimant had failed to comply with various orders issues 28 January, 19 February and 4 and 5 March 2025.[19]By letter dated 7 March 2025, the claimant was asked to provide comments by 12 March 2025.[20]No response having been received from the claimant, by letter dated 13 March 2025, the claimant was directed to reply by return if he was actively pursuing the claim otherwise it was possible the claim would be struck out.[21]On 13 March 2025, the claimant replied “I don’t know what you want from Me? Shouldn’t someone be dealing with this for me on my behalf”; and on 14 March 2025, “I wasn’t sure what was needed from me I want to go ahead with it as I’ve said and stated yesterday that someone should be doing this for me as it’s wrote in riddles, what a joke !!!!??”[22]The hearing listed for 17 March 2025 was postponed by Judge Walker to allow the application for an unless order to be considered.[23]By letter dated 19 March the claimant was again directed to confirm the exact sums said to be due and to reply by 26 March 2025.[24]No response having been received, on 28 March the claimant was issued with a final reminder to confirm the exact sums due and to reply by 4 April 2025.[25]By e-mail dated 28 March 2025, the claimant advised that he was seeking 4 weeks’ sick days, 4 weeks’ notice pay and 4 weeks for unfair dismissal.[26]By e-mail dated 31 March 2025, the claimant stated, “so that everything all set just so that I know I don’t need to do anything else on my behalf, just want this all over and done with to be honest”.[27]By letter dated 1 April 2025, the claimant was advised that I had considered the file and decided to refuse the unless order, the claimant having give certain information on 28 March 2025 and confirmed that he wanted to proceed. I relisted the final hearing for 13 June 2025 and case management orders, to supply documents and a schedule of loss, were re-issued.[28]The claimant not having complied with those orders, a reminder was issued on 17 April 2025.[29]On 20 April 2025, the claimant e-mailed stating “I want someone to deal with this on my behalf as it’s constant emails to me, I want to go ahead with it”.[30]On 22 April 2025, the claimant was sent advice about obtaining legal advice and advised that he should comply with the case management orders by return. The claimant was issued a further reminder on 28 April 2025 to comply by return, and advised that repeated failures to comply with orders without adequate explanation could result in a strike out warning.[31]No reply was received from the claimant.[32]On 8 May 2025, the claimant was issued with a strike out warning, and to submit any reasons for disagreeing by 22 May 2025. No reply was received from the claimant.[33]By e-mail dated 29 May 2025, the respondent asked for the Tribunal to proceed to consider strike out.[34]By e-mail dated 29 May 2025, parties were advised that Employment Judge McCluskey had decided not to strike out the claim because the claimant had written to the Tribunal on 20 April advising that he wanted to go ahead. He was reminded that the final hearing would take place on 13 June 2025 at 10 am by CVP.[35]The Tribunal received no reply to that e-mail from the claimant. Respondent’s application for strike out[36]I considered the respondent’s application for strike out for failure to comply with orders and for failing to attend the hearing. Ms Taylor relied on the many opportunities which the claimant had to comply with orders and to specify the sums sought and how they had been calculated. She relied on the failure of the claimant to comply with the most recent case management orders and to fail to engage with the preparations for the hearing, including failing to comply with orders relating to documents and a schedule of loss. She relied on the fact that the claimant had not attended the hearing today.[37]Although the claimant appeared to indicate that he was no longer seeking sick pay or notice pay, he did make reference to unspecified arrears of pay but there was no offer on the part of the respondent to pay any arrears of pay because they did not consider that any were due. The claimant had however failed to specify, despite very numerous opportunities, not only how much he seeks for sick pay and notice pay, but also what that claim for arrears of pay relates to, how much he is seeking, and how any sum might be calculated.[38]I decided that the way the various failures of the claimant to comply with orders; the fact that the claimant had not been in contact with the Tribunal since 20 April 2020, and particularly his failure to attend this hearing and the circumstances of that failure, mean that there are grounds of strike out, that is that the claim has not been actively pursued in terms of rule 38(1)(d) of the 2024 Rules of Procedure.[39]That ground having been established, I decided to exercise my discretion to strike out the claim on that basis having in mind the overriding objective to deal with cases fairly and justly and in particular for the following reasons:a. the background and procedural history narrated above;b. the many opportunities which the claimant had been given to comply with orders;c. the fact that the claimant had been directed or ordered to supply further information on twelve occasions but had failed to provide it;d. the claimant’s failure to respond to the previous unless orders;e. the failure of the claimant to contact the Tribunal at all after 20 April 2025;f. the claimant’s failure to engage with the respondent to provide a joint file of productions for this hearing;g. the claimant’s failure to provide a schedule of loss;h. the claimant’s failure to attend this hearing because he had “forgotten” about it;i. the claimant’s failure to make arrangements, despite the opportunities given to him, on the morning of the hearing to attend by audio or video;j. the implication by the claimant that he did not wish to proceed with the claims previously intimated in any event;k. The fact that this is the third application for strike out made by the respondent to which no substantive response has been received by the claimant despite the opportunity to do so;l. The fact that the respondent had prepared on two occasions for this final hearing which was postponed already on account of the claimant’s failures and which could not proceed today on account of his failure to attend.m. The fact that it was not apparent that the claimant would or could provide further specification of his claim or attend if a further final hearing was listed which would increase costs yet further for the respondent.[40]Ms Taylor then made an application for expenses. I advised Ms Taylor that, if so advised, she should made that application in writing and intimate it to the claimant in the usual way.