Automated Summary
Key Facts
The Claimant, Mr. D. Phelan, failed to comply with Employment Tribunal orders, including providing further particulars of his discrimination and protected disclosure detriment claims and attending the 21 May 2018 preliminary hearing. Despite a strike-out warning issued on 15 January 2018, he did not attend the hearing, provide written explanations for non-compliance, or submit required documents, leading the Tribunal to strike out and dismiss his claims on 24 May 2018.
Issues
- The Tribunal considered whether the Claimant, if not an employee, was a worker under section 47K of the Employment Rights Act 1996, which would extend certain employment protections.
- The Tribunal determined whether the Claimant was an employee of the Respondent in his role as governor of the NHS Trust, which was essential for jurisdiction over the unfair dismissal claim.
- The Tribunal assessed whether it was reasonably practicable for the Claimant to present his unfair dismissal claim within the statutory time limits, given his resignation date and the time elapsed.
Holdings
The Employment Tribunal struck out and dismissed the Claimant's claims for unfair and discriminatory dismissal, race and/or religious discrimination, and detriment on the ground of making protected disclosures. The Tribunal found the Claimant failed to comply with orders to provide further and better particulars, failed to attend the hearing, and caused prejudice to the Respondent through non-compliance with Tribunal orders.
Remedies
The Employment Tribunal struck out and dismissed the Claimant's claims for unfair dismissal, discrimination, and protected disclosure detriment due to non-compliance with tribunal orders and failure to attend the hearing.
Legal Principles
- Employment Tribunals may strike out claims for non-compliance with orders (Rule 37) or failure to attend hearings (Rule 47) without investigating merits, as affirmed in Roberts v Skelmersdale College. This includes dismissal for non-provision of particulars or evidence.
- The claimant bears the burden of proving unfitness to attend a tribunal hearing, even with a medical certificate for work. The certificate must specifically address fitness for the hearing, not just work, as established in Andreou v Lord Chancellor's Department.
Precedent Name
- Andreou v Lord Chancellor's Department
- Roberts v Skelmersdale College
Cited Statute
Employment Rights Act 1996
Judge Name
G P Sigsworth
Passage Text
- 10. In those circumstances, to postpone the hearing and re-list it would be prejudicial to the Respondent and not in the wider interests of justice as it would not be likely to move the case forward, having regard to the history. We are quite likely to be in the same position at the next hearing. Nor do I conclude that it is necessary to hear full evidence and argument from the Respondent on the jurisdiction issues listed to be determined today. On their face, the dismissal claims appear to be barred by reason of being out of time and/or because the Claimant was not an employee or a worker. The Claimant has not provided any argument to the contrary. He has not complied with Tribunal orders and, he having been warned that the Tribunal was considering it, can strike out his claim on that basis alone.
- The Judgment of the Tribunal is that the Claimant's claim is struck out and dismissed.
- 9. The case is now no further on than it was nearly six months ago at the closed preliminary hearing. The Claimant has failed to provide particulars as ordered, and has failed to comply with orders so as to get ready for this open preliminary hearing. The Respondent still does not know the case it has to meet with regard to the Claimant's claims of discrimination and protected disclosure detriment. The dismissal claims are potentially barred by jurisdiction issues of time and employment status. The Claimant has not provided any documentation – a witness statement, written submissions or otherwise – as to his case on these jurisdiction points. He is not here in person to make his arguments orally, or at least to apply in person for a postponement of the hearing on medical grounds or otherwise.