Mr. I Bates v David Wilson Trailers Ltd t/a DWT Exhibitions — 2019

At a preliminary hearing on 26 September 2019, Employment Judge Heap considered whether the unless order made on 18 July 2019 should be set aside under Rule 38(2) of the Employment Tribunals Rules. The claimant did not attend and had not made representations. The tribunal noted that notices and orders had been sent to the claimant's correct email address, and that he had also failed to attend the earlier preliminary hearing before Employment Judge Batten on 1 August 2019.

The claimant had told a tribunal clerk on 26 July 2019 that he could not comply because the respondent had not sent the timesheets ordered by Employment Judge Britton. The tribunal found that four emails containing the timesheets had in fact been sent by the respondent's solicitors on 21 June 2019 to the claimant's correct email address. It therefore rejected the claimant's explanation for non-compliance and found that he had not complied with the unless order, apart from one part that the judge noted was in any event directed to the respondent.

Applying Rule 38(2) and considering the reasons for default, the seriousness of the non-compliance, prejudice to the respondent, and whether a fair trial remained possible, with reference to Thind v Salvesen Logistics Ltd EAT 0487/09, the tribunal concluded it was not in the interests of justice to set aside the unless order. The claim in its entirety therefore stood dismissed with effect from 2 August 2019 under Rule 38(1), and the hearing listed for November 2019 was cancelled.