No attendance or v Respondent — 2020

The claimant's ET1 ticked age, race, religion or belief, and sex discrimination and also included notice pay, holiday pay, arrears of pay, and a whistleblowing claim. The claim had already been dismissed under Rule 38 in March 2019 after non-compliance with the tribunal's October 2018 order requiring disclosure of all previous tribunal judgments. The hearing on 22 September 2020 was therefore concerned with the claimant's applications for recusal, adjournment, and for dismissal to be set aside under Rule 38(2), together with the respondent's costs application.

The tribunal refused recusal and adjournment. It rejected the allegation that the judge had had private conversations with the respondent's HR manager or otherwise been biased, and found that the adjournment requests were inconsistent, incoherent, and unsupported by medical evidence. Applying the Rule 38 authorities, including Denton v White and Uwhubetine, the judge treated the issue as an application for relief from sanctions. He also considered the claimant's 31 July 2020 disclosure of five emails and said that earlier judicial comments on document integrity could be relevant, but left any final assessment to another judge because the case would not proceed before him.

The application to set aside the dismissal was refused, so the substantive claims were not revived and no merits findings were made on the discrimination, whistleblowing, or pay claims. The respondent's costs application was also refused. Although the judge considered the non-compliance with the disclosure order capable of justifying a costs order, he held that it would not be proportionate to add costs to the existing sanction of dismissal; had costs been awarded, he would have limited them to counsel's fee of £1,200.