Mr R Gelpernas v No appearance NSL Limited — 2020

At the preliminary hearing on 6 January 2020, the claimant did not attend, despite an earlier preliminary hearing and a further refusal of his late request to appear by telephone. No explanation for the non-attendance was provided. The tribunal therefore dismissed the claim under Rule 47 and also struck it out under Rule 37 after concluding that all pleaded claims had no reasonable prospects of success and that strike-out was proportionate.

On the unfair dismissal allegation, the tribunal treated the claim as one for dismissal for asserting a statutory right. It accepted the respondent's account that the claimant had requested annual leave very late, took the leave without formal approval, and that the leave was later approved. The tribunal also found that the claimant's service was very short and that he did not have jurisdiction to bring an unfair dismissal claim under section 92 of the Employment Rights Act 1996.

The age discrimination allegation was not set out in detail. The tribunal found that, if the case was put as indirect discrimination under section 19 of the Equality Act 2010, no provision, criterion or practice had been identified; if it was put as direct discrimination under section 13, no proper comparator or basis for unfavourable treatment had been identified. On that basis, the tribunal held that the allegation was too lacking in specification to have reasonable prospects.

The unlawful deduction from wages claim was also rejected. The tribunal noted that the claimant accepted he had been paid notice, that statutory sick pay does not apply to the first three days of absence, and that employment ended by letter dated 1 April 2019 so no wages were due after termination. It then made an award of expenses to the respondent under Rule 76, but limited recovery to the period after the first preliminary hearing because the claimant was unrepresented and appeared to have English as a second language. The respondent's schedule sought £2,864.50 exclusive of VAT, but the award made was £1,177.50 net, with VAT recoverable by the respondent.