Russell v Respondent — 2021

Richard Russell presented claims of unfair dismissal, discrimination on the grounds of disability and religion or belief, and a payment claim described in the ET1 as 'other payments' said to relate to body repairs to damaged vehicles. At an earlier preliminary hearing on 4 March 2021, the tribunal directed that a later preliminary hearing would determine whether he had a qualifying disability under section 6 of the Equality Act 2010, whether he had pleaded a claim of discrimination because of a philosophical belief, and whether any such belief was protected. It also ordered further and better particulars and medical reports and records. The claimant did not provide the level of medical evidence or particulars sought, and the correspondence records repeated requests that the tribunal obtain evidence from his GP or appoint legal representation for him, which the tribunal said it could not do.

A preliminary hearing listed for 20 and 21 July 2021 did not proceed because the claimant did not attend, saying he had suspected Covid-19 symptoms. The tribunal did not dismiss the case at that stage, but required evidence about the claimed illness and re-listed the matter for 20 and 21 September 2021. In the meantime, the respondent applied for strike out under Rule 37(1)(b) on the basis of the claimant's conduct, and later sought dismissal under Rule 47 and costs in relation to the aborted July hearing. The tribunal also set out that it required documentary evidence about the claimant's disability allegations and the steps he said he had taken to obtain medical records.

By the September hearing the claimant still had not attended. When contacted, he said he was not willing to go ahead unless he had a lawyer. The tribunal had previously told him it had no power to appoint a lawyer for him, that he was free to instruct one himself, and that any postponement for that purpose had already been refused. The tribunal considered the reasons for the absence, the prior correspondence, the earlier non-attendance in July, and the lack of satisfactory evidence about the reason for not attending that earlier hearing. It also noted that, without the claimant present, there was insufficient evidence to determine the disability issues or to identify clearly the philosophical belief relied on.

The tribunal decided that there was no good reason for the claimant's non-attendance and that no alternative case management order was appropriate. It therefore dismissed the claim under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 because the claimant failed to appear at the preliminary hearing of 20 and 21 September 2021. No substantive merits findings or monetary award were made.