Ms J Gawelczyk v No Appearance Carers Direct Ltd. — 2023

Ms J Gawelczyk presented an ET1 on 25 June 2021 alleging public interest disclosure claims under the Employment Rights Act 1996. The form contained no detail, although a 13-page attachment was later lodged on 28 June 2021. The case then involved repeated postponements and periods of sisting because of the claimant’s reported health problems, alongside a series of case management orders requiring further particulars, a schedule of loss, dates to avoid, medical evidence, and preparation for a preliminary hearing.

By the continued preliminary hearing listed for 6 and 7 June 2024, the claimant had not complied with the outstanding orders and had not provided substantive responses to the respondent’s strike out applications or warnings. She sought a postponement on the morning of 6 June because of a telephone appointment with a doctor, but did not attend the hearing. The tribunal proceeded in her absence and granted the respondent’s strike out application.

Employment Judge McManus held that strike out was justified under Rule 37 because of non-compliance with case management orders, the unreasonable manner in which the proceedings had been conducted, and the claimant’s failure actively to pursue the claim. The judge applied the overriding objective in Rule 2 and referred to Baber v RBS plc on proportionality. The tribunal also noted that, on the face of it, the whistleblowing claim was likely to be time-barred and that, given the age of the allegations and staff turnover, there was a risk that a fair hearing might not now be possible. No merits determination or monetary award was made.