Mrs K Lamb-Robinson v Crossways Playgroup (An Unincorporated Association) and others: 1400030/2022
JUDGMENT
[1]The claims against the Third Respondent and Fourth Respondent are dismissed on withdrawal.[2]The Second Respondent’s application for an extension of time for presenting a response is refused.[3]The claim is listed on 4 April 2024 for a one day hearing by video to determine remedy. The First Respondent is to confirm in writing by 22 December 2023 if any issues relating to liability remain in dispute.REASONS
Written reasons having been requested at the hearing in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:INTRODUCTION
[1]By way of a claim form dated 5 January 2022 the Claimant brought the following claims against the First Respondent:a. Unfair dismissal;b. A claim for a redundancy payment;c. Notice pay;d. Holiday pay;e. Arrears of pay;f. Being subjected to a detriment contrary to section 23 National Minimum Wage Act 1998 (NMW).[2]The First Respondent submitted a response. The copy in the bundle is undated but it is not in dispute that this was submitted in time. The response was completed by Andrew Brewer, the Second Respondent, who provided his details as the contact for the First Respondent. The response indicated that the First Respondent “does not deny that Mrs Lamb-Robinson is owed considerably more than the offer we have made”. It therefore appeared to concede liability but dispute the amount owed in remedy.[3]On 24 October 2022 the Claimant applied to amend her claim to include a claim for breach of contract. Permission was granted for this amendment by EJ Dawson on 14 December 2022 during a telephone case management hearing.[4]EJ Dawson’s Case Management Order (CMO) of that date noted that the First Respondent was an unincorporated association, and that the correct Respondents to such a claim are therefore the management/executive committee of the group. As Mr Brewer had been corresponding with the Tribunal on behalf of the committee and had named himself as the administrator it appeared that he was a member of the committee and he was therefore added as a Respondent.[5]A judgment dismissing the minimum wage claim on withdrawal was also issued following this hearing.[6]Following additional enquires made by the Claimant as to the members of the committee, the Third and Fourth Respondents were subsequently added at a further case management hearing, before EJ Cadney, on 6 July 2023.[7]The Second, Third, and Fourth Respondent’s did not submit a response to the claim within the prescribed timescales. Responses were later received along with written applications for an extension of time to present a response. While each response was of course specific to the individual Respondent, all denied that they had been a member of the committee at the relevant time.[8]The matter came before me for a 3 hour preliminary hearing, at which I considered an application by Mr Brewer to set aside an unless order that had been made against him, as well as the applications by each Respondent for an extension of time to present a response.[9]Having heard from each of the parties I set aside the unless order in respect of the Second Respondent, with oral reasons given during the hearing. I granted an extension of time to present a response in respect of Respondents 3 and 4 but this was refused in respect of Respondent 2. Following my oral judgment the Claimant withdrew the claims against Respondents 3 and 4 and the matter is now listed for a remedy hearing in respect of Respondents 1 and 2.FINDINGS OF FACT
[10]I make no findings in respect of the wider claim, other than to very briefly note those matters which are directly relevant to the issues to be decided at the preliminary hearing.[11]The Claimant was first employed by the First Respondent in 1995 as an Assistant Playground Leader and Special Educational Needs Co-ordinator (SENCO). Her point of contact was the Second Respondent, who engaged in correspondence with her on a number of occasions about her salary and contract. This included, in or around 2020, arrangements about the Claimant being placed on furlough and the payments she would receive. The Second Respondent referred to himself in correspondence as the ‘Administrator’ of Crossways Playgroup.[12]The Second Respondent appeared at all times to be the only person to speak on behalf of the First Respondent.[13]In correspondence dated 9 July 2017 and 10 June 2019 the Second Respondent wrote to parents of children at the playgroup, stating that his letter had been “issued by the Committee of Crossways Playgroup”. Both letters were signed by the Second Respondent as “Administrator”; the 2017 letter also bore the typed signature of the Fourth Respondent as “Committee Member”.[14]In response to a Freedom of Information request from the Claimant, a letter dated 29 March 2023 was received from Ofsted stating that the names of the Committee Members that they held at the time that Crossways Playgroup was de-registered were the Second, Third, and Fourth Respondents.[15]In response to another Freedom of Information request from the Claimant, Dorset Council confirmed (in a chain of emails from 23-26 May 2023) that they understood the Second, Third, and Fourth Respondents to be committee members at the time of closure. They had received a number of pieces of correspondence from the Second Respondent in respect of the First Respondent. Other than minutes of one meeting in 2017 they understood the Fourth Respondent to be on the committee as a result of verbal conversations.[16]The facts relevant to this preliminary issue otherwise essentially relate to the submission of written material on agreed dates. They are therefore largely agreed. Given this, and taking into account the significant number of events to be considered, it is clearest to set these out in the form of a chronology. For the avoidance of doubt, this is not intended as an exhaustive list of every event or comment that might have been made in each piece of correspondence, but instead gives a general overview of the position. DATE EVENT 29 October 2021 ACAS notified in respect of claim against the First Respondent 9 December 2021 ACAS certificate issued 5 January 2022 Claim received in respect of First Respondent Undated Response from Mr Brewer on behalf of First Respondent 24 October 2022 Claimant’s application to amend claim to include breach of contract 14 December 2022 Case Management Hearing before EJ Dawson. (sent to the parties - No one attended for First Respondent; on 4 January 2023) - Claimant’s application for amendment granted; - NMW claim dismissed on withdrawal; - Second Respondent added; - Second Respondent ordered to provide, by 20 January 2023, the names and address of all members of the committee during the period April 2019 – September 2021 as well as their dates of service on the committee; - By 3 February 2023 the Claimant must write to the Tribunal stating whether she wishes to add any additional Respondents. 25 January 2023 Application by Claimant for an unless order on grounds that Second Respondent had not complied with the direction of EJ Dawson to supply the names of the other committee members. 9 March 2023 Letter from Claimant disputing the Second Respondent’s assertions that he was not a member of the committee and requesting orders in default of compliance in respect of disclosure, including a sworn witness statement from the Second Respondent confirming his knowledge of the membership of the committee. 27 March 2023 1) At 09:45, email sent from Tribunal containing the unless order of EJ Livesey: Unless by 14 April 2023 the Second Respondent complies with [the previous direction that he submits the details of the members of the committee], he will be debarred from participating further in these proceedings and Judgment may be entered against him, with remedy to be assessed, as a result and in default of him filing a response to the claim. 2) 11:30, response from Second Respondent stating that he is unfit and was never part of the committee. 31 March 2023 1) Email from Claimant stating that they had received the names of the Second, Third, and Fourth Respondents from Ofsted as the committee members and requesting that the Third and Fourth Respondents are added to the claim; 2) Email from Second Respondent stating he is unfit for work. He stated that the Fourth Respondent’s name, along with his own, were names that had been given to Ofsted but denied that either was a member of the committee. 21 April 2023 Letter from Second Respondent. He is unfit for work. The application to add the Second, Third, and Fourth Respondents to the claim should be dismissed. He is not a member of the committee. 4 May 2023 1) Letter from Claimant confirming its intention to continue. 2) Email from Second Respondent asking that claims be dismissed. 30 May 2023 Email from Second Respondent saying he cannot attend hearing. 26 June 2023 Email from Second Respondent saying that he wishes to raise a complaint about the Tribunal’s conduct. 28 June 2023 1) Email from Claimant objecting to any postponement. 2) Further email from Claimant stating that Dorset council had confirmed that they understood there to be three committee members at the time of the First Respondent’s closure, namely the Second, Third, and Fourth Respondents. 30 June 2023 1) Email from Second Respondent saying he was unfit for work and repeating comments that not a member of the committee. 2) Second email from Second Respondent again denying that member of committee and requesting to be removed as Respondent. 3) Third email from Second Respondent attaching a letter in relation to a request to be removed as a Respondent. 4) Fourth email from Second Respondent to Claimant stating not part of committee. 1 July 2023 Direction from EJ Bax that if Second Respondent is requesting a postponement he will need to supply medical evidence, and it is not currently clear why he could not participate in a hearing on the telephone. 3 July 2023 Email from Second Respondent stating that he was not fit for work and repeating that not member of committee. 5 July 2023 1) Following a referral to REJ Pirani the hearing will proceed and response may be struck out if Second Respondent fails to attend. 2) Email from Second Respondent that he has already completed detailed responses and will take no further part until he is considered fit for work. 6 July 2023 Case Management Hearing before EJ Cadney. (sent to the parties - No one attended for the First or Second on 19 July 2023) Respondent; - Third and Fourth Respondents added to the claim; - Noted that no ET3 submitted by the Second Respondent and it was open to Claimant to request default judgment, but no such application has yet been made; - The Second Respondent has been regularly corresponding with the Tribunal; - If he wishes to defend the proceedings he will need to submit an application to submit a response out of time and a copy of the draft ET3; - If he is not able to participate in proceedings then he needs to supply medical evidence; evidence saying he is not fit for work is not sufficient. 4 September 2023 1) Email from Claimant requesting information from the Tribunal that parties had been added and that the relevant forms had been sent out; 2) Email from Second Respondent that he has received nothing since 19 July and is still unfit for work. 6 September 2023 Two emails from Second Respondent that unfit for work. 19 September 2023 1) Letters from Tribunal to parties: - “No Response Received” in relation to Third and Fourth Respondents; - “Rule 21 Judgment – claim not quantified” requiring further information from Claimant on amounts being claimed. 2) Email from Second Respondent stating that the notices are null and void and should be cancelled with immediate effect and an apology issued. 21 September 2023 1) EJ Midgley orders that the claim and ET3 is to be served again on the Second Respondent, and that he must sent the completed form, along with a written application for the draft ET3 to be accepted out of time, by 5 October 2023. 2) Email from Second Respondent stating that no notice has been taken of his previous correspondence. 4 October 2023 1) Letter from Second Respondent requesting reconsideration under rule 71 stating that he should not be named on the action and is not fit to participate in the claim. This was accompanied by a witness statement (incorrectly titled in the Third Respondent’s name). 2) Letter from Third Respondent requesting reconsideration under rule 71 stating that she had not been aware of the claim. This was also accompanied by a witness statement. 3) Letter from Fourth Respondent requesting reconsideration under rule 71 stating that he was unaware of the claim. This was also accompanied by a witness statement. 18 October 2023 1) EJ Volkmer directs that the orders of EJ Midgley remain in force. 2) Tribunal writes to the parties listing hearing on 24 November 2023 in respect of nonpresentation or rejection of response. 26 October 2023 Fourth Respondent submits application for extension of time and draft ET3. 7 November 2023 1) Second Respondent submits written application for extension of time and draft ET3. 2) While it does not appear in the bundle, I accepted for the purposes of this decision that the Third Respondent had also attempted to submit a written application and draft ET3 on this date.RELEVANT LAW
[17]Rule 16(1) of The Employment Tribunals Rules of Procedure (the “Rules”) requires that a response is made on the correct form and contains all the requirement information. This must be returned to the Tribunal within 28 days of the date on which the copy of the claim form was sent by the Tribunal.[18]In Grant v Asda 2017 ICR D17, EAT, the EAT held that it was not open to the Tribunal to restart the clock on the 28 day limit (in circumstances in which a Respondent did not receive a copy of the claim form) by resending the ET1. In this situation the Respondent should submit a late response coupled with an application to extend time under Rule 20.[19]Rule 18(1) states that if a response is presented outside the 28 day limit (or any extension of that limit granted within the original limit) then it will be rejected by the Tribunal unless an application for an extension of time has already been made or the response includes or is accompanied by such an application.[20]Rule 20(1) requires that an application for an extension of time must be presented in writing and copied to the Claimant, and set out the reasons why the extension is sought. If the time limit for presenting the response has already expired then it must be accompanied by a draft of the response or otherwise by an explanation of why that is not possible.[21]Whereas under the Tribunal Rules 2004 the time limit could only be extended where the Tribunal was satisfied that it was ‘just and equitable to do so’, this requirement has not been carried forward into the 2013 Rules. Rule 20 is instead silent as to the test that should be applied when considering an application. It therefore appears that the Tribunal has absolute discretion to extend a time limit. However, the Overriding Objective is likely to carry significant weight in a Tribunal’s exercise of this discretion.[22]In Kwik Save Stores Ltd v Swain and ors 1997 ICR 49, EAT, the EAT set out the correct test for determining what was ‘just and equitable’ under previous versions of the rules. Given that the Overriding Objective to deal with cases ‘fairly and justly’ is not dissimilar to the ‘just and equitable’ requirement, the guidance remains relevant.[23]In Kwik Save the EAT stated that “the process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice.” In particular, a judge should always consider the following:a. The employer’s explanation as to why an extension of time is required. The more serious the delay, the more important it is that the employer provide a satisfactory and honest explanation. A judge is entitled to form a view as to the merits of such an explanation;b. The balance of prejudice. Would the employer, if its request for an extension of time were to be refused, suffer greater prejudice than the complainant would suffer if the extension of time were to be granted?c. The merits of the defence. If the employer’s defence is shown to have some merit in it, justice will often favour the granting of an extension of time — otherwise the employer might be held liable for a wrong which it had not committed.[24]This approach has been followed in subsequent cases including Pendragon plc (trading as CD Bramall Bradford) v Corpus 2005 ICR 1671, EAT, where it was held that the issue of the time limit remained a matter for case management and judicial discretion rather than jurisdiction; and SKS Ltd v Brown EAT 0245/07 and Camden Federation of Tenants and Residents Association v Hayward EAT 0423/13, where default judgments were set aside in both these cases because of a failure by the respective employment judges to properly apply the guidance set out in Kwik Save.CONCLUSIONS
[25]Each Respondent engages slightly different issues and I will therefore deal with each in turn, in reverse order. Respondent Four[26]The Fourth Respondent accepts that his response was late. He stated that he didn’t originally receive the claim form and had no knowledge that there was an issue with pay or redundancy. The first document he received was a notice that he had been included as a Respondent, and he didn’t appreciate from this that there was a strict time frame to reply. He sought advice from the Citizen’s Advice Bureau, with this taking a couple of weeks to arrange an appointment, and then legal advice. Having done so he realised the importance of providing a response without delay. He submitted his ET3 and application to extend as quickly as possible and believes that this was only a day after the deadline he had been given.[27]In relation to his defence, he does not believe that he was a member of the committee and states that he just volunteered for various community groups. A judgment against him will have a significant impact on his retirement.[28]I note that this Respondent was not added to the proceedings until 6 July 2023 and, as such, does not appear to be responsible for any significant delay in the case. He has provided a reasonable explanation as to the reasons for non-compliance and acted promptly when he became aware of proceedings, which included the submitting of the required application for an extension of time along with a draft response.[29]The Fourth Respondent has also put forward what would amount to a full defence to the claim. While I accept the Claimant’s submission that the evidence he has currently provided in support of this is relatively limited, this was an application to enter a response out of time rather than the full preparation for a final hearing and so it is unsurprising that the information would be less detailed, particularly when that individual is representing himself in unfamiliar legal proceedings. It must be noted that the evidence that he was in fact a member of the committee is also relatively limited and largely came from third party sources, which makes it entirely possible that he will be able to establish this full defence at a final hearing. The response is therefore not without merit.[30]If the application was refused then the Fourth Respondent would be unable to defend the claim and a default judgment will likely be entered against him. This is a potentially significant prejudice, particularly considering that this is an individual Respondent who will be personally liable rather than a large employer with significant resources. While allowing the response may cause some additional delay I am not satisfied in the particular circumstances of the Fourth Respondent’s case that the impact of such a delay outweighs this prejudice.[31]When this is all taken together I am satisfied that the balance falls in favour of allowing the application in the case of the Fourth Respondent. Respondent Three[32]The Third Respondent also accepts that her response is late. She states in her application to extend time that she originally sought to enter a response once she became aware of the claim but mistakenly did this in the form of her application for reconsideration dated 4 October 2023. She argues that it was implicit in this that she was seeking an extension of time. She subsequently submitted an application to extend time in the correct format along with a draft ET3.[33]I pause at this stage to record that I accepted in my oral findings that the Third Respondent had attempted to submit her application and draft ET3 on 7 November 2023, and believed that she had, notwithstanding the fact that it did not appear in the bundle and both myself and the Claimant only received it once the hearing had already commenced. I made this finding on the basis of submissions by the Third Respondent’s representative and did not hear from the Third Respondent herself. In my judgment the assertion was consistent with the date that the Second Respondent had sent his application, and given that the Second and Third Respondent had previously submitted material together it would be a surprising omission for her not to have done so on this occasion. It is also far from unheard of for there to be problems with the sending of emails and attachments and so the explanation was not inherently implausible. Given this, and the fact that the question of whether it was submitted on 7 November or the date of the hearing was not a material factor in my decision, I was prepared to give the Third Respondent the benefit of the doubt in this respect.[34]The Third Respondent also relies on a defence that she was not a member of the committee and states that an adverse judgment will have a significant impact on her.[35]As with the Fourth Respondent, I note that this Respondent was not added to the proceedings until 6 July 2023 and, as such, was not responsible for any significant delay in the case. She has also provided a reasonable explanation as to the lack of earlier compliance. When the claim form was sent to her again there was a longer delay before the correct application was made but this was not, in my view, of such a length as to make any substantial difference to the balancing exercise. This is particularly so when viewed alongside the fact that she had made an attempt within the time given by EJ Midgley to engage with the proceedings, albeit in an incorrect format.[36]The Third Respondent has also put forward what would amount to a full defence to the claim. Again, I do accept the Claimant’s submission that the evidence provided of this is relatively limited but make the same observations in respect of the stage in proceedings and the lack of legal representation. Likewise, the evidence that the Third Respondent was in fact a member of the committee is perhaps even more limited than against the Fourth Respondent and, as such, it is entirely possible that she would be able to establish this full defence at a final hearing. The response is therefore not without merit.[37]If the application was refused then the Third Respondent would be unable to defend the claim and a default judgment will likely be entered. I make the same observations as above about the impact of this on an individual Respondent. This is a significant prejudice. While allowing the response may cause some additional delay, in my judgment any prejudice to the Claimant as a result of this is significantly less.[38]When this is all taken together I am satisfied that the balance also falls in favour of allowing the application in the case of the Third Respondent. Second Respondent[39]The Second Respondent also accepts that his response was late. He states that he had attempted to enter a response within the time given by EJ Midgely but had done so in the wrong format, and it was implicit that he was seeking an extension of time. He has advanced a defence that he is not a member of the committee and so there would be significant prejudice to him if he was unable to defend the claim. It was also submitted on his behalf that his health issues must be taken into account when considering his earlier non-compliance.[40]In my judgment the position in respect of the Second Respondent is significantly different to that of the Third and Fourth. He has been engaging with the claim from the outset, initially on behalf of the First Respondent and then subsequently in a significant volume of relatively lengthy correspondence. He was advised of the need to submit a response on a number of occasions, from as early as the CMO of EJ Dawson in December 2022. This CMO also included a clear statement of the fact that it was open to him to apply to be removed as a Respondent. Despite this, he did not submit a draft response and application for an extension of time until 7 November 2023. This is a significant delay which does, in my view, amount to a factor of significant weight in the balancing exercise.[41]I do not accept the submission that this can be explained by ill health. Firstly, there remains a lack of evidence in respect of this other than that the Second Respondent was not fit for work; as was noted in a number of pieces of correspondence and directions from the Tribunal, these did not adequately explain an inability to participate in remote proceedings, or to complete the necessary paperwork. Secondly, even taking the Claimant’s case in respect of this at its absolute highest, he was able to enter a response on behalf of the First Respondent as well as engage in lengthy correspondence with the Tribunal and Claimant about these matters throughout the period in question. As such, all that was effectively required was to copy what he had already written onto the correct form. I therefore do not accept that his medical status was such that he was incapable of completing an ET3 during this timeframe, even if to say nothing more than “please see the attached” alongside one of his many letters.[42]Furthermore, I do not accept that the Second Respondent did not realise that a proper response was what was required of him and was making genuine efforts to comply. It is significant in this regard that he had already completed the response form in respect of the First Respondent with no apparent difficulty. Having complied with the process once it is implausible that he would subsequently fail to understand what was expected. In any event, he was told in clear terms on a number of occasions what he needed to do and continued to write in every format but the prescribed form. In all the circumstances there is a perfectly reasonable inference to be drawn that this non-compliance was intentional, and that the Second Respondent was deliberately refusing to do what he knew to be required.[43]The delay in submitting a response was therefore extensive and is not, in my judgment, mitigated by any lack of understanding on the part of the Second Respondent as to what was needed. It logically follows that I am not satisfied that he has provided a satisfactory and honest explanation for this delay.[44]I am also not satisfied as to the merits of the Second Respondent’s defence. While he has, like the Third and Fourth Respondents, suggested that he was not on the committee, the picture is significantly different in his case.[45]I again note in this regard that he wrote the First Respondent’s original response and therefore claimed to speak on its behalf. He was the only person to engage with the Claimant in respect of her employment. Letters can be seen in the bundle in which he purports to be writing on the committee’s behalf, which clearly suggest that he considered this committee to still exist. He accepts that his details were recorded with Ofsted. He does not put forward any other names of those who he says were on the committee. In his ET3 he effectively accepts that he was running the First Respondent on his own, albeit he states merely as a ‘point of contact’.[46]All of this creates an irresistible inference that the Second Respondent was in fact the central figure in the operation of the First Respondent. There are therefore clear grounds on which to say that a Tribunal is likely to conclude that he was indeed a member of the management committee.[47]As such, while the Second Respondent has also put forward what would potentially amount to a full defence, I am not satisfied as to the merits of this and do not attach significant weight to it.[48]I have also considered the question of prejudice. While refusing the application will prevent the Second Respondent from presenting his defence I have noted above my observations in respect of this, and therefore recognise the only very limited prospects that allowing the response, and incurring significant additional delay and cost as a result, would actually alter the final outcome. I therefore reduce the weight that I attach to this prejudice accordingly.[49]Furthermore, while a judgment against the Second Respondent will make him directly liable to the Claimant, it will remain open to him outside of these proceedings to seek to recover a contribution from any other committee members, who will remain jointly and severally liable. The concessions made in the First Respondent’s response also suggest that the Second Respondent retains responsibility for any remaining funds held by the First Respondent, which can therefore also be used towards any financial orders. Both of these factors reduce the prejudice in respect of the personal financial impact of any judgment on the Second Respondent.[50]All of this must then be balanced against the prejudice to the Claimant already caused by the significant delay in a case in which it has been accepted from the outset that she is owed substantially more than she has received.[51]Having taken everything above into consideration in line with the guidance in Kwik Save, I am satisfied that the Overriding Objective and need to deal with cases fairly and justly is such that the application should be refused in the Second Respondent’s case. The prejudice to the Claimant, in respect of the ongoing cost of proceedings, as well as continuing not to receive payments that it is accepted that she is owed, significantly outweighs those factors in favour of granting the extension of time necessary to present a response. FINAL DIRECTIONS[52]Having heard my oral judgment the Claimant withdrew her claims against the Third and Fourth Respondents.[53]The claim is listed on 4 April 2024 for a one day hearing by video to determine remedy. It is apparent from the claim form and the Claimant’s schedule of loss that there are a number of factual findings that will need to be made in order to properly quantify the claim.[54]It was said on behalf of the First Respondent that this Respondent had submitted a response on time and was therefore entitled to defend the claim. However, given that liability appeared to have been conceded in the response form I decided that it was appropriate to list at this stage on the basis that only remedy was in dispute.[55]In order to allow both parties to properly prepare for the hearing the First Respondent must indicate in writing by 22 December 2023 if it does intend to raise any issues relating to liability at that hearing.[56]The Claimant may provide a written response to these submissions by 19 January 2024.