Ms A Sheikh v Mrs M Bamford and Mr C Bamford: 1400099/2022
REASONS
FOR REFUSAL OF APPLICATION TO ADD A CLAIM OF RACE DISCRIMINATION[1]On 24 June 2022 I refused the Claimant’s application to add claims of race discrimination.[2]The Claimant was engaged by the Respondents as a housekeeper between 11 November 2021 and 26 November 2021. The parties’ hope was that this would be a long-term appointment. The Claimant presented her claim on 12 January 2022. The ACAS conciliation period was between 1 and 16 December 2021. The claim was for monies owed. The Claimant did suggest she had been bullied and harassed by the Respondents. The context was that the Claimant had refused to baby sit during Mrs Bamford’s birthday dinner. That had made the event more complicated for the Bamfords. The parties appear to have fallen out about that event. It is suggested that the Bamfords raised their voices about the fact that the Claimant declined to babysit. Mrs Bamford is said to have slammed a door. The Claimant left the engagement and claimed for monies owed. None had been paid. She did not claim race discrimination. Case Number: 1400099/2022 The Clamant is a black person of Somali origin.[4]I have heard the Claimant today and asked her some questions. The Claimant tells me she has lived in this country for 20 years. She knew she could claim race discrimination before an Employment Tribunal. She consulted a CAB before issuing the claim. She did not tell them she thought she had been racially discriminated against. Indeed, it had not occurred to her that she had been subject to race discrimination when she filled in the claim form. It was a lawyer who suggested she had been racially discriminated against when she consulted one in June 2022. Hence the application to add a claim of racial harassment dated 20 June 2022.[5]The application to amend was made some 7 months after the events. The normal time limit, of course, is 3 months. This is an amendment so time limits for presenting originating process is just one factor. Time can be extended if just and equitable, of course. Again, I can take that into account as a factor in the exercise of discretion (see for example Vaughan v Modality Partnership UKEAT/0147/20/BA(V) (9 November 2020)). I note further that Mr and Mrs Bamford could deal with the allegation if it were appropriate to do so. They could give evidence about the events.[6]I exercise my discretion against granting the amendment, however. I do so because(a) the Claimant knew she could claim race discrimination before an Employment Tribunal when first making the claim and(b) it did not occur to her that she had been subject to race discrimination. She did not think she was making a claim for race discrimination when she first contacted the CAB, contacted ACAS and when she filled in the claim form. This was her lawyer’s idea: not hers. The Claimant is not someone who is ignorant of her rights. She has lived in the UK for over 20 years. If she thought she had been racially discriminated against, she could have and would have said so from the beginning. I do not find a good reason for granting the amendment in those circumstances.[1]The Claimant was engaged by the Respondents as a housekeeper between 11 November 2021 and 26 November 2021. She claims unauthorised deductions from earnings. At a telephone hearing on 24 June 2022, the Respondents agreed to pay the Claimant £1,344 on account of her claim of monies owed.[2]A claimed balance of £576 remained in dispute. The parties agreed that it would be resolved by Employment Judge Smail on the papers. This was very sensible to reduce time and travel expenditure. It was also proportionate to what on any view amounts to a small claim.[3]It was agreed that the Claimant worked 96 hours for the Respondents. The issue was as to hourly rate: the Claimant says the rate was £20 per hour; the Respondents say it was £14 per hour.[4]The parties were to exchange documents between themselves by 8 July 2022. They would agree an index by 12 August 2022. A bundle was to be filed with the Tribunal by 19 August 2022 marked for the attention of Employment Judge Smail. Case Number: 1400099/2022[5]I have now read the bundle of documents together with an email dated 28 October 2021 from Sassi Madath which the Claimant was keen for me to see.[6]Whilst a contract of employment was not signed because the relationship between the parties ended before that took place, the salary proposed and agreed was £42,000 per annum. What was the hourly rate? The draft contract envisaged 45 hours a week. On the balance of probability that was the amount of hours agreed. The written contract stipulated working hours as 9 am to 7pm with 1 hour off for lunch, 5 days a week. That makes 9 hrs x 5 = 45 hrs per week. £42,000 /(52x45) = £17.94 per hour.[7]Accordingly, I find that the Claimant is owed 96 hours x £3.94 (i.e. £17.94 – the £14 per hour agreed to be paid to date).[8]The rate did not become £14 per hour because the contract was not signed or because notice of leaving was not given. The relevant rate was that based on £42,000 per annum and the hours agreed to be worked. There is no claim from the Respondents for notice not given. The Claimant says she was entitled to leave anyway without giving notice by reason of the alleged conduct of the Respondents. Fortunately, those matters do not fall for determination.[9]This award now brings this litigation to an end, subject to the Respondents paying it, which they now must. The Claimant is responsible for any tax payable in respect of it.