Mr C Marques v Twenty-Four Seven Recruitment Services Ltd and others: 1401010/2015
EMPLOYMENT TRIBUNALS
Case No 1401010/2015
Between
Mr C MarquesClaimantTwenty-Four Seven Recruitment Services Ltd and othersRespondent
Before
Employment Judge LiveseyDate 12 April 2019
JUDGMENT
ON APPLICATION FOR RECONSIDERATION The Claimant’s application for reconsideration is refused because there is no reasonable prospect of the decision being varied or revoked.
REASONS
[1]The Claimant has applied for a reconsideration of the Judgment dated 16 August 2017 which was sent to the parties on 16 August 2017. The grounds are set out in his application of 7 and 12 March 2019.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received outside the relevant time limit.[3]Under rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the rules or in any decision, whether or not (in the case of an extension) it has expired.[4]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. The earlier case law suggested that the ‘interests of justice’ ground should be construed restrictively. The Employment Appeal Tribunal in Trimble-v-Supertravel Ltd [1982] ICR 440 decided that, if a matter had been ventilated and argued at the hearing, any error of law fell to be corrected on appeal and not by review. In addition, in Case No. 1401010/2015 2 Fforde-v-Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. More recent case law has suggested that the test should not be construed as restrictively as it was prior to the introduction of the overriding objective (which is now set out in rule 2) in order to ensure that cases are dealt with fairly and justly. As confirmed in Williams-v- Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the ‘interests of justice’ ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council-v-Marsden [2010] IRLR 743, the EAT stated that the requirement to deal with cases justly included the need for there to be finality in litigation, which was in the interest of both parties.[5]The Claimant explained in his letters of 7 and 12 March 2019 that he left the GMB union in July 2018, nearly a year after the Judgment was entered. That Judgment was sent to the Claimant at his address at 112 Salisbury Street, which is where the correspondence of 26 June 2017 and the strike out warning of 31 July 2017 also went. The Tribunal had no way of knowing that he might have moved from that address.[6]The Claimant has complained that his union have apparently not acted upon information that he sent regarding his change of address. If the GMB have failed to take any or any effective steps to protect his position within the proceedings, it is a matter which he ought to take up with them. It is not for the Tribunal to ensure that effective communication is maintained between a party and his/her representatives. The warning and the Judgment can therefore be regarded as having been validly served and sent. Further, there is no indication from the Claimant that the failings which led to the strike out warning have been remedied.[7]In these circumstances, it is not appropriate to extend time to enable the application to be considered so late. Further or alternatively, even if the application was considered on its merits, in the absence of any evidence suggesting that the Claimant has remedied the defaults which led to the warning, the application would have no reasonable prospect of success as it is not in the interests of justice for the Judgment to be varied or revoked. Case No. 1401010/2015 3 ________________________ Employment Judge Livesey Dated 14 March 2019 Judgment sent to Parties on 15 March 2019 For the Tribunal Office Case No. 1401010/2015 1 EMPLOYMENT TRIBUNALS Claimants Respondents(1) Mr Caetano Marques and (1) Twenty-Four Seven Recruitment Services Ltd(2) Tempay Ltd – In voluntary insolvency(3) Wincanton Group Ltd(4) DHL Services Ltd[1]The Claimant applied for reconsideration of the Judgment dated 16 August 2017. The grounds were set out in the application of 7 and 12 March 2019. The application was rejected and a Judgment dated 14 March 2019 was sent to the parties the following day. On 28 March, however, Messrs Pattinson and Brewer applied for reconsideration of the reconsideration judgment of 14 March 2019[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit, just. Case No. 1401010/2015 2[3]The grounds for reconsideration are those set out within paragraph 4 of the Judgment of 14 March 2019.
Background
[4]The claim was issued in 2015 and has travelled under the lead case of Mr Afonso (No. 1400846/2015). There are 75 claims in total including this one; 12 are unrepresented, 51 are represented by Pattinson and Brewer and 12 are now (recently) represented by Tom Street.[5]The Claimant had previously been represented by his union, the GMB, through Messrs Pattinson and Brewer. They came off record for him on 21 June 2017 and the tribunal sent the usual change of address letter to him at 112 Salisbury Street. He was also then asked whether he wished to pursue his claim. In the most recent application for reconsideration, Messrs Pattinson and Brewer have accepted that there was an administrative error on their part in that the Claimant’s correct address was not passed to the Tribunal at that point.[6]On 10 July 2017, a Notice of a relisted Preliminary Hearing was sent to the Claimant. A copy of the Judgment from the Preliminary Hearing was then sent to him on 21 July and, in light of the fact that the Tribunal had received nothing from him in return, a strike out warning followed on 31 July. Again, there was no response from the Claimant and the claim was struck out on 16 August because it had not been actively pursued.[7]On 7 March 2019, the Claimant wrote to the Tribunal and asked for his case to be reconsidered. He stated that he had changed address in 2016 and alleged that he had informed the GMB and/or Pattinson and Brewer of that fact. He had not, however, informed the Tribunal when they had come off record, nor did they.[8]The Tribunal raised a number of questions of the Claimant on 8 March and he responded on the 12th; he stated that he had not been aware that he had to inform the tribunal that he had changed address. He stated that he had informed his union (three times) and his current solicitors, Pattinson and Brewer, that he had changed address.[9]On the basis of all the information, the application for reconsideration was dismissed in the Judgment of 14 March 2019.[10]Following receipt of Pattinson and Brewer’s most recent application, the Respondents were invited to comment and the Tribunal received emails on 9 Case No. 1401010/2015 3 April from the Fourth Respondent and on 10 April from the First and Third Respondents.
Consideration
[11]The Claimant’s solicitors raised 3 substantive issues within their application; first, they alleged that the Claimant did not miss any substantive deadlines within the litigation. The previous Judgment did not suggest that he had. The ‘failings’ referred to within paragraph 6 of those matters set out above.[12]Secondly, it was alleged that the Claimant had not received any of the letters from the Tribunal warning him that his claim might have been struck out. That was correct; it was as a result of his solicitors’ administrative error.[13]Finally, it was asserted that the Respondents would suffer no prejudice if the Judgment was reconsidered. It is not in the interests of justice for the Respondents to have to deal with claims which have not been prosecuted appropriately and for the Tribunal to allocate its limited resources to litigants who have not acted diligently in pursuing them. The decision in Newcastle upon Tyne City Council-v-Marsden [2010] ICR 743 is not a template which can be applied to all cases of this sort. In reality, this application is an attempt to have a second bite at the issues which were considered in the Judgment of 14 March 2019, essentially on the grounds of the solicitors’ own failure (see Ministry of Justice-v-Burton [2016] EWCA Civ 714). The application is dismissed.