A Zaremba v Hunter Labs Technologies Ltd and others: 1402128/2022
EMPLOYMENT TRIBUNALS
Case No 1402128/2022
Between
A ZarembaClaimant1. Hunter Labs Technologies Limited 2. Victoria Lion Parters LimitedRespondent
Before
Employment Judge CadneyMrs Simpson (instructed by Counsel) for claimantDate 29 January 2024
JUDGMENT
The respondent’s response is struck out.
REASONS
[1]By a letter dated 2nd June 2023, the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because the respondent had not complied with the Order of the Tribunal dated 2nd June 2023 it has not been actively pursued.[2]The respondent has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The response is therefore struck out.[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge. _____________________________ Employment Judge Cadney Date 27 June 2023 Judgment sent to the parties on 11 July 2023 For the Tribunal Office Case Number: 1402128/2022 Page 1 of 9 THE EMPLOYMENT TRIBUNALS Claimant: Alex Zaremba Respondents:(1) Hunter Labs Technologies Ltd(2) Victoria Lions Partners Ltd(3) Lydia Ofori Heard at: Bristol by CVP On: 30 June 2023 Before: Employment Judge Beever (sitting alone) Representation: Claimant: Mrs Simpson, Counsel Respondents: not attending[1]These are written reasons provided to the parties following the hearing that took place on 30 June 2023. These written reasons must also be read in conjunction with separate Case Management Orders of same date made for the conduct of the claim.
The Facts
[2]The Claimant was employed by the First Respondent from 31 October 2020 until 23 March 2022, following their resignation on notice on 23 December 2021. The Second Respondent has since been dismissed from proceedings by EJ Midgely on 17 March 2023. The named Third Respondent is the CEO of the First Respondent, its sole director and sole decision maker, and also the Claimant’s line manager at all material times.[3]The Claimant has made disability discrimination claims, as reflected in the Order of EJ Midgley on 17 March 2023, as well as unlawful deduction of wages and failure to provide particulars of employment and itemised statements of pay. The Claimant’s case is that they meet the definition of disability within the meaning of section 6 of the Equality Act 2010. This is not conceded and no determination has yet been made by the Tribunal.[4]The Claimant underwent ACAS EC Procedure between 28 April 2022 and 01 June 2022. Leaving aside other issues that have subsequently been resolved, ACAS Certificates were obtained reflecting the prospective First and Second Respondents. There was no certificate reflecting the prospective Third Respondent. At the time, the Claimant was a litigant in person and had some assistance from the Citizens Advice Bureau. The Claimant did not receive advice and had not realised that it was necessary to obtain a separate/additional certificate in respect of the Third Respondent.[5]The ET1 claim form was presented on 30 June 2022. By that time, the Claimant had instructed solicitors. In paragraph 7 of the Grounds of Claim, the Claimant expressly pleads that the Third Respondent was responsible for the conduct alleged in relation to disability discrimination. In anticipation of a potential ACAS-related point, solicitors for the Claimant also asked the Tribunal to act under rule 34 of the Tribunal Rules with a view to joining the Third Respondent to the proceedings given the situation that the Third Respondent had not been included in a separate ACAS EC Certificate.[6]The claim was acknowledged by the Tribunal on 7 July 2022. The ET2 form cited only the First Respondent but did not indicate that any part of the claim had been rejected. The Claimant says that there was no notice of rejection. Case Number: 1402128/2022 Page 3 of 9[7]On 10 November 2022, a PH took place in front of EJ Danvers. The EJ permitted the Second Respondent an extension of time to serve a response. The CMO, at paragraph 35, recites: “The Claimant did not provide an ACAS early conciliation certificate number in their claim form in respect of Lydia Ofori. Accordingly, that claim was rejected by the Tribunal. This was unfortunately not communicated to the Claimant at the time. The Claimant was informed that their claim against Lydia Ofori had been rejected in the course of the hearing.”[8]The Claimant says that they did not receive at any point a notice of rejection under rule 11 of the ET Rules. There has not been an identification of which part of rule 12 of the ET Rules applies to the rejection of the claim against the Third Respondent.[9]An ET3 response was filed by solicitors. The Grounds of Response refer to both the First Respondent and the Second Respondent. No reference is made to the contents of paragraph 7 of the Grounds of Claim.[10]The Claimant raised the matter at the second PH, on 17 March 2023 before EJ Midgley. The CMO, on page 1, recites that there are 3 Respondents, including the Third Respondent and, at paragraph 9 recites, “Claim against the Second and Third Respondents….The claimant must write to the Tribunal and the respondent within 14 days of the date on which this record is sent to the parties, to clarify whether they pursue the claim against the Third Respondent”.[11]The Claimant’s solicitors emailed the Tribunal on 13 April 2023 to confirm, “in response to paragraph 9, we confirm that the Claimant still wishes to pursue the claim against the Third Respondent for the reasons set out in the ET1 and Grounds of Complaint, and that it is in the interests of justice for them to do so.”[12]The correspondence between the Tribunal and the parties after that date turned to the First Respondent, and no further reference is made in correspondence to the position of the Third Respondent.[13]The Third Respondent had indicated to the Tribunal on 11 April 2023 that the First Respondent had “ceased to be a company from April 1st 2023”. This was followed by its solicitors coming off the record on 12 April 2023. The Tribunal’s Legal Officer however had determined that the First Respondent was still active on Companies House. This culminated in an email dated 2 June 2023 from the Tribunal wherein EJ Cadney considered that the First Respondent had not yet dissolved and had not complied with existing case management orders and was no longer actively defending the claim. EJ Cadney made an unless order that, “Unless the respondent notifies the claimant and tribunal in writing within 14 days that it intends actively to defend the claim and that it has complied with all existing case management directions the response will be struck out without further order for the failure to comply with case management directions and/or to actively defend the claims pursuant to rule 37 ET Rules of Procedure 2013.” On Case Number: 1402128/2022 Page 4 of 9 2 June 2023, EJ Cadney also ordered that, “The hearing currently listed for 30th June 2023 will remain listed at present. In the event that the response is struck out it can be used to determine liability and remedy.[14]There was further communication from the Third Respondent relating to the status of the First Respondent. The correspondence did not address compliance with the unless order. EJ Cadney reminded the parties on 12 June 2023 that the First Respondent had until 16 June 2023 to respond to the specific questions. The First Respondent did not. Accordingly, it appears that the First Respondent’s response stands struck out without further order.[15]Those are the circumstances leading to the PH today (30 June 2023).[16]The initial intention for the PH, as per EJ Midgley on 17 March 2023, was(i) to decide whether the Claimant had a disability for the purpose of section 6 of the EQA 2010 and(ii) refinement of the issues. The Order of EJ Cadney on 2 June 2023 directed that if the response of the First respondent was struck out then the PH can be used to determine liability and remedy.[17]In the event, and for the reasons set out below, the Tribunal dealt with an application for reconsideration of the rejection of the claim against the Third Respondent and was not then in a position to be able to complete any determination of liability and remedy against the First Respondent.[18]For reasons set out below, the Tribunal allowed the application for reconsideration and relisted the Preliminary Hearing at which the Third Respondent is required to attend. This is set out in a separate Case Management Order of same date. Directions for the determination of the claim against the First Respondent can be addressed at the conclusion of that PH. The Claimant’s Application[19]The position, as far as the Tribunal today is concerned, is that it appeared that there was no live claim against the Third Respondent.[20]On a proper interpretation of the CMO of EJ Danvers on 10 November 2022, the claim against the Third Respondent had been rejected. The Tribunal therefore heard submissions from the Claimant that it was in the interests of justice that the Tribunal should determine the position as regards the Third Respondent prior to determining any matter relating to the First Respondent.[21]The Claimant through their Counsel today made an application for reconsideration of the decision to reject the claim against the Third Respondent. The Claimant was unaware of which of the provisions under rule 12 was applicable to the rejection of the claim. The Claimant submitted that the correct approach was through the lens of rule 12(1)(f) and submitted that it was wrong to Case Number: 1402128/2022 Page 5 of 9 have rejected the claim as the Claimant had made an error, as identified concisely within the Grounds of Claim, and that it was not in the interests of justice to reject the claim. In so doing, the Claimant seeks to rely on rule 12(2A) of the ET Rules 2013.[22]The Tribunal was referred to the case of Chard v Trowbridge Office Cleaning Services Limited UK/EAT/0254/16, a case in which a claimant had wrongly identified her employer when applying for the early conciliation certificate at a time when she was not legally represented. In that case, the certificate named the controlling shareholder of the respondent company rather than the company itself. The ET1 was prepared by her legal representatives and identified the correct name. The EJ had rejected the claim because the name on the certificate had differed from the name on the certificate. The EAT overturned the rejection, stating, in particular, at §68-69, that, “…minor errors are likely to be such that it would not be in the interests to reject the claim on the strength of them”. The facts in Chard included the high degree of inter-connection between the company and the shareholder. At §64, the EAT held that, “64. I accept that to a lawyer the identity of a company as distinct from its controlling shareholder is much more than a matter of form (see, e.g. Prest v Petrodel Resources Ltd [2013] 2 AC 415 SC on piercing the corporate veil in matrimonial proceedings). But to a nonlawyer, in a case such as this the distinction can be attenuated almost to vanishing point: the address is the same, so there is no problem contacting the Respondent; and the person in control is the same, both of the previous dismissal and of any decision to conciliate or settle”[23]The Tribunal brought the case of Stiopu v Loughran UKEAT/0214/20 to the attention of Counsel, a case which considered Chard and, at §18 said this of rule 12(2A) of the ET Rules, “18. In my judgment, rule 12(2A) is a "rescue provision" designed to prevent claims from being rejected for technical failures to use the correct name of the respondent (or the claimant) in the early conciliation certificate and the ET1. The wording of rule 12(2A) is that the claim shall be rejected if the judge considers that the claim is of a kind described in subparagraph (f): "… unless the Judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim." In my judgment, this language requires the employment judge in every case to ask him or herself the question as to whether there is a "minor error" in relation to a name or address and whether it would or would not "be in the interests of justice to reject the claim". These questions are part and parcel of the overall rule at 12(2A).”[24]Rule 13 requires the Claimant to make an application in writing. The Tribunal considers that it was in accordance with the overriding objective of dealing with cases proportionate to their complexity and in seeking to avoid formality and Case Number: 1402128/2022 Page 6 of 9 seeking flexibility at the same time to treat the Claimant’s written submissions to the Tribunal, in conjunction with oral submissions that supplemented those written submissions as sufficient compliance with the requirement to make an application in writing. No particular form of writing is required by the rule. Nor would the Third Respondent have been required or expected to have an opportunity to respond. The Tribunal would if necessary have been minded to waive (by rule 6) any more formal requirement for writing given that the nature of the application is inherently one which is pursued by the Claimant and which does not involve the respective Respondent at this stage. Rule 13(3) provides for a hearing attended only by a claimant and does not provide for representations from the affected Respondent.[25]The Tribunal also took account the rule 13 requires that the application should be made within 14 days of the date that the notice of rejection was sent. The Tribunal concluded that (by rule 5 and/or by rule 6) that Tribunal would extend time to today so that the Tribunal could hear and determine the application for a reconsideration of the rejection, and did so for the following reasons: 25.1. The Claimant asserts that no Notice of rejection was sent to the Claimant; the Tribunal has no evidence to the contrary. Indeed, the CMO on 10 November 2022, at paragraph 35, acknowledged that there had been no communication of the rejection at the time 25.2. The Tribunal has taken full account of the oral communication of rejection, as recorded in the CMO of the same date. 25.3. That notwithstanding, the Claimant asserts that they have not received reasons why the claim was rejected or a clear indication of when the rejection took place or indeed whether in fact the Third Respondent was made aware of any rejection of the claim against her 25.4. Moreover there was an understanding on the part of the Claimant and their advisors that EJ Midgley had asked the Claimant to confirm whether the claim against the Third Respondent was pursued. The Order of EJ Midgley referred to the Third Respondent on page 1 and in the body of the CMO. It was not apparent from that, the Claimant says, that there was not a live claim against the Third Respondent 25.5. There was no communication from the Tribunal on the matter of the Third Respondent following the Claimant’s written confirmation on 11 April 2023 that they wished to pursue the claim against the Third Respondent 25.6. The Claimant had made their position regarding the Third Respondent clear within their Grounds of Claim and also in response to the Order of EJ Midgley. 25.7. There were circumstances that created real ambiguity in the Claimant’s and their advisors’ mind. It may fairly be said that their remedy was to take earlier action to resolve the ambiguity, for example, by way of earlier application. On the other hand, the intended involvement by the Claimant of the Third Respondent was always apparent both from the Grounds of Claim and from the Claimant’s response to EJ Midgely Case Number: 1402128/2022 Page 7 of 9 25.8. Further, this was known to the Third Respondent who was the author of communications from the First Respondent, and throughout this, the Third Respondent remained aware of the facts and matters supporting the disability discrimination claims 25.9. The Third Respondent remained throughout as the First Respondent’s contact, and had been in direct contact with the Tribunal and the Claimant’s solicitors. The Third Respondent has consistently used the same email address. As sole director and sole decision maker, to all intents and purposes, albeit legally distinct, the Third Respondent was one and the same as the First Respondent 25.10. Thus, while taking account of the time delay and the opportunity that the Claimant had following the CMO on 17 March 2023, the balance of justice fell clearly in favour of permitting the Claimant an extension of time to today for the purposes of an application for reconsideration.[26]Turning to the reason for rejection of the claim against Third Respondent, the Tribunal finds that it is not as a result of rule 12(1)(c) since the claim form did contain an EC number. The Tribunal is satisfied that the reason for rejection is more likely than not to be rule 12(1)(f), i.e. that the name of the Respondent on the claim form is not the same as the prospective Respondent on the EC Certificate.[27]Rule 12(1)(f) is to be read in conjunction with rule 12(2A). In other words, if the Tribunal is satisfied that the relevant part of the claim is one which institutes relevant proceedings and the name of the respondent on the claim form is not the same as the name of the prospective respondent on the EC Certificate then the part of the claim is to be rejected but that this must be read in conjunction with what Stiopu, at §18, described as the “rescue provision”, namely rule 12(2A), the effect of which prevents a rejection where, “the Judge considers that the claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim”.[28]This does not require a “purist” 2-stage approach, see Chard, at §67-68, “67. I consider also the wording of Rule 12(2A) in the light of the overriding objective, with which it was presumably intended to operate harmoniously. It has been pointed out that it appears to enact a two stage test. On a literal reading, the first stage is to consider whether the error is minor without regard to the interests of justice. The second stage then arises only if the Judge has already concluded, ignoring the interests of justice, that the error is minor. If but only if she has reached that conclusion must she must go on to consider whether it would not be in the interests of justice to reject the claim. 68. In my judgment, that literal reading is too purist. It is inconsistent with the overriding objective and risks causing injustice. I prefer to read Rule 12(2A) as indicating that the “interests of justice” part of the Rule is a useful pointer to what sort of errors ought to be considered minor. To put the point another way, minor Case Number: 1402128/2022 Page 8 of 9 errors are ones that are likely to be such that it will not be in the interests of justice to reject the claim on the strength of them.”[29]The Tribunal notes that after the Chard decision the test of “minor error” now falls, as a result of the ET(Constitution and Rules of Procedure(EC)(Amendment Regs 2020, from 8 October 2020, within the rubric of “an error”. The underlying reasoning of Chard is not affected by that change.[30]This is a case in which the Third Respondent knew from the outset of the claim that the Claimant intended to pursue a claim against her. The Claimant acted as a litigant in person for the purposes of the EC process. The address and correspondence for the First Respondent and the Third Respondent was the same. The First Respondent was to all intents and purposes acting as one and the same as the Third Respondent albeit a legally distinct entity. The obvious close relationship and inter-connection between the First respondent and the Third Respondent extended to the fact that the Third Respondent was the sole director and the sole decision maker of the First Respondent; and the Claimant’s line manager. Per, Chard, §64, to a non-lawyer, this is liable to make the First Respondent and the Third Respondent interchangeable. The factual content of the ET3 Grounds of Response makes it plain that the Respondents understand that it is the actions of the Third Respondent that are in issue in respect of the disability claims. The Third Respondent conducted the litigation for the First Respondent since its solicitors ceased acting for it in April 2023.[31]The Third Respondent participated in the ACAS EC process. The Claimant was a litigant in person at that stage. The Third Respondent was aware from the Grounds of Claim the factual nature of the disability discrimination claims and that the Claimant was claiming that the responsibility was placed on the Third Respondent for the discrimination.[32]Having obtained an ACAS EC Certificate in the name of the First (and Second) Respondent, the decision not to obtain an additional and separate ACAS EC Certificate in the separate name of the Third Respondent was a technical error. The Claimant was a litigant in person. It was not in all the circumstances an error of substance. The First Respondent was to all intents and purposes one and the same as the Third Respondent. Nor could the Third Respondent be in any reasonable doubt about that position and in reality apart from the technical provision of an additional EC Certificate number there was nothing that would have been different or that the Third Respondent was reasonably entitled to expect to happen in order for a claim to be pursued against the Third Respondent.[33]On a fair reading of paragraph 35 of the CMO on 10 November 2022, it is not apparent that rule 12(2A) formed any part of any consideration to reject the claim against the Third Respondent. By contrast, case law confirms that it must. A reconsideration application involves the Tribunal seeking to apply the relevant Case Number: 1402128/2022 Page 9 of 9 law as it is known to be. The Tribunal dealing with the application for reconsideration of a rejection under rule 12(1)(f) must consider rule 12(2A) in conjunction with rule 12(1)(f).[34]The question the Tribunal has asked itself is: does the Tribunal consider that the Claimant made an error in relation to a name or address and it would not be in the interests of justice to reject the claim? The answer to that is, yes. The error of a litigant in person in not appreciating the need for a separate and additional ACAS EC certificate in the name of the Third Respondent in the face of the fact that the First and Third Respondent were to all intents and purposes interchangeable, is such an error, and given the knowledge and role of the Third Respondent throughout this litigation it would not be in the interests of justice to reject the claim.[35]The Claimant’s application for reconsideration of the rejection of the claim against the Third Respondent therefore succeeds.[36]Consequential case management directions in respect of the case and in particular in respect of vacating the Final Hearing listing for 4,5 and 6 September 2023 and converting it into a Further Preliminary Hearing were considered separately and are set out in a separate case management order.