C Naylor v H Sims-Hilditch and Hildare Stud Farm Ltd: 1403818/2021

EMPLOYMENT TRIBUNALS

Case No 1403818/2021

Between

C NaylorClaimant

H Sims-Hilditch and Hildare Stud Farm LtdRespondent

Before

Employment Judge Hogarth

Mr Naylor for claimant

Mr Allan Roberts Counsel for respondent

Date 21 August 2023

JUDGMENT

[1]The claims against the first respondent are struck out on the basis that the claimant’s correct employer was the second respondent.

[2]The claims against the second respondent are struck out on the basis that when the second respondent was added as a party on 30 August 2022 they were out of time and it was reasonably practicable for the claimant to have presented them in time. Employment Judge Hogarth Dated: 8 December 2022 Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.

REASONS

Introduction

[1]At the hearing on 7 December 2022, I gave oral judgment striking out the claims made by Chloe Naylor (case 1403818/2021) and Megan Anderson (case 1403821/2021) against both respondents, on applications made by them. Formal judgments were sent to the claimants on 15 December. Mr Naylor has requested written reasons on behalf of the claimants. Procedural history

[2]The claimants were dismissed from their employment with Hildare Stud Farm Limited (“HSFL”) on 8 July 2021 and have presented claims for unfair dismissal, arrears of pay and holiday pay.

[3]The claimants were employed by HFSL from a date in September 2020 when their contracts of employment were transferred (under the Transfer of Undertakings (Protection of Employment) Regulations 2006) to HSFL from Anna Sims-Hilditch, who was their original employer. The first claimant’s employment with her started on 18 December 2018 and the second claimant’s on 10 May 2019.

[4]The first claimant’s father, Mr Adrian Naylor, has acted for both claimants from the outset and has been the sole point of contact with the Tribunal. The claimants have left everything to him. Mr Naylor is not legally qualified or experienced in Tribunal proceedings. It follows from the role Mr Naylor has taken on that it is mostly his actions in relation to the proceedings that fall to be considered in relation to the strike out applications.

[5]Mr Naylor sent Early Conciliation (“EC”) notifications to ACAS on 7 August 2021 (for the first claimant) and 10 August 2021 (for the second claimant). An EC certificate was sent to the first claimant on 18 September 2021 and another to the second claimant on 21 September 2021. Both EC certificates name “Hildare Stud Ltd” as the prospective respondent. The parties agree this refers to HSFL. So the EC Certificates correctly identified the claimants’ employer.

[6]ET1 forms were received by the Tribunal on 25 September 2021 (first claimant) and 26 September (second claimant), within 3 months of the dismissal. The forms both name Anna Sims-Hilditch and Hugh Sims-Hilditch as the respondents and refer to claims for unfair dismissal, arrears of pay and notice pay. Each was accompanied by a document setting out the grounds for the claim.

[7]The first claimant’s ET1 also made a claim for “harassment/bullying/breach of confidentiality”. At a hearing before Employment Judge Cadney on 30 August 2022 Mr Naylor confirmed that this was not intended to be a separate claim, but was more a description of how the first claimant viewed what had happened.

[8]Two notices from the Tribunal dated 17 March 2022 were sent to Hugh SimsHilditch (the first respondent), informing him of the claims made against him by each claimant and stating they had been “accepted”. The word “accepted” in this context merely means the claim form has not been rejected at the outset as procedurally defective.

[9]Anna Sims-Hilditch was not notified of the claims made against her. It appears these were rejected by the Tribunal, presumably for lack of an EC Certificate naming her as a prospective respondent

[10]Mr Sims-Hilditch (at the time the only respondent) filed responses to the claims made by each claimant. These were dated 30 March 2022. He asserted that the Tribunal had no jurisdiction over the claims because he was not named on the EC Certificate and also because he was not the claimants’ employer. The grounds of response asserted that the claimants were fully aware their employer was HSFL (the EC certificate having named HSFL as the prospective respondent).

[11]Mr Naylor did not take any action as a result of receiving the response to the claims.

[12]On 14 April 2022 Mr Sims-Hilditch's solicitors emailed the Tribunal asking for a preliminary hearing to determine whether the claims against him should be rejected for lack of jurisdiction.

[13]Mr Naylor responded to this application in a letter emailed to the Tribunal on 19 April 2022. He referred to the point that the ACAS certificate referred to HSFL but did not answer it. He took issue with the assertion in the respondent’s response that HSFL was the claimants’ employer, saying that the claimants had always viewed Anna and Hugh Sims-Hilditch as their employers and that there was evidence to support Hugh Sims-Hilditch being their employer. He objected to the preliminary hearing applied for by the respondent.

[14]On 18 July 2022 the Tribunal wrote to the claimants informing them that Mr SimsHilditch's response to the claims had been accepted and that Employment Judge Rayner had directed that the claimants’ cases had been linked and were to be listed for a preliminary hearing to determine the identity of the employer and whether the mandatory Early Conciliation steps had been complied with.

[15]Mr Naylor responded to this on 22 August. In addition to points made in his previous response to the first application described in paragraph 12 above, Mr Naylor listed a number of communications which, in his view, made the first respondent the claimants’ employer. His letter continued to maintain the position that it was the respondent (Hugh Sims-Hilditch) not HSFL who was the claimants’ employer. It also asserts that the ACAS process leading to the issue of the EC Certificate was conducted with Hugh Sims-Hilditch, referring to the fact that “at no time did he state that he was not the claimant’s employer. If that had been the position, the case officer was duty bound to inform the claimants, which he did not deem necessary”.

[16]A telephone case management preliminary hearing was held on 30 August 2022 by Employment Judge Cadney. The Case Summary states that Mr Naylor accepted at the hearing that it was HSFL (and not Mr Sims-Hilditch) who was the claimants’ employer. EJ Cadney recorded his view that the claim against the first respondent was bound to fail, but explained that he was being retained as a respondent to avoid technical difficulties so as to allow all issues as to the proper respondent to be determined at the next hearing.

[17]EJ Cadney added HSFL as a respondent, by agreement, but stated that this was only for convenience’s sake at that stage as HSFL had not had any opportunity to object. Finally, EJ Cadney ordered that that a Preliminary Hearing be listed on 7 December to determine(a) whether the first respondent should be dismissed as a respondent and

(b) to hear any objections from the second respondent to being added.

[18]The Tribunal notified the second respondent of the claims now made against it in a notice dated 9 September 2021. It submitted a response dated 7 October 2021 which denied the substantive claims and raised a procedural objection to being added: that the claims against the second respondent are all out of time and there is no basis for extending time, because the claimants were aware who their employer was and it was reasonably practicable for them to have made a claim against HFSL in time. The second respondent’s response also refers to the 5- month delay between the first respondent's’ response on 30 March 2022 stating that HSFL (and not the first respondent) was the correct employer and the addition of HSFL as second respondent on 30 August 2022. The hearing and the documents before the Tribunal

[19]The hearing was held by video (VHS) and the parties did not object. There were some connection issues during the hearing, but this did not affect the overall quality or fairness of the hearing.

[20]I was supplied in advance of the hearing with:(a) a 133-page bundle of documents which appeared to have been prepared by the respondents’ solicitors;

(b) a skeleton argument from the second respondent;

(c) an email from Mr Naylor objecting to some of the content of the Skeleton and the second respondent’s Response to the claims, accompanied by a copy of the Response with some comments in red from him.

[21]Some time at the start of the hearing was taken up with ensuring the Tribunal and the parties all had the right documents. It emerged that Mr Naylor had submitted a short supplementary bundle to the Tribunal in advance of the hearing that, regrettably, had not found its way to me. This was then supplied to me and I adjourned the hearing briefly so that I could identify what the additional documents were. During the hearing, Mr Naylor took me through the documents in that bundle that he considered relevant to the issues.

[22]Towards the end of the hearing, Mr Roberts referred in passing to the fact that Mr Naylor was a retired police officer, to which Mr Naylor objected forcefully. This was an unsatisfactory way for this fact to come out. But it was in my view a piece of information of potential relevance to the issues, given that Mr Naylor is relying on a lack of legal knowledge and understanding as part of his reasons for asserting that it was not practicable for him to make the claims against the second respondent in time. However, I do not regard this information about his previous employment as adding significantly to the picture already given by the documents in the bundle, which include a number of detailed communications from Mr Naylor which indicate an ability to articulate his position and arguments, despite any lack of specific legal or procedural knowledge. The application to strike out the claims against the first respondent (1) Issues

[23]The issues in relation to the application to strike out the claims against the first respondent are-- 1. Were the Early Conciliation requirements met in relation to the first respondent? 2. Was the first respondent the claimants’ employer at any material time? 3. In the circumstances of this case, should the claims against the first respondent be struck out as having no reasonable prospects of success? (2) The applicable law Strike out

[24]Rule 37 of the Employment Tribunals Rules of Procedure 2013 provides that at any stage of proceedings the Tribunal may strike out a claim on a number of grounds, one of which is that the claim has no reasonable prospects of success. This is the ground the application in this case relies on.

[25]The power to strike out a claim is discretionary and the case law relating to Rule 37 makes it clear that “no reasonable prospects of success” is a high threshold for an application to succeed. The applicant does not have to show that the claim is bound to fail, but if it is bound to fail then the threshold is met. Who is potentially liable for the claims

[26]The claims made in this case, of unfair dismissal and matters relating to pay arrears and notice pay, can only be made against the claimants’ employer. It follows that claims made against anyone other than the employer at the time of dismissal are bound to fail. Early Conciliation requirements for claims for unfair dismissal and pay claims

[27]Section 18A of the Employment Tribunals Act 1996 requires a prospective claimant to contact ACAS and provide it with prescribed information before instituting proceedings in the Tribunal. This is to enable attempts at conciliation to be made. Under the Employment Tribunals Rules of Procedure 2013 (see in particular Rules 10 and 12), before making claims against a particular person a claimant must obtain an EC certificate from ACAS naming that person as the prospective respondent.

[28]As a matter of law, the claims made in this case cannot succeed against a person who is not named in an EC certificate obtained before the claim is first made against that person. The case law on early conciliation clearly establishes that the Tribunal has no jurisdiction in those circumstances.

[29]Rule 12 requires Tribunal staff to refer a claim form to an employment judge in various circumstances, one of which is where the name of the respondent on the form is not the same as the name of the person named on the EC Certificate relied on in the form (see Rule 12(1)(f)). Under Rule 12(2A) the claim must be rejected unless the judge considers there was an error in the name or address of the person named in the certificate and it would not be in the interests of justice to reject the claim. In this case the EC Certificates identified the correct person as respondent, so the exception to that rule is not in issue. They did contain a minor error in the name of the prospective respondent (who was the claimants’ employer), but the parties have agreed that they did effectively identify HSFL as the prospective respondent.

[30]In this case the claims against Anna Sims-Hilditch were rejected at the outset but not those against Hugh Sims-Hilditch (the first respondent). It is not clear why the claims against Mr Sims-Hilditch were not rejected, for absence of an EC Certificate naming him as the prospective respondent. That was clearly a mistake under the terms of Rule 12, but the failure to reject at the outset does not give the Tribunal jurisdiction over a case where the Early Conciliation requirements were not met. It is a jurisdictional point that the Tribunal has to take, even if it is not spotted until later. That is why Issue 1 set out above is a live, and potentially decisive, issue in determining the strike out application. (3) Conclusions on the first respondent’s application The parties’ contentions

[31]The first respondent’s position is that the answers to Issues 1 and 2 are “no”, so the claims are bound to fail and should be struck out. Mr Naylor was reluctant to accept that the claims against the first respondent should be struck out on technical grounds, because he and the claimants consider that Mr Sims-Hilditch acted as if he was their employer and was the person who dismissed them. But Mr Naylor did accept during the hearing (as he did before EJ Cadney on 30 August 2022) that Mr Sims Hilditch was never their “legal employer”. He also accepted that the first respondent was not named on the EC certificates he obtained in September 2021, but he said that he was not aware at the time of the significance of that fact.

[32]I understood Mr Naylor’s position to be that I should make allowances for the fact he is not legally qualified and that he thought, when he initially presented the claims, that the correct respondents were Mr and Mrs Sims-Mr Hilditch as the claimants’ employers. When the claims against Mrs Sims-Hilditch were rejected by the Tribunal, he decided to continue against Mr Sims-Hilditch. He said he had not realised the importance of the EC Certificate in fixing who was a proper respondent to a claim in the Tribunal.

[33]The difficulty with Mr Naylor’s position is that there is no room for judicial discretion in answering the issues set out above, which are the only issues relevant to the first respondent’s application. The matters raised by him are though relevant to the second respondent’s application. Issues 1 & 2

[34]The EC Certificates obtained by Mr Naylor do not name Mr Sims-Hilditch as the prospective respondent. The Early Conciliation requirements were not met in relation to the first respondent.

[35]The claimants’ employer was at all material times HSFL (the second respondent). They were originally employed by Anna Sims-Hilditch as an individual before being transferred to HSFL under TUPE when the business was incorporated. The first respondent was never their employer.

[36]Mr Naylor accepted that the first respondent was not the claimants’ employer. That is borne out by uncontroverted documents in the bundle stating that the letter of dismissal was from HSFL and by information given to me orally at the hearing about the name of the employer as stated in the claimants’ payslips (ie Anna Sims-Hilditch until October 2020 and HSFL thereafter). Mr Naylor did at one point tell me categorically that all the payslips up to the date of dismissal refer to Anna Sims-Hilditch. But I did not understand him to dispute the information I was later given by Mr Roberts - that all the payslips after the TUPE transfer were in fact in the name of HSFL. Issue 3

[37]On 30 August 2022 Employment Judge Cadney decided not strike out the claims for procedural reasons, preferring to leave the final decision to the hearing on 7 December so all matters relating to the position of the respondents could be resolved together. It is clear from his Case Summary that that was the only reason he did not strike out the claims. As the parties had the opportunity to present evidence and submissions at the hearing on 7 December, there was no reason to delay further. The answers to Issues 1 and 2 are both “no”, so the claims against the first respondent are bound to fail. For that reason, they are struck out as having no reasonable prospects of success. Application to strike out claims against the second respondent (1) Issues

[38]The question arising on the application by the second respondent turns on whether it should have been added to the proceedings on 30 August 2022. The issues that fall to be determined in answering that question are: 4: Were the claims made against the second respondent within the applicable time limit? 5: If not, was it was reasonably practicable for the claimants (acting through Mr Naylor) to make the claims against the second respondent within the applicable time limit? 6: If not, were the claims made within a reasonable time after the end of that time limit? 7 If the answer to Issue 5 is no, and the answer to Issue 6 is “yes”, should the second respondent have been added as a respondent, taking account of all the circumstances including the balance between the hardship to the claimants in refusing to allow the second respondent to be added against the hardship to the second respondent if it is added?

[39]The issues described in paragraph 23 above do not arise because HSFL was the claimants’ employer and was identified as the prospective respondent by the EC Certificates. (2) Applicable law Strike out

[40]The law on strike out is summarised in paragraphs 24 and 25 above. Time limit for claims to the Tribunal

[41]A claim for unfair dismissal is required by section 111 of the Employment Rights Act 1996 to be made within 3 months of the dismissal date, subject to an extension of time to allow for the time taken to liaise with ACAS and obtain an EC certificate. The same applies to claims for pay arrears and notice pay.

[42]Unless the Tribunal decides to extend time, it has no jurisdiction over a claim that was not made within the applicable time limit. However, the Tribunal can extend time if the claimant can show that it was not reasonably practicable to make the claim before the end of the period allowed and that it was made within a reasonable period thereafter.

[43]The case law on extending time has made clear that “reasonably practicable” means “feasible”. If it was reasonably practicable (or feasible) to make the claims in time, an extension of time cannot be granted.

[44]Ignorance or a genuine mistake about the law or procedure, in the case of claimants who are not legally represented, is capable of justifying a conclusion that either it was not reasonably practicable for them to bring their claims in time or that the claim was nonetheless brought within a reasonable time. But what did or did not happen must have been reasonable in all the circumstances of the case.

[45]What is reasonable depends in part on the level of understanding of the claimant. In this case that means Mr Naylor in practice as he has taken on everything for the claimants. However, there is an expectation that a claimant will take reasonable steps to inform themselves about the relevant law and procedure and what needs to be done when making a claim to the Tribunal. There are sources of information and advice available online and a claimant who is able to access them is expected to take reasonable steps to do so. Adding a person as a respondent

[46]Rule 34 of the Employment Tribunals Rules of Procedure 2013 gives the Tribunal power, on its own motion or in response to an application, to add a person as a party to existing proceedings if “it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings”.

[47]That rule gives the Tribunal a wide power to determine whether or not to add a respondent, in a case where the Tribunal has jurisdiction over the claims in question.

[48]Adding a party is an amendment of the claim and subject to the rules applicable to amending a claim. Before deciding to amend a claim, the Tribunal is required to take into account all the circumstances and to balance the potential injustice and hardship of allowing the amendment against the potential injustice and hardship of refusing it (Cocking v. Sandhurst Stationers [1974] IRC 650; Selkent Bus Co v. Moore

[1996] ICR 836

). How do the different laws relevant to the case fit together?

[49]The hard question in this case is how the various laws described above fit together, where the Tribunal has no jurisdiction over the original claims owing to a failure to comply with the Early Conciliation requirements in relation to the first respondent. What is the relationship between those requirements, the Tribunal’s power to add or remove a respondent, the time limits for bringing claims and the power to strike out?

[50]The extensive case law on these matters is confusing and it is not easy to reconcile all the potentially relevant cases. This is apparent from reading the account of the law in Harvey on Industrial Relations and Employment Law and the corresponding account in IDS Employment Law Handbook 6.

[51]Most of the reported court decisions since Selkent Bus Co v. Moore

[1996] ICR 836

have emphasised the discretionary aspect of an application to amend a claim (including by adding a new respondent), even when the new claim is “out of time”: see for example TGWU v. Safeway Stores Ltd

UKEAT/0092/07

, Vaughan v Modality Partnership

UKEAT/0147/20

[52]Those cases depend on factual situations very different from those in this case. The case of Cocking v Sandhurst Stationers is authority for the proposition that where the Tribunal has no jurisdiction over the original claims against one respondent, there is no power to amend the claim by adding another respondent, at least in circumstances where the claims against the new respondent are out of time and time is not extended. In that case the originating application (under the procedures in force at the time) was made in time but made against the wrong company in a group. The Employment Appeal Tribunal allowed the appeal against refusal to allow the application to be amended to substitute the “right” employer. But the EAT went on to say that if the originating application had not been compliant with the rules when made there was no power to amend it. That suggests that where the Employment Tribunal has no jurisdiction there is no power to add a new respondent. Subsequently, the Court of Appeal in Abercrombie v Aga Rangemaster Limited

[2014] ICR 209

decided that in a case where the proceedings were initially valid, the absence of jurisdiction (owing to a failure to comply with a statutory grievance procedure applicable at the time) was not fatal to an application to amend a claim. But the Court of Appeal drew a distinction between such cases and cases where the initial claim is a nullity, suggesting that that was the situation the EAT in Cocking had in mind. I note that IDS Employment Law Handbook 6, Chapter 8 suggests that such cases will be rare because of the effect (among other things) of Rule 12 described in paragraph 29 above.

[53]I conclude that where a claim is a nullity for lack of an EC Certificate naming the respondent as a prospective respondent, the proposition in Cocking described in paragraph 52 above applies. That means in practice that a new respondent should not be added in circumstances where (judged when a new respondent is added or an application to add a respondent is considered) the claim is out of time and time for presentation of the claim is not extended.

[54]That view of the law is the legal basis for Issues 4 to 6 as set out in paragraph 38 above, given that in this case the claim against the first respondent is and has always been a nullity, for lack of an EC Certificate naming him as a prospective respondent. It follows from my conclusion on the applicable law that if I conclude that time should not be extended in favour of the claimants (issues 5 and 6) I do not in practice have any residual discretion to allow the second respondent to remain as a party. The claims should then be struck out.

[55]In my view that result makes practical sense in the circumstances of this case. It would be a surprising result for the existence on 30 August 2022 of proceedings relating to a fundamentally defective claim against one respondent, Mr SimsHilditch (a nullity that should have been rejected at the outset) to put the claimants in a better position in terms of the law on time limits than they would be in if they had simply made fresh claims against HSFL on the same day.

[56]I should note that even if (contrary to my view of the law) I did have any residual discretion as to whether to permit the claims against the second respondent to proceed, the question whether an extension of time can be made is still an important, and potentially decisive, factor in the exercise of that discretion (according to Underhill J in TGWU v Safeway). (3) Conclusions on the second respondent’s application

[57]Employment Judge Cadney added the second respondent to the proceedings formally, on the understanding that it would be able to object to this at the hearing on 7 December. The second respondent did so at the hearing.

[58]The second respondent’s position is that the claims against it were not made in time, that it was practicable for the claimants (acting through Mr Naylor) to present the claims against it in time and (even if it was not practicable to do that) that the claims were not made within a reasonable period after the end of the time limit. Even if I conclude time should be extended, Mr Roberts submitted that I should nonetheless exercise my discretion under Rule 34 against the claimants.

[59]Mr Naylor’s position was, in effect, that it is unjust for the claimants to be denied the opportunity to have their claims heard, that it was not reasonably practicable for them to have brought their claims against the second respondent in time and that they were made (on 30 August) within a reasonable period. Mr Naylor urged me to exercise any discretion in favour of the claimants. Issue 4

[60]In this case the time limit for claiming was 3 months plus 41 days representing the time taken to liaise with ACAS and obtain EC certificates. The date of dismissal was 8 July 2021, so the last day for bringing the claims made in this case was 18 November 2021.

[61]It is common ground that the claims were not made on or before that date. The claims against the second respondent were “made” when it was added as a respondent by EJ Cadney on 30 August 2022. This was not preceded by any application by the claimants. Issue 5

[62]The question is whether the claimants (through Mr Naylor) have shown that it was not reasonably practicable for the claims to have been made in time.

[63]It is clear that within a month of the dismissal Mr Naylor had become aware of the need to contact ACAS for early conciliation, as he applied to them on 7 August 2021. At that time, he was aware that HSFL was the employer because it was the prospective respondent named in the EC Certificates. Doubtless this was because HSFL was named in the claimants’ payslips as paying them from November 2020 and the dismissal letters came from HSFL. Those documents were not in the bundle, but the second respondent’s factual assertions on those points have not been controverted by Mr Naylor in the correspondence between the parties.

[64]In these circumstances, Mr Roberts submitted that it was reasonably practicable to have made the claims in time and that Mr Naylor had not shown otherwise.

[65]During the hearing I invited Mr Naylor to explain why he did not bring the claims against the second respondent (rather than against Mr and Mrs Sims-Hilditch).

[66]He explained that he thought they were the claimants’ employer because of the things they did while the claimants were employed, culminating in Mr SimsHilditch's role in their dismissal. I found this explanation difficult to understand as the fact Mr and Mrs Sims-Hilditch as individuals had roles in HSFL, a limited company, did not make them employers and or affect its position as the claimants’ employer. If he had thought otherwise, it would make no sense to commence the process of making claims by contacting ACAS on the basis that the respondent employer was to be HSFL. I was left with the impression that he had decided to pursue Mr and Mrs Sims-Hilditch, and not HSFL, for some reason that was not entirely clear. But in my judgement Mr Naylor failed to show that he had made a reasonable mistake in all the circumstances.

[67]He referred to things he had been told by members of ACAS staff when he contacted ACAS to meet the early conciliation requirements. His account about that is set out in a letter to the tribunal dated 22 August 2022, as follows: “6. The ACAS conciliation process was conducted with HSH in the role of respondent, in an e mail from ACAS to myself on 25th August, the case officer states, ‘I have made contact with the Respondent and have a few questions around some points raised by him’. On the 26th August 2021 the same case officer sent me an email which starts, ‘The respondent has alleged’. The case officer spoke only to HSH during the conciliation process, at no time did he state that 130 he was not the claimant’s employer. If that had been the position, the case officer was duty bound to inform the claimants, which he did not deem necessary. 7. The Acas certificate R162383/21/46 confirms that the prospective claimants have complied with the requirement under ETA1996 s18a to contact Acas before instituting proceedings in the Employment Tribunal.”

[68]Again, I do not understand how the things he refers to in the letter (assuming them to be an accurate record) could reasonably be interpreted as some sort of advice or assertion by ACAS that the employer was Mr Sims-Hilditch rather than HSFL. He had approached ACAS on the basis that HSFL was the employer and the prospective respondent and an ACAS officer had approached the respondent. As a company the second respondent can only act through individuals so it is not surprising that the officer spoke to Mr Sims-Hilditch. There was certainly no duty on the officer’s part to inform Mr Naylor that Mr SimsHilditch was not the employer as nobody had ever suggested that he was. In my view there is nothing in the above extract to justify a decision to claim against Mr and Mrs Sims-Hilditch instead of HSFL. If that was a mistake (rather than a deliberate decision by Mr Naylor to pursue them instead) it was not in my view a reasonable one to make.

[69]The EC Certificates Mr Naylor relies on both refer to HSFL as “prospective respondent”, which makes it hard to understand why it was not also the respondent when the claims were presented (in time). Mr Naylor told me that he had not understood that the name in the certificates had to be the same name as the respondent. I consider, however, that even if that was the case, it does not justify a conclusion that it was not reasonably practicable to have proceeded against HSFL. He had discovered that it was necessary to contact ACAS before claiming in the Tribunal, and in my view it is reasonable to expect him to have found out or understood the importance of the name recorded in the EC certificates. He came across to me as an intelligent capable person who would, I am sure, have read the certificates and could have found this information out.

[70]Mr Naylor also referred to a number of documents he said contributed to his confusion as to who the employer was, when the claims were first presented.

[71]There are two documents in his supplementary bundle that referred to the first claimant as a key worker in a company called Urathon Europe Limited (23 March 2020) and as someone “employed by” Urathon (1 April 2020). Those documents related to her status as a key worker in the early days of lockdown. I did not understand why Mr Naylor thought this was significant as Urathon has not been suggested as a potential respondent in this case and the letters are dated more than a year before the dismissal. His supplementary bundle also included an email from Mr Sims-Hilditch asserting that she was never employed by Urathon and that her employment with Hildare started on 8 September 2020. This was in response to a question from Miss Naylor dated 17 September 2021 where she asked for confirmation of “my official employment dates from Hildare and also urathon”. That email may suggest that Miss Naylor thought she had been employed by Urathon before Hildare, but it also shows that when she sent the message, she knew who her most recent employer was.

[72]Mr Naylor referred me to a payslip in his supplementary bundle for the first claimant which was dated 28 October 2020 and names Anna Sims-Hilditch as the company paying her. He told me the same name was given in subsequent payslips. However, Mr Roberts told me a short while later that that was not so, and that all subsequent payslips were in the name of HSFL, although he was unable to produce them there and then. Mr Naylor did not dispute what Mr Roberts said, which was also consistent with the following statement by Mr Naylor in a letter to the Tribunal dated 14 April 2022: “The claimants I represent were initially paid by Urathon Ltd and latterly, following its formation in August 2020, Hildare Stud Farm Ltd. The claimants’ duties, place of work, terms and conditions were unchanged in the transition between the two companies.”

[73]It is the case that the employer named on the 28 October 2021 payslip should have been HSFL (assuming the date it took over the claimants’ employment was 8 September 2020 as stated by Mr Sims-Hilditch), but it is understandable that it took a few weeks for the change of employer to be reflected in their payslips. I fail to understand why Mr Naylor considered the name on the payslip in October 2021 to be relevant to the issues in the case, if all the later ones had the correct name on them.

[74]My conclusion on issue 5 is that it was reasonably practicable for the claims to have been made against HSFL in time. Mr Naylor has not shown that it was not: nothing in the reasons Mr Naylor gave persuaded me that a reasonable mistake was made on his part that justifies a different conclusion. He did present claims against Mr and Mrs Sims-Hilditch in time and there was no good reason why he did not make those claims against HSFL, as he had proposed to do when he contacted ACAS.

[75]I remain unsure why Mr Naylor was so determined to proceed against Mr SimsHilditch rather than HSFL, even after the first respondent correctly identified HSFL as the claimants’ employer in his particulars of response dated 30 March 2022. Mr Naylor disagreed and maintained his position that the claims should be continued against the first respondent. In his letter to the Tribunal dated 19 April 2022 he stated “It is the opinion of the claimants that the respondent should engage with the process and be called upon to justify and account for his actions that led to claimants’ instant dismissal.” His letter concluded by stating that matters set out in his letter “clearly illustrate HSH’s active involvement as their employer, and therefore object to the request for a preliminary hearing.” Mr Naylor maintained this position in his letter to the Tribunal of 22 August in advance of the hearing on 30 August, in which he states: “I believe the evidence contained within this response clearly evidences an employer / employee relationship between the respondent and claimants. Therefore, I strongly object to a stay of proceedings as requested by the respondents’ representing solicitors. I respectfully request that the tribunal proceeds as promulgated and the seventeen months the claimants have already waited, is not further extended.” Mr Naylor had clearly decided that he wanted to continue the claim against the first respondent, despite what the first respondent had (correctly) told him. Issues 6 and 7

[76]Issue 6 does not arise because I have concluded that it was reasonably practicable for the claims against the second respondent to have been presented in time. I consider it inappropriate to speculate in any detail as to what I would or might have decided had I reached a different conclusion on Issue 5. That is because the reasons for determining Issue 5 in favour of the claimants (had I done so) would inevitably be a crucial part of the analysis required to determine whether the claims had, nonetheless, been brought within a reasonable time (Issue 6).

[77]In carrying out that analysis, in addition to the parties’ submissions on the merits of Issue 6 and the evidence I would have had to consider the significance of(a) the delay of about 5 months between the claimants’ presentation of their claims in September 2021 and the notification of those claims by the Tribunal to the then respondents in March 2022 and

(b) the reasons for the delay between March 2022 (when Mr Naylor was informed in the first respondent’s grounds of resistance that the correct employer was HSFL) and the addition of the second respondent as a party on 30 August 2022.

[78]Mr Naylor told me that he had been misled by the Tribunal informing him in March 2022 that the claim against Mr Sims-Hilditch was “accepted”. While I have some sympathy with that point, I would note that the response to that claim made clear the respondent’s view the claim against him was misconceived for the reasons described above. And while Mr Naylor’s point is potentially relevant to Issue 6, it does not, in my view, help him in relation to Issue 5 (whether it was reasonably practicable to present the claim against the second respondent in time).

[79]As I have concluded that the claims against the second respondent were made out of time and that the power to extend time is not available, Issue 7 does not arise and so does not need to be determined.

[80]For all the above reasons I conclude that the second respondent should not have been added as a party. The claims against it are struck out as having no reasonable prospects of success. EMPLOYMENT TRIBUNALS Claimants Respondents 1. Chloe Naylor v 1. Hugh Sims-Hilditch 2. Megan Anderson 2. Hildare Stud Farm Ltd ORDERS Made pursuant to the Employment Tribunal Procedure Rules 2013 Decision on application for recusal of Employment Judge Hogarth: 1. The claimants’ application for Employment Judge Hogarth to recuse himself on the grounds of bias from future involvement with the reconsideration of his judgments dated 8 December 2022 is refused. Reasons for the refusal are given below. Claimants’ reconsideration application 2. On 14 March 2023 the parties were notified that Employment Judge Hogarth had decided under Rule 72(1) of the Employment Tribunals Rules of Procedure 2013 that the claimants’ application for reconsideration was not rejected at the initial stage as having no reasonable prospect of success. Accordingly, the application falls to be determined by Employment Judge Hogarth, in accordance with Rule 72(3). 3. The parties have given their views in writing as to whether the application should be determined without a hearing. Having had regard to those views, Employment Judge Hogarth has decided that the reconsideration will take place at a hearing. Reasons for the decision are given below. 4. The reconsideration hearing will be the subject of separate Case Management Orders.

[81]Mr Naylor complains that “Judge Hogarth also dismissed the claimant’s documentary evidence which stated the claimants were employed by Urathon Ltd, again without rationale.” I have already discussed in paragraphs 36 to 51 above the issues about the identity of the claimants’ employer. My understanding was that Mr Naylor was asserting that Urathon Europe Ltd was their employer prior to Hildare. That did not appear to me to help his case on extending time that much (beyond demonstrating the existence of some contradictory documents). The question he needed to address was why the claims against Hildare were not made in time.

[82]I do not accept Mr Naylor’s characterisation that I “dismissed” the documents relating to Urathon being the pre-Hildare employer. I read them and considered what he had to say about them. I did not regard them as sufficient to prove that the claimants were employed by Urathon Europe Ltd (if it mattered), contrary to the assertions of the respondents that Mrs Sims-Hilditch was the original employer.

[83]Mr Naylor is clearly of the view that my treatment of the question whether Urathon was the claimants’ original employer was wrong. That is a matter that he is free to pursue on an appeal, but in my view there is nothing in the matters raised by this specific complaint that indicates any bias on my part. Complaint about my view that Mrs Sims Hilditch was the original employer

[84]The final complaint made by Mr Naylor in his letter of 18 June 2022 is that “the judge accepted on face value, the assertion of the respondent’s counsel, who stated that the claimants were employed by Mrs Sims Hilditch as a sole trader, no documentary evidence in the form of HMRC / PAYE records were produced or requested in support of this statement.”. This complaint is, essentially, part of the same complaint as the previous one, because the only names put forward by the parties for the original employer were Urathon Europe Limited and Anna Sims-Hilditch.

[85]I do not accept Mr Naylors’ characterisation of what happened in relation to Mrs Sims-Hilditch. In the circumstances there was no reason for the respondents to have set out at the hearing to prove that Anna Sims-Hllditch was the original employer; and it is not the function of an employment judge to act as an inquisitor in terms of calling for more evidence. In any event, at the hearing I considered that there was documentary evidence to support both parties’ contentions. The evidence was limited (as there must be relevant documents that were not in either bundle) but I considered that evidence, and the parties’ submissions, before making my decisions. The documents available to me were not, in my view, conclusive either way. But that is not unusual and, if a decision is needed, the judge has to decide what the facts were on a balance of probabilities. I decided that it was more probable than not that the original employer was Mrs Sims-Hilditch, rather than Urathon. In my view the documents in Mr Naylor’s supplementary bundle did not prove that Urathon was the original employer.

[86]If Mr Naylor considers that the way I handled this matter was wrong and that that affected my decision to strike out the claims against Hildare, then that is a matter he can pursue on an appeal. I do not consider that the way I approached the matter displayed any bias. Conclusion on recusal application

[87]Mr Naylor ends his letter of 18 June 2023 with the following sentence: “It is the claimant’s opinion that points above constitute apparent bias as defined in the test devised in Porter v Magill.”. In my analysis of the grounds for the recusal application I have considered, and rejected, each of Mr Naylor’s specific complaints about matters he says disclosed bias on my part in the way I handled the hearing on 7 December and reached my decisions.

[88]I have also considered whether there is any way in which any two or more of the complaints, taken together, might suggest bias on my part. However, I have not identified anything to suggest that any of his complaints, taken together, do suggest any bias on my part.

[89]In my view the complaints are without foundation, whether viewed individually or taken together. It follows that the claimants’ application for me to recuse myself from further involvement in the case is refused. This means that there is now no impediment to my participation in the reconsideration process, in accordance with Rule 72. The claimants’ reconsideration application: next steps

[90]The next step in relation to the reconsideration application is for me to determine whether there should be a hearing. Mr Naylor has expressed the view that the reconsideration application does require a hearing, while the respondents have expressed the view that a hearing is not necessary in the interests of justice and that the application can instead be dealt with on the papers.

[91]Under Rule 72(2) the default position is to hold a hearing. Having considered the parties’ views, I have concluded that there should be a short hearing. Mr Naylor is a lay person and a hearing would give him the best opportunity to articulate his grounds for asserting that I should exercise my power to vary or revoke my judgments of 8 December 2022. The law limits the use that can properly be made of that power, and a hearing will ensure that both parties’ cases as to the exercise of that power are properly put forward. I have considered the fact that a hearing involves additional legal costs to the respondents, but I do not view that in itself as a sufficient reason to displace the default position under the Rules.

[92]Accordingly, I will arrange for a reconsideration hearing, limited to 2 hours, to be listed for 10 a.m. on 12 October 2023, to take place before me by video conference. The listing will be the subject of separate Case Management Orders.

[1]The claimants have applied for a reconsideration of the judgments, given orally at a preliminary hearing on 7 December 2022, striking out all their claims against both respondents under Rule 37 of the Employment Tribunal Rules of Procedure 2013 (“ET Procedure Rules”). Formal written judgments (dated 8 December) were sent to the parties on 15 December 2023. Written reasons were sent to the parties on 28 February 2023.

[2]The claims were for unfair dismissal and associated pay matters arising from the claimants’ dismissal by the second respondent on 8 July 2021 from their employment as grooms at a stud farm.

[3]Mr Naylor, the first claimant’s father, has acted for both claimants since their dismissal and has been their sole point of contact with the Tribunal. He is not legally qualified or experienced in employment proceedings. Factual and procedural background to the reconsideration application

[4]The background prior to the 7 December hearing is set out in paragraphs 2 to 18 of the written reasons for my decision to strike out the claims.

[5]Claim forms presented in September 2021 named the first respondent (Mr Sims-Hilditch) and his wife as respondents. The claim against Mrs SimsHilditch was rejected by the Tribunal. It is not clear why the claim against Mr Sims-Hilditch was not rejected at that stage too as there was no Early Conciliation (“EC”) certificate naming either of them as a prospective respondent. The claimants had each obtained an EC certificate naming their employer Hildare Stud Farm Limited (“Hildare”), but that company was not one of the original respondents. At a preliminary hearing on 30 August 2022 Hildare was added as second respondent by Employment Judge Cadney, on a provisional basis.

[6]The claims were struck out because I considered they had no reasonable prospect of success at the final hearing. The claims were bound to fail against Mr Sims-Hilditch because(a) it was clear (and Mr Naylor had accepted) that he was never the claimants’ employer, and

(b) the claimants had failed to obtain an EC certificate naming him as a prospective respondent, which made the proceedings against him a nullity from the start.

[7]The claims against Hildare were well out of time when it was added as a party on 30 August 2022. In my judgment the claimants had no reasonable prospect of meeting the first part of the test for extending time in section 111(2)(b) of the Employment Rights Act 1996 (“ERA 1996”), which would have required the claimants to show that it was “not reasonably practicable” for them to bring the claims against Hildare in time, that is within the period of 3 months plus the extension for early conciliation (“the initial time period”). I considered the case for meeting that requirement to be extremely weak because there was no adequate explanation as to why, having correctly obtained EC certificates naming Hildare, the claimants failed to claim against it within the initial time period but instead presented claims against others.

[8]That decision meant that the second issue under section 111(2)(b) of ERA 1996 did not arise. That issue was (assuming it was not reasonably practicable to bring the claims in time) whether the claimants had a reasonable prospect of showing that the claims were brought against Hildare within a reasonable period after the end of the initial time period. The parties made submissions at the 7 December hearing on that issue. Mr Naylor maintained that much of the delay in Hildare being added as a party was due to significant delays by Tribunal staff in processing the claim forms. The respondents relied on the fact that(a) he was informed by the first respondent on 30 March 2022 that he was not the right respondent and the employer was Hildare, after which

(b) he continued to pursue the claims against Mr SimsHilditch as the employer and took no action in relation to Hildare. I mention this because if Mr Naylor had succeeded on the first issue, the second issue would then have had to be decided, and the claims would still have been struck out if I had concluded there was no reasonable prospect of his showing that the claims were brought within a reasonable period.

[9]Mr Naylor applied in December 2022 for reconsideration of my judgments (which was premature) but he confirmed in writing shortly after he was sent the written reasons that he wished the application to proceed. The application was, therefore, received in time under Rule 71 of the ET Procedure Rules. In accordance with Rule 72 I considered whether the application should be refused because there was “no reasonable prospect of the original decision being varied or revoked”. I decided not to refuse it at that stage and the parties were notified of that decision on 14 March 2023.

[10]On 27 March 2023 Mr Naylor wrote to the Tribunal to ask for reconsideration to be carried out by another judge owing to what he described as bias on my part during the 7 December hearing. I read this as an application for me to be recused from the case on the grounds of actual or apparent bias. I was directed by Regional Employment Judge Pirani to deal with the matter, in accordance with established practice in the South West Region.

[11]Mr Naylor also appealed to the EAT against the decision for me to deal with the reconsideration. However, that did not directly impact on the need for me to deal with the recusal application. So I carefully considered the grounds for recusal raised by Mr Naylor and on 20 July 2023 the parties were sent orders I made(a) refusing the recusal application, with written reasons and

(b) giving further directions in relation to the reconsideration proceedings. Among other things, I directed that there should be a hearing to reconsider the judgment.

[12]A video reconsideration hearing was listed for 12 October 2023, but on 25 September the respondents sought a postponement, granted by Employment Judge Bax on 11 October 2023. It proved difficult to re-list the case. On 20 November 2023 the case was relisted for a video hearing on 1 December, but Mr Naylor applied for it to become an in-person hearing. I directed the case to be heard in person in Southampton, but the parties then asked for it to be moved to Bristol. That was ordered, but Mr Naylor was by then unable to arrange to get to Bristol in time for a hearing on 1 December. That date was vacated and eventually the case was relisted for 18 December 2023. Documentation

[13]I was provided with a 276-page bundle consisting of(a) the respondents’ bundle for the 7 December hearing,

(b) the claimants’ supplementary bundle for that hearing,

(c) some payslips and related documents sent by Mr Roberts to the Tribunal and Mr Naylor during the 7 December hearing and

(d) later correspondence involving the Tribunal. The later correspondence includes what I refer to below as the pleadings in relation to the reconsideration application, namely Mr Naylor’s original application for reconsideration (28 December 2022), the respondents’ response (5 May 2023) and Mr Naylor’s reply to the response. Those documents set out the parties’ positions.

[14]I was also provided at my request with the letters dismissing the claimants from their employment with the second respondent and some related messages. I was concerned that the letters were not in the bundles for the 7 December hearing, despite being of possible relevance to Mr Naylor’s case for extending time. The respondents had removed documents relevant to the identity of the claimants’ employer, because that had been established at the 30 August hearing. Mr Naylor submitted his own short bundle shortly before the hearing, but this did not include the dismissal letters. As it turned out, they did not assist his case. During his submissions, Mr Roberts appeared to think that Mr Naylor was relying on the dismissal letters and other messages, but Mr Naylor later clarified that he was not relying on them and he had produced them simply because he was asked to do so. The applicable law

[15]The legal ground for reconsideration is set out in Rule 70, namely that it is necessary in the interests of justice to reconsider the judgment That governs both the initial decision under Rule 72(1) (whether to reject the application) and the decision to be made after a reconsideration hearing under Rule 70 (whether to confirm, vary or revoke the judgment). The Tribunal must, in dealing with a reconsideration, seek to give effect to the overriding objective to deal with cases fairly and justly: see Rule 2 of the ET Procedure Rules. This includes ensuring that the parties are an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense

[16]Consideration of whether reconsideration is “necessary in the interests of justice” allows the Tribunal a broad discretion which must be exercised judicially which means having regard not only to the interests of the party seeking the reconsideration but also to the interests of the other party to the litigation, and to the public interest in there being finality in litigation.

[17]In Ministry of Justice v Burton and another

[2016] ICR 1128

, Elias LJ approved the comments of Underhill J in Newcastle upon Tyne City Council v Marsden

[2010] ICR 743

, that the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and that earlier case law (decided when the legal test for what was then called a “review” was expressed slightly differently) cannot be ignored. The courts have repeatedly emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Iron sides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.

[18]Reconsideration is not an option that is there simply to enable the losing party to ask the judge to make a second decision. In Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16

Simler P said: “..a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”

[19]The EAT in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 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”.

[20]In Redding v EMI Leisure Ltd EAT 262/81 the claimant appealed against the refusal by an employment tribunal to accept her application for a review, saying that it was in the interests of justice to do so because she had not understood the respondent’s case and had failed to do herself justice in presenting her case. The EAT commented that: ‘When you boil down what is said on [her] behalf, it really comes down to this: that she did not do herself justice at the hearing, so justice requires that there should be a second hearing so that she may. Now, justice means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [her] not to do herself justice. It was, we are afraid, her own inexperience in the situation.’ The appeal failed.

[21]Many of the reported cases in this area relate to the initial stage under Rule 72(1) but the principles articulated in them are also applicable to the determination of a reconsideration application at a hearing. The case law indicates that the grounds on which the judge can properly vary or revoke an earlier judgment are in practice relatively limited. That is because, while the interests of justice test is a broad one, the result always involves considering the competing interests of both parties as well as the public interest

[22]I should also mention a case relied on in his submissions by Mr Roberts, namely Ladd v Marshall

[1954] 3 All ER 745

, a decision of the Court of Appeal about the admission of new evidence on an appeal. In that case Denning LJ laid down the following rule. “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” That statement of principle is relevant to the consideration of new evidence on a reconsideration of an employment tribunal’s judgment. The issue for determination at the reconsideration hearing

[23]It follows that the issue for me following the reconsideration hearing is whether it is in the interests of justice to exercise the power under Rule 70 to vary or revoke the judgments striking out the claims in this case, taking account of the limits placed on the use of the power under the case law. I must determine that issue in the light of(a) the grounds put forward by Mr Naylor in his written application and at the hearing and his oral submissions on them and

(b) Mr Roberts’ written response and oral submissions. I have considered the documents in the bundle so far as relevant to those matters.

[24]Mr Naylor general position was that he had made a genuine mistake in bringing the claims against the “wrong” respondents and he invited me to exercise my discretion to allow the claims to be determined at a hearing. However, as explained above, the issue at a reconsideration hearing is not one about an exercise of discretion by the judge as to whether the claims should proceed, but the much narrower issue set out in paragraph 23.

[25]Mr Roberts’ position was that Mr Naylor had not raised any change in circumstances following the 7 December hearing. Nor had he produced any new evidence that was relevant or admissible. Nothing raised came into any of the categories of matter that could as a matter of law justify revoking or varying a judgment and there was no basis for exercising my powers under Rule 70. Mr Roberts’ referred to the interests of justice test as interpreted by the case law: the hearing should not be used as a rehearing of matters already heard. He said that the usual sorts of reason for altering or revoking a decision were mentioned in para 9 of his Response to the application i.e. a material change of circumstances following the judgment or new evidence coming to light which could not have been known or reasonably foreseen at the time. While that is broadly correct as far as it goes, in my view the interests of justice test is perhaps a little broader. For example some procedural failures might potentially be capable of being put right through reconsidering a judgment (see paragraphs 19 and 20 above).

[26]Mr Naylor urged me to treat the matters he raised as sufficient to lead me to vary or revoke my decision to strike out the claims. I consider below whether any of the grounds he has raised are sufficient to lead me to do that. The reconsideration hearing

[27]After an opening statement Mr Naylor presented his case, to which Mr Roberts responded. Mr Naylor then briefly replied. Mr Roberts then came back on two factual matters Mr Naylor had mentioned in his reply. The decision to strike out the claims against the first respondent

[28]Mr Naylor has not called into question the correctness of my decision to strike out the claims against the first respondent on the basis described in paragraph 6 above and set out more fully in my original written reasons.

[29]As no grounds have been put forward for varying or revoking that decision, I confirm my judgments striking out the claims against the first respondent. The decision to strike out the claims against the second respondent

[30]What follows relates to the decision to strike out the claims against the second respondent on the basis that the claimants had no reasonable prospect of showing that it was not reasonably practicable for the claims against it to have been brought in time. Mr Naylor’s opening statement

[31]Mr Naylor made an opening statement explaining how he was seeking justice for two young ladies who had been unfairly summarily dismissed for gross misconduct, with no prior warnings and previously good reports for their work. He referred to the reasons why the claimants regarded the dismissals as unfair and why the actions of Mr Sims-Hilditch (including giving only 2 weeks’ notice to quit their accommodation) were vexatious and vindictive. They had been seeking justice as a matter of principle rather for compensation. In this regard I note that the respondents’ have always disputed the claims and the claimants’ main factual assertions, maintaining that the dismissals were fair.

[32]Mr Roberts did not address this statement in any detail because it related to the merits of the claims rather than the issue at the hearing. Mr Naylor was saying the original claims had merit and the claimants should be allowed to have them determined properly. At the 7 December hearing I was of course acutely aware that striking out the claims against Hildare was a serious step that would deprive the claimants of the chance to have the clams determined on their merits. However, as I explained at the time, I was required to determine in accordance with the law the specific issues that arose on the respondents’ application to strike out the claims. The merits or otherwise of the claimants’ claims were not directly relevant at the 7 December hearing. Nor were they directly relevant at the reconsideration hearing and for that reason nothing in Mr Naylor’s statement disclosed any valid ground for varying or revoking the decision to strike out the claims. Grounds for reconsideration raised orally at the hearing

[33]Mr Naylor mentioned two grounds at the hearing to which Mr Roberts objected in his submissions as being new matters that were neither included in Mr Naylor’s pleadings nor the subject of an application to amend. He maintained that the only proper grounds for consideration were those in the application document. There was force in those submissions, but I consider that as a layman Mr Naylor was unlikely to have been aware of the need to seek leave to amend his grounds and. if he had done so. I consider it likely that he would have been permitted to amend. Also, it appears to me that his second ground (ground B below) was to some extent founded on matters set out in his written application (ground E below). I have concluded that it is right for me to address in these reasons the matters he put forward orally, despite Mr Roberts’ objections, in addition to the specific matters mentioned in Mr Naylor’s written pleadings. A: Mr Naylor’s explanation for making a genuine mistake in claiming against the wrong respondents (i) The parties’ main submissions

[34]Mr Naylor stated that he made a genuine mistake in proceeding against Mr and Mrs Sims-Hilditch rather than Hildare. He had worked out that the claimants could not bring unfair dismissal claims without 2 years’ service but was very confused by the fact that for about two thirds of their employment, the employer was not Hildare. He had not found any precedent for how to deal with a case like that. He had asked for details of the company structure on 4 occasions without success and was left with the impression the employers were Mr and Mrs Sims-Hilditch, who were the face of the company and the one “constant” throughout their employment. He said nothing changed in the claimants’ employment when their employer changed to Hildare in September 2020. Mr Naylor then referred to the fact that he submitted the ET1 forms in September 2021. But no response from the Tribunal was received until March 2022, when the claims against Mrs SimsHilditch were rejected and those against Mr Sims-Hilditch accepted. He never understood why the first claim was rejected but had reasonably thought he was properly left with Mr Sims-Hilditch as sole respondent. Mr Naylor said that he put Hildare on the ACAS form because it had dismissed the claimants.

[35]Mr Roberts submitted that this ground did not meet the criteria for changing my decision and, in any event, there was nothing in it. The explanation of Mr Naylor’s mistake in claiming against the wrong respondents by virtue of this confusion about Hildare only being the employer for a third of the employment was completely new, but could and should have been made at the 7 December hearing. I was not entitled to consider a new explanation, certainly in the absence of new evidence that meets the Ladd v Marshall test for admitting new evidence. Nor was it supported by any evidence, such as a witness statement or documents in the bundle. I made findings on 7 December in relation to Mr Naylor’s decision to pursue the two individuals in his ET1 forms. It was not open to him simply to ask me to re-open those facts. Mr Naylor was seeking to rely on a new explanation and have a second bite at the cherry to see if that was more successful than the explanation offered on 7 December. If it was the true explanation there was no reason why it could not have been made, or the need for it foreseen, on 7 December 2022.

[36]Further, Mr Roberts said that the new explanation did not really go to the actual issue at the 7 December hearing (the test for extending time). To meet the Ladd v Marshall test for considering new evidence, the evidence needs to be likely to make a difference to the outcome: and this was not the case here because the explanation was logically flawed. Mr Naylor knew Hildare was the employer at the time it dismissed the claimants and the ACAS procedure was against Hildare (as employer), yet the claims were presented against Mr and Mrs Sims-Hilditch and not Hildare. Nor was any action ever taken by Mr Naylor against Hildare even after the initial wrong respondent clearly pointed out the error to Mr Naylor in his Response to the ET1 form. The claimants themselves clearly did know Hildare was their employer in July 2021 prior to presenting their claims and it was not material whether Mr Naylor was confused about the identity of the previous employer or whether there might be a problem if the claimants did not have two years’ qualifying service with Hildare. They went through EC on the basis of continuity of service for more than 2 years since starting their jobs. Also, I had decided that Mr Naylor had elected for his own reasons to pursue the claim against Mr and Mrs SimsHilditch and then Mr Sims-Hilditch and to link the case with another case against him. Mr Roberts also said that if, contrary to his submissions, it was open to Mr Naylor to seek to re-open the question of why he chose to pursue Mr and Mrs Sims-Hilditch and not Hildare, the issue on 7 December was not simply whether he made a reasonable mistake, but rather whether it was reasonably practicable to bring the claims against Hildare in time. Given that the claimants and Mr Naylor knew who the employer was at the date of dismissal and were able to and did pursue EC with ACAS, it was clearly reasonably practicable for them to do that. (ii) the parties’ further submissions

[37]In his reply to Mr Roberts, Mr Naylor repeated that the identification of the previous employer at the 7 December hearing was new information and that he had previously been confused by the fact that the claimants did not have two years’ service with Hildare and had been employed by someone else for two thirds of their employment. He had thought it was Urathon Europe Ltd. He had not been sitting on his hands but had been trying to find out who the employer was. Also, he was influenced by the Tribunal’s acceptance of the claim against Mr Sims-Hilditch which he thought meant he was the right respondent. He would not have questioned that unless the Tribunal had come back to him to clarify the facts. He did not accept Mr Roberts’ suggestion that the initial claims against Mr and Mrs Sims-Hilditch was linked in his (Mr Naylor’s) mind with other claims by another employee. He was aware of that other case and thought he should mention it in answer to a question in the ET1 form. He had been worrying about the need for two years’ service and so had been trying to find out the corporate structure (and had pursued that with the ICO) but the company would not respond to his queries.

[38]Mr Roberts came back on two factual matters. First, in relation to Mr Naylor’s assertion that he had tried to find out who the employer was, he referred to paragraph 71 of my original written reasons for striking out the claims: that dealt with a message in the claimants’ bundle from Rob Taylor (document 2) which, on 17 September 2021, clarified that it was not Urathon but Hildare that was the employer from 8 September 2020. Also, his assertion that the fact Mrs Sims-Hilditch was the previous employer was new to him on 7 December 2022 was not consistent with the fact he named her on the claim form. But who did the claimants think had dismissed them? Not Mrs SimsHilditch, it appears and it would have been more consistent with what Mr Naylor said on 7 December was his (or the claimants’) misconception as to their employer before Hildare for him to have claimed against Urathon; but he did not do that. And when the remaining respondent (Mr Sims-Hilditch) informed Mr Naylor in the Response to the claim form who was the correct respondent, his response was to disagree and maintain his position that Mr Sims-Hilditch was the employer. Secondly. in relation to Mr Naylor’s assertion that he had been misled by the Tribunal’s “acceptance” of the claims against Mr Sims-Hilditch, that anomaly (in not rejecting it at that stage for want of an EC certificate) did not explain why he persisted with those claims. The Tribunal staff had seen no evidence and no Response, and had no way of knowing who the employer was. The Response made the position clear to Mr Naylor and there was nothing he had from the Tribunal that could have led him to think Mr Sims-Hilditch was the correct respondent.

[39]Mr Naylor’s final comment was that nobody ever told him who the original employer was prior to 7 December 2022, and that his entering the names of Mr and Mrs Sims-Hilditch was based on his interpretation of the ET1 form (iii) conclusions

[40]I have concluded that there is nothing in this ground that could lead me to vary or revoke my striking out decision. Although Mr Naylor asserted in his application that I had wrongly decided the claims against Hildare were out of time, there was no doubt about that fact. The issue on 7 December 2022 related to whether the claimants had a reasonable prospect of success in showing that the test for extending time in their favour was met.

[41]The explanation now put forward for the mistake in September 2021 is new, and as a new factual assertion (and leaving aside questions of evidence for it) it fails, in my view, to meet the first element of the test in Ladd v Marshall for considering new evidence: there is no reason why, if it was as compelling a reason for the mistake as he suggested, Mr Naylor could not have relied on it at the 7 December hearing or referred to it in his claim form or in any other correspondence prior to that hearing. Mr Naylor did not show at the reconsideration hearing that the point could not have been put forward at the 7 December hearing. His new explanation put forward at the reconsideration hearing was clearly based on material within his knowledge on 7 December 2022. Moreover, on that day Mr Naylor was free to put forward whatever arguments he wished to resist the application to strike out the claims and having done so it is not open to him to have another go by putting an alternative explanation forward at a reconsideration hearing (at least where that is not related to new evidence that meets the Ladd v. Marshall test). Accordingly, for the reasons set out in this paragraph I do not consider it appropriate to view the ground as a potential basis for changing my decision. However, if I am wrong on that there are further reasons which would lead me to conclude that this ground is, in any event, an insufficient basis for changing the decision.

[42]First, the new explanation does not in my view lead very far in terms of its impact on the decision on 7 December 2022. This is because Mr Naylor was aware who had dismissed the claimants (Hildare) and that for the last third of their employment they were employed by Hildare. He correctly initiated EC against Hildare. His asserted confusion as to who to claim against does not in my view explain why he failed to add Hildare as a respondent at the outset, within the initial time period allowed for making the claims.

[43]Secondly, at the 7 December hearing the explanation given for the mistake was rather different, and was based in part on confusion said to have been caused by the role of Urathon prior to Hildare taking over as the claimants’ employer. Mr Naylor had asserted that Urathon Europe Ltd was the employer prior to Hildare, even though he did not claim against it. He had also maintained ever since presenting the claims that the claimants always regarded Mr and Mrs Sims-Hilditch as their employers and that Mr SimsHilditch’s actions while they were employed made him, in effect, their employer. All of those matters were before me when I made my decision to strike out the claims. In my view the new way Mr Naylor put things at the reconsideration hearing was not really consistent with his previous reliance on the position of Urathon Europe and its actions (and on the actions of Mr and Mrs Sims-Hilditch) as the source of the mistake. I was left at the reconsideration hearing with the impression that Mr Naylor had attempted to re-package the facts into a new explanation so as to give him a different argument as to why he failed to claim against Hildare in time, his others having failed previously.

[44]Thirdly, that impression led me to question whether the new explanation is in fact sufficiently credible as the main reason for the mistake in not claiming against Hildare in September 2021. I do not regard it as being sufficiently credible to qualify as a potential basis for changing my decision. I note in that regard that the new explanation not only does not feature as a ground for reconsideration in Mr Naylor’s pleadings, but it also did not feature in Mr Naylor’s submissions on 7 December 2022 or in any documentation in the bundle from before that time.

[45]Finally, I agree with Mr Roberts that, in any event, the suggestion that the confusion was due to the claimants only spending a third of their employment with Hildare and two thirds with a previous employer) is not supported by any evidence, whether in a witness statement or documentation in the bundle.

[46]Mr Naylor had a further point under this ground which was that he had been misled by the Tribunal’s “acceptance” of his claim against Mr Sims-Hilditch. This point was mentioned at the 7 December hearing but did not appear to be relied on as adding that much to his case for extending time. Its relevance was, if anything, to the second part of the test for extending time in section 11(2)(b) (whether the claims were made within a reasonable period of time after the end of the initial time period). The response from the Tribunal was well after the end of the initial period allowed for the claims and so cannot be relevant to the first part of that test (whether it was reasonably practicable for the claims to have been made in time, in the first place). Furthermore, at the 7 December hearing Mr Naylor appeared to be relying more on what he said he had been told by ACAS staff during the EC process as the reason for claiming against Mr Sims-Hilditch. In any event, the further point Mr Naylor was making at the reconsideration hearing does not relate to new evidence, as the letter telling the claimants that the claim against Mr Sims-Hilditch was accepted by the Tribunal was in the original bundle and a matter of record. It may be that, with hindsight, Mr Naylor would like to have put this point more forcefully at the 7 December hearing. But he had his chance to do that, and it is not now open to him to make more of the point at the reconsideration hearing in the hope of persuading me to make the decision again.

[47]I agree with Mr Roberts that there was no plausible basis on which Mr Naylor could have read into the formal acceptance of the claim by the Tribunal anything about the substance of the case against Mr Sims-Hilditch or anyone else. There was no evidence and no response from the respondent at that time. But this matter is not in my view relevant to the correctness of my striking out decision, which was based on the first part of the test for extending time. That is because the acceptance of the claim took place after the end of the initial time period allowed for making the claims against Hildare, and so does not help explain why the claims were not made within that initial time period. B: Wrong application of employment law (i) the parties’ submissions

[48]Mr Naylor explained at the hearing that he had relied on a book about using employment tribunals without a lawyer. He understood from the book that it was possible to change the identity of the respondent so long as the ET1 form (naming the wrong respondent) was initially presented in time (i.e. within 3 months of dismissal plus the EC extension). I asked Mr Naylor if he had made this point at the 7 December hearing and he said he may not have articulated it properly, which was why he wanted an in-person reconsideration hearing.

[49]Mr Roberts submitted that this was a new ground, complaining about an incorrect application by me of employment law. On that point, he may have misread the book or it may have simply been wrong. In any event, there is nothing in the point. Any assertion that the law allows a claimant to apply to amend a claim by naming a new respondent at any time, without time issues being relevant, is simply incorrect. The point being made by Mr Naylor appeared to be referring to the old “reference back” principle that is no longer good law. It is now clear law that time limits are always relevant and should be considered, because the substitution or addition of a party takes effect when it is ordered and not as from the date of the ET1 form. Mr Roberts also submitted that if I had got the law wrong at the 7 December hearing, reconsideration under Rule 70 was not the correct route to a remedy because an error of law by the judge was a matter for appeal, and not for reconsideration by the original tribunal.

[50]In reply Mr Naylor reiterated that the passage in the book did suggest that the 3-month time limit did not apply when correcting the respondent. (ii) conclusions

[51]I agree with Mr Roberts that this ground is a compliant about an alleged legal error on my part in making my strike out decision and as such is a matter that falls to be raised on an appeal, and not at a reconsideration hearing. In any event, even if it were a proper matter for my consideration in deciding whether to change my decision, the view of the law put forward by Mr Naylor on the basis of the book he consulted is not an accurate statement of the law, whether in general (time limits are always relevant to adding or substituting a respondent out of time) or in the particular circumstances of this case (where the initial proceedings against both original respondents were a nullity owing to the absence of EC certificates naming them as prospective respondents).

[52]I should add that I did not understand Mr Naylor to be putting forward his understanding of the law for any purpose other than to suggest I got the law wrong in making my striking out decision. But even if he was saying that his understanding contributed to his failure to take action against Hildare before 30 August 2022, that argument is not relevant to whether it was reasonably practicable to bring the claims against Hildare in time in the first place. Other grounds referred to in Mr Naylor’s application

[53]In his written application, presented as both an application for reconsideration and a notice of appeal, Mr Naylor mentioned a number of other matters, some of which were relied on in the recusal application described above. I will address the specific grounds raised (using Mr Naylor’s descriptions) below, even though they were mostly not picked up in his oral submissions. C: procedural irregularities:

[54]Mr Naylor complained that the Tribunal staff failed to supply me with his supplementary bundle prior to the 7 December hearing, that I had “the respondent’s” bundle” in advance of the hearing, that Mr Roberts sent me Mr Naylor’s bundle without any consultation with Mr Naylor which was unverified or potentially adulterated, and I failed to question the bundle’s accuracy. He also said I only paused for 5 minutes to read the new documents and that I had run the hearing so as to complete it within the 3-hour allowance, which was unfair to him towards the end of the hearing as he did not have a full opportunity to clarify or object to what Mr Roberts (a professional barrister) was saying.

[55]Mr Roberts’ written Response was, among other things, that nothing in the complaints suggested that the matters complained of actually vitiated my decision to strike out the claims. The suggestion that he might have adulterated the claimants’ documents was improper, and hypothetical without an allegation of actual wrongdoing. No concerns were raised at the time and there is no foundation for the complaints, which amounted to “mudslinging”. The Response also states that I took advantage of a 6-minute break due to connection issues to look at the short supplementary bundle before giving Mr Naylor a chance to address the tribunal on them later (which he did). Mr Naylor referred to the documents as he wished and they were considered.

[56]In my view Mr Roberts’ position on these complaints is substantially correct, for reasons I set out in the written reasons accompanying my refusal of the recusal application. It was regrettable that I was not forwarded the claimants’ bundle prior to the hearing, but I was able to identify what the documents were during a short pause in the hearing and Mr Naylor had the chance to refer to me to specific documents in his bundle and make submissions as to what, in his view, they established. He did just that, and I took account of the documents and Mr Naylor’s submissions and arguments in reaching my decision. Furthermore, I do not consider that Mr Naylor’s criticism of my approach in seeking to complete the preliminary hearing on 7 December within the 3-hour time allocation to be well-founded. Employment judges are expected to manage proceedings in that way. In any event Mr Naylor did not complain about this at the time or suggest that he had further submissions that had been closed off by my handling of the hearing.

[57]There is in my view nothing in this ground that vitiates my decision to strike out the claims. Any error of law by me in the handling of the preliminary hearing on 7 December 2022 would be a matter for appeal rather than reconsideration. D: Real possibility of bias

[58]Mr Naylor listed numerous matters relating to the 7 December hearing that he said indicated bias on my part. Mr Naylor relied on the same matters (supplemented in further written representations) as the grounds for his recusal application. Those matters were addressed in Mr Roberts’ response document at some length. As Mr Naylor accepted during the reconsideration hearing that I dealt with his complaints under this heading in my decision on recusal, I will not set out the details of the complaints and the response. Those matters were fully explored by me in considering the application for recusal from the reconsideration hearing.

[59]The written reasons for my decision to refuse that application explain fully why I did not consider the various complaints to be well-founded as disclosing any bias, actual or apparent. For the same reasons I do not consider that there is anything in matters complained of that could vitiate my decision to strike out the claims against Hildare. E: Incorrect application of employment law.

[60]Mr Naylor’s written grounds said that until August 2020 the claimants were paid by Urathon Europe Ltd whose staff dealt with the administration of their employment. Then they became employed by a new company Hildare, but nothing else changed for them. The employment was therefore split between two employers with the only constant being Mr and Mrs Sims-Hilditch. The ACAS process was submitted under Hildare as their last employer. Due to the split employment and a failure by the respondents to clarify the structure of the company the respondents listed on the ET1 form were Mr and Mrs SimsHilditch, who the ACAS case worker had referred to as their employers. He did not know why one respondent was rejected and the other accepted, given the submission criteria were the same. I had wrongly accepted Mr Roberts’ argument that the claim was out of time. After listing the timeline of events after submitting the claims in September, well in time, Mr Naylor goes onto say that there was over six months delay before the claims were responded to by Tribunal staff and a complaint was responded to on 4 April 2022. He did not get an ET3 from the then respondent until 18 July 2022, 10 months after the claims were presented. It was another 4 months or so until the hearing on 7 December. Mr Naylor rejected the arguments from Mr Roberts that he had done nothing to advance the case. Indeed it was his complaint to Bristol ET in March that had resulted in the claims being finally processed. His conclusion was that I had wrongly failed to take account of delays outside his control in deciding that the claims were out of time, when I prepared for the hearing and prepared my judgment. The facts he relied on were presented to me at the 7 December hearing but dismissed.

[61]Mr Robert’s written response was that this ground is an attempt to re-argue a case that failed at the 7 December hearing. The claims were well out of time when Hildare was added as a respondent and it was simply immaterial to the practicability of claiming against it that Mr Naylor claimed against the wrong respondents in time. The reasons for delays after the claims were presented were not relevant to that issue.

[62]Some of the matters raised under this heading were picked up in Mr Naylor’s oral submissions as to his explanation for his mistake in claiming against the wrong respondent, although with a slightly different emphasis.

[63]I agree with Mr Roberts that the matters put forward under this ground do not identify a misapplication of the law. Nor do they suggest that in making my strike out decision I failed to take account of anything Mr Naylor said at the 7 December hearing. Rather they appear to amount to an attempt to persuade me to have a second go at deciding the matters in dispute at the 7 December hearing. For that reason they are not an appropriate basis for varying or revoking my decision. Any error of law on my part in making my decision to strike out the claims is a matter for appeal and not for a reconsideration. F: Introduction of new evidence:

[64]Mr Naylor’s written grounds state that M Roberts introduced new evidence at the hearing on 7 December which had not been previously disclosed in the ET3 form or the Particulars of Response, namely that the claimants’ employer before August 2020 was Mrs Sims-Hilditch. This was pivotal to his argument about the identity of the claimants’ employer and had been withheld prior to the Preliminary Hearing proceedings. I did not challenge this, I accepted the new disclosure and did not question why the documentary evidence stated otherwise.

[65]Mr Roberts’ written response was that it was not clear what evidence Mr Naylor refers to. There were some payslips from November 2022 supplied by Mr Roberts during the 7 December hearing, which were not in the bundle because at the previous hearing Mr Naylor had accepted that the relevant employer at the time of dismissal was Hildare.

[66]I do not consider there is anything in this point so far as the issue at the reconsideration hearing is concerned. Mr Naylor’s confusion as to the identity of the original employer was a matter relied on by him at the 7 December hearing and was considered in making my decision. In particular I did consider the documents indicating facts consistent with Urathon Europe Ltd being the employer as well as those consistent with Mrs Sims Hilditch being the employer. The respondent’s assertion that it was Mrs Sims-Hilditch who was the original employer was in the context of his assertion that it was Urathon Europe who was that employer. Whether that was correct was not directly relevant to the practicability of proceeding against Hildare in time. If I made any legal error in relation to the parties’ respective assertions then that is a matter for an appeal and not a reconsideration. G: Data protection:

[67]Mr Naylor complains that Mr Roberts referred at the 7 December hearing to his previous occupation as a police officer, insinuating that he would have been well versed in unfair dismissal claims and could not claim to have a “layman’s knowledge” of employment law. This information must have come from the respondents’ solicitor, and was an unauthorised personal disclosure that should not have gone unchallenged by me. Mr Roberts written response was that this was relevant information and that no data protection rules were breached, in particular by a disclosure made in litigation. He said this was not in any event a matter that was a ground for reconsideration. And I made clear in the written reasons for the judgments in this case that the disclosure had not significantly affected my view of Mr Naylor’s capabilities.

[68]In my view it is unnecessary to decide whether or not there was any data protection breach as that cannot be relevant to the reconsideration issue.

[69]The point being made relates to a matter that arose at the 7 December hearing and was considered at the time. There is nothing new raised by this ground that could be a potential justification for varying or revoking my decision to strike out the claims. If I made any legal mistake in my approach to the matter that would be a potential ground of appeal, and not a ground for a reconsideration

[70]In any event, I did not consider the fact disclosed as being of much relevance to the issues at the 7 December hearing. Mr Roberts’ reference to Mr Naylor’s previous occupation (to which Mr Naylor objected at the time) gave no details, such as rank, length of service or duties and/or experience, and was not supported by any evidence. For that reason, its probative value was limited. It certainly did not indicate any knowledge or experience of employment law or proceedings. While evidence of a person’s occupation or education may be relevant to arguments relying on their lack of knowledge or understanding of employment law and/or their ability to find out about it, the particular disclosure did not reveal anything of much assistance in assessing Mr Naylor’s capabilities. Reconsideration application: Mr Naylor’s further representations

[71]In his document responding to Mr Roberts’ written response to his applications, Mr Naylor made some further representations. He repeated the facts he relied on to assert that “the confusion and ambiguity created by the respondent’s failure to notify the claimants’ correct employer prior to September 2020 led directly to the only constant, i.e. R1 and R2 being notified as respondents on the ET1”. He referred to the overriding objective in Rule 2, He repeated his point that I only adjourned for 5 minutes to read his documents. He objected to Mr Roberts’ statement that the time estimate (of 3 hours) was ordinary for the type of hearing and the hearing was conducted in the usual way, that the parties are expected to keep to the estimate and it was ordinary practice for the judge to adopt a pace commensurate with the listed time. Mr Naylor considered that those things are only pertinent if the participants have experience of employment law proceedings or are employed in the legal profession.

[72]I considered the content of this document carefully in the course of reaching my conclusions on the grounds set out in the application for reconsideration. I did not identify any new grounds being made as the content was, so far as I could see, reiterating and supporting points already made in the reconsideration application.

[73]It follows from my conclusions on the grounds Mr Naylor put forward that I do not consider that the interests of justice require me to vary or revoke my judgments striking out the claims against Hildare. The relevant information was before me on 7 December 2022 and I made my decisions on the relevant law and issues in the light of the submissions Mr Naylor and Mr Roberts chose to make. If I made any errors of law during the hearing or in my decision-making then that is a matter for appeal rather than reconsideration.

[74]Accordingly, I confirm my judgments striking out the claims against the second respondent.