Mr M Zdrazil v AA Woods Holdings Ltd and Woods Building Services Ltd: 1601422/2019
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]The claim against the Second respondent was presented in time.[2]The claims against the First Respondent stands no reasonable prospect of success and is struck out under Rule 37(1)(a) of the Employment Tribunal Rules of Procedure.[3]The claims of disability discrimination are dismissed upon withdrawal by the claimant.REASONS
[1]This Judgment concerns the jurisdiction of the employment tribunal to consider the claimant’s claims arising from his dismissal on the 29th March 2019.[2]Before addressing the evidence and argument in any detail I set out the uncontested facts.[3]As noted above, the claimant was dismissed without notice on the 29th March 2019.[4]On the 14th June 2019 the claimant commenced Early Conciliation with AA Woods Holdings Limited.[5]The three-month time limit for the presentation of a claim of unfair dismissal expired on the 28th June 2019.[6]The Early Conciliation (“EC”) process with AA Woods Holdings Limited (“AA Woods”) concluded on the 14th July and an EC Certificate {505979/19/48] was issued on that date.[7]On the 9th August 2019 the Claimant commenced Early Conciliation with Woods Building Services Limited (“Woods BS”) and a certificate was issued that day.[8]The effect of the Early Conciliation Certificate extended the period for presentation of the claim to the 14th August 2019.[9]The claimant presented his ET1 against both respondents on 13th August 2019.[10]The claim against AA Woods was presented in time and with the requisite EC certificate.[11]The AA Woods was not the claimant’s employer; it is the company which owns Woods BS; the claimant’s employer.[12]The claim against Woods BS has an early conciliation certificate but, because the early conciliation process commenced after the expiry of the primary time limit, the respondent argues that the claim against Woods BS is not within the Employment Tribunals jurisdiction unless the claimant persuades the Employment Tribunal to extend the time for presentation in accordance with section 111 of the Employment Rights Act 1996.[13]The respondents agree that the claimant was dismissed on the 29th March 2019. They deny that the principal reason for the dismissal was one which was contrary to section 103A or section 100 of the Employment Rights Act 1996. They assert that the claimant lacks sufficient continuity of service for the purposes of section 108 of the ERA 1996 They also contest that the dismissal was unfair for the purposes of section 98(4) of the same act. The issues in dispute[14]The respondent argues that the claim against Wood BS is not within the employment tribunal’s jurisdiction because it was presented after the 28th June 2019 and the statutory time for presentation was not affected by the early conciliation process because EC commenced on the 9th August 2019.[15]AA Woods argues that it was never the claimant’s employer and the claim against it is misconceived.[16]Both respondents argue that, if the claim against AA Holdings is invalid then, there is no claim before the tribunal which could be subject to an application to add Woods BS as a party.[17]In the alternative the respondents argue that the Employment Tribunal should determine the application to dismiss the claim against AA Woods before considering any application to join Wooods BS as a party.[18]By reason of the above, the respondents argue that the claims against both respondents should be dismissed. The claimant disagrees.[19]The claimant accepts that AA Woods was not his employer. However, he argues that he was not so aware until receipt of a letter from the solicitors acting for both companies, dated the 25th July 2019.[20]He asserts that it was not reasonably practicable for him to have presented his case to the tribunal within the statutory time limit and that, post receipt of the above letter he acted promptly in taking professional advice, obtaining a EC certificate and presenting the claim.[21]In the alternative, he argues that he should be allowed to amend his claim to join Woods BS as a party prior to the claim against AA Woods being dismissed.Findings of Fact
[22]I heard evidence from Ms Tara Petri on behalf of the respondents and the claimant. Both presented written statements and were cross examined. I found both to be honest witnesses. I considered the content of a 69 page bundle and three document annexed to the claimant’s statements.[23]Bearing in mind that the burden of proof for the purposes of section 111 ERA 1996 falls upon the claimant I reached the following conclusions:[24]The claimant’s employment transferred from Kaefer limited to Woods BS on the 1st January 2019. A letter was drafted by Kaefer limited to be sent to the claimant at his home address at 6 Berwyn View, Wrexham [58]. I accept the evidence of the claimant [witness statement, paragraph 1) that he did not receive that letter.[25]The claimant did not receive any written notification from Woods BS of a material change in his terms and conditions of employment; in particular the identity of the claimant’s new employer.[26]Ms Petri gave evidence that the claimant and three colleagues who also transferred to Woods BS underwent an induction and would have been shown documents which clearly referred to Wood BS. These documents were not produced. Ms Petri was not present at the induction nor personally aware of which documents were shown to the claimant. Whilst I do not doubt her honesty for a moment, I prefer the direct evidence of the claimant who said he did not receive any induction and had not seen documents which bore the name Woods Building Services Ltd.[27]It was common ground between the parties that Woods BS traded under the name AA Woods and presented that identity to customers.[28]Ms Petri accepted that Wood BS vehicles were liveried as AA Woods. She accepted that, following the claimant’s transfer Woods BS, the company had not issued a statement of particulars of terms and conditions of employment which reflected the change of employer.[29]The claimant did complete a personnel report for a new employee form [69] which bore the AA woods Logo but no other detail to identify the employer. Similarly. the claimant completed a weekly record titled; Employee Time Sheet & Exposure Record – RPE Inspection Record. This refers to “AA Woods Asbestos Removal” but not Woods BS.[30]Wood BS did send pay slips to the claimant addressed to 34 Y Wem in Wrexham, an address at which the claimant did not live throughout the period of his employment with Woods BS, or for some time before the transfer. Consequently, the claimant did not receive them and thereby did not see the express reference to “Woods Building Services Ltd” on each pay slip [63].[31]I accept Ms Petri’s evidence that on her own bank statements the “payee” details identify Woods BS. I also accept the claimant’s evidence that he had not noted such details on his bank statements.[32]Taking all of the above into account, I consider it to be more likely than not that the claimant was unaware of the correct identity of his employer and believed he was employed by a business called “AA Woods”[33]Following an incident on the 25th March 2019 the claimant was called to a disciplinary meeting. Following that meeting, by a letter dated the 29th March 2019 [59-60] he was dismissed without notice. The reasons for the dismissal are not pertinent to the issues before me. Pertinent to the claimant’s knowledge of his employer’s identity are the following:[34]The letter of dismissal is headed with the Logo of AA Woods.[35]The letter of dismissal gives the head office address for AA Woods.[36]The email contact address is “info@aawoods.com” and the website is: “www.aawwods.com”.[37]There is, at the base of the footer of the first page, in the smallest of fonts, the name, company registration number and address of Woods Building Services Limited.[38]The dismissal letter expressly refers to “termination of your employment with Woods Building Services Ltd”.[39]The letter also makes two statements: “You were also critical about AA Woods to our client, informing the client that we had …..All AA Woods employees must, at all times, act in the best interests of the company.” “For all these reasons, I have concluded that we can no longer employ you in the role of Asbestos Operative at AA Woods and I informed you that you are dismissed, with effect from today”.[40]The claimant was told that he should write to “Tara Petri, finance director……Tara can be contacted on tara.petri@aawooods.com.”[41]The claimant appealed against the decision to dismiss him. His appeal letter was titled; “Appeal regarding dismissal from AA Woods” and in the body of the letter he refers to “AA Wood’s employees” [annexed to the claimant’s witness statement].[42]An appeal meeting took place on the 14th May 2019. Neither witness suggested that the identity of the claimant’s employer was mentioned at that meeting.[43]On the 29th May the claimant wrote to the respondent indicating his intention to commence claims in the employment Tribunal against AA Woods.[44]I accept the claimant’s evidence that, in anticipation of bringing a claim to the Employment Tribunal he realised that AA Woods was not necessarily the full name of the employer and he made some research vai the internet. There he discovered the name of AA Woods Holdings Ltd; a business of which Ms Petri was a director.[45]On the 10th June 2019 the claimant emailed Ms Petri to inform her that he intended to commence early conciliation on the following Friday. He did so with AA Woods. She did not respond.[46]On the 28th June 2019 the time limited for presentation of a claim against Wood BS expired.[47]The conciliation period with AA Woods concluded on the 14th July 2019.[48]On the 19th July, Ms Petri sent a letter to the claimant dismissing his appeal [64-67]. That letter had the same Logo and address details as the dismissal letter.[49]The letter includes a reference to employees integrating into AA Woods and, as with the dismissal letter, states; “You remain dismissed from your employment with Woods Building Services Limited …”[50]On the 25th July 2019 the respondents’ solicitor wrote to the claimant stating that his letter of the 29th May had been passed to them. It was titled “Intended claim against Woods Building Services Limited (t/a AA Woods)”.[51]I have presumed that in normal circumstances that letter would have been received by Saturday 27th July 2019.[52]I accept the claimant’s evidence that it was only upon receipt of this letter that he appreciated that AA Woods was the trading name of his employer. I also accept that, he had no appreciation of the meaning of the short hand “t/a.[53]The claimant had made an appointment to receive advice from the Citizens’ Advice Bureau prior to presenting his claim. The appointment was fixed for Friday 9th August 2019. On that date he became aware that his employer was Woods BS and on the same day commenced and concluded EC with Woods BS and submitted his claim on Tuesday the 13th August 2019 [claimant’s witness statement, paragraphs 10-12].[54]I finally record that I accept the claimant’s evidence regarding his mental health following receipt of the dismissal letter: “had a significant impact on my mental health and I had to visit my doctor in the days following, who diagnosed me with depression and prescribed me anti-depressant. I only read the letter once when I received it due to the impact it had on my mental health. This was also why I stopped responding to Tara (Ms Petri) following on from receiving the outcome of my appeal as my doctor had instructed me to take a break from the matters while I focused on my mental health.” The legal Matrix 111 Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a)before the end of the period of three months beginning with the effective date of termination, or (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[55]There are two limbs to this formula: a) The employee must show that it was not reasonably practicable to present his claim in time. b) If he succeeds in doing so, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable.[56]The leading authority on reasonable practicablity is the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119. In that case, May LJ, stated: ''… one can say that to construe the words “reasonably practicable” as the equivalent of “reasonable” is to take a view that is too favourable to the employee. On the other hand, “reasonably practicable” means more than merely what is reasonably capable physically of being done—different, for instance, from its construction in the context of the legislation relating to factories: compare Marshall v Gotham Co Ltd [1954] AC 360, HL. In the context in which the words are used in the 1978 Consolidation Act, however ineptly as we think, they mean something between these two. Perhaps to read the word “practicable” as the equivalent of “feasible” as Sir John Brightman did in [Singh v Post Office [1973] ICR 437, NIRC] and to ask colloquially and untrammelled by too much legal logic—“was it reasonably feasible to present the complaint to the [employment] tribunal within the relevant three months?”—is the best approach to the correct application of the relevant subsection.''[57]When considering whether or not a particular step is reasonably practicable or feasible, it is necessary for the tribunal, as the Court of Appeal said in Schultz v Esso Petroleum Ltd [1999] IRLR 488, to answer this question 'against the background of the surrounding circumstances and the aim to be achieved'.[58]The claimant’s explanation is an assertion of a mistake. I accept that explanation but a genuine mistake does not of itself demonstrate that it was not reasonably practicable to present the claim in time.[59]In Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 Scarman LJ indicated that if the claimant asserts that he did not know of his rights, or made a mistake, relevant questions would be: ''What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived? Should there prove to be an acceptable explanation of his continuing ignorance of the existence of his rights, it would be inappropriate to disregard it, relying on the maxim “ignorance of the law is no excuse”. The word “practicable” is there to moderate the severity of the maxim and to require an examination of the circumstances of his ignorance'.'[60]In Wall's Meat Co Ltd v Khan [1979] ICR 52, CA, Brandon LJ stated as follows: ''The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him'.'[61]This is a case in which the claimant acted in a timely fashion to conciliate with the company whom he believed was his employer and he presented his claim against that perceived employer in a timely fashion. Upon discovery of his importance of his error he complied with the early conciliation process on the same day and presented his complaint expediently.[62]The error was his failure to appreciate the significance of one, albeit important, sentence in a lengthy letter dated the 27th March 2019. By the time that sentence was repeated, in the appeal letter of the 19th July 2019, the primary time limit had already expired.[63]In my judgment, it was, absent any surrounding circumstances, reasonably practicable for the claimant to have recognised the statement in the respondents’ letter as an accurate statement of the identity of his employer; Woods BS.[64]The surrounding circumstances included:[65]The whole of the claimant’s prior brief experience with the Respondents. He worked for a business which identified itself to the outside world as AA Woods, which used AA Woods on its vehicles, its letterhead, its website, on an internal document it presented to its new employees to complete, its weekly time sheets for employees to complete and, in this case, it failed to comply with its duty under section 4 of the ERA 1996 to notify the claimant of a significant change in the terms and conditions of his employment following the transfer of his employment on the 1st January 2019[66]The character of his default was the sort referred to in Drake International Systems Ltd and others v Blue Arrow Ltd UKEAT/0282/15/DM as: “The present case is typical of many, in which the precise identity of an employing subsidiary which is one amongst others in a group of companies may not be clear to its employees, and for whom it may be a matter which until making a claim has assumed little significance in their life”.[67]Secondly, the letter of the 29th March contained a number of either prominent or pertinent references to AA Woods and AA Woods employees.[68]Thirdly, I have accepted the claimant’s account of his reaction on receipt of the dismissal letter; it went beyond the scope of the anxiety and stress1 that might often follow such unwelcome news and lead to the prescription of anti-depressant medication sufficient to inhibit his appreciation of the name of the employer.[69]Taking into account the surrounding circumstances noted in paragraphs 64 to 68 I have reached the conclusion that the claimant’s evidence proves that it was not reasonably feasible for him to understand the import of the reference to Woods BS; a company of which he had no knowledge.[70]I then turn to such further reasonable period.[71]In Wall's Meat v Khan it was stated that the determination of a further reasonable period was very much a matter for the employment tribunal. However, the discretion must be exercised reasonably and with due regard to the circumstances of the delay. Claimants are expected to make their applications as quickly as possible once the obstacle that has prevented them making their claims in time has been removed. But the length of time that will be permitted will depend on the circumstances.[72]The claimant was altered to the employer’s name twice before he acted; on the 19th and 25th Of July. The latter of these being unambiguous by its reference to “Woods Building Services Ltd (t/a AA Woods)”. In my judgment a person with no legal knowledge of the implication of this information would be reasonable in seeking skilled advice at the earliest opportunity. The claimant did this and the first available appointment with the Citizens Advice Bureau was the 9th of August 2019; which was some five days before 1 Asda Stores Ltd v Kauser EAT 0165/07; “very stressed” and ”in emotional turmoil” are insufficient reason. the expiry of the time limit for presentation of his claim against AA Woods. The claimant received advice and then acted on that advice, as set out in my findings of fact, promptly.[73]I consider that the presentation of the claim against Woods BS on the 13th August 2019 was done within a further reasonable period.[74]Accordingly, I extend time for the presentation of the claim to that date and thereby find the claim against the Second respondent was in time and is within the Employment tribunal’s jurisdiction.[75]Had I not reached the above conclusions; I would have determined the application to amend the claim by the substitution of the First Respondent by the Second Respondent.[76]In the course of my deliberations I have considered the merits of the application.[77]In discussion with counsel for the respondents she identified that, if the claim against the first respondent was dismissed, then, unless time for presentation under section 111 was extended there would be no claim within the Employment Tribunal’s jurisdiction to which an amendment could be made; there would no longer be a claim to which Rule 34 could be applied. The Respondent argued that I should determine the strike out application in respect of the First Respondent before considering the amendment application.[78]Rule 2 Employment Tribunal Rules 2013 provides as follows my emphasis): The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing; (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (d)avoiding delay, so far as compatible with proper consideration of the issues; and (e)saving expense.[79]A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.[80]Rule 34 of the Employment Tribunal Rules 2013 provides as follows, under the heading "Addition, Substitution and Removal of Parties": "The Tribunal may on its own initiative, or on the application of a party or any other person wishing to become a party, add any person as a party, by way of substitution or otherwise, 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; and may remove any party apparently wrongly included."[81]By its use of the word "may" that Rule provides a discretion. That discretion is to be exercised in a manner satisfying the requirements of "relevance, reason, justice and fairness inherent in all judicial discretions" Selkent Bus Co Ltd v Moore 1996 ICR 836.[82]In my judgment, in the circumstances of this case, where an employee has been under the impression that his employer’s identity was to be found in its trading name and would, but for that error, in my judgment, have presented the claim against the correct employer in time, it would not be in accordance with the overriding objective to consider an amendment application after dismissing the claim against the First Respondent. To do so would be neither just nor fair.[83]I have addressed the issues of delay and the promptness of the claimant’s action above and will not repeat those conclusions.[84]In my judgment the primary consideration is the relative prejudice to the respective parties.[85]In this case the respondents were aware of the claimant’s intention to present a claim to the Employment Tribunal upon receipt of the claimant’s letter of the 29th May 2019, this was confirmed by the claimant’s email to Ms Petri of the 10th June 2019 and further confirmed by the respondents’ solicitors letter of the 25th July 2019 which suggests that the Second Respondent understood the character of the proposed claims and had carefully examined the merits of those claims. It also indicates that the respondent’s understood the claim was to be brought against the Second, rather than the First, Respondent.[86]In these circumstances there is little evidence of any prejudice to the Second Respondent. There is substantial prejudice to the claimant if the amendment was refused; he would lose his right to a hearing and possible redress.[87]For these reasons, I would in any event have substituted the Woods Building Services Limited as the respondent in these proceedings. The strike out application[88]The claimant agrees with the respondents that AA Woods Holdings ltd was not at any time his employer. He also agrees with the respondents that Woods Building Services Limited was his employer. The claimant does not dispute that his claims of unfair dismissal have no reasonable prospect of success against the First Respondent company.[89]In these circumstances, and on consideration of Rule 37(1)(a), I strike out the claim against the First Respondent because they have no reasonable prospect of success. R F Powell