A Sarfaraz v Vision Care Services Ltd: 1803093/2023
JUDGMENT
The claimant’s complaints of unauthorised deduction from wages and breach of contract are dismissed, the Employment Tribunal having no jurisdiction to hear them. The claim was submitted outside of the relevant time limit in circumstances where the Employment Tribunal did not consider it to have been not reasonably practicable to present the claim in time.REASONS
[1]I refer to the correspondence with the Tribunal, including in particular:a. the Notice of Hearing dated 22 May 2023, served on the respondent branch where the claimant alleges she worked, listing a full merits hearing for 14 July 2023;b. the letter from the Tribunal dated 5 July 2023 explaining that no response had been received and that judgment may now be issued under Rule 21 of the Employment Tribunals Rules of Procedure 2013;c. the letter from the Tribunal dated 5 July 2023 copying relevant correspondence to the respondent's registered office;d. the letter from the Tribunal dated 5 July 2023 noting that the hearing remained listed for 14 July 2023;e. the email from the Tribunal to the claimant dated 12 July 2023 providing the CVP link for the hearing;f. the email from the claimant to the Tribunal dated 13 July 2023 providing information about the quantum of her claim. 10.2 Judgment - rule 61 February Case No: 1803093/2023[2]The respondent failed to attend the hearing. When telephoned, the respondent indicated it was not aware of the claim and would not be attending the hearing. The Tribunal had received no prior contact from either the branch or registered office of the respondent.[3]The claimant failed to attend the hearing. When telephoned, the telephone rang but cut out without a voicemail facility. The claimant had previously been participating in her claim.[4]Neither party applied to postpone the preliminary hearing.[5]Under Rule 47, where a party fails to attend a hearing the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence. The Tribunal shall also take into account Rule 2, the overriding objective, to deal with the case fairly and justly including avoiding delay and dealing proportionately with the issues.[6]Taking into account the above, including that the claim is proceeding under Rule 21 and the available material before me, I proceeded to hear the claim in the absence of the parties. Decision on the Tribunal's jurisdiction to hear the claim[7]The claimant alleges that she is owed wages of £30 for a shift worked on 7 November 2022, repayment of expenses of £65 incurred in submitting a DBS check prior to that date, and compensation for a failure to offer further work, including consequential loss of £100/month for five months of childcare. She does not specify the terms agreed as to notice but I imply reasonable notice of one week. She does not specify terms agreed as to payroll date but on the balance of probabilities I conclude that the payroll date for a shift worked on 7 November 2022 could be no later than 7 December 2022.[8]The claimant submitted her claim on 11 May 2023. The claimant made an ACAS reference in respect of the claim on 11 March 2023 and the certificate was issued on 22 April 2023.[9]The claim was therefore submitted out of time, being more than three months after the effective date of termination and the payroll date. No representations were made as to it being not reasonably practicable for the claimant to submit the claim in time, nor to her having submitted it within a further reasonable period. The claimant has the responsibility of proving that this challenging legal test has been met. She has not done so.[10]Accordingly the claim is dismissed. The parties have the right to apply for reconsideration of this decision.