Mr M Aamir v Axis International Security Ltd: 2200332/2020
EMPLOYMENT TRIBUNALS
Case No 2200332/2020
Between
Mr M AamirClaimantAxis International Security LtdRespondentIn person for claimantMr P Bradley. for respondentDate 18 December 2020
REASONS
[1]Detailed reasons were given in an oral judgement. In summary the position is as follows.[2]I found that the period between 29 March 2019 under 14 April 2019 was sufficient to break any continuity of service which may have existed in respect of the Claimant’s previous engagements under contracts for services. It was therefore not necessary for me to consider whether the Claimant’s engagement with the Respondent between 1 November 2011 and 29 March 2019 gave rise to an employment relationship. In the absence of two years’ continuous service the tribunal does not have jurisdiction to hear the Claimant’s complaints of ordinary unfair dismissal and for a written statement of reasons for dismissal.[3]I found that the Claimant had no reasonable prospect of success in asserting that the Respondent had infringed a right of his which is a relevant statutory right pursuant to s.104 (1) (b) of the ERA and this claim is therefore struck out under Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules).[4]Given that the Claimant accepts that he received all entitlements for holiday pay or accrued holiday pay in his employment with the Respondent between 14 April 2019 and 13 September 2019 and that his claims for entitlement to holiday pay whilst engaged pursuant to contract for services between 1 November 2011 and 29 March 2019 are substantially out of time this claim is also struck out on the basis that it was not presented within the period provided by s.23 (2) (a) or that it was not reasonably practicable to present the complaint within the relevant period of three months in accordance with the s.23 (4) of the ERA.[5]For the avoidance of doubt the claims for an unauthorised deduction of wages between 1 and 13 September 2019 and for a failure to provide a written statement of employment of particulars in accordance with s.1 ERA proceed to a full merits hearing. JUDGMENT following a hearing at London Central by CVP on 18 December 2020 Judgement The claims for ordinary unfair dismissal under section 98 (4) of the Employment Rights Act 1996 (the ERA), the assertion of a statutory right under s.104 of the ERA, for a failure to provide a written statement of reasons for dismissal under s.92 of the ERA and for holiday pay under s.23 of the ERA are struck out.[1]Detailed reasons were given in an oral judgement. Written reasons were requested by the Claimant on 12 January 2021, but this was not forwarded by the Tribunal administrative staff to Employment Judge Nicolle until 7 April 2021.
The Hearing
[2]This is a decision following an open preliminary hearing heard on 18 December via CVP. The Claimant gave evidence and both Mr Bradley on behalf of the Respondent and the Claimant made submissions. The issues - 1 - I needed to decide were those set out in paragraphs 6, 7 and 8 of my case management order following a closed preliminary hearing on 16 June 2019. Unfair dismissal claim[3]The first issue to be considered is whether the Claimant has two years’ continuity of service which is a requirement for him to be able to pursue a claim for unfair dismissal but also to have an entitlement to request written reasons for dismissal. The Claimant’s position is that he has continuity of service from 1 November 2011 until a termination date on 13 September 2019. The Respondent says that the Claimant’s employment did not commence until 14 April 2019 and that any previous engagements should be discounted.[4]It is common ground between the parties that the Claimant provided his services to the Respondent from November 2011 through to 29 March 2019. However, the Claimant’s own evidence was that this was an engagement for which he submitted invoices and tax was not deducted with him being responsible for paying tax on the sums invoiced. He was initially a security guard but from 2012 had an office-based role at the Respondent’s Esher premises as an admin and screening officer.[5]It is also accepted between the parties that the existing arrangement came to an end on 29 March 2019. Mr Bradley says that that was a result of the Respondent moving to a system of operating PAYE with individuals being offered employment contracts. A dispute exists between the parties as to what contract was provided to the Claimant. He contends that he did not receive the terms and conditions which appear at pages 65 through to 74 in the bundle of documents. Nevertheless, it would appear that a very similar document would have been provided, albeit the Claimant says that it provided for an annual salary of circa £23,000 as opposed to an hourly rate of £9.40.[6]The relevant point is that the Claimant was initially unhappy with the terms offered and did not immediately commence employment. A text message was included in the bundle to that affect from Mr Aamir to someone called Pete on 20 March 2019 in which he said unfortunately I do not want to sign the contract as I have been offered a lot less money in comparison to my current wage. The Claimant also accepts that between 29 March and either 14 April or 16 April 2019 with the latter being the date given by the Claimants in response to a question in cross examination) but I prefer 14 April (the date the Respondent uses in its response form) given that the Claimant did not attend the Respondent’s premises to carry out work, did not receive any payments and was not subject to any contractual arrangement.[7]The Claimant says that he had an expectation that he may be asked to perform services again in the future, he refers to 4 April 2019 as being a day on which he entered a dialogue regarding potential future engagement. Nevertheless, it is apparent that for a period of over two weeks that the Claimant was not performing services whether on a self-employed basis or - 2 - as an employee. I therefore find that this gap would have been sufficient to break any continuity of employment had it existed with the Claimant’s earlier service. As such, I find that the Claimant did not have the required two years’ continuity of service and the Tribunal therefore does not have jurisdiction to hear a claim for ordinary unfair dismissal under s.98 of the ERA and is nor does it have jurisdiction to hear a claim for a failure by the Respondent to provide him with written reasons for dismissal pursuant to s.102 of the ERA. Those claims are therefore struck out as result of the Tribunal not having jurisdiction. It is therefore not necessary for me to consider what the Claimant’s status was in his engagements with the Respondent from 1 November 2011 to 29 March 2019 given the finding I have made above.[8]I find that the period between 29 March 2019 under 14 April 2019 was sufficient to break any continuity of service which may have existed in respect of the Claimant’s previous engagements under contracts for services. Assertion of a statutory right[9]The next issue I need to consider is whether the Claimant’s claims that his dismissal was automatically unfair pursuant to s.104 of the ERA have no reasonable prospect of success. He brings two separate claims in this respect, the first of which is that he requested time off to undertake training. He says the training in question was not related to his duties with the Respondent but rather represented re-training to obtain certification as a Corgi approved Gas Fitter. The rights under the ERA are limited to the statutory rights as set out at s.104 of the Act. I find that attendance at, or a request to have time off to attend training in effect to take up an alternative position, could not possibly constitute the assertion of a statutory right and as such find that that element of the claim has no reasonable prospect of success and is therefore struck out.[10]The second element is that in his email of 12 September 2019 the Clamant asserted a statutory right. That email contained the following, can you please tell me if I have any holidays that I have not yet taken as I would like to request this to be paid, also can you explain how the holidays are calculated. Paula Hickey of the Respondent’s Human Resources Department responded in an email of 13 September 2019 to say, as you have already taken holidays and been paid for them you will be paid the remainder with your P45 as I understand you no longer work for the Company, but you did work the 1 September 2019.[11]It is relevant for me to consider that under s.104(3) of the ERA that the employee needs to be clear what statutory right he contends the employer has infringed. It is also relevant that under s.104(1) the protection is where an employee has either brought proceedings against the employer to enforce a right which is a statutory right or under s.104(1b) that the employee has alleged that the employer had infringed a right of his which - 3 - is a relevant statutory right. If those apply it is then necessary to consider whether the employee suffered any detriment or dismissal on account of asserting such a statutory right.[12]Having read the Claimant’s email of 12 September 2019 I do not consider it can reasonably be interpreted as the Claimant alleging that the Respondent had infringed a right of his which is a relevant statutory period right. Whilst it relates to holiday, I read it as an enquiry as to what holidays have been taken and what will be paid. I do not consider it capable of being read as an assertion that the Respondent had infringed a statutory right. In reaching this finding it is also relevant that the Claimant accepts that he had been paid all holiday pay, whether as taken holiday or accrued holiday, in the period of his employment with the Respondent from 14 April 2019 and therefore I do not consider that the Claimant has raised or asserted a statutory right and therefore those claims have no reasonable prospect of success and are accordingly struck out under Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules). Accrued holiday entitlement[13]I also considered the basis of the claim for accrued holiday. It is relevant that the Claimant says that he has received payment of holiday during his employment with the Respondent from 14 April 2019. Therefore, his claim is confined to alleged entitlements to holiday pay when he was engaged under a contract for services from 1 November 2011 through to 29 March 2019. In this respect a claim for an unauthorised deduction from wages under s.23 of the ERA needs to be brought within a period of three months of a deduction or a series of deductions that is in accordance with s.23(2) of the Act ERA or that it was not reasonably practicable to present the complaint within the relevant period of three months in accordance with the s.23 (4) of the ERA.[14]It is apparent that such a claim brought by the Claimant in a claim form dated 28 January 2020, following a period of ACAS early conciliation between 29 November 2019 and 29 December 2019, was substantially out of time and no reason has been advanced as to why it was not reasonably practicable to present the complaint within the relevant time and therefore it is not one which the Tribunal has jurisdiction to hear. This claim therefore is also dismissed. Remaining claims .[15]For the avoidance of doubt the claims for an unauthorised deduction of wages between 1 and 13 September 2019 and for a failure to provide a - 4 - written statement of employment of particulars in accordance with s.1 ERA proceed to a full merits hearing.
Background
[1]By a claim form presented on 28 January 2021 the Claimant brought various claims against the Respondent. The Respondent presented a response resisting the claims.[2]On 18 December 2020, there was an open preliminary hearing at Central London Employment Tribunal, by video. Employment Judge Nicolle struck out the Claimant’s claims for: unfair dismissal under section 98 (4) of the Employment Rights Act 1996 (the ERA), the assertion of a statutory right under s.104 of the ERA, a failure to provide a written statement of reasons for dismissal under s.92 of the ERA, and holiday pay under s.23 of the ERA, and ordered that the remaining two claims for an unauthorised deduction of wages between 1 and 13 September 2019 and for a failure to provide a written statement of employment of particulars in accordance with s.1 ERA proceed to a full merits hearing.[3]On 12 January 2021, the Claimant requested written reasons for EJ Nicolle’s judgment, which were provided to the Claimant on 9 April 2021.[4]On 16 April 2021, the remaining two claims were heard at an open hearing at Central London Employment Tribunal, by video.[5]The Claimant did not join the hearing. The clerk contacted the Claimant by the telephone. The Claimant claimed that he had not received the notice of the hearing and that he was feeling unwell and wanted to postpone the hearing. The clerk told the Claimant that he should join the hearing and explain that to the judge.[6]When the Claimant joined the hearing, he said that he had not received the notice of the hearing. He, however, confirmed that his contact details were correct and that he had received other correspondence from the Tribunal on that address. He also claimed not to have received my email I had sent to the parties the day before the hearing. I sent the email to the same email address as was used by the Claimant in corresponding with the Tribunal. The Claimant said that it might have gone into his junk email box, and that he had not checked his email. He, however, confirmed that he had received a day before the hearing an email from the Tribunal to the same email address with the joining instruction. The Claimant did not raise ill health as an issue. He did not appear to be suffering from any visible distress or discomfort.[7]He said that he was “not into this case anymore” and wanted to finish it, and if the Respondent gave him a good reference, he would drop the remaining claims. He said he was not interested in pursuing the claims.[8]The Claimant also confirmed that he did not work during the period for which he made his wages claim because he had enrolled on a training course unconnected with his work for the Respondent and accordingly was not available to work on those days. He accepted that under his contract with the Respondent he was entitled to be paid only for days actually worked.[9]He admitted receiving a draft contract containing particulars of employment. However, he claimed that the contract he had received was not for work on site, but in the office. He accepted that he had never asked the Respondent for a reference.[10]It appears the Claimant’s real grievance is that the Respondent had initially rostered him to work in September 2019, but when the Claimant informed the Respondent that he would only be available on weekends because of his training course, the Respondent refused to change his roster and dismissed him. This, however, does not give the Claimant any entitlement to the wages he claims.[11]His claim for failure to provide particulars of employment was also not based on the facts known to the Claimant. He was trying to make out the claim on a tenuous ground that the particulars he had received were in a different contract to one that he thought he should have received instead. It appears he never asked the Respondent to re-issue his contract. In any event, he would have only been entitled to any compensation for the alleged failure to provide particulars if he had been able to succeed on his wages claim, which claim was entirely misconceived.[12]After some further debate on irrelevant issues concerning the Claimant’s excolleagues and what they said about him, I asked the Claimant whether he wished to continue with his two remaining claims and for me to give a judgment on those. He said no, and that he was happy to withdraw the remaining claims. I dismissed his claims on withdrawal.[13]On 30 April 2021, the Respondent applied for a costs order pursuant to Rule 76 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the “ET Rules”) in the total sum of £1,200, on the ground that the Claimant has acted unreasonably in the way the proceeding have been conducted by the following: (i) He requested detailed notes from the Tribunal Service to the initial findings causing the Respondent additional work. (ii) He would not engage in a settlement process when the minimum claim matters were left to be determined causing additional costs work for the Respondent. (iii) He tried to defer the hearing after he entered late claiming to have received correspondence the later citing ill health. (iv) Lastly just prior to the Judge’s ruling he withdrew the remainder of the claim.[14]On 17 May 2021, the Claimant submitted his representations. He argues that no costs award should be made against him because:(i) He engaged in settlement negotiations via ACAS and made a reasonable counteroffer to the Respondent but never heard back.(ii) He was unprepared for the hearing, panicked and withdrew the claims and now he intends to appeal the judgment and to seek the proceedings to be reinstated. The Tribunal’s administrative failings put him at a substantial disadvantage and the Tribunal did not meet its obligations to him as a litigant in person.(iii) He pursued his claim diligently and met all case management orders. The Respondent, conversely, failed on more than one occasion to meet the deadlines and therefore failed to mitigate its own costs.[15]He further submits that he would not be able to meet a costs award because his outgoings exceed his income by approximately £111 a month. He is working two jobs on a self-employed basis. His wife has recently lost her job. He is relying on credit cards. He has no savings. He intends to seek debt advice from Citizens Advice. He provided a table showing his monthly income and outgoings.
The Law
[16]Rule 76 of the ET Rules provides: 76 (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or[17]The following key propositions relevant to costs orders may be derived from the case law:[18]There is a two-stage exercise to making a costs order. The first question is whether a paying party has acted unreasonably or has in some other way invoked the jurisdiction to make a costs order. The second question is whether the discretion should be exercised to make an order. Only if the tribunal decides to exercise its discretion to make an award of costs the question of the amount to be awarded comes to be considered (Haydar v Pennine Acute NHS Trust UKEAT/0141/17).[19]While the threshold tests for making a costs order are the same whether or not a party is represented, in the application of the tests it is appropriate to take account of whether a litigant is professionally represented or not. Litigants in person should not be judged by the standards of a professional representative (AQ Ltd v Holden [2012] IRLR 648).[20]A refusal of a settlement offer did not by itself inevitably mean that an order for costs should be made against the refusing party. However, such an offer is a factor which a tribunal could take into account when considering whether there was unreasonable conduct by that party (Kopel v Safeway Stores plc [2003] IRLR 753).[21]For term “vexation” shall have the meaning given by by Lord Bingham LCJ in AG v Barker [2000] 1 FLR 759: “[T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be , its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” (emphasis added) (Scott v Russell 2013 EWCA Civ 1432, CA) 22. ‘Unreasonable’ has its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ (Dyer v Secretary of State for Employment EAT 183/83).[23]In determining whether to make a costs order for unreasonable conduct, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct — (McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA)[24]While a precise causal link between unreasonable conduct and specific costs is not required, it is not the case that causation is irrelevant. However, the tribunal must look at the entire matter in all its circumstances. Yerrakalva v Barnley MBC [2012] ICR 420 Mummery LJ gave the following guidance on the correct approach: “41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson's case was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the employment Tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”.[25]Rule 75 of the ET Rules state (my emphasis): Costs orders and preparation time orders (1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;[26]Rule 74 of the ET Rules contains the following definitions:(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses.(2) “Legally represented” means having the assistance of a person (including where that person is the receiving party's employee) who— (a) has a right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts; (b) is an advocate or solicitor in Scotland; or (c) is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.(3) “Represented by a lay representative” means having the assistance of a person who does not satisfy any of the criteria in paragraph (2) and who charges for representation in the proceedings.[27]Rule 78(2) of the ET Rules provides that that while the costs of lay representatives are recoverable, the hourly rate of such representatives is capped for the purpose of assessing such costs. The applicable hourly rate should be no higher than the hourly rate used when calculating preparation time orders under Rule 79 (2), currently £41.[28]Under Rule 79 of the ET Rules a tribunal must decide the number of hours in respect of which a preparation time order should be made. This assessment must be based upon:(a) information provided by the receiving party in respect of his or her preparation time, and(b) the tribunal’s own assessment of what is a reasonable and proportionate amount of time for the party to have spent on preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and the documentation required.[29]The amount of the award shall be the product of the number of hours assessed under Rule 79(1) and the current hourly rate (Rule 79(3)).[30]Rule 77 of the ET Rules provides that: “No [costs] order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.”[31]Rule 84 of the ET Rules provides that: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.” (my emphasis) Conclusions Has the Claimant acted unreasonably?
Conclusions
[32]The Respondent advances four reasons why it says the Claimant has acted unreasonably. “He requested detailed notes from the Tribunal Service to the initial findings causing the Respondent additional work.”[33]Under Rule 62 of the ET Rules, the Claimant is entitled to request written reasons. Therefore, it was not unreasonable for him to ask for written reasons. “He would not engage in a settlement process when the minimum claim matters were left to be determined causing additional costs work for the Respondent.[34]Failure to engage in settlement discussions or accept a settlement offer, of itself, does not constitute unreasonable conduct. The Respondent did not provide any details of any settlement discussions it attempted with the Claimant and settlement offers it made. The Claimant submits that he made a settlement offer to the Respondent but received no reply. Therefore, I reject the Respondent’s contention that the Claimant has acted unreasonably by reason of his alleged refusal to engage in a settlement process. “He tried to defer the hearing after he entered late claiming to have received correspondence the later citing ill health.”[35]I find that the Claimant’s initial failure to join the hearing was a deliberate attempt to prolong the matter and exert more pressure on the Respondent. I find that the reasons the Claimant gave for not joining the hearing were not genuine. However, the Claimant did join the hearing. Therefore, of itself, his initial attempt to postpone the hearing, in my judgment, would not have been a serious enough conduct for me to find that the Claimant has acted unreasonably. However, I must look at this attempt to delay the proceedings in the context of the Claimant’s conduct of the entire proceedings in relation to his two remaining claims. “Lastly, just prior to the Judge’s ruling he withdrew the remainder of the claim”.[36]I find it was unreasonable for the Claimant to continue with his wages and particulars of employment claims, while knowing full well that he was not entitled to the wages claimed because he did not work during the relevant period of time, and there were no other grounds upon which he would have been entitled to be paid for that period.[37]He abandoned the claims at the hearing. I do not accept the Claimant’s submission that he was unprepared and panicked. He had his case prepared with assistance of Citizens Advice. The remaining issues in his case were well known to him and did not require additional preparatory work beyond what had already been done for the December 2020 hearing. No pressure was put on him to withdraw his claims. Without being asked, he said at the start of the hearing that he was no longer interested in pursuing it.[38]From the discussion at the hearing, it was apparent that the Claimant wanted to use the remaining claims as leverage against the Respondent to get a favourable reference, which he, in fact, had not even ask for before the hearing.[39]At the start of the hearing, the Claimant said he was not interested to pursue the claims, yet he made no attempts to contact the Tribunal to withdraw his claims earlier, so that the hearing could be vacated, thus avoiding unnecessary costs.[40]In my judgment, in pursuing his remaining claims knowing that there was no proper basis to make such claims, in trying to avoid joining the hearing to further prolong the proceedings, in using the claims as a means of exerting pressure on the Respondent, and in abandoning the claims at the hearing, the Claimant has acted unreasonably.[41]Having decided that the Claimant’s conduct has engaged Rule 76(1)(a), I now need to consider whether I should exercise my discretion and order the Claimant to make a payment in respect of the Respondent’s costs.[42]I find that the nature, gravity and effect of the Claimant’s conduct was such that it is appropriate for me to make an order. I find the Claimant conduct was calculated to make a nuisance of himself and he could not have and did not in fact believe that he was entitled to the wages he claimed. I take into account that the Claimant was not represented at the hearing. However, during the course of the proceedings he had access to Citizens Advice and used their services. Even without legal advice it should have been apparent to the Claimant that his claim was misconceived. He was asking the Tribunal to award him wages for the period he knew he did not work because he had refused to come to work due to his other commitments.[43]I shall now consider the amount I shall award. The Respondent seeks £1,200 inclusive VAT. Applying the statutory hourly rate of £41 under Rule 78(2), this represents 29.27 hours of work. I find this to be excessive for the preparation to the final hearing on 16 April 2021.[44]Considering the issues that remained to be decided at the final hearing and the fact that most of the work (bundles, witness statements, etc.) had been done in the preparation to the preliminary hearing on 18 December 2020, I find that 2 hours should have been sufficient for the Respondent to prepare the case for the final hearing. The hearing itself lasted only about an hour. Therefore, subject to my consideration on the Claimant’s ability to pay, I find an award for 3 hours is appropriate.[45]Having considered the Claimant’s representations on his ability to pay, and I find that it would be appropriate for me to reduce the award by 50% and order that the Claimant pays the Respondent a sum of £61.50 respect of costs of its lay representative incurred by reason of the Claimant’s unreasonable conduct of the proceedings. The sum shall be paid in six monthly installments of £10.25 each on the first day of each month starting on 1 July 2021.