Miss E Gonzalez v Peter Harrington Ltd: 2205534/2018
JUDGMENT
[1]The application by the Claimant to amend the claim to add a claim that she was discriminated against on the grounds of age is refused.[2]Upon the Claimant having indicated that the existing claims for notice pay and harassment are withdrawn, the claim is dismissed in its entirety under Rule 52 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 in Schedule 1.REASONS
[1]On 1 August 2016, the Claimant started working for the Respondent which runs two rare book shops in London. The Claimant was dismissed on 17 April 2018.[2]Having been to ACAS and been given a certificate on 27 July 2018, the Claimant lodged a claim in the Tribunal on an ET1 claim form. In that claim she ticked the box for “notice pay” and also ticked the “another type of claim” box and stated “Harassment at Work”.[3]After the Tribunal had sent the claim to the Respondent, the Claimant asked the Tribunal to delete from the claim that she was owed notice pay and to delete the claim for Harassment at Work but to add that she was discriminated against on the grounds of “age”. This was on 20 September 2018.[4]The Claimant did not send her request to amend to the Respondent. This meant that the Respondent responded to the original claim. In its Response (filed on 11 October 2018), the Respondent requested the Tribunal to consider striking out Case Number: 2205534/2018 the claim because the Claimant was paid in lieu of notice and because “Harassment at Work” was not a claim which could be brought in the Tribunal.[5]The Claimant’s application to amend and the Respondent’s strike out application were listed before me today. Ms Gonzalez did not attend today. The building was searched in the usual way but she was not found. Counsel for the Respondent confirmed that there was contact with her yesterday by email, and she had been sent his skeleton argument yesterday. A voicemail was left on her telephone by the Tribunal clerk today. It appeared from all practicable enquiries that the Claimant had simply decided not to attend today. In the circumstances it was appropriate for me to proceed to hear the matter today.[6]There is nothing in the Claimant’s material to indicate what the proposed age discrimination claim is about. It could refer to her dismissal, or something which happened prior to the dismissal. Either way, it is out of time as of today, and was out of time when it was first raised with the Tribunal on 20 September 2018. Recent case law suggests that if an amendment is granted it could be made subject to a time issue, but I must still have regard to whether it would be just and equitable for the tribunal to hear the claim despite it being out of time.[7]In the Claimant’s absence there is no explanation available as to why the proposed claim was not in the original ET1 claim form.[8]Further, there is nothing before the Tribunal showing that it would be just and equitable to hear the claim bearing in mind it is out of time.[9]In addition to this there is nothing to show that there is a prima facie case in the proposed age discrimination claim. Hence it would appear that to refuse an amendment would result in little prejudice to the Claimant but to allow it would cause unnecessary inconvenience and expense to the Respondent in having to defend it.[10]In the circumstances the application to amend is denied. I regard the existing claims in the ET1 claim form as withdrawn in the email of 20 September 2018, and therefore I shall dismiss the claim presented to the Tribunal in its entirety.[1]The Claimant applies for reconsideration of the judgment dated 14 December 2018.[2]Under Rule 70 of the tribunal rules, a tribunal can reconsider a judgment where it is necessary in the interests of justice to do so.[3]The question upon this initial consideration of the application for reconsideration is whether there is a reasonable prospect of the original decision being varied or revoked.[4]On 14 December 2018 the matter was listed before me to hear the Claimant’s application to amend her claim to one of age discrimination having withdrawn her existing claims, and to hear the Respondent’s strike out application for the existing claims (which application was made without knowledge of the withdrawal). The Claimant did not attend the hearing and I proceeded to hear both applications in her absence. I refused the application to amend the claim to one of age discrimination and since the Claimant had withdrawn all other claims I dismissed her claim in its entirety.[5]The Claimant’s application for reconsideration is made in her email of 11 January 2019. In that email she says that she was a bit late arriving for the hearing. Then in answer to a query from the Regional Employment Judge she said that she was in fact 40 minutes late. Her explanation for arriving late was that she went to the wrong place for the hearing. This is not a reasonable excuse for not attending the hearing because the venue of the hearing was clear from the notice of hearing sent to the Claimant. There is no record of the Claimant contacting the tribunal on the day of the hearing to explain that there was a delay, despite a voicemail being left on her mobile phone by the clerk because she had not appeared. Case Number: 2205534/2018[6]The amendment was rejected because it was a new claim which it was out of time (the time limit for bringing such claims being three months from the event complained of) and there was no explanation for that delay. Also there were no details about the new claim, so it appeared to have no chance of success.[7]There is nothing new before the tribunal now which would explain why the application for the amendment was made out of time or to show that it would be just and equitable for the tribunal to hear it despite being out of time, or to show that it has any chance of success.[8]The time limit for asking for a reconsideration is 14 days from the date when notified of the decision. The Clamant was notified of the decision made on 14 December 2018 three days later on 17 December 2018. She is therefore also out of time in applying for this reconsideration. There is no explanation from the Claimant why she is out of time in applying for this reconsideration. There is nothing before the tribunal which would make it in the interest of justice to enlarge time to seek a reconsideration.[9]For the above reasons there is no reasonable prospect of the original decision being varied or revoked in any reconsideration of the judgment on the grounds relied on by the Claimant and the application for reconsideration is refused.