Employment Judge NorrisMr S Bisson (instructed by Counsel) for claimantMr S Macchi di Cellere (instructed by Solicitor) for respondentDate 30 May 2019
JUDGMENT
Having heard submissions from the parties, the preliminary issues are determined as follows:[1]The complaint of unfair dismissal was brought in time. However, the Tribunal does not have jurisdiction to hear it because the Claimant did not have two years’ continuous service. There was no discernible allegation in the claim form (submitted on 18 November 2018) of either public interest disclosure (“whistleblowing”) dismissal or discrimination (age and/or disability), which would not have required the same period of service.[2]In any event, the claim was brought against Met T&S Limited, and not against TGT Limited (with whom the Claimant had a contract of employment) or Mr Miglietta, with whom the Claimant says he entered a personal and direct contract. There was no Early Conciliation certificate against either TGT Limited or Mr Miglietta and accordingly the claims could not proceed against them.[3]The complaint of unlawful deduction from wages was brought of time and against the wrong entity. It is the Claimant’s case he entered a contract with Mr Miglietta in addition to that with TGT. Nonetheless, he has failed to enter Early Conciliation and/or to name Mr Miglietta in the claim form. Further, he expected to be paid by 31 May at the latest and therefore had until 30 August to enter Early Conciliation but did not do so until 14 October 2018.[4]The application to amend is refused. The Claimant has been represented throughout, notwithstanding English is not his first language. His representatives have been on notice of the defects alleged above since submission of the ET3 and repeatedly thereafter. No explanation was Case Numbers: 2206834/18 advanced as to why the application to amend was not made until part-way through the Hearing on 29 March 2019.[5]Accordingly, the Tribunal does not have jurisdiction to hear the claim, or any part of it, and it is struck out.[6]I did not deal with the Respondent’s application for costs because the Claimant might have wanted to give evidence but there was no interpreter; there was a lack of time; and in any event, the Respondent was invited to consider its position in this regard. If it makes such an application within the normal time limit applicable, the Claimant shall have 28 days to respond in writing (including with any evidence of means he wishes me to take into account) and I will consider it on the papers.
REASONS
[1]The Respondent seeks Orders for Costs against:a. The Claimant (costs), in the sum of £2,000; andb. The Claimant’s representative (wasted costs), in the sum of £18,000. Both applications are defended.[2]The Respondent had entered what may at best be described as robust correspondence about the merits of the case and technical issues relating to jurisdiction, from the outset. It demanded that the Tribunal make an order or a judgment at the Preliminary Hearing striking out the case. On 16 March, the parties were informed that the Regional Employment Judge had decided that the jurisdictional and time points, application for strike out and strike out warning would be dealt with on 29 March 2019.[3]The case accordingly came before me on 29 March 2019. It was listed for two hours. Neither party had suggested that that was insufficient time in which to deal with the matter.[4]In my view it would have been clear to the Respondent (or at least to its lawyers) that there would have been insufficient time to deal with the merits of the case, if their applications for strike out were unsuccessful. In any event, the number of witnesses attending for the Respondent alone would have meant that there would be insufficient time to deal with the merits in just two hours. There had, as I have noted, still been no application in this connection from or on behalf of the Respondent, even once the Regional Employment Judge had added the technical points to what was to be considered.[5]The hearing proceeded even though the Claimant had applied for an interpreter (albeit not until 22 March) but this had apparently not been processed by the Tribunal Service. I have recorded that at one point he left the room to give instructions via a member of his legal team, who spoke Italian. The lateness of the request for an interpreter had no impact on the nature or content of the proceedings. At the end of the afternoon, the claim was struck out. The Respondent, in short, received the outcome it had requested – the claim was struck out in its entirety and following a short hearing; in the event more than two hours but just under two and a half. I heard no witness evidence and nor was there time for me to have done so.[6]Pursuant to Rule 76 Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“Rules”), a Tribunal may make a costs order and shall consider whether to do so, where it considers that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conduct of the proceedings; or where the claim had no reasonable prospect of success.[7]I have considered whether the Claimant’s conduct came within Rule 76, and/or whether the claim stood no reasonable prospect of success. I have concluded that neither applies in this case. I start from the position that the Employment Tribunal is not an environment in which costs normally follow the event. In other words, it is not enough for a party to win; they must do so in specific circumstances which are the exception and not the rule. I do not find that the circumstances that need to be met before a costs order is considered are met here.[8]I concluded on 29 March that to the extent the Tribunal had jurisdiction, the Claimant brought the claim out of time and against the wrong entity. However, the legal rules about who is a person’s correct employer and on (among other issues) the requirement to go to Early Conciliation and the deadlines for doing so, are complex, even for lawyers and for those who have English as a first language.[9]I note for instance that the schedule to the costs application shows that on 30 January, two hours were spent by the Respondent’s lawyer (at £500 an hour), reading the case papers and among other points researching “procedural compliance”; a week later the same Partner spent 4.5 hours drafting the strike out application including reviewing the Rules and authorities; and then between 31 January and 28 February, there are repeated entries for an Associate (at £100 an hour) conducting research, including 5.7 hours researching “strike out of claims” and eight hours researching “time limitation and extension of deadline… claims against wrong defendant [sic] and claims of agency workers against hirer”. In other words, an Associate has spent at least 13.7 hours, in addition to any time spent by the Partner, researching the very areas on which the Claimant failed. These areas are clearly not straightforward.[10]Further, neither of the factors I have named (being a lawyer and/or having English as a first language) applies to the Claimant.[11]Regarding the issue of the correct respondent, the Claimant explained to me via his barrister that he did not sue the recruitment agency which engaged him because he had had no direct contact with them. In the circumstances, I do not find that unreasonable, or otherwise falling within Rule 76.[12]As to the time point, the claim form was lodged within three months from the date the Claimant’s employment ended. He did not however have sufficient service to bring a claim for unfair dismissal and accordingly his claim was struck out on that point as well. It was not unreasonable, or otherwise falling within Rule 76, for him to have brought all his complaints within one claim form, even though, at the Hearing, I concluded I did not have jurisdiction to hear them because the unlawful deductions claim should have been brought within three months of the date of the last deduction.[13]Turning to the wasted costs application against the Claimant’s lawyer (referred to as his “lay representative” in the application, although he apparently works for a law firm and is assumed to have been acting for profit – he mentions working on a “near pro bono” basis which suggests it was not entirely without charge), the authorities show that the threshold for such an award is higher than that under Rule 76. The test under Rule 80 is for the representative to have made an “improper, unreasonable or negligent act or omission” as a result of which the receiving party has incurred unreasonable cost.[14]I accept Mr Bisson’s assertion on behalf of Mr Cupertino that the question of the correct employer was a complex and nuanced one. I also have regard to the authority of Ridehalgh1, which confirms that wasted costs are not awarded just because a legal representative has acted for a party who pursues a claim or defence that is plainly doomed to fail (though in this case I have found the claim was not). Mr Bisson has the following quote purporting to come from Mitchells Solicitors v Funkwerk Information Technologies York Limited2 but which in fact I believe is taken from Mills v Birmingham City Council (a first instance decision)3: “It remains vital to establish that the representative thereby assisted proceedings amounting to an abuse of the court’s process thus breaching his … duty to the court, and that his… conduct actually caused costs to be wasted”. Regardless of the detail specific case in which these words were first spoken, they have certainly been quoted in different cases; and I do not consider that the Respondent has come close to meeting the test so as to justify a wasted costs award. 1 Ridehalgh v Horsefield & Another [1994] Ch 205 2 UKEAT/0541/07 3 1300968/18[15]Since none of the provisions in Rules 76 (1)(a) or (b) or 80 (1)(a) or (b) has been made out, I do not go on to consider whether to make a costs or wasted costs order, and nor do I consider the Claimant’s means to pay any such order.[16]In the circumstances, the Respondent’s applications for costs and/or wasted costs are dismissed.