Ms A Al-Ansaari v Zaibatsu Technology Ltd Formerly Therapists Free Zone Ltd: 2207355/2022
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent discriminated against the claimant because of disability, and is ordered to pay her compensation in the total sum of £8,963.76. This comprises £8,000 for injury to feelings, £912 for loss of wages, and £51.76 interest on those awards.[2]The awards are made after considering the information in the claim form, supplemented by information from the claimant at the case management hearing on 18 January. No response to the claim has been received. Reasons for these awards are set out in the case management summary for the 18 January hearing sent to the parties with this judgment. RECONSIDERATION JUDGMENT[1]The judgment sent to the parties on 23 January 2023 has been reconsidered on the respondent’s application, and is varied by removing the award for loss of earnings and interest thereon.[2]The respondent is ordered to pay the claimant compensation in the sum of £8,027.98. This replaces the order to pay her £8,963.76.REASONS
[1]Today was the hearing of the respondent’s application under rule 70 to reconsider the rule 21 judgement sent to the parties on 23 January 2023 following a hearing on 18 January 2023.[2]The claimant attended, and as she is deaf mute, was assisted by two BSL signers booked by the Employment Tribunal, Lynn Jordan and Dayna Cooper, who took 20 minute turns interpreting. The respondent was represented by its sole director, Mr Rouzbeh Sebtrasoul.[3]Today I heard the respondent’s application and asked questions about the documents he had submitted. The claimant made brief representations and also added an email she had received from ACAS when the early conciliation certificate was issued.[4]Before hearing the application, I checked with both parties that we all had the same documents, as there was no formal bundle.[5]After hearing from the parties I reserved judgment, as it would be more convenient for the claimant to read a text than have an oral judgment signed to her.[6]The claim concerns an application for a job as a cleaner made by the claimant on the 1st September 2022 which the respondent had advertised on Gumtree, a jobs website. On her case, the call to Mr Sebtrasoul was cut short and she was told she was not suitable as a cleaner because she could not communicate. Today the tribunal had the transcript of the call.[7]The claimant went to ACAS for early conciliation on the 1st September 2022, and on the 15th September 2023 they reported back to her by email that they had spoken to the respondent, and they had no proposal to settle. More detail of what respondent said to ACAS appears below.[8]The claimant presented a claim to the employment tribunal on 15th September 2022. The claim is for disability discrimination in her application for employment as a cleaner. The claim was made against Therapist Free Zone Limited at what was then their registered office at the Gherkin London EC3A 8B F, and gave the company phone number.[9]The employment tribunal sent the claim to the respondent at this address on the 29th September 2022. The respondent was required to reply by the 27th October 2022. On 12th October 2022 both parties were sent notice of a preliminary hearing on 18th January 2023.[10]The employment tribunal did not get a response from the respondent by 27th October 2022, and on the 4th November 2022 wrote to the parties on the instruction of Regional Employment Judge Freer asking for an e-mail address for the respondent.[11]On the 25th November 2022 Companies House reported to the respondent (this comes from a document he produced to the tribunal) that they had received his notice of change of registered address to 200 Lake Central NW10 7FQ. The notice says that the change is valid when registered, and that proceedings served up to 14 days after that date a valid. The changes was registered at Companies House on the 30th December 2022. This means it was a valid address for service at the time of service both of the claim and the notice of hearing, and remained valid to 13th January 2023.[12]The Companies House register shows that the Lake Central address had previously been the registered office, but at the beginning of February 2022, it had changed to the Gherkin address. The Respondent explained today that he had an agreement with Regus, a serviced office company, for a desk at this address, but he cancelled it immediately, so that it was only a valid address for two months. He also said he had never attended that office. He has submitted an exchange of emails with someone at Regus in which he asks a number of (apparently leading) questions and is told that they do not forward any post received at the address. If it is not collected, it is returned to sender.[13]I asked the claimant why he had delayed changing the registered office address after the agreement ceased at the end of March 2022, and not done this until the end of November 2022, and he replied: “It was because I received this claim”. Later he said he thought he had been contacted by someone about a County Court Judgement, and that was how it came to his attention.[14]At the hearing on 18th January 20223, there was still no response on ET3 from the respondent, and after questioning the claimant about her claim and about matters that might relate to remedy, I issued a judgement under rule 21, that is, judgement in default of response, in the sum of £8963.76, made-up of £8,000 injury to feelings, £912 loss of earnings, and £51.76 interest.[15]The judgement itself, and the case summary with the reasons for it, were to the respondents new (30 December 2022) registered office address.[16]On 26th January 2023 the respondent emailed applying to set judgement aside. He attached a receipt for a payment made to Man and Supervan, about hire of van and driver to move 20 boxes and 2 machines on 3rd September 2022. The booking was made 31st of August 2022.[17]The register at Companies House shows that on the 3rd February 202, soon after this application, the respondent resolved to change its name from Therapist Free Zone Limited to Daihatsu Technology Limited. This was registered at companies house on the 6th February 2023. The employment tribunal was not informed of the change of name. The respondent says he changed the name because some people thought it suggested there were no therapists in the zone, or the ship could be read as “the rapist”. He did not explain the timing, or why he did not inform the tribunal, which might suggest he wanted to avoid or delay a Judgement.[18]The employment tribunal’s response to the application was to ask the respondent to give more information about his changes of office address. On 10th February 2023 the respondent sent in the notice of registered office change, He also said any answer to any e-mail he had had from the claimant would have gone to spam. He said there was no advertisement for a job as a cleaner, the claimant was applying for gain, and did not want to respond.[19]On 13th February 2023 I directed that the respondent was to file a response to the claim by the 21st February 2023.[20]The respondent did file a response, but the ET3 form had not been filled in. The respondent was given an extension until 10th March 2023 to do so. In the completed response, it was denied that they had hired a cleaner, or interviewed a cleaner, or had an office to clean, as they only had a table in a shared room. Mr Sebtrasoul had never spoken with the claimant, and he did not remember any advertisement. He guessed it might have been posted by someone in India who used to help him, who had been told they needed to move items from one storage to another, and in connexion with that they had hired a firm to do the move on the 3rd September. Even if the claimant had come for an interview she would not have been selected because: “the removal of heavy sharp metal machinery is a dangerous task must carry with a professional”, so she would not have been a suitable candidate in any event. He also denied writing the claimant the email when she answered the advertisement. He said today that this had been done by “someone in India”, a Mr Ishan. He added that the business was a start-up and had no money. He questioned the assessment of injury to feelings at £8,000.[21]On the 2nd March I considered the application for reconsideration under rule 72 and concluded it could not be said it had no reasonable prospect of success. I directed that it be listed for a reconsideration hearing. I directed an exchange of documents by the 16th March, and an exchange of witness statements of fact by 23rd March.[22]The claimant provided some documents and a witness statement on the 23rd of March 2023. This included the exchange of emails between herself and the respondent on 1st September, and importantly, the transcript of the talk text call of the 1st September.[23]Notice of this hearing was sent to the parties on the 2nd May 2023. Reconsideration - Relevant Law[24]Under the Employment Tribunal Rules of Procedure 2013 a request for reconsideration may be made within 14 days of the judgment being sent to the parties. This application was made in time.[25]By rule 70 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.[26]Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it. I decided it could not be said there was no reasonable prospect of success. The respondent may not have received notice of the claim or the hearing.[27]Under the 2004 rules prescribed grounds for reconsideration were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were: that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing, provided that its existence could not have been reasonably known of or foreseen at the time. The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown UKEAT/0253/14/LA that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review).[28]When making decisions about claims the tribunal must have regard to the overriding objective in rule 2 of the 2013 regulations, to deal with cases fairly and justly, which includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, and seeking expense. Discussion and Conclusion[29]This decision should be read in conjunction with the reasons for the default judgment of January 2023.[30]Judgement was entered in default because the respondent had not responded or attended. The reason for this is that he does not seem to have attended the registered office or made any forwarding arrangements when his rental there ended in April 2022. For eight months there was no way a claimant or creditor could serve proceedings in the company. It cannot be said this by oversight. Mr Sebtrasoul knew how to change his registered office address. He had done it in February 2022 after all. I am not in fact convinced that he did not get post sent to the Gherkin address – on his own evidence he decided to change it back at the end of November when he was served with this claim. So although the respondent may not have received the claim and notice of the hearing on 18 January, he may have wanted to avoid being served with claims. Whichever it is, he has now seen the claim form, entered a response, and had a hearing to examine the documents and give evidence to put his side of the story in defence of the claim.[31]I am concerned whether his evidence is truthful, because he strenuously denied he had placed a job as a cleaner at all, saying he wanted a man with van, not a cleaner. Faced with the advertisement disclosed by the claimant in March 2023, he suggested it had been placed in error by his assistant in India.[32]The advertisement on Gumtree is reproduced in Gumtree 's response to the claimants application. The advertisement was for “cleaner – CASH IN HAND. Start today at Park Royal. Weekly payment”. The gum tree automatic response shows the claimant applied on the 1st of September 2022, that she had uploaded a CV, with a covering message “previous experienced in cleaning. I'm profoundly deaf with good communication skills bash e-mail or text message only brackets and her e-mail address and telephone number close brackets.[33]On the evening of the 1st of September she had a reply through Gumtree saying “Hi. If you're looking for a job cash in hand call this number by 9:00 pm today Mr Rouz”- and the number.[34]The text of the telephone call on 1 September reads, inserting R for “Mr Rouz”, presumed to be Mr Rouzbeh Sebtrasoul, and C for the claimant: “explaining Relay UK -Please wait...” R: “hello can I help you”. C: “hello I just had a missed call from this number?”. R: “yes, that is because a posted an advert for a cleaner it is a very heavy job for tomorrow and you cannot handle this job so I have cancelled it”. C: “why would I not be able to handle this job”. R: “because I want to tell you what you do and you cannot hear and understand what I am saying. It is a very intense job and people are in a hurry or waiting it is very difficult”. C: “it's a shame, I think you have no idea how much I can able to communication no problem face to face”. R: OK I am sorry about that -I think you are not fit for this position but there may be others that..” The claimant then ended the call, because there is a message from Relay UK saying so. This is followed by the rest of the respondent’s words: “you would be suitable for - I'm sorry I do not want to continue the call now I have to go”.[35]This shows the respondent had telephoned the claimant, and she had rung back, using the Text Relay service by which she typed in what she wanted to say and the service spoke her words. (The claimant said she would usually find someone to call for her, but she wanted to call by 9m). It shows the respondent saying that there had been an advert for a cleaner, but he had cancelled it because she could not handle it, adding explicitly that she could not handle it because she would not be able to hear and understand instructions. This accords with the claimant’s summary of the facts on her original claim form. The respondent said there had been a job, but her being profoundly deaf was the reason he considered her unsuitable and had cancelled it.[36]Mr Sebtrasoul’s only comment on this message was that he could not recall it and perhaps it had been made by his assistant in India. In my finding, he was the person the claimant “spoke” to on the 1st September. His assistant in India is not called Rouz. Rouz is likely to be a variant of Mr Sebtrasoul’s first name.[37]He went on to say that he had offered the claimant an alternative job, but she did not want it, and that this showed that she was not a genuine applicant. Questioned on what he meant by an alternative job, he said it would be as a therapist. Questioned further, he said it would not have been a paid job, until she had trained. Asked if she would have to pay him for training, he first said no, then added that she would have to pay the teacher. In his evidence he had explained that his business startup model was to develop an app where therapists would register, and potential customers could book a therapist using the app. He wanted to sign up a lot of therapists so that he could then attract an investor to put money into the business. I do not accept that in fact he offered the claimant an alternative job. First of all, the text off the call shows that he may have been about to offer a different job, but she and he had ended the call before he made any offer. Secondly, on his own admission, it would not have been paid employment. She would have to pay someone else to qualify, then register for work which might come in through the app. She would not be employed.[38]Was that in fact a genuine cleaning job? Until the advertisement was produced, the respondent always denied that he had advertised for a cleaner, or had premises which needed cleaning, and suggested that really he was looking for someone to move equipment. It is possible that in moving a lot of boxes and equipment from one place to another there was a need for a cleaner for the storage space, even if not on a regular basis, perhaps just for one day, though that does not square with “weekly payment”. He has however challenged the claim for loss of earnings on this basis – that there was no cleaning job. In addition, if he only needed someone for the move, which was to be on the 3rd of September, it is hard to understand why an advertisement was posted saying “start tomorrow”. I add that if there was a job, the tribunal has no evidence of how long it was likely to last.[39]Another possibility is that there was never a job as a cleaner, and the advertisement on Gumtree was a “bait and switch” operation by which he would attract people looking for jobs, tell them the position was taken, and then try to sign them up for training as therapists as an alternative. If this is the case, it is hard to understand why the respondent would not have followed his usual pattern but instead explicitly told the claimant that she would not be able to handle it because she could not hear instructions. That could suggest he was looking for a cleaner, but thought taking the claimant on would be too difficult, but it is more likely, in my finding, that he seized on her deafness as the excuse for saying the job was no longer available, intending to say then might be other positions, as an introduction to the therapist training, but was unable to proceed as she had ended the call, upset at not being considered.[40]Section 39(1) of the Equality Act 2010 says: An employer(a) (A) must not discriminate against a person (B)— (a )in the arrangements A makes for deciding to whom to offer employment;(b) as to the terms on which A offers B employment;(c) by not offering B employment.[41]On the face of it, now with the benefit of the respondent’s input and answers when faced with the claimants documents, the respondent did discriminate by not offering the claimant employment. He had advertised the job, and when she replied, a reply which mentioned her deafness, he told her he had cancelled it because she would not be able to handle it as she could not hear instructions. The respondent protested to the tribunal that it was obvious she would be unsuitable, but does not challenge the reasons set out in the January case management order such as the fact that many cleaners communicate with employers by text, or do not speak English at all and rely on signs and indications of what they are to do, and she would be well able to clean. There is no reason why it would be in the interest of justice to vary the order that the respondent is liable to the claimant under section 39. His explanations and submissions have been confused and contradictory.[42]Nor is there any reason to vary the award for injury to feelings. He was entirely explicit to her why she was not to get the cleaning job. He may have been untruthful as to whether there was a job, but in his arrangements for offering employment and then telling her the job had gone he made a blatant and insulting reference to her inability to work as a cleaner. On her evidence, she was made to feel worthless. Fortunately she is now working as a sales assistant for Nike in central London.[43]There is however reason to vary the order as to the award for loss of earnings. It seems unlikely that the respondent intended to pay anyone for cleaning. Accordingly the judgement is varied by deleting the award for loss of earnings in the sum of £912, and the £23.78 interest on that award.