Employment Judge ElliottIn person for claimantDate 18 November 2024
JUDGMENT
The Judgment of the Tribunal is that the claim is struck out for the claimant’s failure to comply with Tribunal Orders and because it has no reasonable prospect of success.
REASONS
[1]This decision was given orally on 22 October 2024. The claimant requested written reasons.[2]By a claim form presented on 30 April 2024 the claimant Mr Shailesh Kumar brings a claim for unlawful deductions from wages. This remote hearing[3]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.[4]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.[5]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties of any substance.[6]The participants were told that was an offence to record the proceedings.[7]No witness evidence was taken. The procedural background[8]The claim was originally listed to be heard on 31 July 2024. On Friday 26 July 2024 the respondent made an application to strike out the claim on grounds that the claimant had not actively pursued his claim. The respondent said that they had received no response to any correspondence and that the claimant had not provided any documents or a witness statement. The respondent also sought their costs.[9]On the morning of the hearing on 31 July 2024 at 6:30am, the claimant responded to the respondent, copied to the tribunal, opposing the strike out application.[10]The hearing commenced on 31 July 2024 before Employment Judge Bunting. It transpired that the claimant was in India so the claimant was not able to give evidence. It proceeded as a Case Management Hearing.[11]A further strike out application was made on 2 September 2024 for failure to comply with the Case Management Order of 31 July 2024. The claimant had been ordered to provide a fresh witness statement and he had failed to do so. The claimant said that he had never drafted a witness statement before and was doing his best and would do so in a week’s time. That week ran to 7 September 2024.[12]The claimant was in India when he attended this hearing remotely. He was aware, it having been explained to him at the last hearing by Employment Judge Bunting that he must either obtain permission, or attend from a country where permission was not needed. The claimant had not made any application at the date of this hearing. He said he sought a postponement application. The claimant was not in a position to give evidence at this hearing and he had not supplied a witness statement. Documents[13]There was a hearing bundle prepared by the respondent of 61 pages, a bundle prepared in connection with the strike out application of 18 pages and a skeleton argument from the respondent. There were no documents from the claimant. The strike out warning[14]A strike out warning given to the claimant on 17 October 2024 on the instructions of Employment Judge Glennie. The claimant was told that if he wished to make written representations as to why this should not be done or to request that the application be considered at this hearing, he was to make a request by 4pm on 18 October 2024.[15]The clamant replied on 18 October 2024 at 4:38pm so technically past the time ordered by Judge Glennie. He said he had personal challenges in terms of caring for his father, he was pursuing his claim and hoped to submit a witness statement by 24 October (which was two days after the hearing date) and asked for a postponement until December 2024 to give him time to prepare. The submissions on postponement[16]The claimant said that he was a litigant in person, it was the first case he had ever dealt with and he was dealing with his father’s health and his father’s business. He did not want to waste anyone’s time and he asked if he could submit his statement by Monday 28 October 2024. He said if his postponement application was accepted it would be clear at the next hearing.[17]The respondent said that the claimant was fully aware of his obligations in pursuing his claim. It was made clear to him by Employment Judge Bunting on 31 July 2024 and set out in the Case Management Order of that date. The respondent pointed out that on 31 August 2024 the claimant emailed the tribunal apologising for his late response and said nothing about his father’s health or business as the reason why he had not submitted a witness statement. The respondent relied on Barton v Wright Hassall LLP 2018 UKSC 18 which says that a litigant in person cannot be excused the consequences of their procedural failing because they are a litigant in person. The respondent submitted that being a litigant in person was not a good enough excuse for failure to comply with Case Management Orders.[18]In relation to the postponement application of the 18 October 2024, the claimant failed to correspond with the respondent’s representative about compliance with the Orders and only replied when he received the strike out warning.[19]The respondent said there were no circumstances in Rule 30A that applied in this case. In terms of the claimant’s father’s ill health, there was no medical evidence, which the respondent said was against the Presidential Guidance in relation to postponements. The respondent said that what we have is a WhatsApp message from the claimant to the respondent on 20 October 2023 informing the respondent of his father’s illness. The claim was submitted in April 2024 so the claimant was able to initiate proceedings after his father became unwell. This was not a good reason for not providing a witness statement or relevant documents.[20]The respondent submitted that tribunal had given ample opportunity to the claimant to provide a witness statement or documents and he has not done so. He secured a postponement at the last hearing.[21]The respondent said that the claimant has already had one postponement on grounds that he was not ready. It was not, in the respondent’s submission, within the overriding objective to give him another opportunity. The respondent is a small business employing 4 part-timers. It involved time and cost for Ms MacGowan of the respondent to attend on 2 occasions and it was not proportionate or in the interests of justice to postpone again.[22]In reply, the claimant said the respondent knew about his father’s ill health from October 2023 and he could provide evidence. The claimant said he wanted a week to submit his witness statement. The relevant law on postponement[23]Rule 30A of the ET says as follows: (2) Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing begins, the Tribunal may only order the postponement where—(a) all other parties consent to the postponement and— (i) it is practicable and appropriate for the purposes of giving the parties the opportunity to resolve their disputes by agreement; or (ii) it is otherwise in accordance with the overriding objective;(b) the application was necessitated by an act or omission of another party or the Tribunal; or(c) there are exceptional circumstances.[24]Rule 30(4) says that “exceptional circumstances” may include ill health relating to an existing long term health condition or disability.[25]In Barton v Wright Hassall LLP 2018 UKSC 18 the Supreme Court said that since the rules provided a framework within which to balance the interests of both sides, unrepresented litigants were not entitled to any greater indulgence in complying with them than represented parties; and that, unless the particular rule or practice direction was inaccessible or obscure, it was reasonable to expect a litigant in person to familiarise himself with the applicable rules. Decision on the postponement application[26]This claim has been ongoing for six months, having been issued on 30 April 2024. This is the second hearing. It was originally listed for a full merits hearing on 31 July 2024. The claimant had not complied with orders and there was no statement and no documents from him. He was in India at the date of the hearing on 31 July 2024, as he was today and he had been told by Judge Bunting that he could not give evidence from that country without permission or without attending a country where permission was not needed. This would include possible travel to the UK.[27]Because the claimant was in India at the date of this hearing he was not in a position to give evidence. He had not made any application for permission.[28]The claimant sought a postponement on two grounds, firstly his father's ill health and secondly to seek more time to prepare his witness statement. He said he could do this by next Monday which was 28 October 2024.[29]I took into account that he has made such a proposal before. On 31 August 2024 he told the tribunal that he had never drafted a witness statement before and that he would prepare one which would be with the tribunal “in a week’s time”. I have no confidence that having failed to do what he said in August/ September 2024, that he would do so now.[30]The claimant relied on his father's ill health. It was clear from the documents and a WhatsApp message dated 20 October 2023 that the ill health condition arose in October 2023, one year ago. This did not prevent the claimant from going for Early Conciliation and issuing his claim on 30 April 2024. I could see from the documents that the claimant previously attempted to prepare a witness statement by making amendments to the respondent’s witness statement.[31]It is not the claimant who is unwell. I find that he is not prevented by ill health from preparing a witness statement or complying with tribunal Orders. Additionally, there is no medical evidence supporting his father's ill health.[32]In terms of Rule 30A I agreed with the respondent that it is not in accordance with the overriding objective to postpone this hearing again. It is a low value wages claim that has now been listed twice. The claimant knew exactly what he had to do. He now seeks more time in which to do it. The respondent is a small business and incurs time and cost in attending these hearings. There are no exceptional circumstances.[33]I accept that the claimant is a litigant in person. This tribunal deals with litigants in person all the time. As the Supreme Court has said, litigants in person are not entitled to greater indulgence where those rules are accessible and clear. What the claimant needed to do was clearly explained to him by Judge Bunting at the last hearing and is set out in a Case Management Order.[34]For these reasons postponement application is refused and the tribunal will go on to hear the respondent’s strike out application Strike out application[35]The respondent made an application to strike out the claim on the following grounds:a. Rule 37(1)(a) the claim has no reasonable prospects of succeeding.b. Rule 37(1)(c); non-compliance with rules or orders of the Tribunal.c. Rule 37(1)(d); the claim is not being actively pursued.[36]The respondent argued on the merits that the claim had no reasonable prospect of success. This was based on the interpretation of an offer letter of 4 April 2024.[37]The respondent said that the claimant had not complied with Tribunal Orders. They said he had not provided a witness statement or any documents in support of his claim and was aware of his responsibilities following the hearing on 31 July 2024.[38]The respondent also said that the claim had not been actively pursued.[39]In terms of prospects of success the respondent relied on the offer letter made to the claimant on 4 April 2023 which said: “Re: Four-week Trial Period I am pleased to provide you with the following information on your offer as discussed in your interview on 25th March 2023; A four-week trial period starting 11th April for up to 20 hours per week at a rate of £14.50 per hour for an Assistant Accountant role. During this period, UK Tax Advice Ltd will provide you with ADHOC work paid on an hourly basis for work completed. You will be reporting to a Senior Accountant Mr Killian McGloin, ACA, who will be there to support you in your studies and career growth. Following the four-week period we will conduct a review with the expectation to offer you a part time employment contract of 20 hours per week at £28k pro rata per annum. This would be on a part time basis until September whilst you are on a student visa with the hope to progress to full time in September 2023 on a £30k+ salary per annum with study support. Full details of each step would be provided at the set review periods as below; Review date: 12th May 2023 Review date: 1st September 2023”[40]The respondent said there was a review in May 2023. There were payslips and a record of the claimant’s hours in the main hearing bundle. The claimant remained on ad hoc hours until he resigned on 29 March 2024. There was no evidence of any complaint about his contractual pay prior to his resignation. The respondent submitted that it was inconceivable that the claimant would make no complaint about being on incorrect pay during that period.[41]The claimant raised the matter post-resignation when the respondent was seeking the return of the work laptop and repayment of a loan made to the claimant. The respondent said that the claimant held the lap to “to ransom” on the basis that he had not been paid correctly. The respondent said there was no reasonable prospect of success.[42]The respondent relied on the non-compliance with Orders as is referred to above. The respondent said the claimant was not actively pursuing his claim. The claimant confirmed this morning that he had not made any application for permission to give evidence from India.[43]The respondent said that this matter needed to conclude today and it was not proportionate for it to continue.[44]The claimant said he was a litigant in person who had never prepared a witness statement before. He said it was more complex because he had to seek permission to give evidence from India and matters were complicated by his father’s ill health. The claimant said that the last hearing was not adjourned, it was fully conducted and he could do his statement in 2 or 3 days and the hearing could be conducted afterwards.[45]The respondent said that the last hearing was not fully conducted, it was converted to a Case Management hearing. Relevant law on strike out[46]Rule 37 of the Employment Tribunal Rules of Procedure 2013 provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on grounds that it is (a) scandalous or vexatious or has no reasonable prospect of success, (c) for non-compliance with an order of the Tribunal or (d) that it has not been actively pursued.[47]A claim may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. Conclusions on the strike out application[48]This is a low value wages claim. In his ET1 box 9.2 he said ““I am not sure how much I could claim”. He claims an increased hourly rate from May 2023 until termination of employment when he resigned on 29 March 2024. On his best case he said it was worth £800-900. The respondent said based on prospects, the claim had no value.[49]The claimant has failed to comply with the Order of Employment Judge Bunting as I have outlined above. There has been a failure by the claimant to comply with tribunal orders which were clear and explained to him on 31 July 2024.[50]I find that the claim has no reasonable prospect of success based on the contractual interpretation of the offer letter of 4 April 2023 upon which the claimant relies. The text of that letter is set out above.[51]The letter expresses itself in terms of an “expectation to offer you a part time contract of 20 hours per week” and a “hope” of progressing to full time in September 2023. The letter of 4 April 2023 did not create a legally binding contract for 20 hours per week. It was conditional on performance. The respondent says that the condition was not met and there is no documentary evidence to suggest that it was met. The claimant remained on ad hoc hours and did not move to a part time contract.[52]I accept the respondent’s submission that if from May 2023 onwards, the claimant considered that he was not being paid at the correct rate, that on a balance of probabilities he would have raised it. There is no documentary evidence that he ever did so. He does not say that he raised it. He only did so once he had resigned and the respondent was seeking the return of a work laptop and repayment of a loan.[53]Although the claimant has not complied with Tribunal orders he has been engaging with the tribunal in correspondence and he says that he is pursuing the claim. I find that he wishes to pursue it.[54]The claim is struck out for two reasons: firstly the claimant’s failure to comply with tribunal orders as outlined above and secondly because I find for the reasons given that the claim has no reasonable prospect of success.[55]This tribunal does not have power to order the return of the work laptop to the respondent. The respondent has brought County Court proceedings. I told the claimant that he should return the laptop as he admitted that it does not belong to him. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under Rule 69 the Judgment sent to the parties on 29 October 2024 is corrected as to the case number, as shown in the corrected judgment dated 18 November 2024.[1]At a hearing on 22 October 2024, at which judgment was delivered orally, the claim was struck out for the failure of the claimant to comply with Tribunal Orders and because it had no reasonable prospect of success. Judgment was sent to the parties, with Reasons, as requested by the claimant, on 29 October 2024. The respondent’s costs application[2]The respondent said at the conclusion of the hearing that it intended to make an application for a Preparation Time Order (PTO) which is in effect a costs application against the claimant. In the event that such an application was made, the parties were asked to state whether they wished the application to be dealt with at a hearing or on the papers.[3]On 23 October 2024 the respondent made a written application for a PTO and asked that the application be dealt with on the papers.[4]On 28 October 2024 the tribunal wrote to the parties asking the claimant to send any objections to the application together with a short statement setting out his means for the tribunal to consider. The claimant was also asked to say whether he wished the application to be dealt with at a hearing or on the papers. The respondent was asked to set out the total of the sum claimed.[5]The claimant did not respond to this letter. He had emailed the tribunal on 26 October 2024 saying that he was seeking “relief from sanction on a few grounds”. A further letter was sent to the parties on 26 November 2024. The claimant was informed that there is no relief from sanction process in the Employment Tribunal, as in the County Court and was reminded of the information he was sent with the Judgment in a letter dated 29 October 2024. This told him what he could do.[6]Time was extended until Friday 6 December 2024 for the claimant to comply with the directions set out in the letter of 28 October 2024. The tribunal has no record of any correspondence from the claimant in response to the letters of 28 October or 26 November 2024. The claimant was clearly told that if no response was received, the Judge would deal with the costs application in the absence of any further information. The respondent’s grounds for the costs application[7]The respondent made its application on 3 grounds under Rule 76:(i) that the claimant had acted vexatiously or otherwise unreasonably;(ii) that the claim had no reasonable prospect and(iii) that the claimant had been in breach of Tribunal Orders.[8]The respondent relied upon the facts of the case, in terms of their view on the lack of merits. They pointed out that the first time the claimant raised the alleged underpayment of salary was after his employment ended on 29 March 2024. This was despite alleging that he was underpaid form May 2023, a period of 10 months. They say that the claimant did not raise the matter in his final review in February 2024.[9]The respondent says that the claimant alleged the underpayment of salary as a direct consequence of being asked to return a work laptop and to repay a loan. They say that this claim was vexatious or otherwise unreasonable because on their case the claimant had no reasonable basis upon which to believe he was entitled to the salary he claimed. It was, on their case, a direct response to being required to return his company laptop and repay money lent to him. They say that this is wholly unreasonable and vexatious.[10]The respondent relies on the tribunal’s finding made on 22 October 2024 that the claim had no reasonable prospect of success.[11]The also respondent relies on the tribunal’s finding made on 22 October 2024 that the claimant had failed to comply with Tribunal Orders. This meant that the original full merits hearing listed for 31 July 2024 could not go ahead and had to be converted to a case management hearing. They also rely on the fact that for the hearing on 22 October 2024, when the claimant was again not ready, they had to deal with his postponement application and pursue a strike out application.[12]The respondent acknowledges that under Rule 75(2) a PTO does not apply to final hearings. They say that neither of the two hearings that took place were final hearings and they claim a PTO for attendance at the hearings on 31 July and 22 October 2024. The amount claimed[13]The respondent provided a Schedule of Costs incurred over the period from 30 May 2024 when drafting the ET3 to 22 October 2024 being the hearing at which the claim was struck out. They claim 46 hours. Although the respondent did not set out the amount claimed, the calculation is simple, being 46 hours at £44 per hour making a total of £2,024.[14]The respondent was represented by the firm Croner which is not a firm of solicitors. The work was carried out by litigation executives who do not meet the definition of a legal representative falling within Rule 74(2). Dealing with this application on the papers[15]The parties were asked to state whether they wished the application to be dealt with on the papers or at a hearing. The respondent stated within their application that they wished it to be dealt with on the papers. The claimant did not reply. In those circumstances I decided to deal with the application on the papers. As set out above, the claimant was given an opportunity to respond to the application and time was further extended for this purpose. Relevant law on costs[16]Rule 37 of the Employment Tribunal Rules of Procedure 2013 provides that[17]Costs do not follow the event in employment tribunal proceedings and an award of costs is the exception and not the rule (Lord Justice Mummery in Barnsley Metropolitan Borough Council v Yerrakalva 2012 IRLR 78).[18]The power to award costs is contained in Rule 76 of the Employment Tribunal Rules of Procedure 2013 which provides that:(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 (b) any claim….. had no reasonable prospect of success; ……..(2) ….where a party has been in breach of any order or practice direction.[19]The Court of Appeal held in Yerrakalva (above) that 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 was unreasonable conduct in bringing and conducting the case and in doing so, to identify the conduct, what was unreasonable about it and what effects it had. There does not have to be a precise causal link between the unreasonable conduct in question and the specific costs being claimed.[20]“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.[21]Rule 84 says that in deciding whether to make a costs or a wasted costs order and if so, in what amount, the tribunal may have regard to the paying party’s ability to pay.[22]PTO’s are covered in Rule 75(2) which says: A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing[23]The amount of a PTO is covered by Rule 79. The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of the information provided by the e receiving party on time spent falling within rule 75(2) above and the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.[24]The hourly rate for a PTO was originally £33 when the Rules came into force and increases on 6 April each year by £1. The claim was presented on 30 April 2024 so the relevant hourly rate throughout the period in question is £44. The decision on whether to make a PTO[25]The claim was struck out on grounds that it had no reasonable prospect of success and because the claimant had failed to comply with Tribunal Orders. This is sufficient for the threshold test for an award of costs or PTO to be met.[26]The claimant did not give evidence at either hearing. He was in India and had made no application to give evidence from overseas. For this reason there was no cross-examination as to his reasons for presenting the claim and as to whether it was because the respondent wanted the return of his work laptop and the repayment of a loan. I am unable to make such a finding so I do not award a PTO on the first ground relied upon.[27]The failure to comply with Tribunal Orders meant that the respondent twice prepared for a full merits hearing that was ineffective. The second hearing was necessitated by the failure to comply with Orders relevant to the first hearing. The claimant suggested on 22 October 2024 that the first hearing on 31 July 2024 had been “fully effective”. It was not. It could not take place as a full merits hearing and had to be converted to a case management hearing to ensure that the time was used productively.[28]The respondent had no option but to prepare the case on two occasions for a full merits hearing and to deal with a postponement application on the date of the second hearing. They also prepared a strike out application, which was successful.[29]The claimant brought the claim and did not properly engage with it. Two attempts at a full merits hearing fell by the wayside. This caused the respondent to incur the cost of necessary preparation time. I have also found that the claim had no reasonable prospects of success.[30]I find that the respondent has incurred cost that it ought not to have incurred had the claimant complied with Tribunal Orders and had the claim been one which had a reasonable prospect of success.[31]In addition the claimant has chosen not to set out any grounds of opposition to the application.[32]Under Rule 84 the Tribunal may have regard to the paying party’s ability to pay when making a decision as to whether to award costs. The claimant was twice given the opportunity to give details of his means. He failed to do so which meant I was unable to take this into account.[33]For these reasons I have decided that a PTO is merited. The amount of the PTO[34]As set out above, the respondent claims for 46 hours of preparation time including attendance at the two hearings, which they correctly noted were not full merits hearings. The first became a case management hearing and the second was a preliminary hearing to deal with the claimant’s postponement application and the respondent’s strike out application.[35]I have considered the respondent’s schedule of costs which claims for 46 hours. What took my attention when considering that schedule was what appeared to be a substantial amount of duplication. There were two Schedules often claiming for the same hours on the same dates. Under the first schedule 19 hours were claimed and under the second schedule 27 hours were claimed.[36]In terms of duplication and by way of example, both schedules claimed 3 hours on 30 May 2024 from 5am to 8am for drafting the response to the claim. Both Schedules claim another 2.5 hours each for finalising the response. It should not take 11 hours to put together a response to a claim of this nature even for a lay person. It was a straightforward claim for unlawful deductions which was not legally or factually complex. The response to the claim ran to only 6 paragraphs in box 6.1 of the ET3.[37]A further example of duplication is two people claiming 1.5 hours for the same meeting to discuss the claim.[38]It appears from the Schedules that both Croner and the lay client claim, in places, for the same work. By way of further example, there are two claims of one hour each by two people on 18 July 2024 from 6.30am to 7.30am for “trying to contact the tribunal”. This is not justified.[39]In the circumstances I decided to exercise the discretion to award an amount for the PTO in a broad-brush fashion by assessing what I consider to be a reasonable and proportionate amount of time to spend together with the complexity of the proceedings, the number of witnesses and documentation required.[40]The proceedings were not complex either legally or factually. It was a straightforward case. It was document-light. Had there been a full merits hearing there would have been 1 witness on each side. On the claimant’s best case, the maximum value of the claim was £900. I consider a reasonable and proportionate amount of preparation time to be 15 hours.[41]I had no evidence as to the claimant’s means to take into account.[42]I make a PTO in the sum of £660 being 15 hours x £44.