Ms N Hafeez v Jorada Ltd T/a Bluebird Care (Medway): 2301527/2018
JUDGMENT
The Claimant’s application to amend her claim is refused.REASONS
The law
[1]This is a Preliminary Hearing, which follows a case management hearing in January of this year. My summary from that previous hearing makes reference to the difficult history of this case and I am afraid to note that its progression continues to be laboured.[2]The first issue I must determine today relates to an amended pleading which was submitted by the Claimant on 22 October 2018. On 16 August 2018 the Claimant’s Solicitor came on the record and he corresponded with the Tribunal saying that the ET1 needed amending. He asked whether it could just be amended or whether there was a need to make a formal application to do so.[3]By way of a letter from the Tribunal dated 10 October 2018 the Tribunal wrote to the parties on instruction from Employment Judge Martin. That letter included the following sentences, The Claimant shall send in revised particulars of claim within 7 days of this letter. The Respondent shall amend response 14 days after receipt of amended particulars of claim.[4]To be clear, the Claimant had not made an application to amend her ET1 at that stage. That is clear because as previously noted, the correspondence had asked whether the Claimant needed to make an application – evidently, that correspondence was not the application. Furthermore to make an application to amend, a party must put in a draft amendment so that the Employment Judge can consider the content of the amendment. The Claimant did not do this until after the letter from the Tribunal.[5]By the email dated 16 August 2018, the Claimant had simply indicated that she wished to amend her claim. Employment Judge Martin had responded that the amendment should be sent in and then an amended response should be sent in addressing the amendment. That letter did not give permission to amend the claim - it set out a process whereby the amendment could be considered. Following receipt of the amended particulars and the amended response, the Tribunal could see if there were any objections to the amendments. If there were, the Tribunal would need to rule on it.[6]Accordingly EJ Martin had not determined an application to amend and the correct process is for me to consider that application today. That I might proceed to consider such an application was absolutely in the minds of the parties prior to coming to this hearing. It was set out in the summary and directions given after the last hearing, including a direction that the Claimant make an application to amend.[7]Turning to that application, I have reminded myself of the principles set out in Selkent Bus Co v Moore 1996 ICR 836. Relevant factors when determining such an application include the time and manner of the application, time limits and balancing the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it.[8]At the outset it is important for me to consider the amendment sought.[9]From a detailed reading of the amended pleading, the Claimant seeks to bring five further claims – disability discrimination, direct race discrimination, indirect race discrimination, harassment and victimisation. Initially Mr Saeed sought to suggest that these claims were already in the existing ET1 and were simply being further particularised in the amended pleading. However he quickly conceded that this was not actually the case. He also accepted that the necessary particulars for each of these claims do not appear in the amended pleading. We did not consider every one of the claims in turn but, for example, he conceded that there was no protected act identified in respect of the victimisation claim (either in the amended pleading or the attached witness statement), there is no conduct or comparator identified for the direct race discrimination claim and there is no PCP identified for the indirect race discrimination claim. It is therefore agreed that the proposed amendment is deficient.[10]What should I do in these circumstances? Mr Saeed asks me to give him more time to produce a further version of the pleading. Mr Gillet says, applying the overriding objective, further time should not be granted.[11]Having taken into account the entirety of the submissions made, I have decided to refuse the Claimant’s application to amend. As already identified to the parties, each of the additional claims the Claimant seeks to bring is inadequately particularised and it is therefore impossible to understand the necessary details of those claims beyond the unfair dismissal claim brought in the original ET1. I cannot allow an application to amend where the amendments sought, in this case the introduction of multiple new claims, cannot be understood by the Tribunal.[12]I am not minded to make any particular directions providing for a further application to amend. The case will proceed as an unfair dismissal claim to the hearing date already set down in 2020 and I shall make appropriate directions for preparation of that claim. If the Claimant wishes to make further applications to the Tribunal, she is entitled to do so.[13]For the avoidance of doubt I make no findings as to the conduct of the solicitor originally instructed by the Claimant. I simply know too little of the history of that firm’s conduct on the file to assign any negative commentary to that conduct, as sought by Mr Gillett.[1]The claim before the Tribunal was for unfair dismissal. The Claimant’s claim of discrimination had previously been dismissed. The Respondent denied unfairly dismissing the Claimant arguing that she had been fairly dismissed for breach of a statutory enactment and/or some other substantial reason justifying dismissal due to her immigration status.The hearing
[2]This matter has a long procedural history. There have been at least nine preliminary hearings before getting to this hearing. The final hearing which I was originally listed to hear was for 7 days. On the morning of the hearing, the Claimant’s solicitor was not in attendance and there were difficulties in communicating with him using the cloud video platform (CVP). The Claimant was self isolating and did not have the facilities to attend the hearing using CVP. The second day was therefore used for case management and after discussing and agreeing the issues, the hearing was relisted for 6 September 2021 for three days. The hearing went part heard to 22 September 2021 when submissions were given, and I then retired to chambers to consider my decision.[3]I heard from the Claimant and on her behalf from Diane Smith and Hannah Worsfold. For the Respondent I heard from Ms Grech (director), Mr Gillet (who heard the disciplinary hearing) Melinda Street and Shona White]. I had before me an extensive bundle of documents numbered to 912 pages plus some additional documents. The Claimant attempted to introduce a copy of a Facebook page not previously disclosed, during Mr Gillet’s evidence. I did not allow this to be produced at this late stage, especially given the number of pervious case management hearings and the numerous opportunities to disclose it before the hearing started.[4]I was concerned that in the bundles were documents that gave the Respondent’s service users names, address, and other details including the code to key safes. This was information produced by the Claimant who had emailed it to herself during the disciplinary process described below. I was very concerned that sensitive personal data had not been redacted and will be ensuring that the Tribunal will quickly dispose of the relevant pages. The Claimant is required to dispose of the relevant pages appropriately and swiftly if not already done. The agreed issues:[5]What the reason for dismissal? The Respondent says it is some other substantial reason justifying dismissal namely loss of right to work in the UK. The Claimant says the Respondent wanted to dismiss the Claimant and used the disciplinary process as a vehicle to ensure she lost her right work, and her indefinite leave to remain and her job. The Claimant says the Respondent did this to try to avoid an unfair dismissal claim.a. Was the dismissal fair?b. Was the procedure fair in that the Claimant was: i.Informed in advance what the allegations were ii.Given the right to be accompanied iii. Given the opportunity to defend the allegations iv. Given an independent and impartial disciplinary officer v. The Claimant says that Mr Gillett was not impartial or independent because the was previously a principal of the organisation and in a relationship with Ms Getch at the material time.[6]Are the notes of the disciplinary hearing provided by the Claimant a true reflection of the hearing or did the Claimant amend the notes.[7]Was the decision to demote the Claimant within the range of reasonable responses[8]Was the Claimant given the opportunity to appeala. Did the Claimant appealb. Was an appeal hearing heldc. If the decision to demote was fair and within the range of reasonable responses, did the Respondent have reasonable grounds to believe that the Claimant was no longer eligible for its sponsorship and therefore not able to work.[9]Was the decision to terminate the Claimant’s employment on this basis fair. The law The Tribunal must establish:[11]Whether the Respondent had a reason for the dismissal which was one of the potentially fair reasons within s 98(2) of the Employment Rights Act 1996 (“ERA”) and whether the Respondent had a genuine belief in that reason.[12]A reason for the dismissal of an employee is a set of facts known to the employer or it may be a belief held by him, which caused him to dismiss the employee: Abernethy v Mott, Hay and Andersen [1974] IRLR 213 CA[13]An Employment Tribunal will err in law if it holds the dismissal to be fair in circumstances where the employer had, in dismissing an employee, relied upon grounds for dismissal which were shown to be unsustainable and could not be relied upon on as reasonable grounds.[14]S98(2) provides that the following are potentially fair reasons for dismissal:a. Conductb. Capabilityc. Redundancyd. Breach of a statutory enactmente. Some other substantial reason justifying dismissal The burden of proof rests on the Respondent.[16]Whether the Tribunal is satisfied in all the circumstances (including the size and administrative resources of the employer) that the employer acted reasonably in treating it as a sufficient reason to dismiss the employee (s98(4) ERA the burden of proof here is neutral and that the Tribunal must establish it in accordance with equity and the substantial merits of the case. It is appropriate to regard this matter as consisting of two separate issues, namely:a. Whether the employer adopted a fair procedure. This will include: i. a reasonable investigation ii. informing the employee of the charges or problems in advance of a hearing so that the employee can come to the hearing knowing suitably prepared iii. a hearing at which the employee has the opportunity to put their case and to answer the evidence obtained by the employer, andb. Whether the dismissal was a reasonable sanction in the circumstances of the case. This will include:• Whether the employer acted within the reasonable band of responses in imposing it. The Tribunal is aware of the need to avoid substituting its own opinion as to how a business should be run for that of the employer. The Tribunal sits as an industrial jury to provide, partly from our knowledge, an objective consideration of what is or is not reasonable in the circumstances. That is, what a reasonable employer could reasonably have done.• Having regard to the matters from the employee’s point of view, whether on the facts of the case the employee has objectively suffered an injustice.[17]It is trite law that a reasonable employer will bear in mind, when making the decision, factors such as the employee’s length of service, previous disciplinary record, and declared intentions in respect of reform and so on.[18]The Tribunal must also bear in mind the provisions of the relevant ACAS code of practice on disciplinary and grievance procedures and consider any relevant provision. My findings of fact and conclusions[19]These factual findings are limited to those matters which are relevant to the issues and necessary to explain the decision reached. All evidence was heard and carefully considered together with both parties’ submissions even if not specifically recorded below.[20]The Respondent provides care to people in their own homes. The Claimant was employed by the Respondent as a care coordinator from 11 June 2011 to 2 February 2018 when her employment was terminated on the basis that she no longer had the legal right to work in the UK. This was because she was demoted following a disciplinary hearing and that meant that she no longer met the earnings threshold which attached to her permission to work in the UK.[21]The Claimant’s right to work was under a sponsorship licence. This licence has various conditions attaching to it, one of which is that the employee earns enough. It is not necessary to set out the Claimant’s immigration history in any detail. The only relevant part is the earnings threshold.[22]I heard evidence about the background leading to the disciplinary hearing which took place on 18 January 2018. It is not necessary or proportionate for me to set out this evidence in any detail. It is sufficient to record that the Respondent had concerns about the Claimants performance which came to light when she was absent from work for some weeks following an accident in November 2017. The essence of the concerns about her work was that the Respondent discovered she did not keep the system up to date in relation to imputing data relating to carers and service users’ requirements which led to service issues for the Respondent. The Respondent chose to utilise the disciplinary process categorising the allegations as gross misconduct rather than the capability process.[23]This led to the Claimant being called for a disciplinary hearing on her return to work. The letter inviting her is set out in full: “Dear Nadia Hafeez I have recently received concerns regarding your conduct as follows: The Concerns relate to an impact on business during absence due to Inaccurate data keeping. These matters have now been investigated and I believe the outcomes indicate that there are sufficient concerns regarding your conduct to warrant a disciplinary hearing. Consequently, a disciplinary hearing will be held at our Swale office 123-125 high Street, Sitlingbourne, Kent. ME10 4AQ on 18.01.2018 at 17:30pm. The meeting will be chaired by Andrew Gillet and will focus on the following allegations: 1. Inaccurate Data Keeping It is your right to bring a colleague or union representative to the hearing. The hearing will follow the process outlined in Bluebird Care's Disciplinary Policy and Procedure. Yours sincerely Charmaine Grech Director of Bluebird Care (Medway) Director of Bluebird Care (Swale)” (sic)[24]The Claimant was accompanied to the disciplinary hearing. The hearing was held by Mr Gillet. Mr Gillet is a solicitor. He was at one time directly involved in the business and was previously the personal partner of Ms Grech. The Claimant’s case is that he was not sufficiently impartial to hold the disciplinary hearing and that this in part rendered the dismissal unfair. The Claimant was not provided with any documentation regarding the allegations against her before the hearing or and was shown (but not given) minimal documentation during the hearing. Mr Gillet said this comprised one page of calculations and a two page print out of a staff plan. There was no investigatory report detailing the inaccuracies that were alleged that led to this disciplinary hearing being held. Mr Gillet said in evidence “I was not aware of investigation; I was to do the disciplinary hearing”. (Taken from my notes of evidence).[25]The outcome of the hearing was that the Claimant was demoted. As a result of the demotion, the Claimant’s salary was reduced which meant that she no longer satisfied the sponsorship licence conditions on which her immigration status relied. The Respondent's case is that following a telephone communication with the Home Office it had no option but to terminate her employment as the Home Office informed Ms Grech that the Claimant did not have the right to work because she no longer satisfied the terms of the licence, and that if the Respondent continued to employ her it could be subject to a fine and potential prosecution.[26]After the hearing the Claimant sent emails requesting further information from Mr Gillet. This indicates that she wanted to know more about the allegations and wanted to respond to them properly. However, there was not a further meeting between her and Mr Gillet.[27]Dealing with the disciplinary hearing first, I considered the Claimant’s submissions which rely on the unfairness of the disciplinary hearing in that there was no proper notice of the allegations to allow the Claimant to know what was alleged against her, that there was no investigation, the hearing itself was unfair, there was no proper right of appeal, and that Mr Gillet was not the appropriate person to conduct the hearing as he was not sufficiently independent. Reference is made to British Home Stores v Burchill [1978] IRLR 379.[28]I do not agree with the Claimant that Mr Gillet was not sufficiently impartial to chair the disciplinary hearing. He is a solicitor and had knowledge of the business from his previous involvement with it. On balance I accept his evidence and that of Ms Grech, that they were not longer in a personal relationship. Had Mr Gillet still been involved in the business, it would have been appropriate for him to be the disciplinary manager and at that time he was the personal partner of Ms Grech so it does not make sense that he would be in any different situation when conducting the disciplinary process on this occasion.[29]I agree with the Claimant in that there was no proper identification of the allegations against the Claimant sufficient to allow her to properly defend them. Ms Grech gave evidence that there was some kind of informal discussion prior to the letter inviting the Claimant to the disciplinary hearing and that from this, the Claimant should have known what the problems were. The Claimant says that there was no such meeting. Whether or not there was such a meeting, I do not find that this was sufficient to put the Claimant on notice that formal disciplinary proceedings would ensue or be sufficient to formally notify the Claimant of the disciplinary allegations she was being disciplined for. The letter inviting her to the disciplinary hearing did not set out what the alleged inaccuracies were and there was no documentation provided prior to the hearing which may have helped her understanding.[30]I agree with the Claimant that the investigation was inadequate. I am not sure what investigation was done as part of the formal process. The evidence is that problems emerged while the Clamant was absent from work, and that this constituted the investigation. Mr Gillet also did not know what investigation had been done before he was asked to chair the disciplinary hearing. There was no report, or other document for the Claimant to consider, to be able to properly understand the allegations and defend herself. The documentation relating to what the Claimant was disciplined for was very sparse, as set out above it comprised one handwritten sheet of paper and a print out.[31]In the circumstances, especially given the potential for the Claimant’s employment being terminated, the investigation was not within the range of reasonable responses. Although the Claimant was given the opportunity to speak during the disciplinary hearing, given the lack of information about the disciplinary allegations, she could not adequately respond to them. I am satisfied that the Claimant did not know what the allegations were in any sufficient detail, is evidenced by her emails after the hearing asking for further information. There was no attempt to engage with the Claimant in a further meeting.[32]I do not accept the argument put forward by the Respondent that the Claimant was able to search for herself for the records relating to the allegations. It was not the Claimant’s role to undertake a search of records to work out herself what the allegations might be. It was the Respondent’s responsibility to ensure that she had the necessary information to know what the disciplinary allegations were.[33]The outcome letter dated 2 February 2018 said: “Due to the seriousness of the effect of these breaches on our business. And as we have said in the absence of any admission of fault on your part, or explanation of the statistics that have been presented, we consider your conduct amounts to gross misconduct. Taking into consideration your long service, and while it would have clearly been in our power to have proposed a dismissal, we have elected not to proceed down that route. As sanction for your gross misconduct you will forthwith be demoted from your position as a manager with primary responsibility for the coordination function to the position of an assistant/support coordinator. Your salary and the benefits will be, adjusted to take into consideration your demotion”. The Claimant was given a right to appeal. The outcome letter states this as being 10 days of the outcome letter.[34]Ms Grech told the Claimant by email on 2 February 2018 that she would be contacting the Home Office to check what effect the demotion would have on her immigration status.[35]The Claimant sent a letter of appeal on 17 February 2018. Ms Grech wrote to the Claimant the following day: “Thank you for your email dated the 17" February and received at 2.45 pm. The contents of your email have been considered but in the absence of any additional information or evidence you make it very difficult for me to review the decision but must add that your time to appeal is now closed.” The letter is at least 2 pages long (the end of the letter is missing from the bundle) and goes into some detail as to why Ms Grech could not consider the appeal.[36]There was questioning during the hearing as to whether the appeal had been sent in time or not. I accept that the normal time for appeal is 5 days pursuant to the Respondent’s policies, however the letter gave 10 days from the date of the letter. This is clear. The letter was sent on 2 February 2018 so the appeal should have been made by 12 February 2018. It was made on 17 February 2018. The email from Ms Grech of 18 February 2018 states the appeal was out of time and additionally that there were no grounds to consider an appeal. Even if the appeal had been in time, (I find it was out of time) Ms Grech’s letter of 18 February makes it clear that she is rejecting the appeal. That was the end of the process.[37]As such the Claimant did not have a continuing right to work in the UK under her sponsorship visa. To dismiss fairly for breach of a statutory entitlement, there must have been an actual breach of that entitlement. It appears that there was a breach as the disciplinary process had ended and the Claimant no longer met the earnings threshold.[38]Alternatively, the Claimant was dismissed for some other substantial reason justifying dismissal. The substantial reason was that Ms Grech had reasonable grounds for believing that the Claimant could not continue to work for the Respondent once she had been demoted, following her discussion with the Home Office. I am satisfied that this discussion did take place, and that Ms Grech believed the Respondent could be prosecuted or subject to a fine if it continued to employ the Claimant.[39]On 23 February 2018 Ms Grech wrote to the Claimant: “Dear Nadia Further to my letter dated 18.02.2018. I write to clarify the position of employment for you. l have now liaised with the Sponsor License Unit and taken advice regarding your situation. It has been made clear to me that due to the outcome of your disciplinary hearing and that you were demoted, you would no longer meet the levels and requirements for sponsorship under Tier 2 (General) and that I would need to terminate your sponsorship. l was also warned that if I was to continue with your employment, compliance action would be taken against me. On this basis. it would mean that as l have had no option but to cease your sponsorship, as a result your employment with Bluebird Care (Medway)' Is terminated. l have recorded your last day of employment with us as of 2 February when you. would have been notified of the decision to demote you . If there Is anything that you are aware of that either you or l can do to resolve this situation differently please do let me know.”[40]Ms Grech said that she was always mindful of her obligations as a sponsor, especially given the breach of the sponsorship licence which had occurred before. Based on the information she was given, she considered that she had no option but to terminate the Claimant’s employment. Her position is that she did not want to do this and wanted the Claimant to remain in work but that she had no choice. In support of this referred me to her suggestion that the Claimant contact her to see if the situation could be resolved.[41]At the first hearing which had to be postponed, the Claimant’s representative said that the disciplinary allegations were false, and the Respondent disciplined the Claimant with the intention of demoting her so it would have to terminate her employment as she would not then meet immigration requirements which would be less risky to the Respondent than if it dismissed her in the disciplinary process. However, at the final hearing, this argument was not explored either in cross examination of the Respondent witnesses or in the Claimant’s submissions. The Claimant’s submission sets out the Claimant’s case as follows: submissions instead the Claimant began her submissions by saying: “It is submitted that the evidence presented to the Tribunal clearly establishes the fact that the Respondent failed to materially and unreasonably follow either the ACAS procedures both prior and during the so-called disciplinary process and in addition failed demonstrably and unreasonably to follow its own policy and procedures in relation to the Claimant’s disciplinary and eventual dismissal and as such the dismissal was automatically unfair. In addition, the evidence presented makes clear that the Respondent is a middle size company and has had several employment Tribunal cases and has a detailed procedures manual enhancing the minimum requirements of the ACAS procedures, there can therefore be no excuse for the blatant disregard of those or ACAS procedures, and such blatant disregard must result in a 25% uplift in the event that the Claimant’s request for re-instatement cannot be met”.[42]Given this, I am not sure whether the Claimant continues to pursue her argument that the hearing was contrived; however, for completeness, as it was discussed when finalising the issues, I have considered this aspect of the claim as well.[43]For this to have been the case, there would have to have been collusion between Ms Grech and Mr Gillet. This was not explored in evidence nor in the Claimant’s submissions. I have considered Mr Gillet’s and Ms Grech’s evidence in detail and find that there was no such collusion. Mr Gillet said he was aware that the Claimant was subject to immigration control, but he did not know the details. I have no reason to doubt this evidence. If the Respondent had wanted to dismiss the Claimant, I find it would have done so at this stage. Whilst I find that there was a lot wrong with the disciplinary process, and I have some qualms about how the disciplinary hearing was handled, I do not find that the Respondent demoted the Claimant only to be able to dismiss her for not remaining eligible to continue to work in the UK. In favour of the Respondent is the email sent to the Claimant by Ms Grech asking the Claimant to contact her to see how else the situation could be resolved. Ms Grech was trying to consider ways to ensure the Claimant did have the right to work and offered to assist the Claimant. On balance this shows that Ms Grech did not have a hidden agenda.[44]I then considered whether the Claimant was, as a matter of fact, not in compliance with the terms of her sponsorship agreement when she was demoted as she did not then meet the earnings threshold. The Claimant submits that she was entitled to work in the UK while the appeal process in relation to the demotion was ongoing. It is the Claimant’s case that the appeal was on going. The Respondent’s position is that the appeal process had finalised. It appeared to be accepted by both parties that if the appeal process was ongoing then the Claimant’s immigration status was legal. I have found that the appeal was submitted late and that Ms Grech’s response to it made it clear that the appeal process had concluded.[45]The other potentially fair reason for dismissal, some other substantial reason justifying dismissal does not need there to be an actual breach of the entitlement. For this, the Respondent must have reasonably believed that the Claimant did not have the continued right to work in the UK.[46]Ms Grech gave evidence that she was very careful about how she managed the licence she had been granted by the Home Office to sponsor the Claimant’s employment. Previously both the Respondent and the Claimant had been in breach and the Home Office downgraded the licence. Ms Grech knew she had to notify the Respondent of changes to the Claimant’s employment and her evidence is that she telephoned the Home Office to seek advice when the Claimant was demoted and was told that the Claimant no longer met the immigration requirements and that if the Respondent continued to employ her it would be subject to a fine and potential criminal prosecution. Ms Grech’s evidence is that because of this she had no alternative but to terminate the Claimant’s contract of employment. Her evidence is that she wanted to retain the Claimant as an employee and suggested to the Claimant that they should discuss options. However, the Claimant did not contact the Respondent further.[47]The Claimant says that Ms Grech’s evidence should not be believed as there is no corroborating evidence to show that she did talk to the Home Office by telephone. The Claimant is correct that there is no documentary evidence. In this situation, I must decide on the balance of probabilities whether Ms Grech was telling the truth. I found Ms Grech to be a reliable witness. She was consistent in her evidence that she had spoken to the Home Office, and consistent in her other evidence too. She was willing to accept that she may have made mistakes in the disciplinary process but was adamant that she had made this phone call. On balance I find that she did make this phone call and was told by the Home Office that to continue to employ the Claimant would be an offence and the Respondent could be fined.[48]Had the disciplinary procedure resulted in a dismissal, then I would have no hesitation in finding that the dismissal was procedurally and substantively unfair. However, it did not, and the sanction applied was demotion.[49]As a result, I find that the reason for dismissal was some other substantial reason justifying dismissal. The justification is the reasonable belief of Ms Grech that the Respondent would be liable to a fine or prosecution if it continued employing the Claimant.[50]In these circumstances I find the dismissal to be fair and the Claimant’s claim is dismissed.[1]This hearing was listed to consider the Respondent’s application for a preparation time order against the Clamant following the judgment dismissing the Claimant’s claim. At the final hearing and throughout the proceedings the Clamant had been represented by Mr Saeed from Legal Eagles Solicitors. She is now representing herself.[2]The application for costs was made in time but not referred to me for some time. It then took a while for it to be listed. The basis of the Respondent’s application was that the Claimant had acted unreasonably in the conduct of the proceedings and the claim for race discrimination had no reasonable prospects of success. The Claimant provided a written response to the application. Both the application and response were considered in coming to my decision.[3]The power to award costs is contained rule 76 of the Employment Tribunal Rules of Procedure 2013: When a costs order or a preparation time order may or shall be made 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 (b)any claim or response had no reasonable prospect of success.(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. Ability to pay 84. 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.[4]The Respondent had claimed for all costs incurred in the proceedings including attendance and travel to hearings and when it was legally represented. I explained to the Respondent the limits to a preparation time costs order, in that it only is recoverable when a party is not represented, the hourly rate applicable at the relevant times, and that it did not cover travel to or attendance at hearings.[5]The Respondent said that the Claimant’s claim for race discrimination had no reasonable prospect of success. There was never a live claim for race discrimination. The original claim form was for unfair dismissal only. There was an application to amend to add race discrimination which was heard by EJ Harrington on 17 May 2019 and was refused. The Respondent was legally represented at this time.[6]Preliminary hearings There have been many preliminary hearings in this case. The following is a summary of the hearings. All matters included come directly from the various case management orders. 1 25 January 2019 EJ Harrington - Case management and listing Preliminary hearing for application to amend hearing claim Respondent represented by Mr Gillett – Solicitor Order identifies difficulties in the professional relationship between the representatives 2 17 May 2019 Preliminary Application to amend refused by EJ hearing Harrington Respondent represented by Mr Gillett – Solicitor 3 14 February EJ Mason – No attendance by the Claimant 2020 preliminary hearing. Respondent represented by Mr Gillett – Solicitor 4 9 March 2020 AREJ Davies - No attendance by the Claimant Telephone case management Respondent represented by Mr discussion Gillett – Solicitor 5 16 March 2020 EJ Corrigan - 9 day full merits hearing Case management Respondent represented by Mr discussion Gillett – Solicitor Respondent application for postponement as Ms Grech unavailable on medical grounds. Key witness Witness statements not exchanged, no agreement about the bundle Order identifies difficulties in the professional relationship between the representatives” continuing. Both parties advised to cooperate. 6 26 March 2020 EJ Corrigan - Listed hearing 7 days commencing Preliminary 14 September 2020. hearing Noted parties appeared to be cooperating and close to agreement about the bundle. Respondent represented by Mr Gillett – Solicitor Hearing postponed due to lack of judicial resource 7 9 October 2020 EJ Sage – Case relisted for 2 August 2021 for telephone case 7 days. management hearing Respondent not legally 8 25 January 2021 EJ Fowell – Case Noted disproportionate amount of management tribunal time over three years since claim presented. Application by Respondent to strike out claim on basis the Claimant had failed to comply with directions. Application dismissed. The Claimant said that the Respondent had also failed to comply with all orders. Parties reminded to cooperate in preparing for the hearing. EJ Fowell comments about the Claimant’s immigration status. It is recorded that her representative Mr Saeed said she had made an application for indefinite leave to remain in the UK and has leave to remain while that is pending. EJ Fowell expresses concern that the proceedings have been strung out unnecessarily in order to assist with the claimant’s immigration status. Respondent not legally 9 14 June 2021 EJ Wright – Discussion on conduct of the Preliminary hearing. Recorded that hearing preparation has stalled. Further directions given. Bundle “not quite” finalised and served, witness statements not done. Emphasises that the hearing must be ready for the hearing in August 2021. Respondent not legally 10 5 July 2021 EJ Ferguson – Further case management orders: Preliminary Service of witness statements hearing. Bundle of documents Remedy documents Respondent not legally 11 3 August 2021 EJ Martin – full Claimant self isolating and had hearing converted problems with her computer so to case could not attend. management hearing Large screen in Tribunal room not working so could not do a hybrid hearing. Difficulties in discussing matters with Mr Saeed by video link. Refining of the issues – revised time estimate three days commencing 6 September 2021 Further orders regarding revied witness statement to deal only with the revised issues Respondent not legally 6-8 and 12 Final hearing Claim dismissed September 2021 Respondent not legally[7]The parties provided some documentation for this hearing, and I also took time to consider the Tribunal file. The Tribunal file is very large and contains numerous copies of correspondence passing between the parties. The hostility between the parties is evident from these communications. There are acrimonious allegations about compliance and non-compliance with the numerous orders made against each other.[8]The Respondent was represented by Mr Gillet by his firm Hawkbridge and Company initially. As recorded in my final judgment, Mr Gillett and Ms Grech were formerly personal partners and he had an interest in the business. This relationship broke down at some point and their professional relationship also suffered in that Ms Grech said that for some time she had difficulties in getting the paperwork from Mr Gillett.[9]The Claimant explained her difficulties in communicating with Mr Saeed. She told me that she was unaware of many of the various preliminary hearings when they took place and that for example, in the hearing before EJ Fowell he misrepresented her immigration status as by then she already had indefinite leave to remain in the UK. The difficulties in communicating with Mr Saeed appear to ne the same for both the Claimant and the Respondent.The law
Judge Harrington said in her order:
[10]“This case has a complex history, most particularly caused by difficulties with the Claimant’s legal representation and the considerable delay experienced with the Tribunal processing correspondence received by the parties.”[11]Having listened to the parties, considered the various case management orders and reviewed the tribunal file, I find that a lot of the problems have been caused by the Claimant’s former legal representative but that this was not the only reason that the proceedings have taken so long and had so many hearings. In some cases, it is difficult to establish who was to blame for the failures to agree a bundle or prepare and exchange witness statements. I note that there were several hearings when Mr Saeed failed to attend on behalf of his client. These are detailed above. I have heard Ms Gretch say that she complied with all directions, I have read the counter argument by the Claimant’s representative. The ill feeling between the parties undoubtedly contributed to a large extent to the difficulties in preparation for the hearing. This is troubling especially as up until around March 2020, both parties were legally represented. By this time the tone of the communications between the parties had been set and did not improve.[12]The application made is for a preparation time order. This can only be made for a party who is not legally represented. Therefore, the time in which the Respondent was represented by Mr Gillett can not be claimed for. The Respondent was without legal representation from 26 March 2020. Therefore, any liability for costs would arise from this date. The application to amend to include a claim of race discrimination was before this date. Therefore, the basis of the application before me today is whether the Claimant acted unreasonably in the way her case was conducted. There was no argument that her claim for unfair dismissal had no reasonable prospect of success, and in view of the comments I made about how the disciplinary process was conducted such an argument would have been untenable.[13]Having spent some time going through the Tribunal’s file I find it very difficult to establish who was to blame for the communication between the parties which no doubt hindered the party’s preparation for this matter to be finally heard. Ms Grech says that the Claimant conducted the proceedings unreasonably. The test for me to apply is the range of reasonable responses test rather than by substituting my own view (Solomon v University of Hertfordshire UKEAT/0258/18).[14]I do not find that the correspondence between the parties (both when the Claimant was legally represented and after) was reasonable. I understand that there were frustrations but from the correspondence I have seen it is evident that the parties were not able to work together proactively as required by the overriding objective contained in the Employment Tribunal Rules of Procedure 2013.[15]I have also taken account of the Claimant’s ability to pay should I make a preparation time order against her. She has no income or funds and is wholly financially dependent on her partner. Her partner who is not a party to these proceedings has declined to provide details of household income. The Claimant has no assets or income of her own.[16]In all the circumstances, I have concluded that a preparation time order against the Claimant should not be made. It is impossible to disentangle who has been at fault in the period when the Respondent was not represented (this being the only period I can look at for a preparation time order). The times when there was no attendance by the Claimant at a preliminary hearing were when the Respondent was legally represented and therefore falls outside the time I can consider.[17]The Respondent’s application for a preparation time order is dismissed.