Mrs M Talbot v Clifton & Co (Estate Agent) Ltd: 2301929/2024
JUDGMENT
The respondent’s application to strike out the claimant’s claim in its entirety is successful. The claim is dismissed and the hearing listed for the 20/10/2025 and 21/10/2025 is vacated. Approved byREASONS
The respondent’s application to strike out the claims in their entirety succeeded. The claim is therefore dismissed.[1]Further to a preliminary hearing (converted from the listed final hearing) on the 30/10/2024, the respondent make an application for a strike out or in the Case Number: 2301929/2024 2 alternative a deposit order. That resulted in this hearing being listed as a public one day hearing to determine that application.[2]In accordance with the Tribunal’s directions, the respondent provided a position statement dated 3/2/2025 (pages -111):[1]The following is in support of the Respondent’s applications for strike out/deposit orders in respect of the claims brought by the Claimant in this matter, and in compliance with the order of EJ Ramsden communicated in a letter dated 17.12.2024. Constructive Unfair Dismissal ET Rules[2]R relies upon ET Rule 38(1)(a) in respect of this application, as the claim has no reasonable prospect of success (emphasis added): 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; Legal basis[3]The Respondent contends that the claim for constructive unfair dismissal has no reasonable prospect of success on the following legal bases: i. the majority of the alleged breaches relied upon by C are significantly out of time; ii. the majority of the alleged breaches relied upon by C were the subject of case number 2300437/2022 which was dismissed on withdrawal on 09.08.2022 and ought not to be considered, applying the rule in Henderson v Henderson (1843) 3 Hare 100; iii. C affirmed the contract in respect of any alleged breaches prior to November 2023; and iv. there is no “last straw”. Factual basis[4]Following the PH on 30.10.2024 before EJ O’Neill, the Claimant submitted a list of alleged breaches of contract on which she relies in the current claim. The alleged breaches identified in that document have the following dates: i. 2018-2019; Case Number: 2301929/2024 3 ii. June 2020; iii. November to April 2022; and iv. November 2023. The Claimant resigned (with notice) by email on 03.01.2024.[5]The alleged breaches from 2018 to January 2022 appear to concern commission payments and/or changes to C’s role. These were the subject of case number 2300437/2022, presented to the tribunal on 08.02.2022 dismissed on withdrawal on 09.08.2022. It is submitted that they ought to be subject to the rule in Henderson v Henderson and cannot be relied upon in the current proceedings.[6]The alleged breaches in November 2023 (the only which would be in time as a consequence of C entering into Early Conciliation with ACAS on 16.01.2024) are in respect of grievances said to be sent to R. R firmly denies receiving either of the grievances. C was ordered to provide the meta data for each grievance by EJ Fowell in a letter dated 14.05.2024. She has not done so.[7]Without prejudice to the above, given the lengthy gaps in between the alleged breaches it is clear that C affirmed the contract in any event.[8]In her ET1 presented to the tribunal on 09.02.2024, C stated that the “last straw” was as follows: The refusal to allow me a day of [sic] to visit my son who had been diagnosed with cancer just before Christmas was the las straw[9]C’s resignation email does not mention this, nor is it contained in the list of alleged breaches of contract on which C relies. In any event, R authorised C’s request for leave on 29.12.2023.[10]C has rented a cottage from Clifton Button and Sarah Sheehan (Directors of R) since 2018. In December 2023, a notice to quit under s.21 Housing Act 1988 was served on C due to pending work to the adjoining property which would have rendered C’s property uninhabitable. There is a shared party wall, and the works were significant. Notice was served on 22.12.2023, and C responded with a text message the same day as follows: Thank you for your notice ending my tenancy, of course I will see you in court to evict me. I will also be giving 2 months notice, my letter will be sent tomorrow By the way Case Number: 2301929/2024 4 Happy Christmas My letter of resignation from the company obviously will be sent tomorrow.[11]The evidence clearly demonstrates that the act which prompted C’s resignation was the serving of a notice to end C’s tenancy (which was not in fact enforced). Such an act is unconnected with C’s employment with R, and cannot consequently be relied upon as a “last straw”. Deposit order[12]In the event the Tribunal is not persuaded to strike out C’s claim for constructive unfair dismissal, the Tribunal is invited to make a Deposit Order under ET Rule 40 on the legal and factual bases set out above. Breach of contract/unlawful deductions of commission payments ET Rules[13]R relies upon ET Rule 38(1)(a) in respect of this application, as the claim has no reasonable prospect of success (emphasis added): 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; Legal & factual basis[14]The Respondent contends that the claim for Breach of contract/unlawful deductions of commission payments has no reasonable prospect of success on the following legal bases: i. the majority relied upon by C are significantly out of time; and ii. the majority of the alleged breaches relied upon by C were the subject of case number 2300437/2022 which was dismissed on withdrawal on 09.08.2022 and ought not to be considered, applying the rule in Henderson v Henderson (1843) 3 Hare 100.[15]R repeats the matters set out at paragraphs 4-5 above.[16]C has never provided a breakdown of any commission said to be owed by R. The last alleged breach of contract relied upon in respect of commission payments contained in C’s list of alleged breaches is said to have occurred in January 2022. Given that these alleged breaches were the subject of case number 2300437/2022, it is unarguable that it was not reasonably Case Number: 2301929/2024 5 practicable to have presented them in time. They ought to be struck out, applying the rule in Henderson v Henderson in any event. Deposit order[17]In the event the Tribunal is not persuaded to strike out C’s claim for breach of contract/unlawful deductions of commission payments, the Tribunal is invited to make a Deposit Order under ET Rule 40 on the legal and factual bases set out above. Breach of contract pertaining to a company car ET Rules[18]R relies upon ET Rule 38(1)(a) in respect of this application, as the claim has no reasonable prospect of success (emphasis added): 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; Legal & factual basis[19]The Respondent contends that the claim for breach of contract pertaining to a company car has no reasonable prospect of success on the following legal bases: i. the alleged breach occurred in February 2022 and is significantly out of time; and ii. the claim ought to have been brought under case number 2300437/2022 on 08.02.2022 and consequently should not be permitted in this matter, applying the rule in Henderson v Henderson (1843) 3 Hare 100.[20]C had the use of R’s pool car until it required repair in February 2022. Due to the cost of the repairs, insurance and the proximity of the end of the lease on the vehicle, R decided not to renew its lease or to replace the vehicle. C was offered a car allowance in lieu which she refused. Deposit order[21]In the event the Tribunal is not persuaded to strike out C’s claim for breach of contract in respect of the company car, the Tribunal is invited to make a Deposit Order under ET Rule 40 on the legal and factual bases set out above. 3. It is a fact that the claimant’s previous claim (2300437/2022) was presented on 8/2/2022 and it was withdrawn by the claimant on the 21/3/2022 and Case Number: 2301929/2024 6 dismissed by the Legal Officer on the 9/ 8/2022 (page 35). As set out by the respondent, the claimant is estopped under the rule in Henderson v Henderson (1843) 3 Hare 100 from revisiting the matters raised in that claim and she is also prevented from raising new claims which relate to the period prior to the 8/2/2022, as those matters could and should have been raised in the previous claim. 4. This claim was presented on the 9/2/2024 after Acas early conciliation which took place between 16/1/2024 and 22/1/2024. The claimant’s employment ended on the 4/2/2024. She resigned in a text message on the 22/12/2023 and she confirmed it in writing on the 3/1/2024. 5. In respect of the constructive unfair dismissal, the claimant has produced a schedule of the breaches of contract (pages 63-65). Any matter raised before the 17/10/2023 is out of time as the claimant engaged in early conciliation on the 16/1/2024. 6. Employment Judge Ramsden set out in her draft list of issues the matters the Tribunal would need to address on the issue of time limits (page 80). Furthermore, in giving directions for this hearing, Employment Judge Ramsden set out that the claimant’s witness statement should address why each matter the respondent complains was out of time were not presented within the primary time limit (three months); and why time should be extended. The claimant’s witness statement did not address this. In oral submissions the claimant referred to being allowed to pursue her claims, she did not however, address the time limit point. 7. It is observed that the claimant’s previous claim in 2022 was withdrawn due to the ‘time factor of three months’ (page 32) and this demonstrates that she was aware of the Tribunal time limits. 8. There is a reference to a breach of contract dated 14/4/2022 (referring to an email sent referring to working under protest). That matter is clearly out of time. 9. The claimant’s schedule then refers to two breaches of contract (although they are essentially the same matter) of a grievance raised and sent via email on the 10/11/2023 to Mr Button. The claimant then says that grievance letter was printed off and hand delivered to Mr Button by a colleague on the 21/11/2023. 10. On the 14/5/2024 the claimant was directed to provide the metadata in relation to that email within seven days (page 122). The claimant did not comply with that Order. Case Number: 2301929/2024 7 11. What the claimant did do, on the 6/12/2024 was to send to the Tribunal and to the respondent an email in which she said attached the metadata (page 131). The two attachments show an email sent from an email address of the claimant to her personal email address on the 10/11/2024 (page 132) and a grievance letter dated 10/11/2023 headed sent by email (page 133). That does not evidence the grievance letter being sent to Mr Button on the 10/11/2024, it evidences the claimant sending herself the grievance letter. 12. The claimant said that she sends all personal emails to herself and that is evidence by the email she sent on the 10/11/2023 (page 132). There is no evidence to show that she sent the email containing the letter to Mr Button. The claimant has had the opportunity to provide that evidence and indeed was Ordered by the Tribunal to do so; she has not taken the opportunity to provide it. 13. There is therefore no evidence of her raising a grievance and even if she did do so, she did not resign until the 22/12/2023 (page 119). She therefore waived any alleged breach. 14. Directors of the respondent gave the claimant a notice to quit the property she rented from them on 22/12/2023. The claimant sent a text message in response to that on the 22/12/2023 (page 119): ‘Thank you for your notice ending my tenancy, of course I will see you in court to evict me. I will also be giving 2 months notice, my letter will be sent tomorrow By the way Happy Christmas My letter of resignation from the company obviously will be sent tomorrow.’ 15. The letter of resignation followed on the 3/1/2024 (page 121). The claimant did not give any reason for her resignation. It can therefore be inferred that the reason was the notice to quit the property, as that was what the text message referred to. 16. In her claim form, the claimant set out that the final straw was the refusal to allow her a day off to visit her son who had been diagnosed with cancer. Some text messages appear at page 118 of the bundle, which are undated (unlike the messages produced on page 119). The claimant has also produced a ‘cut and paste’ reproduction of those text messages (in full) stated to be dated 22/12/2023 (page 216). The full messages reveal that upon her asking ‘may I leave the office at 3.30 today’ and to her son’s cancer Case Number: 2301929/2024 8 diagnosis , Ms Sheehan replied ‘Sorry to hear, the leave will be unpaid in your January salary assuming [L] is happy to cover the office in your absence this afternoon’. The claimant replied that ‘L’ was happy to cover her absence that afternoon. 17. The result of that was that the claimant was able to leave at 3.30pm to visit her son. There was therefore no refusal to allow the claimant time off to visit her son. 18. That event was not the final straw. 19. The claimant resigned with notice as she had been served with a notice to quit her property. That issue was not employment related and the notice to quit cannot have been a breach (even if innocuous) of the contract of employment. The notice to quit was completely unrelated to her contract of employment. Serving a notice to quite is not a breach of the employment contract in any form. 20. The alleged breaches are out of time. The claimant has not sought to persuade the Tribunal, despite an indication for her to do so, that it was not reasonably practical for her to present her claim within time. There was no breach of the contract of employment in November 2023. The simple fact is that although the claimant was unhappy in her employment and had been so since prior to the presentation of the 2022 claim, she resigned as she had been served with a notice to quit. There was no final straw. 21. For those reasons the constructive unfair dismissal claim is struck out as it has no reasonable prospects of success.[22]It appears that despite it not being pleaded in the ET1, the claimant has been permitted to pursue a claim for a failure to pay commission payments as either a breach of contract or an unauthorised deduction from wages. This claim has not been particularised. The claimant said that she did not earn commission as her role had changed. If the claimant did not earn commission, she is not entitled to be paid in respect of it. That is not a breach of contract in respect of commission pay or an unauthorised deduction from wages. That claim has no reasonable prospects of success.[23]Finally, in respect of a claim of a withdrawl of a company car or a pool car (it does not matter which it was) in February 2022; this is out of time. The withdrawal of the car may have occurred after the first claim was presented and if so, the claimant is not then estopped from pursuing that claim in these proceedings. The difficulty for her however, is that the claim is out of time. The claimant has not explained why it was not reasonably practical for her to Case Number: 2301929/2024 9 have presented the claim earlier and has not sought to persuade the Tribunal to extend the time limit. Not only does the claim have no reasonable prospects of success, it is out of time. The respondent has provided a rational and reasonable explanation for the removal of the car (the lease had ended, the respondent decided not to renew it and if offered an allowance in lieu)[24]For those reasons the claim is struck out in its entirety. 26/2/2025 Approved by