Employment Judge CorriganIn person for claimantMr D Dracass (instructed by Counsel) for respondentDate 10 December 2018
JUDGMENT
[1]The Claimant’s complaint was submitted out of time and the Tribunal does not have jurisdiction to hear it.[2]The Claimant’s complaint of breach of contract is therefore dismissed. ................................................
REASONS
For Judgment sent to the parties on 24 September 2018 Reasons requested by the Respondent on 25 September2018
Conclusions
[1]By his claim presented on 5 October 2017 the Claimant brought a claim of breach of contract against the Respondent. He also included a number of other claims but these were either withdrawn by the Claimant or struck out at the preliminary hearing on 8 March 2018.[2]By the date of this preliminary hearing there was therefore one remaining claim of breach of contract. The claim related to employment in 2014 and this preliminary hearing was listed to consider:2.1 Was the claim of breach of contract presented within the time limit;2.2 If not, was it reasonably practicable to present the claim within the time limit;2.3 If not, was it presented within such further period as the Tribunal considers reasonable?[3]The issue had been raised too late before the last preliminary hearing for the matter to be addressed then.[4]The Claimant accepted that the claim had not been presented within the time limit (his employment had terminated 17 June 2014) and therefore the matters remaining to be determined were the issues at 2.2 and 2.3 above.[5]The Claimant gave evidence on his own behalf. There was a bundle of documents and further documentation added by each side.[6]Based on the evidence heard and the documents before me I found the following facts.
Facts
[7]The Claimant is Bulgarian. He has a law degree and Masters in Law acquired in Bulgaria. This did not cover UK law. When he has access, he is proficient in online research.[8]The Claimant had only been in the UK since April 2014. After his dismissal on 17 June 2014 his income was minimal. He initially spent some days in temporary accommodation. His situation was precarious and his focus was on becoming settled and having a stable life in UK. Until 8 September 2014 he earned under £250 a week and paid rent of £110-£140 per week. Thereafter there was a period of approximately 9 weeks when he claimed benefits. For two months of the time after his dismissal he was without a smart phone and was focused on making ends meet (ie making just enough money to live on).[9]He did nevertheless manage to contact ACAS on 7 September 2014 and a certificate was issued on 7 October 2014. The Claimant then made a decision not to pursue his claim because of the Tribunal fees. He was not aware of the fee remission scheme. He retained an intention to take his claim to the County Court and entered correspondence with the Respondent about this between July 2016 and January 2017.[10]The fee to submit the contract claim was £160 and the hearing fee was £230. Of course the claim as a whole with the multiple other claims involved would have cost the higher level of fees (£250 for the claim and £950 for a hearing). The County Court fees for a claim under £10,000 would have been £445 to issue and £330 for a hearing. It is likely that the Claimant would have been eligible for fee remission given his low income (less than £6,000 in 2014- 2015).[11]The Claimant did seek free advice after the deadline and was told he could not do anything. He was not told about fee remission.[12]The Claimant pinpoints the end of Summer 2015 as being the moment when his finances stabilized. He began working in hotels and eventually earned better than the Minimum Wage. Since then he has issued a number of other tribunal claims. He issued one in 2015 for which he paid the fee. He issued another in 2017 for which he paid the fee. Finally he submitted another claim after July 2017 and the decision in R (Unison) v Lord Chancellor [2017] UKSC 51. He had been ready to pay a fee but then discovered it was not necessary. That claim related to an incident in July 2017 and so the deadline was in October. In the meantime this claim was lodged on 5 October 2017.[13]He found out the possible effects of the Unison decision on this claim in September 2017 whilst on holiday in Malta, through reading legal articles online. He did not want to interrupt his holiday to submit his claim. He was out of the country for the whole of September. He believes he should have had a further three months to submit his claim at that point. He also wanted to do further research prior to submitting his claim. He acted promptly on his return from holiday, submitting within days of his return.[14]He has now been refunded the fees which he paid to bring his other complaints.
Relevant law
[15]Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 provides that contract claims must be submitted within three months of the termination of employment (subject to any extension as a result of contacting ACAS).[16]One exception is where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the normal time limit in which case it can be considered by the Tribunal if it was submitted within such further time as the Tribunal considers reasonable (article 7(c)). Conclusions Was it reasonably practicable to present the claim within the time limit?[17]The Claimant was able to contact ACAS within the time limit. He made a decision not to pursue the claim because he could not afford the fee. He was not aware of the remission scheme though it is likely he was eligible. He is proficient at online research and he was capable of finding out. However he did not, and in the Supreme Court’s decision in Unison v Lord Chancellor there is some suggestion that the fee remission scheme was underutilized ie not everyone who was eligible accessed it. It was not the fees but lack of knowledge of fee remission that was the hurdle to bringing the claim.[18]The test is not whether the Claimant did absolutely everything he could have to submit his claim. The question is whether it was reasonably practicable to submit his claim within the time limit. I find it was not reasonably practicable for the Claimant to submit within the time limit. The Claimant was still relatively new to the country and during the months leading up to the deadline in his claim (early November 2014) he was focused on financial survival. I accept that despite the contact with ACAS the Claimant believed he had to pay the fee and took the decision not to issue because he could not afford it. He was not aware of fee remission. Even once he took advice after the deadline he was not informed of fee remission. If not, was it presented within such further period as the Tribunal considers reasona- ble?[19]I cannot ignore the fact that after the deadline for this complaint the Claimant did issue two other complaints and paid the fees. He was also taking action in relation to this claim in 2016 with a view to issuing proceedings in the County Court. He has always been prepared to pay the relevant court fee once his finances stabilized which was at the end of summer 2015. He could therefore have brought this claim much earlier by paying the fee. I don’t find that the Claimant submitted the claim within a further reasonable period. The original reason for not bringing the claim (unaffordability of fees) ceased to be operative at the end of summer 2015. He has paid fees to issue other claims.[20]The Claimant has only brought this claim now because of the publicity about the Unison decision which was handed down on 26 July 2017. There has also been some delay since the Unison decision.[21]At that time the Claimant was contemplating a separate claim arising out of an incident in July 2017 (which he did eventually submit to the Tribunal). He also stood to be refunded the fees in the other cases. It is surprising therefore that he was not aware of the implications for this case sooner. Nevertheless I have accepted that he was not aware of implications for bringing an old case late until September, but he could then have issued the case more promptly. He chose not to do so until he returned although he accepts he had access to a computer and was doing research whilst away as that was how he found out about the impact of Unison whilst on holiday. He had already had protracted correspondence with the Respondent over the issue and this would have been his third or fourth tribunal claim.[22]I accept that it is not ideal to issue a claim whilst on holiday and that he acted quickly on his return, but as he was away for a month and needed to act promptly it was not reasonable to wait. He relies on there normally being a three month time limit but that is not a reasonable time period to take in these circumstances when the claim was already substantially late.[23]It follows that the Tribunal does not have jurisdiction to hear the Claimant’s complaint. ................................................
Conclusions
[1]The Respondent’s application for costs is refused.[2]The Claimant’s deposit in respect of his breach of contract claim shall be refunded to him.[1]The Respondent’s position is set out in the letter to the Tribunal dated 3 April 2018. The application is in respect of substantial costs incurred prior to and in relation to the Preliminary Hearing of 8 March 2018 (£16,067.70), in addition to the costs incurred by the further hearing on 16 August 2018, subject to the limit the Tribunal can award of £20,000.[2]The Claimant, by his claim presented on 5 October 2017, initially claimed disability discrimination, dismissal for asserting a statutory right, breach of contract, notice pay, unpaid wages and holiday pay. All of the claims were substantially out of time but were brought late as a result of R (Unison) v Lord Chancellor [2017] UKSC 51. The Claimant raised the time point in his claim.[3]The Respondent accepted that some holiday pay was outstanding and he did receive a payment of holiday pay some three years after his employment ended as a result of bringing his claim.[4]Otherwise, the Respondent’s Response submitted that the claims apart from the holiday pay complaint had little or no reasonable prospect of success on the merits. By letters dated 5 December 2017 and 6 December 2017 the Respondent applied for strike out or a deposit order and requested that the existing Preliminary Hearing deal with these issues. The Preliminary Hearing was postponed and re-listed on 8 March 2018 by the Tribunal in order to deal with the applications for strike out/deposit order.[5]The question of time limits which had been raised in the claim was overlooked until the Respondent raised it by letter dated 2 March 2018. Unfortunately that was too late for it to be considered at the preliminary Hearing on 8 March 2018, for the reasons set out in the Case Management Order dated 8 March 2018.[6]Prior to the Preliminary Hearing on 8 March 2018 the Claimant withdrew the disability discrimination claim. He also withdrew his wages claim during that Preliminary Hearing. He said on 16 August 2018 this was because it was for £52 and it was not worth contesting.[7]The remaining claims, save for breach of contract, were struck out. These were unfair dismissal for asserting a statutory right; notice pay and holiday pay. They were struck out by Employment Judge Wallis as they had no reasonable prospect of success as there was no assertion of statutory right; he had not worked the one day’s notice and was therefore not entitled to pay and the holiday pay claim related to the remainder of the alleged fixed term and not to holiday accrued (the accrued holiday pay having been accepted by the Respondent).[8]A deposit was ordered to be paid in respect of the remaining breach of contract on the basis of the merits of the substantive claim as set out in the Deposit Order dated 8 March 2018. That claim has now been dismissed on 16 August 2018 on the basis it was out of time. The same time limit decision would likely have applied to the struck out claims in any event, the same principles on time limits applying. Rules in respect of costs[9]The Respondent relies on Rule 76 of the Employment Tribunals Rules of Procedure which states “(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… has acted….unreasonably in either the bringing of the proceedings…or the way that the proceedings…have been conducted; or (b) any claim or response had no reasonable prospect of success…[10]Rule 84 provides that the Tribunal may have regard to the paying party’s ability to pay.[11]In respect of the deposit in relation to the breach of contract claim Rule 39 (5) states that if the Tribunal decides the specific allegation (breach of contract) against the Claimant for substantially the reasons given in the deposit order then the Claimant shall be treated as having acted unreasonably in pursuing the allegation…and the deposit shall be paid to the Respondent. Otherwise, the deposit shall be refunded.
Conclusions
[12]Although the Tribunal is obliged to consider a costs award where there has been a finding that a claim or claims had no reasonable prospect of success, it is not obliged to make such an order. Whether to do so is at the Tribunal’s discretion.[13]The Respondent asserts that the Claimant demonstrated a level of legal acumen and exhibited knowledge of employment law. Implicit in this is that more should therefore be expected of him in terms of understanding the merits of his case and prospects of success. The Claimant has Bulgarian law degrees. These did not include UK law. He is proficient in online research and has experience of bringing other employment claims. Otherwise, he is not legally qualified here, nor is he an expert in employment law. He is a litigant in person.[14]The claims of disability discrimination and unpaid wages were withdrawn and there was no finding that there were no reasonable prospects of success. They were withdrawn following receipt of the Response and either before or at the first Preliminary Hearing. The Respondent therefore benefited from an early withdrawal of those claims. I don’t consider the circumstances such as to merit a costs award.[15]The claims for unfair dismissal, notice pay and holiday pay were struck out as they had no reasonable prospect of success. The essence of the unfair dismissal claim was that the Claimant was dismissed the day after he said he no longer wanted to work 48 hours a week and wanted to withdraw his opt-out. It was found this could not amount to an assertion of a statutory right (within the meaning of s104 Employment Rights Act 1996). However in my view it is not unreasonable for a litigant in person to consider a dismissal for this reason (if established on the facts) was an automatic unfair dismissal for asserting a statutory right and to seek to have that aired at a Preliminary Hearing. It was so aired, with each side giving submissions and the Respondent benefitted from a strike out at an early stage of the proceedings. Similarly the claim for notice pay (which the Claimant had not received) was aired and the Respondent benefited from a strike out at an early stage of the claim. Although the remaining claim for holiday pay was struck out, in fact the Respondent had already agreed there was holiday pay still due and agreed to pay it. The Claim was clearly necessary in that respect as otherwise the Claimant would not have received that.[16]In any event I do not consider that it was unreasonable for the Claimant to seek to make submissions at the preliminary hearing prior to the decision to strike out his claims. The Respondent has benefited from an early strike out.[17]The breach of contract claim has been dismissed on the basis of the time limit/jurisdiction point, which would also have applied to the claims that were struck out. It is unfortunate that this point was identified too late to include in the first Preliminary Hearing, as had that point been considered first, it likely would have been the end of the matter. This is no fault of the Claimant, who raised the issue in the claim form. Although the claims were brought out of time, I do not consider this was unreasonable. The Claimant had arguable points to make in respect of the extension of time. I did find that it was not reasonably practicable to lodge the claim in time but that it was not then submitted within a further reasonable period. It could have been submitted sooner. Nevertheless the Claimant’s case in respect of the reasonable period was arguable. There is no basis for finding the Claimant should pay costs for the second preliminary hearing.[18]Overall, the claims have been struck out/dismissed or withdrawn at a preliminary stage, saving the Respondent from defending the claims further. I do not consider it appropriate to award costs.[19]In any event, the Claimant’s evidence as to his current means was that he works 20-25 hours a week in a casino. He is only guaranteed 14 hours. His wage is at Minimum Wage level. He earns £700-£800 net per month out of which he pays £400 per month rent and £300 per month loans. The remaining money he spends on food. He has no savings. I find therefore that he is not in a position to be able to pay a costs order. Indeed during the hearing the Respondent conceded he could not afford anything like the amount claimed.[20]Moreover, the Respondent is of course entitled to incur such legal costs as it chooses, but an application for a £20,000 costs order at the preliminary stage of a case of this nature is, in my view, disproportionate.[21]The claim for breach of contract was dismissed due to expiry of time limits and not for the reasons set out in the deposit order therefore the Claimant is entitled to be refunded his deposit (rule 39(5)). ................................................