Miss L Singh v Optimal Claim Ltd (T/a Optimal Solicitors): 2402039/2022 and 2405578/2022
EMPLOYMENT TRIBUNALS
Case No 2402039/2022, 2405578/2022
Between
Miss L Singh Claimant by respondent’s contract claim: Optimal Claim Limited (t/a Optimal Solicitors)ClaimantOptimal Claim Limited (t/a Optimal Solicitors) Respondent to respondent’s contract claim: Miss L SinghRespondent
Before
Employment Judge HolmesMr T Kenward (instructed by Counsel) for claimantMr F Jaffier (instructed by Advocate) for respondentDate 15 March 2023
JUDGMENT
[1]The claimant was constructively, and hence wrongfully, dismissed.[2]The claimant is entitled to damages for breach of contract, in the form of notice pay of £1,315.08. This is a net sum, and no deductions for tax and national insurance should be made from it.[3]The respondent made unlawful deductions from the claimant’s wages in the sums of £973.03 and £255.00, which sums the respondent is ordered to pay to the claimant. These are net sums, and no deductions for tax and national insurance should be made from them.[4]The respondent’s contract claim is dismissed.
REASONS
[1]By a claim form presented to the Tribunal on 18 March 2022 the claimant brought claims for notice pay, deductions from wages, and holiday pay. She resigned from her[2]The respondent in its response and Grounds of Resistance dated on 31 May 2022 denies that the claimant was constructively dismissed, and, further raises an employer’s contract claim, in which it seeks to recover from the claimant some £2401.97, being the balance of the cost of the claimant’s practising certificate and recruitment fee that the respondent contends the claimant is liable to repay to the respondent following her resignation. Whilst this respondent’s contract claim ought to have been processed by the Tribunal as a separate claim , with its own case number , it has not been. The claimant has responded to this claim, however, and her response is at pages 55 to 58 of the bundle.[3]The “Code “V” in the heading indicates that this was a remote hearing by CVP , to which the parties have consented. A face to face hearing was not held because both parties were able to deal with the hearing remotely.[4]The claimant gave evidence, but called no witnesses. For the respondent Stephanie Matthews, a solicitor and the claimant’s line manager, gave evidence. There was an agreed bundle, and references to page numbers are to that bundle. The evidence was concluded within the one day allocated for the hearing, but there was insufficient time for submissions. The parties’ representatives accordingly made written submissions.[5]The respondent’s written submissions were received on 16 September 2022, but the claimant’s were not received until 16 November 2022. The Tribunal considered its judgment in Chambers on 13 December 2022, by which time the respondent’s application to adduce further evidence had been received. The Employment Judge apologises for the delay in promulgation of this judgment , occasioned by , in part, the application made by the respondent, and , in part, by the pressure of judicial business. The respondent’s application to adduce further evidence.[6]The reason for that delay , in part, was that an application was made by the respondent, by letter of 6 September 2022, for the Tribunal to receive into evidence and consider in its deliberations further documents, being a “redacted grievance investigation” document , a “Lauren Singh - response to SARs” document, and a “Grievance Questions Email”.[7]By email of 16 September 2022 the claimant (acting herself, for Mr Kenward is retained on direct public access) wrote to the Tribunal objecting to the application. This application led to the claimant not submitting her submissions, in the belief or expectation that this application should be determined first.[8]Mr Jaffier’s email of 6 September 2022 is rather brief. He says very little in support of the application. He appreciates that the documents were not put to the claimant in cross – examination, and advances them in support of the respondent’s contention that there were continuing exchanges between the claimant and Stephanie Matthews, who was trying to support her.[9]By contrast, the claimant’s response on 16 September 2022 is rather more detailed. In it she makes the following points. Firstly , the application (for that is what it is) is made at a very late stage in the proceedings, when both sides have closed their respective cases.[10]Secondly, she says this: “The e-mail attaches the proposed additional evidence which is in the form of documentation relating to the detailed answers provided by the Respondent’s witness, Stephanie Matthews, to questions which were asked of her as part of the Respondent’s grievance investigation. In addition to the detail of the answers which are provided in a document of some nine pages, Stephanie Matthews had also (it seems) included extracts from approximately 30 file notes or task notes and had cut and pasted these extracts into the body of the document. The answers also provided detailed information from at least five numbered case files. In the references made to the information from three of these numbered case files (at the end of the document) Stephanie Matthews was seeking to rely (for the purposes of responding to the grievance) on matters which she claimed had come to her attention after the end of the Claimant’s employment.” 10. She goes on to observe that this is material which could potentially have been included in the witness statement of Stephanie Matthews but was not. She is not in a position to deal fully or adequately with this new evidence at this stage, not having access to the files and / or files notes in question other than to the extent that the document cuts and pastes highly selective extracts from the file notes in question.[11]She goes on to point out that there has been no prior other relevant disclosure as to these issues, putting her at a massive disadvantage , as the respondents have access to the source documentation and she does not. This, she goes on to note, is against the background of the history of disclosure by the respondent , which was discussed in some detail in the course of the hearing, and of which she reminded the Tribunal.[12]In short, the respondent could also have introduced the matters set out in the additional documentation as part of the witness statement of Stephanie Matthews. It did not do so[13]She concluded by contending that she would be significantly prejudiced by the respondent seeking to adduce new evidence at this late stage of the proceedings, and went on the raise the issue of proportionality, and costs.[14]In reply, Mr Jaffier on 16 September 2022, objected to the suggestion that the claimant would be significantly prejudiced by this new evidence. He acknowledged that the claimant was not cross – examined upon it , and went on to say how he did not anticipate that the Tribunal would give the documents too much weight, and that, therefore the claimant’s case could not be prejudiced. Ruling.[15]The Employment Judge apologises that this issue had not been determined ahead of the chambers deliberations, but it appears not to have been re-referred. Now[16]A further and relevant consideration is that the claimant claims wrongful, not unfair dismissal, and the respondent counterclaims contractual damages. Were the claims to have included unfair dismissal, this additional material may have been relevant to issues on remedy, such as Polkey , or reduction in the basic and/or compensatory awards for contributory conduct. None of those issues, however, arise, and the respondent is solely seeking to advance it in support of its case that there was no fundamental breach of the employment contract. As will be apparent, given the Tribunal’s findings as to the seriousness of one major aspect of the respondent’s admitted conduct, this material can have no bearing on that aspect of the claim either.
Findings.
[17]Having heard the evidence before it at the hearing, and disregarded any further evidence that the respondent has sought to put before it, the Tribunal finds the following relevant facts:17.1 The claimant qualified as a Solicitor on 7 August 2020. She applied for the vacancy with the respondent as a Family Solicitor through a recruitment agency, SaccoMan in May 2021 . She was interviewed by Stephanie Matthews , Team Leader of the Family Team , and two others, on the 26th May 2021.17.2 The claimant had under 1 year’s post-qualification experience at that time. She was offered the post (this is not documented in the bundle) and started her employment on 6 September 2021.17.3 The following were express terms of the claimant’s contract of employment (pages 76 to 94 of the bundle) : Clause 4.2 “The first three months of your employment will be a probationary period. During the first month of the employment, the employer may terminate the employment without a period of notice. Once you have been continuously employed for at least one month the Company may terminate your contract at time on one week's prior notice. You may terminate your contract within this time with one months’ notice. We may, at our[18]Those, then are the relevant facts. There has been some issue upon the facts, and the claimant has invited the Tribunal to prefer the evidence of the claimant where there is a conflict. The basis for this is set out in para.39 of Mr Kenward’s submissions where he relies upon a lack of transparency which he submitted was not just a feature of the appraisal process and probationary period decision-making process, but has also been a feature of the Tribunal proceedings .[19]In support of that he set out the history of disclosure, and how request was specifically made for disclosure of documents which would have been relevant to the issues in the case, including the matters relied upon by the respondent in its probationary period decision and on the probationary review form, so that the evidence requested included the following:• evidence of the total amount billed by the claimant during her employment;• reports regarding her performance;• evidence of the training the claimant undertook regarding the case management software, Pro-Claim;• correspondence between the Stephanie Matthews and HR regarding the decision to extend the claimant ’s probation period;• evidence of complaints raised by clients in respect of the claimant , as stated on the probation review form;• evidence of the “couple” of clients lost due to the claimant as stated on the probation review form;• evidence of bulk renewal fee for practising certificate.[20]Despite the respondent stating that a reasonable search would be undertaken for the documents sought , it did not thereafter revert back to the claimant . The bundle was prepared , and making reference to exchanging Statements, but without having made any further reference to the requested disclosure. The claimant chased up the outstanding disclosure in August 2022. The respondent replied on 23 August 2022, setting out the same list as had previously been supplied, stating that it was the respondent’s position “that these documents cannot be located or they do not exist”.[21].Mr Kenward invites the Tribunal to consider this when assessing the credibility of Stephanie Matthews. The Tribunal does, and also notes the application made after the hearing referred to above, in which the respondent sought to admit the very documents disclosure of which the claimant had been seeking. Again, no explanation of the reason why these documents were not disclosed at the appropriate stage has been proffered .[22]There are other reasons which have led the Tribunal to question the reliability of Stephanie Matthews as a witness. Both the Grounds of Resistance filed by the respondent and her witness statement fail to address some quite significant parts of the claimant’s case. The former does not condescend to particulars in response to those matters set out in some detail in para.1 of the Grounds of Claim, the latter does not deal at all with the allegation that the claimant was told that there was a client complaint against her, for the first time, in her appraisal meeting, nor with the contention that the[23]For the claimant Mr Kenward provided written submissions on 16 November 2022. It is not intended to repeat them here, they are the Tribunal file.. Suffice it to say that he took the Tribunal through the relevant law on constructive dismissal, the implied term of trust and confidence, and the tests to be applied in respect of the respondent’s counterclaim. He made submissions as to why the Tribunal should, in its fact finding , prefer the evidence of the claimant to that of Stephanie Matthews. He also set out the effect of the Tribunal’s findings , if in the favour of the claimant , in terms of the claims she makes, and the counterclaim.[24]For the respondent Mr Jaffier also made written submissions , on 16 September 2022. Likewise they will not be repeated here. He made much of the claimant’s failure to raise a grievance, which she accepts she did not do. He seeks to persuade the Tribunal to infer from this that the claimant did no really have issues with her employment. He points out that the claimant does not, in her grievance , expressly say that she did not agree to the extension of her probation. He goes further, and says that she agreed to it. His submissions, however, do not directly address the issue of the forgery of the claimant’s electronic signature on the record of the appraisal. He submitted that the real reason that the claimant resigned was that she had found another job, and that she was claiming constructive dismissal to avoid her liabilities to repay the sums that the respondent was claiming against her.
The Law.
[25]Section 95(1)(c) of the Employment Rights Act 1996 provides that there is a dismissal when the employee terminates the contract with or without notice in circumstances such that he or she is entitled to terminate it without notice by reason of he employer’s conduct.[26]The classic statement of the law on constructive dismissal is set out in the judgment of the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] ICR 221 which held that for an employer’s conduct to give rise to a constructive unfair dismissal it must involve a repudiatory breach of contract. There are three elements to a constructive dismissal, namely: That there was a fundamental breach of contract on the part of the employer; The employer’s breach caused the employee to resign; and The employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal. In order for a Tribunal to deal with these matters it must identify the contractual term or terms, either express or implied, which have allegedly been breached. It must then go[27]That term, as recognised in cases such as Wood v. W M Car Services (Peterborough) Ltd [1981] IRLR 347 and Mailk v BCCI [1997] IRLR 462 is that the respondent will not , without reasonable and proper cause, conduct itself in a manner which is calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee.[28]It is clear that in order to establish that there has been a fundamental breach of contract it is not necessary to show one fundamental act or omission. There does not need to be one event, there can be a series of events which cumulatively amount to a breach of that implied term. In such circumstances, where there is not one individual act or omission relied upon, but a series of actions that are alleged to amount to that breach, where they culminate in one particular act that is known as the “last straw”, and in order to establish that a claimant has been constructively dismissed there has to be a last straw. Indeed in the leading case which the Tribunal is considering on this issue, London Borough of Waltham Forest v Omilaju [2005] IRLR 35, a decision of the Court of Appeal and the judgment of Lord Justice Dyson, it is clear from the discussion in that case of the nature of constructive dismissal, that in order for there to be a constructive dismissal where there is a series of acts, the final straw must be there, and although the final straw may be relatively insignificant, it must not be utterly trivial. There must be a final straw, otherwise there can be no constructive dismissal. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. The judgment goes on to say: “A claimant cannot subsequently rely on those acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.” Moreover, and this is an important part of the judgment: “An entirely innocuous act on the part of the employer cannot be a final straw even if the employee genuinely but mistakenly interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee’s trust and confidence have been undermined is objective.” Discussion and findings.[29]The claimant has relied upon a course of conduct , going back to the start of her employment as cumulatively constituting the fundamental breach of contract on the part of the respondent that she relies upon. The claimant contends that the respondent was in repudiatory breach of the implied term of trust and confidence through the series of actions set out in paragraph 2.2 of the Grounds of Claim , as set out below:(a) in not allowing her to work from the respondent’s office (where she would be better placed to have appropriate training, supervision and support (with this also alleged to be in breach her contract of employment at clause 19 although it should be noted that the contract has a typographical error as a clause numbered as clause 13.1 then appears under clause 19); and / or(b) in unreasonably allocating complex and / or high value cases to her given her level of experience: and/or(c) in grossly under-billing clients in relation to cases allocated to C making it impossible for her to reach her billing target, and therefore directly impacting on her financial performance; and/or(d) in making unfair and untrue statements in the written record of her appraisal; and/or(e) in unreasonably extending her probationary period.[30]In approaching these issues, the Tribunal has had to resolve some conflicts of evidence, but in overall terms it is clear that the job that the claimant took up with the respondent turned out not to be what she expected. That is not, of course, in itself enough to amount to a fundamental breach of contract , and the Tribunal bears in mind the words “without reasonable and probable cause” in the formulation of the implied term of trust and confidence.[31]It also bears in mind that in order for the term to be fundamentally breached, there must be serious damage to the relationship. As was stated in Frenkel Topping Ltd v King UKEAT/0106/15/LA by Langstaff P at paras. 11 to 14: “11. The Claimant could only claim to have been unfairly dismissed if the employer had broken its contract with her, if the breach was sufficiently serious to be a repudiatory or, to use another description, fundamental breach of the contract, if she had resigned at least partly in response to the breach, and if before doing so she had not by her actions or inaction affirmed the contract. As to that, the Claimant alleged that there had been seven matters, each of which individually or all of which cumulatively constituted a repudiatory breach. The thrust of her case was that the breach or breaches upon which she relied were breaches of the implied term of trust and confidence. It is worth restating the classic formulation of that term, as derived from Malik v BCCI [1997] UKHL 23 though this formulation derived in turn from earlier cases, including in particular Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84:[32]Similarly in Croft v Consignia [2002] IRLR 851 Lindsay,P. said, at para. 69 of his judgment in the EAT: “Ms Croft asserted a breach of the implied term of trust and confidence. It is an unusual term in that it is only breached by acts or omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows. Ms Croft relied on the Post Office's discriminatory handling of the toilets problem (as she asserted it was) and their attitude to medical information as the causes of the serious damage she needed to assert.”[33]Applying that stringent test , the Tribunal finds that much of what the claimant complains of at items (a), (b), and (c) above can be viewed as unfortunate if disappointing aspects of the reality of the job that she had successfully applied for. New employment is always something of a leap in the dark, and it does not amount to a breach of the implied term of trust and confidence that the job, or the conditions in which it is carried out , are not quite what the employee expected, or even that they may have been led to expect.[34]That the claimant was working alone, because few other colleagues were coming into the office, for example, is not a breach of the implied term. It was not without[35]In terms of the claimant’s other complaints about workload, file complexity, billing requirements , and general lack of support ,these , the Tribunal considers are the types of “lesser blows” identified by Lindsay P. in Croft cited above which the parties to an employment contract are expected to have to absorb. The claimant’s expectations of the job, and the respondent’s expectations of her, were , the Tribunal considers, something of a mismatch, but all this would not, in the view of the Tribunal, have been enough to establish a fundamental breach of the implied term of trust and confidence.[36]Where, however, as was recognised in the grievance outcome , the respondent accepts that there was some conduct of which the claimant could complain, is in the failure to raise with her at the time, matters which were likely to affect her probationary review. She was therefore unaware of these issues, and how they might affect her probation. This is particularly true of the alleged complaint made by a client, which was not raised with the claimant at the time, but was brought up, with no prior warning, in the appraisal. In short, therefore, its inclusion in the probationary review was something of an “ambush”.[37]That, coupled with other instances where the respondent accepted in the grievance outcome that the claimant should have been given more warning and feedback , begin to form the basis for a finding that the respondent had , to a degree, so conducted itself in a manner , if not calculated to, likely to ,destroy or seriously damage the relationship of trust and confidence between employee and employer.[38]That, however, is only the beginning, as then, having invited and obtained the claimant’s comments on the appraisal form, and having the meeting on 1 December 2021, the respondent then produced the completed review form, with Stephanie Matthews’ scores and comments thereon, after the meeting. It was not provided to the claimant for comment, but as an agreed document, with her purported signature (if electronic) upon it.[39]This is an aspect of the conduct of the respondent which, the Tribunal considers , if taken alone, regardless of whether there was any antecedent conduct which could contribute to a cumulative fundamental breach of contract on the part of the respondent, amounted in itself to a fundamental breach of the implied term of trust and confidence. It is item (d) of the claimant’s particulars. Whilst not so expressed, this amounted the forgery (i.e the completion electronically of her name in a signature box) of the claimant’s name on the probationary review document (page 105 of the bundle) . That was admitted by the respondent not to have been signed or authorised by the claimant, and to that extent was a forgery. This was no technicality, or of no consequence, its effect (and possibly its purpose) was to make it appear that the claimant had agreed to things proposed in her probationary review, particularly its extension, when she had not.[40]It is hard to imagine anything more likely to seriously damage the relationship of trust and confidence between employer and employee than forging internal documents to give a misleading impression of what was agreed in a meeting to consider extending the probationary period. That this should be done by a firm of solicitors , from whom the[41]That , the Tribunal concludes would have been enough in itself to constitute a fundamental breach of the implied term of trust and confidence. Coupled with the unfair appraisal by ambush , it is certainly more than enough of a last straw to constitute a fundamental breach of the implied term of trust and confidence. It is also of note that tis issue is not addressed at all in Mr Jaffier’s written submissions, or Stephanie Matthews’ witness statement.[42]That, however, is not the end of the matter, as the claimant must resign in response to the fundamental breach. The respondent contends that she did not do so, arguing that she resigned because she got a new job, or that she delayed too long in resigning.[43]The law on affirmation or the effect of delay in a constructive dismissal claim was considered in Chindove v William Morrisons Supermarkets Limited [2014] UKEAT/0043/14/BA , cited by Mr Kenward, where Langstaff,J said this: “He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time. The reference to time is because if, in the usual case, the employee is at work, then by continuing to work for a time longer than the time within which he might reasonably be expected to exercise his right, he is demonstrating by his conduct that he does not wish to do so. But there is no automatic time; all depends upon the context. Part of that context is the employee's position. As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 , deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community. His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration. In other words, it all depends upon the context and not upon any strict time test”.[44]The claimant started looking for new employment after her probation was extended on 1 December 2021. She obtained an offer of employment on or about 9 or 10 December 2021, and resigned on 13 December 2021. That is only 12 days, of which only 9 were working days. 1 December 2021 was a Wednesday and 13 December 2021 was a Monday. The Tribunal does not consider that the claimant by delaying her resignation that long, whilst she found alternative employment, affirmed the contract, or waived the breach. Nor does it consider that the claimant resigned because she had found another job. She only started searching for another job after the probation review[45]Mr Kenward submits that the effect of the Tribunal so finding will be as follows: a.)The deductions made in the December payslip (page 121 of the bundle) of £973.03 in respect of the recruitment fee and £255 in respect of the practising certificate fee so that the net pay of the claimant was reduced to nil, were unlawful . The claimant seeks the repayment of the sums of £973.03 and £255 as unlawful deductions. Mr Jaffier accepts that if the Tribunal finds that the claimant was constructively dismissed, the respondent cannot justify these deductions, and these sums are due to the claimant. b)The heads of claim in respect of the final 9 days worked in the sum of £1038.46 gross and holiday pay in the sum of £461.53 gross (making a total of £1,499.99) are effectively duplicate claims as these are the gross sums from which the deductions in the December payslip were made, so that restoring the unlawful deductions effectively puts the claimant in the position of having been paid the pay and holiday pay to which she was entitled. No further award is therefore sought. c) The claimant also claims for notice pay in the sum of £1,793 net on the basis that the claimant would have been entitled to one months’ notice pay under the contract of employment , but for the constructive dismissal which took effect immediately. It can be seen that her taxable gross pay for a month was £2,500 and her net pay £1,793.04 (page 119 of the bundle). However, her new employment started on 5 January 2022, 23 days after her resignation, so that she accepts that she would need to give credit for her net pay for 8 days in her new job which would be £477.96 (the net monthly figure can be seen in the payslips at pages 122 and 123). On this basis the claimant would be entitled to an award of £1,315.08 for notice pay. d) The issue as to whether or not the claimant is entitled to notice pay ultimately depends upon the Tribunal determining whether the effect of the correspondence on 13 December 2021 (pages 107 to 110 of the bundle) involved the claimant having waived any right to notice. For the respondent Mr Jaffier has not addressed this issue either in his written submissions.[46]The Tribunal’s view is that the claimant is entitled to notice pay. When an employee accepts a repudiatory breach on the part of an employee, they can resign with or without notice. The claimant did the former. Had she done the latter, she would then have been susceptible to the argument that in giving notice, she affirmed the breach, and lost the right to claim constructive dismissal. As it was she faced that argument after 13 days, giving notice would have been even more perilous for her. In those circumstances the Tribunal finds that she was indeed entitled to one month’s notice pay, less what she earned in mitigation.[47]It follows, of course, that the respondent’s contract claim must fail, as Mr Kenward submits , on the grounds that the respondent’s repudiatory breach will mean that it
The Law.
[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case Number: 2402039/2022 1 EMPLOYMENT TRIBUNALS Claimant: Miss L Singh Claimant by respondent’s contract claim: Optimal Claim Limited (t/a Optimal Solicitors) Respondent: Optimal Claim Limited (t/a Optimal Solicitors) Respondent to respondent’s contract claim: Miss L Singh Heard at: Manchester; on the papers On: 2 April 2024 Before: Employment Judge Holmes (sitting alone) Representatives For the claimant: Written representations For the respondent: Written representations COSTS JUDGMENT It is the judgment of the Tribunal that: The claimant’s application for costs was made out of time, and the Tribunal does not grant any extension of time for the application to be made. It is dismissed.
The Law.
[1]By a claim form presented to the Tribunal on 18 March 2022 the claimant brought claims for notice pay, unlawful deductions from wages, and holiday pay. She resigned from her employment with the respondent on 13 December 2021, and claimed that she was constructively dismissed. The respondent defended the claims, and brought an employer’s contract claim against the claimant.[2]By a reserved judgment sent to the parties on 17 March 2023 the claimant’s claims succeeded, and the respondent’s contract claim was dismissed.[3]By a letter to the Tribunal dated 13 September 2023, the claimant made an application for costs against the respondent. The respondent responded to the application by written representations of 11 December 2023. Case Number: 2402039/2022 2[4]Both parties agreed to the application being determined on the papers, and the Employment Judge has accordingly done so. There was an agreed bundle for the costs hearing, and reference to page numbers are accordingly to that bundle. The application and the response – initial time limit issue.[5]The application is set out in an undated document (pages 44 to 50 of the bundle). The claimant , who is a solicitor, but who was represented at the final hearing by counsel, seeks costs, or a preparation time order, against the respondent on grounds (1)(a) and (1)(b) of rule 76. In particular , the claimant relies upon breach of a case management order, in relation to disclosure, and unreasonable conduct of the proceedings. Whilst undated, the application was received by the Tribunal on 13 September 2023.[6]The respondent’s written representations take the initial point that the application has been made out of time, citing rule 77. The Tribunal will accordingly address that issue at the outset. Rule 77.[7]The provisions of rule 77 are as follows: A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties.[8]The chronology of the judgment and subsequent applications is as follows. The reserved judgment was sent to the parties on 17 March 2023. The respondent made application for a reconsideration (unfortunately also undated) which was received on 31 March 2023 (pages 22 to 31 of the bundle). That application was rejected by letter from the Tribunal of 30 August 2023 (pages 32 to 34 of the bundle). The respondent appealed to the Employment Appeal Tribunal (again, the Grounds of Appeal are undated, at pages 35 to 39 of the bundle, and are erroneously dated 27 March 2024 in the Index to the bundle) , and by letter dated 24 October 2023 the appeal was rejected on the “sift” by the EAT (pages 40 to 43 of the bundle).[9]The first question therefore is when was “the judgment finally determining the proceedings” for the purposes of rule 77?[10]The respondent’s submission is that the rules required the application to be made within 28 days of the judgment being sent to the parties. As is submitted, as the judgment was sent to the parties on 17 March 2023, the time limit for making the application expired on 14 April 2023. It was not made until 13 September 2023, just under 5 months out of time.[11]The claimant has not replied to this submission, which is a little surprising, given that she is a solicitor, has access to employment counsel, and is clearly able to conduct legal research.[12]On the face of matters, the respondent’s contention that the application is out of time is correct. That, however, may not be as straightforward a conclusion as first Case Number: 2402039/2022 3 appears. That is because the respondent , firstly, applied for, unsuccessfully, reconsideration, and then, also unsuccessfully, appealed.[13]Being made as it was on 13 September 2023 the claimant’s application for costs was made within 28 days of the rejection of the application for reconsideration, and, in fact, before the rejection of the respondent’s appeal to the EAT.[14]The question therefore is what is the effect of either the reconsideration application, or then the appeal , upon the time limit for the making of an application for costs?[15]Save for the respondent’s submissions, neither party has addressed these specific issues, but the starting point must be the wording of the rule itself. It refers to time running from the date of the judgment finally determining the proceedings.[16]Was the rejection of the respondent’s application for reconsideration a judgment which finally determined the proceedings? In the view of the Employment Judge it was not. The application was considered by the Employment Judge under rule 72(1) of the 2013 rules of procedure, which provides: (1) The Tribunal shall consider any application made under rule 71. If the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Tribunal’s provisional views on the application.[17]Thus, where the Tribunal has exercised its powers under rule 72(1) in this way, there is no judgment , and the Tribunal’s letter dated 30 August 2023 is not (although it is described as such in the Index) a judgment. It is merely , as the rule requires, the Tribunal informing the parties that the application for reconsideration has been refused.[18]On that basis the Tribunal’s letter of 30 August 2023 cannot be regarded as the judgment finally determining the proceedings, and so the time for making an application for costs cannot run from that date.[19]That leaves the appeal. Does the rejection of the appeal by the EAT under the sift procedure amount to a judgment finally determining the proceedings? At first blush, the answer would appear to be in the negative, for similar reasons that apply to the rejection of the reconsideration application. Again, there is no judgment, the appeal was rejected under rule 3(7) of the Employment Appeal Rule 1993, which provides: (7) Where it appears to [the Appeal Tribunal] or the Registrar that a notice of appeal or a document provided under paragraph (5) or (6)—(a) discloses no reasonable grounds for bringing the appeal; or Case Number: 2402039/2022 4(b) is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of proceedings, the Appeal Tribunal or the Registrar shall notify the Appellant or special advocate accordingly informing him of the reasons for its opinion and, subject to paragraph (10), no further action shall be taken on the notice of appeal or document provided under paragraph (5) or (6).[20]Thus, rather as with rule 72 of the Employment Tribunal’s rules, under rule 3(7) no judgment is issued, the appellant is notified to the EAT’s opinion and that no further action shall be taken on the appeal.[21]The only exception to this that the Employment Judge has been able to locate is where the EAT issues a judgment , and that then finally determines the employment tribunal proceedings. This is what occurred in Soll (Vale) v Jaggers UKEAT/2018/16/DA . In that case the Employment Tribunal had conducted a hearing on liability only, with remedy to be determined at a later date. In determining liability for constructive dismissal in the claimant’s favour however, it made findings that would lead to no potential deduction being made for the chance that the claimant would have been fairly dismissed in any event, on the basis of Polkey . The respondent appealed the liability judgment in that regard, and the EAT upheld the appeal, finding that the claimant would inevitably have been dismissed in any event, so would only receive a nil award. On that basis , no remedy hearing was required.[22]In rejecting an argument that the effect of the EAT’s judgment was not finally to determine the proceedings, so that any costs application had to be made within 28 days of the Tribunal’s original judgment HHJ Eady QC (as she then was) said this: “ Costs before the ET 22. The first question raised relates to the application for costs before the ET, that is: whether the Respondent is able to make an application for its costs in the ET proceedings given that this was made outside the 28-day time limit as calculated from the last ET Judgment.[23]Accepting that “proceedings” in Rule 77 of the ET Rules refer to proceedings in the ET and not the EAT, in setting aside the ET’s Judgment and substituting my own finding that there should be a nil award in this case, I was exercising the power conferred on the EAT by section 35(1) of the ETA and thus exercising the powers of the ET; it was my Judgment that finally determined the ET proceedings for the purposes of Rule 77. The Respondent has made its application for costs in those proceedings - made both to the EAT and the ET - within the required 28-day time period.[24]In reaching this view, I consider it is supported, not undermined, by the definition of “judgment” at Rule 1(3) of the ET Rules. That definition clearly distinguishes between proceedings and the individual Judgments that might be given in those proceedings, which might be on liability, remedy or costs, or a combination of any of those. In the present case, the ET’s Judgment had not determined the proceedings before it because it was still due to hold a Remedy Hearing. It was my Order which disposed of any need for a Remedy Hearing and thus, absent any appeal to the Court of Appeal, finally determined the proceedings.” Case Number: 2402039/2022 5 23. Thus, in those , very specific , circumstances, a judgment of the EAT did finally determine the tribunal proceedings. That, however, the Employment Judge considers, is a rare instance where the EAT did so, and in any event, there was in that case, as there is not in this, a judgment of the EAT. 24. The Employment Judge is therefore quite satisfied that neither the application for reconsideration nor the appeal to the EAT had the effect of delaying the time limit in which the claimant was required to make her application for costs beyond 28 days from when the Employment Tribunal’s judgment was sent to the parties.[25]The respondent’s contention that the application has been made out of time is thus correct. Extension of time.[26]Rule 77 makes no provision for extension of the 28 day time limit (whereas its predecessor , rule 38(7) of the 2004 rules, did). Rule 5 of the 2013 rules, however, does give the Tribunal power , either of its own initiative, or upon application, to extend or shorten any time limit specified in the rules.[27]The claimant has made no application to extend time, and indeed, has not responded at all to the time limit issue.[28]The Tribunal has considered whether it should, even without an application from the claimant , extend time for the claimant to make her application for costs.[29]The Tribunal does not consider that it should grant any extension of time of its own motion. The respondent clearly objects, and points out that the claimant has provided no explanation for the delay.[30]The relevance and significance of absence of any reason for the delay being provided by the party seeking an extension of time has been much considered in the analogous jurisprudence on extensions of time on the just and equitable basis for discrimination and similar claims.[31]Whilst there had been a view that absence of an explanation for the delay would be fatal to an application for an extension of time, that view was considered and examined by the EAT in Concentrix CVG Intelligent Contact Ltd v Obi 2023 [ICR] 1. The upshot of this review of the caselaw was that it would be an overstatement to say that absence of an explanation for any delay would always be fatal to an application for an extension of time, the length of and reasons for any delay were likely to remain highly relevant factors that a Tribunal would be likely to have to consider in exercising its discretion.[32]In Polystar Plastic Ltd v Liepa [2023] EAT 100 Eady J. , now President of the EAT, endorsed the view that a Tribunal which did not expressly address the reasons for a delay could not demonstrate that it had correctly exercised its discretion, suggesting that a Tribunal would normally need to know at least what the reasons for the delay were before it could go any further. Case Number: 2402039/2022 6[33]As observed, however, there is no application to extend time, so this discussion is somewhat academic. It does, however, reinforce how inappropriate it would be for the Tribunal to consider granting an extension of time of its own motion, and it will not do so.[34]The Tribunal also takes into account (as it would had there been any application before it) that the claimant is a solicitor. Further, her application for more than a preparation time order , where she would be restricted to the hourly rate recoverable by litigants in person, is predicated upon her being a solicitor. She invokes and relies upon what she refers to as the “Chorley Principle”, based upon the judgment in London Scottish Benefit Society v Chorley [1884] 13 QB 872 to the effect that a solicitor representing themselves is entitled to recover the same costs as if they had employed a solicitor. She cites other cases in support of this principle, but the relevant point for this discussion is that the claimant is seeking to recover costs as a solicitor with “the necessary skill and experience” (page 5 of her application, page 48 of the bundle).[35]To the extent that the claimant seeks to be treated differently from a litigant in person in the awarding of costs , the Tribunal would be highly likely also to take that distinction into account in deciding whether to exercise its discretion to extend any relevant time limit for making her costs application.[36]The simple position, however, is that the claimant’s application for costs was made well outside the time limit prescribed by the rules for doing so, there is no application before the Tribunal to extend the time for making the application, and no basis for the Tribunal to consider granting the application of its own motion. The claimant’s application for costs is accordingly dismissed.