Miss K Paczkowska v Europia (Social Enterprise) Charity No1161453 and Procure Plus Holdings Ltd: 2402210/2019
EMPLOYMENT TRIBUNALS
Case No 2402210/2019
Between
Miss K PaczkowskaClaimantEuropia (Social Enterprise) Charity No1161453 and Procure Plus Holdings LtdRespondent
Before
Employment Judge McDonaldDate 26 February 2020
JUDGMENT
The judgment of the Tribunal is that all the claimant’s claims against the second respondent are struck out as having no reasonable prospects of success.
REASONS
[1]On 18 December 2019 I conducted a preliminary hearing in relation to this case. The full record of proceedings including the claimant's applications to amend and the first and second respondents’ application for strike out or deposit orders is set out in the Case Management Summary of today’s date. Below I set out my reasons for striking out the claimant’s claim against the second respondent.[2]The details of the claimant's case are set out in the record of preliminary hearing of today’s date. In brief, the claimant applied for a part-time administrator post with the first respondent. Her application was successful. She says that at a meeting on 13 November with the first respondent’s Executive Director, Mr Chottera, she found out for the first time that the job was offered on a self-employed rather than an employed basis. She says she could not take the job on a self-employed basis and was very distressed at that meeting. There was a further meeting on 15 November 2018 which the claimant referred to as the mediation meeting.[3]At the hearing, Mr Jones representing the second respondent said that all claims against the second respondent should be struck out. I have decided that all the claims against the second respondent should be struck and explain why below.
The Relevant Law
[4]Rule 37 of the Employment Tribunal Rules of Procedure 2013 gives the Tribunal the power to strike out all or part of a claim: “37.— Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[5]Rule 37(2) says that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[6]In the House of Lords case of Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, Lord Hope said that “discrimination issues… should, as a general rule, be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.”[7]In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] I.C.R. 1108 the Employment Appeal Tribunal (“EAT”) acknowledged that applications for strike-out may in a proper case succeed but warned that “in a case which is always likely to be heavily fact sensitive, such as one involving discrimination or the closely allied ground of public interest disclosure, the circumstances in which it will be possible to strike out a claim are likely to be rare. In general it is better to proceed to determine a case on the evidence in light of all the facts. At the conclusion of the evidence gathering it is likely to be much clearer whether there is truly a point of law in issue or not.”[8]In Ahir v British Airways Plc [2017] EWCA Civ 1392 the Court of Appeal said that “Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success’”.[9]In Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 1126 the Court of Appeal said said that “It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”.[10]More recently, in Mbuisa v Cygnet Healthcare Ltd UKEAT/0119/18/BA the EAT said that it is only in an exceptional case that it would be appropriate to strike out a claim on the ground it has no reasonable prospect of success where the issue to be decided is dependent on conflicting evidence. However, “20. Such an exceptional case might arise where it is instantly demonstrable that the central facts in the claim are untrue or there is no real substance in the factual assertions being made, but the ET should take the Claimant's case, as it is set out in the claim, at its highest, unless contradicted by plainly inconsistent documents…… 21. … An ET should not, of course, be deterred from striking out a claim where it is appropriate to do so but real caution should always be exercised, in particular where there is some confusion as to how a case is being put by a litigant in person; all the more so where - as Langstaff J observed in Hassan v Tesco Stores Ltd UKEAT/0098/16- the litigant's first language is not English or, I would suggest, where the litigant does not come from a background such that they would be familiar with having to articulate complex arguments in written form.” Findings, discussion and conclusions[11]Mr Jones made submissions on behalf of the first respondent. He said that the claimant had made it clear at the preliminary hearing that the second respondent had to be involved in proceedings in her view because it was crucial to establishing the facts of the case. She had also said that she wanted Mr Chottera to attend the proceedings to give evidence because she did not know of any other relevant decision maker.[12]Mr Jones submitted that even taking what the claimant had said at its highest, there was no dispute between the second respondent and the claimant. There was, he submitted, no claim made by the claimant against the second respondent under the 2010 Act. On that basis he said that there was no reasonable prospect of the claim against the second respondent succeeding and applied for the claims against it to be struck out.[13]In the alternative, he submitted that if I thought on considering the documentary evidence before it that Mr Chottera might not have been the sole decision maker, there was still little reasonable prospect of the claimant being successful against the second respondent. He would therefore ask for a deposit order with the deposit being £500 per claim.[14]The claimant said that there were facts which she disputed with the second respondent. In particular she said nobody explained what had happened which had led to her being offered a self-employed contract on 13 November 2018 rather than an employment contract, and she said that is where matters had all gone wrong.[15]The claimant said that the second respondent was involved throughout the incidents about which she complained. She said that the first respondent had referred to the second respondent as effectively being its HR function. For the second respondent, Mr Jones took me to the documents in the bundle used at the preliminary hearing which referred to the second respondent’s role in the incidents which had led to the claimant's claim. Having read those, I am satisfied that the second respondent’s role was limited to identifying the claimant as potentially a candidate for the role which she was offered and then liaising with the first respondent to keep track of her progress. There is nothing in the documentary evidence to suggest it had any part in the decision about the basis on which the role was offered to the claimant.[16]I do accept the claimant's submission that the second respondent had some limited involvement in events after 28 October 2018 (which was the last date that Mr Jones suggested it was actively involved). There is an email exchange between two of the second respondent’s employees, Keeley Whittaker and Siobhan Murphy, on 14 November 2018 (page 125 of the bundle). It says, "Nowhere does it mention freelance/self-employed so can you please call [Mr Chottera] and find out what the mix-up is". However, that email does not seem to me to indicate that the second respondent took any part in the decision as to the basis on which the role should be offered to the claimant. In fact it suggests that it had no part in that decision, expressing confusion as to why the role was being offered on a self-employed basis. There no evidence that the second respondent took any part in the actions between 13 and 15 November which the claimant also complained about.[17]When I asked the claimant to clarify what her claim against the second respondent was, she said that it was important that it was involved in proceedings because their involvement was crucial to establish the facts of the case. It seems to me that at most, the second respondent or its employees may have relevant evidence about the incidents leading up to the claimant's appointment by the first respondent. However, I cannot see the basis for any claim against them under the Equality Act 2010. The claimant’s complaint is about the job she was appointed to being offered on a self-employed basis and her further suggested complaints were about the treatment of her by Mr Chottera of the first respondent in the meetings on 13 and 15 November 2018. I am satisfied that the second respondent and its employees took no part in those meetings, nor was it part of the decision making which led to the role being offered on a self-employed basis.[18]On that basis I can see no reasonable prospects of the claims by the claimant succeeding against the second respondent and I strike out those claims.
Introduction
[1]By an emailed letter dated 12 March 2020 the claimant applied for reconsideration of the Tribunal’s judgment striking out all claims against the second respondent. That judgment was sent to the parties on 26 February 2020 (“the Judgment”) following a preliminary hearing held on 19 December 2019 (“the preliminary hearing”).[2]An employment tribunal has a power to reconsider a judgment “where it is necessary in the interests of justice”. Applications are subject to a preliminary consideration by an Employment Judge. They are to be refused if the judge considers there is no reasonable prospect of the original decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. On reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again (Rules 70-73 of the Employment Tribunal Rules 2013 (“the ET Rules”)).[3]The “interests of justice” allows for a broad discretion. That discretion must be exercised judicially, which means having regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation (Outasight VB Ltd v Brown [2015] ICR D11, EAT para 33).[4]Where the application for reconsideration is based on new evidence the approach laid down by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA will, in most cases, encapsulate what is meant by the “interests of justice”. That means that in most cases, in order to justify the reception of fresh evidence, it is necessary to show:• that the evidence could not have been obtained with reasonable diligence for use at the original hearing• that the evidence is relevant and would probably have had an important influence on the hearing; and• that the evidence is apparently credible.[5]The interests of justice might on occasion permit evidence to be adduced where the requirements of Ladd v Marshall are not met. (Outasight at paras 49-50).
Preliminary Matters
[6]In this case, I decided on preliminary consideration under rule 72(1) that the application should proceed. The claimant and the first respondent agreed that the reconsideration could be considered without a hearing. The second respondent submitted that the reconsideration application should be considered at a hearing. I decided that a hearing was not necessary in the interests of justice. The parties had had an opportunity to provide written representations and the likely delay and additional costs to the parties involved in holding a hearing was not in accordance with the overriding objective. The Code P at the head of this judgment confirms my decision was made in chambers on the papers.[7]As I have explained in the Case Management Order of today’s date, I was due to consider this matter in chambers on 17 August 2020 but was not able to because the bundle of documents from the preliminary hearing was not available. I had a copy of that bundle today thanks to the first respondent providing copy on the 16 December 2020. Page numbers referred to in this judgment are page numbers in that bundle.[8]In reaching my decision I considered the claimant’s application dated 12 March 2020, the second respondent’s written objections to the reconsideration in letters dated 25 March and 20 April 2020, the first respondent’s written submissions dated 6 May 2020 and the claimant’s letter to the Tribunal dated 5 November 2020. Time limit points[9]There were two time-limit points which I needed to decide. They were whether the claimant’s application was made in time and whether the first respondent’s written submissions were made too late. The claimant’s application for reconsideration[10]The claimant’s application was sent to the Tribunal by email on 12 March 2020. The first respondent said this meant the application was time-barred (para.10 of its written submissions). Rule 71 of the ET Rules says that an application for reconsideration “shall be presented in writing…within 14 days of the date on which the written record….of the original decision was sent to the parties”. In this case the Judgment was sent to the parties on 26 February 2020.[11]Because of rule 4(3) of the ET Rules the 26th February 2020 is not counted and the 14 day runs from (and includes) 27 February 2020. That means the 14-day time limit expired on 11 March 2020 and the claimant’s application was made one day out of time.[12]Rule 5 of the ET Rules gives the Tribunal a power to extend any time limit of its own initiative whether or not it has expired. In this case I consider that it is in accordance with the overriding objective to extend the time limit for the claimant’s reconsideration application. In doing so I take into account the fact that the claimant is a litigant in person and that English is not her first language. It does seem to me from her email of 17 August 2020 that made a genuine mistake about when the 14-day time limit ran. Even if I am wrong about that, I am satisfied that dealing with the case fairly and justly means an extension of time should be granted. The prejudice to the claimant of not being able to pursue her application seems to me to outweigh the prejudice to the respondents caused by a delay of one day.[13]My decision on this point is that the time for making the application to reconsider should be extended by one day and that the claimant’s application is not timebarred. The first respondent’s written submissions[14]The first respondent’s written submissions were sent to the Tribunal and the other parties on 6 May 2020.The claimant says I should not take them into account because they were sent after a deadline of 20 April 2020 set by the Tribunal.[15]It is correct that on 6 April 2020 the Tribunal directed that the respondents write giving reasons why the judgment should not be reconsidered by 20 April 2020. However, on 26 June 2020, when confirming the application would be considered without a hearing, the Tribunal directed that further representations must be sent by 17 July 2020. The first respondent’s written submissions were made before that final cut off point for submissions. In those circumstances I do not accept the claimant’s submission that I should not take the first respondent’s written submissions into account. The application for reconsideration[16]In the Judgment I decided to strike out the claims against the second respondent because they had no reasonable prospects of success. As I set out at paragraphs 15-17 of the Judgment, I could see no basis for saying that the second respondent took any part in the decisions about which the claimant complained or the incidents on 13-15 November 2018 which formed the basis of her harassment complaint. I found that the documentary evidence supported the second respondent’s case that it was surprised to learn that the post which the claimant was offered by the first respondent was on a self-employed basis. As I record at paragraph 15 of the judgment, the claimant was unable to explain on what basis the second respondent might be liable under the 2010 Act.[17]In her application for reconsideration the claimant says that the second respondent is potentially liable under s.112 of the 2010 Act because it knowingly helped the first respondent discriminate, victimise or harass her. Other than clarifying the legal basis of the complaint, however, it does not seem to me that the application provides any basis for reconsidering the Judgment.[18]The claimant’s application repeats the allegation which she made at the preliminary hearing that the second respondent acted as the first respondent’s “HR department”. I recorded at paragraph 15 of the Judgment why I did not accept that was accurate.[19]She also suggests that her recruitment was less favourable than a British person and “labelled as MOCK” which she says the Cambridge Dictionary defines as a verb meaning “to laugh at someone, often by copying them in a funny but unkind way” and “to make something appear stupid or not effective”. The reference to “mock” is at p.74 of the bundle which is a screenshot from the second respondent’s database recording how the claimant performed at her “mock interview”. I appreciate that English is not the claimant’s first language and I think she is mistaken about the use of “mock” on p.74. It is clear to me that “mock interview” in this context simply means “practice interview” which is what the database entry is describing.[20]The claimant also says she wishes to make new victimisation and harassment claims against the second respondent based on how she says the respondent and its counsel behaved at the preliminary hearing itself. It must be for her to decide whether to bring those as new claims against the second respondent. They do not change the findings I made in the Judgment about the claims already being brought and the lack of any reasonable prospects of them succeeding against the second respondent.[21]Finally, the claimant says that it is imperative that the documents supplied by the second respondent in the bundle for the preliminary hearing remain in the bundle for the final hearing. That was a point she also made at the preliminary hearing (as I recorded at para 17 of the Judgment). As I said in that paragraph, the fact that a third party has relevant evidence is not enough to justify joining them as a party to Tribunal proceedings or keeping them as a party if there is no claim against them having a reasonable prospect of success. Documents which the claimant already has which are relevant to the issues in the case should be included in the bundle for the final hearing of the case. There is nothing to stop the claimant asking whether employees of the second respondent whether they will attend the final hearing to give evidence if they have relevant evidence to give.[22]In summary, I find that the claimant has not shown that it is in the interests of justice to reconsider the Judgment. The matters she raises in her application were either matters I had already taken into account in making the Judgment or would not have resulted in a different decision.[23]I therefore refuse the application for reconsideration of the strike out judgment.