Miss M A Zarzecka v Interactive Technology Corporation Ltd and ITC EOT Trustee Ltd: 2403131/2023 and 2407338/2023
JUDGMENT
[1]The claimant did not attend this hearing, and the Tribunal determined to proceed in her absence.[2]Proceedings against ITC EOT Trustee Limited (the respondent in 2407338/2023) are struck out as having no reasonable prospects of success.REASONS
[1]The case was convened primarily to determine whether the claimant’s claims against the second respondent should be struck out or subject to a deposit order; whether the claims ought to be considered together; whether the list of issues 1 of 4 could be clarified or narrowed further and if there were further case management orders. The case[2]This is the third preliminary hearing. The cases were previously summarised by Employment Judge Ross following the hearing of 7 May 2024 and Employment Judge Johnson following the hearing of 11 July 2024.[3]The claims were not clear, but Judge Ross identified the following legal claims as being pursued and outstanding: unfair constructive dismissal; sex discrimination; equal pay; victimisation; whistleblowing detriments; non-payment or underpayment of wages; associative discrimination; and automatic unfair dismissal for making a protected (whistleblowing) disclosure. Judge Ross referred the matter to a further preliminary hearing for 11 July 2024 to determine the claimant’s application to amend her claim. Judge Johnson heard that application, permitted the amendments and set this hearing.[4]The claimant did not attend this hearing. The claimant’s non-attendance[5]My first issue was to consider whether to proceed in the claimant’s absence. Mr Mensah told me that the claimant was aware of the hearing today because the notice of hearing appears to have been sent to her correct contact address and the respondent’s solicitors had corresponded and send the hearing bundle to the claimant. He said that the respondent had incurred time and expense in preparing for and attending today’s hearing. From the notice of hearing, it was clear that the hearing would proceed today, and he requested that I proceed in the claimant’s absence.[6]I note that there had been no request for a postponement. I asked the clerk to telephone the claimant and she rang the claimant to no avail. There was no explanation as to the claimant’s non-attendance and I could not see any point in adjourning the hearing on my own motion.[7]Accordingly, I determined that it was proportionate and appropriate – and within the over-riding objective at rule 2 of the Employment Tribunal’s Rules of Procedure - to proceed in the claimant’s absence. I am satisfied that the claimant both had notice of this hearing and should have been aware that this was an inperson hearing on the basis of the above information.[8]Accordingly, I deemed it appropriate to continue to determine this issue in the claimant’s absence. The claimant’s complaints and issues against the respondent.Judge Ross identified the claimant’s made against the respondents as follows:
[9]i. Annex 1: these were the complaints and issues in case number 2403131/2023. 2 of 4 ii. Annex 2: The complaints and issues that formed the claimant’s application to amend her claim as determined by Judge Johnson. iii. Appendix 3: The claimant’s made against the second respondent in its entirety.[10]The lists of issues are settled against the first respondent (see appendix 1 and 2). The claims against the second respondent are the subject to Judge Johnson’s orders. Strike out of the claims against the second respondent[11]Both Judges Ross and Johnson were concerned about the relevance of the named respondent for the claimant’s claims in the second proceedings. From reading the case management summaries I see neither Employment Judges Ross nor Johnson could understand why the claimant issued proceedings against this respondent. This is directly raised at paragraph 20 of Judge Ross’ summary and paragraphs 29 and 30 of Judge Johnsons, yet the claimant has not clarified in correspondence nor is she here to explain why this party was added to proceedings.[12]The claimant was not employed by the second respondent. Indeed, the first respondent’s representatives have confirmed that the first respondent is the claimant’s only employer, so there is no apparent ambiguity.[13]Mr Mensah explained the group structure and the second respondent was a vehicle for holding shares in the first respondent company. The second respondent has no employees nor did it have at any material time.[14]I have considered the Companies House information provided and an explanation of the group structure provided by the respondents’ senior solicitor dated 29 July 2024. I cannot see any rational basis for the claims against the second respondent.[15]Accordingly, I conclude that the claims against ITC EOT Trustee Limited as identified by Judge Ross as Appendix 3 have no reasonable prospects of success. Therefore, I strike out those claims. Deposit orders[16]I considered all of the claims carefully. I regarded the remaining claims, as set out by the claimant, to be weak. I said that I would consider making a deposit order. Having reflected carefully, I am not going to make a deposit orders without hearing from the claimant as the claimant might be able to persuade me that these are not so weak as to have little reasonable prospects of success. More importantly, the question of deposit orders was only previously raised as matters of an alternative to the strike out matters above.[17]In accordance with the over-riding objective, I highlight my particular concerns with the following claims (although this is not an exhaustive list): Annex 1 - List of Issues 3 of 4a. Detriments for making protected disclosures Issues 3.1: D1 and D2.b. Direct sex discrimination Issue 4.1c. Victimisation Issues 5.2.1 and 5.2.2.d. Equal pay Issues7.1 and7.2 Annex 2 – List of Issuese. Direct sex discrimination Issues 2.2, 2.3 and 2.4.f. Victimisation Issue 4.1.1[18]I do not invite representations from the respondent; however, if the respondent makes such representations, and the claimant was not able to meet my concerns then I would consider making such deposit orders. Approved by