Mr W Matthaus v Equiniti Solutions Ltd and others: 2409680/2023

EMPLOYMENT TRIBUNALS

Case No 2409680/2023

Between

Mr W MatthausClaimant

Equiniti Solutions Ltd and othersRespondent

Before

Employment Judge K M Ross

Date 29 February 2024

JUDGMENT

The judgment of the Tribunal is that: These claims relate to a period when the claimant worked for the first and/or second respondent from 2 November 2015 and 30 November 2016. His claim to the Employment Tribunal was presented on 2 October 2023.

[1]The claimant's claim for unlawful deduction from wages pursuant to section 13 Employment Rights Act 1996 was presented outside the time limit. It was reasonably practicable to present the claim within time. Accordingly, the Tribunal has no jurisdiction to hear the claim and it is struck out.

[2]The claimant's claim for breach of contract pursuant to article 7 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 was presented outside the time limit. It was reasonably practicable to present the claim within time. Accordingly, the Tribunal has no jurisdiction to hear the claim and it is struck out.

[3]The claimant’s claim for a redundancy payment was not presented within the time limit and the claimant has not taken any of the steps set out at section 164(1) Employment Rights Act 1996. Accordingly, the Tribunal does not have jurisdiction to hear the claim and it is struck out.

[4]The claimant's claim for direct discrimination on the grounds of race or religion or sex pursuant to section 13 Equality Act 2010, as identified in his list of issues at the outset of the hearing namely:(1) Only males moved to Tim Hughes’ team;

(2) The claimant was the only ethnic minority within the five moved to Tim Hughes’ team, and

(3) Tim Hughes’ decision to remove the claimant from the project before the other members of the five males moved to his team were presented outside the time limit and it is not just and equitable to extend time. Accordingly, the Tribunal does not have jurisdiction to hear the claim and it is struck out.

[5]The claimant's claim for harassment related to religion or belief and/or race, identified in his list of issues at the outset of the hearing namely: (1) The claimant was the first of Tim Hughes’ victims due to his race or religion, was presented outside the time limit. It was not just and equitable to extend the time limit and accordingly the Tribunal does not have jurisdiction to hear the claim and it is struck out.

[6]The claimant's claim for victimisation pursuant to section 27 of the Equality Act 2010 as identified in his list of issues at the outset of the hearing namely: Protected acts the claimant relies on are: 1: Did Anthony Roach choose not to believe the claimant's claim his quality was not as bad as the data showed? 2: Was the claimant selected by Tim Hughes or other to be moved to Tim Hughes’ team knowing that the claimant was being put in danger? The detriments relied upon are: D1: Did Tim Hughes falsify data to have the claimant removed from the project in 2016? D2: Was the claimant selected to be moved to Tim Hughes’ team? were presented outside the time limit. It is not just and equitable to extend the time limit and accordingly the Tribunal does not have jurisdiction to hear these claims and they are struck out.

[7]The claimant's application to amend the claim to include claims for automatic unfair dismissal pursuant to section 103A Employment Rights Act 1996 and a claim for detriment for making a protected disclosure pursuant to section 47B Employment Rights Act 1996 is refused. The application to amend was on the basis identified in his list of issues at the outset of the hearing namely: The detriments relied upon are: D1: Tim Hughes falsified data to have the claimant removed from the project; and D2: The claimant was selected to be moved to Tim Hughes’ team. The protected disclosures are: PD1: After the claimant was informed his engagement was terminated, he informed Anthony Roache that he did not think the quality data was correct. PD2: The claimant, in 2023, is making a protected disclosure that the firms are now aware of the fact that multiple staff were treated unfairly.

[8]In the alternative, if I am wrong about my refusal to permit the amendment the claim to include claims for automatic unfair dismissal pursuant to section 103A Employment Rights Act 1996 and a claim for detriment for making a protected disclosure pursuant to section 47B Employment Rights Act 1996, then the claims were presented outside the time limit. It was reasonably practicable to present the claims within the time limit. Accordingly, the Tribunal does not have jurisdiction to hear the claims and they are struck out

[9]All claims have been struck out. JUDGMENT having been sent to the parties on 12 March 2024, judgment and oral reasons having been given at the hearing on 28 February and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The brief facts of this case are that the claimant says he worked at Shop Direct in Liverpool 2/11/2015 and 30/9/2016. He presented a claim to this Tribunal on 2/10/2023 naming the above respondents.

[2]The first respondent states it is part of the Equiniti Group of companies The first respondent submits that the Claimant has commenced proceedings against the incorrect respondent and the Claimant was engaged by Paymaster (1836) Limited trading as “Hazell Carr” The first respondent says the claimant was an independent contractor, through a personal services company in business on his own account, Matthaus Limited (09404012) a company of which the claimant was a director. (The company was dissolved in March 2020.) It states from November 2015 to September 2016 Matthaus Limited contracted with the company Hazell Carr to provide services to the second respondent, Shop Direct.

[3]The second respondent says the claimant was placed by the first respondent, trading as Hazell Carr, to provide services to the Very Retail Group, specifically the group company with responsibility for financial services which contracted with the first respondent, Shop Direct Finance Company Limited.Based on the information provided in his form ET1 and the limited information available relating to the claimant within the Very Retail Group, the second respondent says Shop Direct Finance Company Limited is the correct second respondent for the purposes of this claim.

[4]The third respondent, Tim Hughes is described by the claimant as a Team Leader. Neither the first or second respondent have details of him.

[5]There are a number of jurisdictional issues in this case.

[6]The claimant’s claims were identified in the List of Issues document which the claimant sent into the Employment Tribunal. The claimant confirmed at the outset of this hearing that he wanted to bring a claim for breach of contract; a claim for unlawful deduction from wages; a claim for direct discrimination on the grounds of race, religion or sex; a claim for harassment related to religion or belief and/or race; a victimisation claim. The claimant’s claim also included a claim for a redundancy payment. He also wanted to add a “whistleblowing” unfair dismissal and detriment claim. The claimant agreed at the outset of the hearing that the whistleblowing dismissal and detriment claim was not included in his original claim form, and it was agreed he needed to make an application to amend, and that was also dealt with in the course of the hearing.

[7]I clarified that this preliminary hearing, having understood what the claimant's claims were, was only to consider the issue of time limits and the claimant’s amendment application. Other jurisdictional issues were not considered at this hearing.

[8]I explained to the claimant, a litigant in person that although he asked me to “exercise justice” he must understand that the justice I could exercise must be within the law including the relevant case law.

[9]I had an extensive bundle of documents of over 300 pages. I heard from Mr Denyer for R1 and Mr Norris for R2. I also had a statement from the claimant and a List of Issues document from him. I had submissions documents from both counsel. Time Limits

[10]Turning first to the issue of time limits. The claimant’s claims for unlawful deduction from wages and breach of contract are as identified in the List of Issues document.The relevant time limits are in section 23(1) and s23(2) Employment Rights Act 1996 and in Article 7 of the Employment Tribunals Extension of Jurisdiction Regulations.

[11]There was no doubt in this case that the relevant time period was 2 November 2015 to 3 September 2016 – a period of time when the claimant had a working relationship with the potential respondents. The claimant last received his wages at the end of October 2016. Accordingly, any claim for an unlawful deduction should have been made within three months of that date, but the claimant did not present a claim until 2 October 2023, almost seven years later.

[12]I must consider whether it was reasonably practicable to bring a claim within the time limit and if not whether it was presented within such further time as is reasonable.

[13]The claimant’s claims for unlawful deductions from wages/breach of contract as identified in his List of Issues include not being paid for 9am-5pm, a claim for notice pay and a claim for not being paid correctly in terms of sums due for hitting targets.

[14]It is puzzling why the claimant waited so long to bring a claim. The claimant said he did not bring any of his claims until he had a conversation with an excolleague (HB) in 2023,but admitted that he did raise concerns with Mr Roache that the data the respondent was relying on to “let him go” was not accurate, and that he must have flagged concerns that he was not being paid properly when his employment relationship ended.

[15]Even if I am wrong about that-the claimant says he did not know that he was a worker or had any rights at that time because of how the employment relationship was badged, by the time the claimant had the Judgment in another claim he brought in 2018 in case 1601710.2018 which went ahead in the Cardiff Tribunal, ( I understand judgment was given in 2021,) he was well aware that he had those rights to bring an Employment Tribunal claim but he did not take any action at that time. The claimant is an intelligent man. He clearly had the benefit of legal representation at the time he proceeded in the Cardiff Tribunal as he explained to me and so it is very puzzling why he did not bring a claim for unlawful deductions from wages under the Employment Rights Act 1996 or a claim for breach of contract in 2018.

[16]I am satisfied that it was reasonably practicable for the claimant to present a claim for non-payment of wages under the Employment Rights Act 1996 within the time limit, and a claim for breach of contract and he failed to do so. Accordingly those claims are struck out for lack of jurisdiction.

[17]So far as a redundancy payment is concerned, the claimant would have to be an employee and would have to be employed for a period of two years to be entitled to such a payment. However, we are dealing with time limits only at this hearing and so it is the time limit issue I will consider. I find the claimant has not followed the steps (on his own admission) set out at section 164 Employment Rights Act 1996 to obtain a redundancy payment, which are:(a) make a claim in writing to the employer; or

(b) refer the question of entitlement or amount to an Employment Tribunal; or

[18]The claimant admits he did not do this, and accordingly the claim is out of time and the normal six month time limit cannot be extended because the Tribunal’s discretion is only applicable in the event the employee has taken further specific steps to claim it within a further six month period following the expiry of the initial six month period, namely:(a) make a claim in writing to the employer; or

(b) refer the question of entitlement or amount to an Employment Tribunal; or

[19]The claimant has not acted within that prescribed time limit and therefore I do not have jurisdiction to deal with the claim and it is struck out.

[20]I turn to the discrimination claims. Section 123(1) Equality Act 2010 states “proceedings on a complaint within section 120 may not be brought after the end of— (a)the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable”.

[21]There is no dispute that the claims under the Equality Act were presented outside the time limit. I must therefore consider whether they are brought within such other period as the Tribunal considers just and equitable.

[22]I remind myself of the cases relied upon by Mr Salter (see his submissions document). In particular, I had regard to the factors listed within section 33 of the Limitation Act 1980 (the British Coal v Keeble factors). It is not mandatory for me to do so but it is useful when considering whether or not to exercise my discretion. The factors are:(a) The length and reasons for the delay;

(b) The extent to which the cogency of the evidence is likely to be affected by the delay;

(d) The promptness with which the claimant acted once he knew of the facts giving rise to the cause of action;

(e) The steps the claimant took to obtain advice.

[23]The length of the delay is very considerable here – a period of seven years. Parliament has decreed that the usual time limit in a discrimination claim is three months from the last discriminatory act or omission and there is a public policy reason for that, namely that it is in the interests of justice for claims to be presented and determined in a timely manner. The claimant’s engagement ended on 30/9/16 and his claim was presented in October 2023.

[24]The claimant says the reason he delayed so long was because it was only when he had a conversation with a former colleague (HB) that he realised the manager, Tim Hughes, had been dismissed for falsifying records. However, in cross examination he conceded that back in 2018 when his case was proceeding in the Cardiff Tribunal ,documents were disclosed causing him to become suspicious of a pattern of behaviour by companies for whom he had worked terminating his engagements. He refers to that in this claim -see page 187. There is no explanation as to why the claimant did not present his claim at that time.

[25]The claimant received the Judgment in the Cardiff claim in 2021 and there is no clear explanation from the claimant why he did not pursue the matter at that stage. The claimant conceded in cross examination that he had very definite suspicions by May 2023 (see page 288) but he still took no action to bring this claim – he said he was gathering evidence. That is despite the facts that he relies upon in his discrimination claim, namely the termination of his engagement and being moved into Tim Hughes’ team, were well-known to him.

[26]I turn to the next factor – the extent to which the cogency of the evidence is likely to be affected.

[27]Seven years have passed since these events. Tim Hughes is the third respondent. He is not here, and no-one seems to know where he is. He is a critical witness. Many of the other witnesses as identified by the respondent’s witnesses, including Mr Norris for the second respondent, have left the relevant businesses. I accept the evidence of the respondent witnesses that very many of the relevant documents have been destroyed because these events occurred so long ago. There are few documents left. I also take into account that it is likely to be a further year at least (probably the end of 2025) before this claim is heard. That means almost ten years will have passed since the relevant events. Memories, even if witnesses are available, will have faded. Furthermore, the Tribunal is unlikely to be able to satisfactorily investigate the reasons why the claimant was moved teams and the reason why his engagement was brought to an end ,after so long.

[28]I turn to the next factor, which is the extent to which the party sued has cooperated with requests for information.

[29]The claimant spoke many times about his subject access request and seems concerned that the data protection officers were not brought to this hearing. The Tribunal is not concerned directly with subject access requests. The claimant appears to be on something of a “fishing expedition”. In any event I am satisfied that in an extensive bundle of several hundred pages for this prelimiary hearing both respondents have cooperated and tried to find documents which still survive and are relevant to the period.

[30]I turn to the factor of the promptness with which the claimant acted once he knew of the facts giving rise to the cause of action. I am not satisfied that the claimant had acted promptly. He, on his own admission, had concerns as far back as 2018 and very definite suspicions in 2021 and precise suspicions about this respondent in May 2023 but he did not present a claim until October 2023, so I am not satisfied he acted promptly. The claimant was not new to Tribunal procedures having brought his claim in the Cardiff Tribunal in 2018.

[31]The last factor is the steps the claimant took to seek advice, but given that it is very difficult for litigants in person to obtain legal advice and as many litigants in person proceed in the Employment Tribunal, I do not attach particular weight to that factor.

[32]I then step back and consider the balance of injustice and hardship to the parties. I agree with Ms Amartey’s submission that it is difficult to see how almost ten years on from these events a fair trial is possible.

[33]In those circumstances it is not just and equitable to extend the time limit and I decline to do so. Amendment to include a claim for “ whistleblowing”: public interest disclosure detriment pursuant to s47B Employment Rights Act 1996 and/or automatic unfair dismissal for making protected disclosures s103A ERA 1996.

[34]I then turned to the claimant's application to amend his claim to include a claim that he had suffered detriments on the ground that he had made public interest disclosures and/or he was dismissed for making protected disclosures. The claimant clarified in cross examination that the disclosures of information he is relying on are:-(i) a disclosure he made, after he was told his engagement was terminated ,to Anthony Roache that he did not think the data on which the decision had been made was accurate.

(ii) a disclosure in 2023 namely “a protected disclosure as the firms are now aware of the fact that multiple staff were being released unfairly”. The detriments the claimant relied upon were:

• Tim Hughes falsified data to have the claimant removed from the project; and

• The claimant was selected to be moved to Tim Hughes’ team.

[35]He also suggested he was dismissed for making those protected disclosures.

[36]I turn first of all to the nature of the amendment. It is impossible to see how such a claim could succeed. The claimant's disclosures of information occurred after the alleged detriments and after he was told his engagement was terminated. In these circumstances the claim is doomed to failure.

[37]I turn to the manner of the application. This application is very late. The claimant conceded that it was not in his original claim form. The claimant must have been aware of the provisions in relation to “whistleblowing” because he had brought a successful “whistleblowing “claim in the Cardiff Tribunal in 2018. It was not until the morning of this hearing when Ms Amartey raised the issue noting that whistleblowing was included in the List of Issues that it was clear an application to amend was necessary.

[38]I turn to the third factor – the balance of injustice and hardship between the parties. There will certainly be hardship to the respondents to defend such a claim because it will be time consuming and expensive. There will be the additional problem of memories fading and the problem of locating relevant witnesses.

[39]At first sight it might seem that there was hardship to the claimant, if I do not allow his amendment, and that is what he argued, but in fact I find there is no hardship in disallowing an amendment of this type because a whistleblowing complaint expressed in this way is doomed to failure. On the claimant's own case, the disclosures of information happened after he was told his engagement was ended and after the detriments he relies upon and so there can be no successful legal claim.

[40]Even if I am wrong about that and the application to amend should be permitted, it was presented considerably out of time and I find, for the factors I have relied upon earlier, it was reasonably practicable to present the claim within the time limit.

[41]I therefore refuse the amendment.

[42]At the end of the hearing the respondents indicated that they may wish to make an application for costs, and I said any such application should be made within 14 days of today’s date.

[43]Finally I apologise to the parties for the delay in producing these written reasons. The first respondent made a prompt application on 12 March 2024 for both written reasons and costs. Unfortunately, the application was overlooked until the first respondent chased the matter on 14 June 2024. Once it was referred to me I acted promptly.

Conclusions

[44]Under the Tribunal Rules, rule 78(1)(a) provides that a Tribunal “may order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party”.

[45]The alternative method is to require the costs to be determined separately by means of a detailed assessment in accordance with the Civil Procedure Rules 1988 (SI1998/3132 CPR). Under that jurisdiction the full amount of costs sought by the respondent can be recovered. The respondent has sought unassessed capped costs here. The bill provided by the respondent shows a total of over £31,000 but the respondent is seeking the maximum of £20,000.

[46]I reminded myself, as guided by the EAT in Sumukan (UK) Limited & Another v Raghavan EAT0087/09 that I must state:• On what basis and in accordance with what established principles it is awarding any sum of costs;

• On what basis it arrives at the sum; and

• Why costs are being awarded against the party in question.

[47]Once again I remind myself when deciding how much to award I should have regard to the relevant factors.

[48]The respondent undoubtedly incurred the costs they have set out in their schedule. It is very unclear whether or not the claimant has the means to pay a costs order. However, whether or not the claimant can pay is not of itself a final determining factor. Even on his own evidence, the claimant is living with a partner who has a reasonable income. Unfortunately, the claimant's evidence was unclear in terms of what their outgoings actually are.

[49]Although the accounts produced for the German business show that it is making a loss at present, the claimant clearly is talented at making ice cream. He confirmed that the award he received (as shown in the documentation) is genuine. There must be hope, therefore, that his German business will become profitable and although (if he is to be believed) he does not have the means to pay any costs order in full at present, he may be able to do so in the future.

[50]The claimant relied on a number of reasons as to why he should not have to pay a costs order. He said that the respondent had disclosed the bundle late before the original costs hearing. However, this does not assist the claimant because he accepted that he had had the information for many weeks before this hearing took place. The costs hearing on 3 October 2024 was postponed and the claimant has had the bundle of documents since that time. The claimant has therefore had ample opportunity to consider the documentation in the bundle, and indeed has contributed further documents since the original bundle was served on him. The claimant has had ample opportunity to provide documentation since the court order was made for him to disclose information on 9 July 2024.

[51]The claimant also objected to the respondent referring to the COT3 in these proceedings. As counsel pointed out, the respondent is entitled to refer to the COT3 as required in certain limited circumstances. In the circumstances of this case, the respondent was entitled to refer to the COT3 in the Cardiff case. In any event ,it is not a matter I have taken into account directly when either determining whether or not to make an award of costs and the amount of costs.

[52]The claimant also suggested that I should not make an award for costs because the respondent either might be insured or could write off their costs against tax. The respondent’s response to this is that they are not insured for these costs and have not sought VAT on the legal fees and there is no ability to write off the costs against tax.

[53]The claimant also sought to challenge elements of the specific bill, saying he considered it was excessive and unreasonable. If there are some elements of the bill that I might disallow as being excessive, for example at item 2, I have borne in mind the fact that the respondent is not seeking the full amount of costs because the full bill is over £30,000 and they are capped at £20,000.

[54]I have had regard to the claimant's ability to pay. Even though he has been less than straightforward with the Employment Tribunal in answering questions and providing documentation, I have decided it is fair to reduce the bill having regard to his ability to pay. If he genuinely is living on his partner’s earnings during the winter months and his business is running at a loss, he is likely to still have some difficulty in satisfying the award immediately.

[55]As against that, there was no clear explanation as to what had happened to the fixed assets of House of Gelato between 2023 when assets of £189,000 showed in the accounts, and 2024 when assets showed as £0. Although the claimant says that business is insolvent, it is still showing “active” at Companies House.

[56]Having regard to the fact that the respondent is seeking two thirds of the true costs and having regard to all the circumstances of this case, I am satisfied that it is appropriate to order the claimant to pay the sum of £15,000.