S Saeed v Reed Specialist Recruitment Ltd: 2500300/2022
EMPLOYMENT TRIBUNALS
Case No 2500300/2022
Between
Shafia SaeedClaimantReed Specialist Recruitment LimitedRespondentDate 23 September 2022
JUDGMENT
[1]The name of the respondent is amended to ‘Reed Specialist Recruitment Limited’[2]The respondent’s application for costs succeeds in the sum of £500.
REASONS
[1]In emails dated 19 July 2022 and 5 August 2022, the respondent set out its application for costs pursuant to rules 76(1)(a) and (b) of the ET Rules of Procedure 2013. In summary, the respondent contends that the claimant’s claims had no reasonable prospect of success when commenced, that she acted unreasonably in bringing and conducting the proceedings including because she failed to actively pursue her claims. The respondent sought £500 plus VAT in respect of counsel’s fees for attending a hearing on 11 July 2022.[2]The respondent confirmed it was agreeable to the matter being dealt with without a hearing. The claimant did not respond to the respondent’s application, nor did she respond to correspondence sent to her by the Tribunal dated 17 August 2022 seeking her comments on the respondent’s application.
Facts
[3]The claimant was engaged by the respondent as a PPI case handler between 1 October 2018 and 16 October 2018. She commenced early conciliation on 25 February 2022 and concluded on 28 February 2022.[4]On 9 March 2022 she presented her claim to the Tribunal.[5]The claimant complained of race and religion or belief discrimination as well as claiming arrears of pay. She stated that when engaged with the respondent, she earned £110 per day gross. The claim form and appendices contained lengthy and detailed narrative and attached screenshots of email exchanges about the apparent dispute as to pay between the claimant and the respondent that took place in 2018, 2019 and, it appears, continuing in January 2020. On the face of those documents, it appears that the claimant was in possession of all the facts that formed the basis of her complaints at the relevant times. The claimant recognised that her claim should have been submitted ‘well before’, adding that she was reluctant to bring proceedings sooner.[6]On 23 March 2022, the Tribunal sent to the parties a Notice of Hearing for a telephone case management hearing that was to take place on 24 May 2022.[7]The respondent submitted a ‘holding response’ on 20 April 2022 and sought permission to present further information by 13 May 2022; permission was granted by EJ Sweeney on 21 April 2022. The claimant emailed the respondent, copying in the Tribunal, on 5 May 2022 seeking a copy of the response and the respondent’s agenda in advance of the preliminary hearing. On 9 May 2022, she wrote again to the respondent, again copying in the Tribunal, requesting sight of the response and agenda by 13 May 2022.[8]On 10 May 2022, the respondent completed its amended response and agenda and sent both to the claimant and the Tribunal. The amended response, given the length of time that had elapsed, was impressive in detail and it contended that the claims had been presented significantly out of time. An application to strike out the claimant’s claims accompanied the response, again, in part at least on the basis that the claimant’s claims had been presented significantly out of time. In both the response and its agenda, the respondent indicated that is name should be amended to that which appears above.[9]The next day, 11 May 2022, the claimant in a short email to the Tribunal (only) informed it that she was unable to attend the preliminary hearing on 24 May 2022, adding that her father had passed away that she would be flying to her ‘home country’ and ‘I will update you once I am back’. She said nothing of her ability or otherwise to receive or make telephone calls or emails, or how long she was likely to be away. That was the last correspondence received by the Tribunal from the claimant.[10]EJ Newburn accepted that email as an application to postpone the hearing and granted it. On 12 May 2022, the parties were sent a further Notice of Preliminary Hearing to take place on 11 July 2022.[11]On 11 July 2022, the claimant failed to attend the Preliminary Hearing before EJ Arullendran. The respondent was represented by counsel who in turn was accompanied by a solicitor. EJ Arullendran issued an unless order, that required the claimant, amongst other matters, to write to the Tribunal and the respondent by 22 July 2022 and provide a reason for her non-attendance at the hearing, and confirm whether she was actively pursuing her claims.[12]The claimant did not comply with the unless order and confirmation of the claims having been dismissed was sent to the parties on 28 July 2022.[13]On 17 August 2022, EJ Sweeney ordered the claimant to provide her comments on the respondent’s costs application by 24 August 2022. No response was received.
The Law
[14]Rule 76 of the Employment Tribunal Rules of Procedure 2013 (“the ET Rules”) govern the awarding of costs by the Tribunal. So far as relevant, it provides: “76. Where a costs order or preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings or part have been conducted; or ‘(b) any claim or response had no reasonable prospect of success…”[15]Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.[16]In the exercise of my powers under the relevant provisions of the Rules, I have a duty to give effect to the overriding objective.[17]Awards of costs are intended to be compensatory not punitive.[18]It is not necessary for there to be a precise causal link between any relevant conduct in any specific costs claimed. The tribunal is required to look at the whole picture and to ask itself whether there has been unreasonable conduct in bringing the case and to identify the conduct, what was unreasonable about it and what effects it had: Barnsley Metropolitan Borough Council v Yerrakalva.[19]The tribunal is not confined to ordering a sum that a party is able to pay, or able to pay the moment an order falls to be made: Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797 and Vaughan v London Borough of Newham [2021] IRLR 713. Discussion and Conclusions Stage 1 – The Threshold Test
Discussion and Conclusions
[20]I am satisfied that the claims had no reasonable prospect of success. The claimant was aware, on the face of her pleadings of the alleged acts of discrimination at the time they were said to have occurred and the dispute over payment. She was aware that she had delayed in the presentation of her claims. The delay was in the order of 3.5 years. She had no reasonable prospect of persuading the Tribunal to extend time for the presentation of her claims on the basis that it was just and equitable to do so, or that it was not reasonably practicable to present the claims sooner, on the basis that she did not wish to present a claim unnecessarily.[21]Turning to the respondent’s alternative contention, i.e. that the claimant had behaved unreasonably. I am satisfied that in engaging in the litigation only until such time as the respondent submitted a detailed response, before failing to engage with the proceedings at all thereafter amounts to unreasonable conduct. It was her claim to pursue and having presented it, it was for her to engage in the litigation she chose to commence. It was open to the claimant to provide an update in respect of her personal circumstances in advance of the reconvened hearing, but she did not. She did not update the Tribunal of her own volition as she indicated she would, and neither did she respond to the unless order. She did not respond to either of the respondent’s emails applying for costs, or the Tribunal’s correspondence seeking her views. The claimant’s inaction is tantamount to abandoning her claim yet failing to notify either the Tribunal or the respondent of her intention. Stage 2 – Discretion[22]The threshold test having been met, it does not automatically follow that a costs order will be made. I turn to consider whether to make an order at all, and if so, in what amount.[23]The claimant is capable and demonstrated through her actions that she was able to, with confidence, contact the respondent and the Tribunal and receive correspondence from both via email. I have no information before me to suggest that that ever changed. The claimant has failed to engage with the Tribunal despite a second hearing convened to consider the claim that she decided to present or contact the Tribunal in the face of an unless order and a costs application. I have no information to explain such behaviour over an extended time. It was open to the claimant to update the Tribunal at any stage of the proceedings but she did not do so. In particular it was open to her to contact the Tribunal to inform it of her inability, if that were the case, to attend the second hearing as she did in relation to the first hearing. In failing to do so, she caused the respondent to incur unnecessary legal costs and that consequence would have been plain to her.[24]In the circumstances I am satisfied that it is appropriate to exercise my discretion to make a costs order in favour of the respondent.[25]Turning to the amount of the costs order. I bear in mind that the respondent seeks only the costs of counsel who attended on the date of the second hearing before EJ Arullendran; it does not seek the costs of its solicitor’s attendance or indeed any other costs incurred in relation to this claim. Counsel’s fees are unremarkable in amount and likely to be no more than, if not less than, the costs of the respondent’s solicitor preparing for and attending the hearing itself.[26]I am not required to take the claimant’s ability to pay into account, but I may do so. The claimant was given a reasonable opportunity to respond to the respondent’s application made across two emails on both 19 July 2022 and 5 August 2022. She further failed to reply to the order of EJ Sweeney requiring comments on the respondent’s application. The only information I have before me is in relation to the claimant’s ability to earn and, whilst I take into account that that information was in relation to an engagement that took place briefly 4 years ago, I have nothing before me to suggest that that earning capacity has changed significantly and for the worse.[27]It is not necessary for me to conclude that the claimant’s means are such that she can satisfied the order the moment is made. I am satisfied on the evidence before me that the net amount of £500 sought is within the claimant’s grasp to discharge within a reasonable period of time. As for the VAT element, I make no award to represent that element of the application, since I am not satisfied that the respondent as a limited company cannot recover that element of its costs against its VAT liability as a whole.
Discussion and Conclusions
[1]On 9 March 2022, the claimant presented a claim form in which she complained of race and religion or belief discrimination as well as arrears of pay in respect of employment as a PPI case handler between 1 October 2018 and 16 October 2018.[2]The respondent submitted a ‘holding response’ and secured permission of the Tribunal to provide further information by 13 May 2022.[3]The claimant emailed the respondent and the Tribunal on 5 May 2022 and again on 9 May 2022 requesting sight of the amended response and the respondent’s agenda in advance of the telephone case management preliminary hearing which was due to take place on 24 May 2022.[4]On 10 May 2022, the respondent sent a response, which contained significant factual detail, denying the claims, together with an agenda to both the claimant and the Tribunal. Those documents were accompanied by an application to strike the claimant’s claim out on the basis that the claim had been presented out of time.[5]On 7 July 2022, the respondent sent to the Tribunal and the claimant a bundle in preparation for the preliminary hearing.[6]On 11 May 2022, at 02:46, the claimant emailed the Tribunal only. She stated simply “I am unable to attend a preliminary hearing. My father has passed away and I flying to my home country. I will update you once I am back.”[7]EJ Newburn accepted that email as an application to adjourn the preliminary hearing on 24 May and granted the application. On 12 May 2022, the parties were notified by email of the adjourned hearing, now due to take place on 11 July 2022.[8]On 11 July 2022, the claimant failed to attend the preliminary hearing. The respondent attended by its counsel and solicitor. The claimant did not answer a telephone call made by the Tribunal during the hearing. The respondent informed me that it had made several attempts to communicate with the claimant but that all were unsuccessful.[9]On 11 July 2022, I made and unless order, requiring the claimant to: provide her reason for her non-attendance at the hearing; confirm whether she is actively pursuing her claims; confirm the statutory basis for her claim for wages. The claimant was required to provide that information by 22 July 2022.[10]On 25 July 2022, the respondent wrote to the Tribunal seeking ‘a strike out’ of the claimant’s claim. 11. on 28 July 2022, the Tribunal confirmed the automatic dismissal of the claimant’s claims upon non-compliance by her.[12]The claimant was copied into an application for costs and correspondence dated 19 July, 29 July and 5 August 2022. On 17 August 2022, the claimant was asked by EJ Sweeney for her comments on the claimant’s application, to be received by 24 August 2022. On 31 August, the claimant was copied into further correspondence from the respondent to the Tribunal.[13]On 23 September 2022, EJ Jeram acceded to the respondent’s application, making an order that the claimant pay the respondent’s costs of £500.[14]On 7 October 2022, the claimant wrote to the Tribunal requesting that the costs order be cancelled and the hearing be relisted. She stated that she had returned to the UK but sought further time she remained mentally fragile.[15]In various emails, the claimant explained that her father had passed away on the evening of 10 May, that her sister had packed her suitcase and that a friend had booked her ticket to fly from London to Lahore. She provided travel documentation confirming a flight 2135 on 11 May 2022, together with evidence that suggests she exited Pakistan on 1 October 2022. The claimant stated she was profoundly affected by the death of her father, such that she was incapable of sending emails. She sent to the Tribunal a fit note dated 17 November 2022, in which her GP stated ‘I have been treating her for severe grief reaction following her father’s death. She returned to Pakistan [sic] 11/5/22 and came back to the UK 1/10/22. Thus, she was not able to attend court between those dates’. The application is resisted by the respondent.[17]I have considered the claimant’s application as an application for relief from sanctions, made pursuant to rule 38, and in the alternative, an application for reconsideration pursuant to rule 70 of the Tribunal Rules of Procedure 2013.[18]An application for relief from sanctions requires the applicant to make a written application within 14 days of the date written notice of confirmation of the effect of the unless order was sent to the parties: rule 38 (2). Similarly, an application for reconsideration of a judgement requires an application to be presented in writing within 14 days of the date on which the written communication of the decision was sent to the parties: rule 71.[19]The parties were served written confirmation of the dismissal of the claimant’s claim on 28 July 2022. The relevant rules therefore both required the claimant to make her application by 11 August 2022.[20]The claimant’s application, whether considered as an application for relief from sanctions, or an application for reconsideration, is made significantly outside the applicable time limit: the rules require an application to be made within 14 days of communication of the decision; the claimant exceeded that time limit by a further 8 weeks. For that reason alone, I dismiss the application.[21]The claimant has not sought an extension of time to submit her application, but had she done so, I would not have granted the extension. Whereas I recognise that the claimant’s grief has impacted upon her to such a significant extent that she has sought medical support, there is no evidence before me to suggest that the claimant was so debilitated that she was incapable of reading or responding to any email correspondence at all about her claim. The claimant did not communicate with the Tribunal about her claim at all for a period for almost 5 months; it was not within her gift to direct the respondent and the Tribunal to leave her claim in abeyance until some unidentified date in the future. The claimant was notified of the dismissal of her claim some halfway through that 5 month period. It was the claimant’s claim to pursue and it was her responsibility to actively pursue it or seek to engage with the respondent and the Tribunal to identify an alternative way forward; she did neither. The overriding objective requires fairness to both parties, as well as dealing with matters proportionately. The claim was already presented years beyond the primary time limit and the respondent was entitled to have the matter dealt with expediently once the claim had been presented. I sympathise with the effect of the unfortunate timing of the claimant’s loss of a close family member, but I cannot accept that it would be in the interests of justice or in accordance with the overriding objective to extend time by 2.5 months in order to consider her application for relief from sanctions. The claimant’s application is dismissed.
Background
[1]On 9 March 222, the claimant presented a claim for arrears of pay and race and religion or belief discrimination in respect of an assignment lasting 16 days from 1 October 2018 to 16 October 2018. Accompanying its amended response, the respondent made an application to strike out the claims on the basis that, the claims having been presented significantly out of time, there was no reasonable prospects of the primary time limits being disapplied.[2]The claimant failed to attend the first case management hearing in the matter before EJ Arullendran and on 22 July 2022, the claimant having failed to comply with an unless order made by EJ Arullendran, her claim was dismissed. Confirmation was sent to the parties on 28 July 2022 (‘the First Judgment’).[3]In emails dated July and August 2022, the respondent made an application for costs on the grounds that the claimant had no reasonable prospect of success and that she had behaved unreasonably in the bringing and conducting of proceedings.[4]In a judgment dated 23 September 2022 and sent to the parties on 30 September 2022 (‘the Second Judgment’), I determined the respondent’s application for costs in its favour on both grounds above.[5]In relation to the ground that the claimant behaved unreasonably in the bringing and conducting of the claim, I found that the claimant had essentially abandoned her claim.[6]As to the ground that the claim had no reasonable prospect of success, I considered that on a reading of the claim form and appended documents, the claimant was in possession of the relevant facts to support her claims for race / religion discrimination as well as her claim for arrears of pay at the relevant time and, furthermore, she had made a conscious decision to delay issuing proceedings. The claim was presented over 3 years after the expiry of the primary time limit for both causes of action. At paragraph 20 of the judgment, I concluded that there was no reasonable prospect of the claimant persuading the Tribunal to disapply the applicable primary time limits. Application for Reconsideration[7]The claimant wrote to the Tribunal on 7 October 2022 in which correspondence, she asked for the costs order to be cancelled and the hearing to be relisted. The claimant stated that she had suffered severe trauma due to the loss of her father and that she had been in Pakistan since May 2022. Although the claimant did not explicitly make a request, the Tribunal accepted the claimant’s correspondence dated 7 October 2023, as an application for reconsideration of both judgments.[8]An application for reconsideration under rule 70 must be made within 14 days of the date on which the decision was sent to the parties.[9]The application in respect of the First Judgment was made significantly out of time, and on 18 May 2023, the parties were sent a judgment in which EJ Arullendran refusing the claimant’s application for reconsideration / relief from sanctions from the effect of the unless order, for that reason.[10]The Second Judgment, however, was made within the relevant time limit and so it was considered.[11]There is a single ground upon which a judgment can be reconsidered, that being that it is in the interests of justice to do so; rule 70. If it is reconsidered, a judgment can be confirmed, varied or revoked.[12]In her application, as well as several items of subsequent correspondence, the claimant contended that she had suffered bereavement on 10 May 2022, requiring her to leave the country and that her mental state was such that she could not engage with the Tribunal or the respondent. A fit note of the claimant’s GP, Dr Kent, dated 17 November 2022 stated that the claimant had suffered a severe grief reaction and that she was out of the country from 11 May 2022 until 1 October 2022 and therefore was unable to attend court hearings.[13]An initial consideration was carried out pursuant to rule 72(1). On 18 May 2023, the parties were informed that I had determined that it could not be said that the application had ‘no reasonable prospect’ of the Second Judgment being varied or revoked. In arriving at that conclusion, I took into account the medical evidence relied upon by the claimant, observing that it was not inconsistent with the possibility that the claimant’s mental health was the barrier to her engaging with correspondence from the respondent and the Tribunal about the costs application and that had she been able to engage, she may have been in a position to explain why an order should not have been made on the basis that her claims had no reasonable prospect of success. The determination sent to the parties reminded the parties that the claimant’s application did not address the alternative ground for making the costs order, i.e. that her claims had any prospect of success.[14]The parties’ views as to whether a hearing was required were sought; neither objected to a determination without a hearing.[15]On 27 June 2023, and pursuant to rule 72(3) the Tribunal wrote to the parties informing them of my decision that a hearing was not necessary and informing them that they were permitted to make further representations by 11 July 2023.[16]On 28 June 2023, the respondent wrote to the Tribunal observing that the medical evidence was such that it did not support the claimant’s contention that her mental health was in such a state that it prevented her from communicating about her claim at all. It also observed that the claimant has made no representations about why her claims had any prospect of success which, it noted, was ‘in itself enough to justify a costs order’.[17]On 10 July 2022, the claimant again wrote to the Tribunal attaching two letters from a Professor Kamran, Professor of Surgery, based in Lahore, advising of bed rest and her unfitness to work from June to August 2022, a further copy of the fit note from Dr Kent previously sent to the Tribunal, a letter written by Dr Kent dated 25 May 2023 and the claimant’s written submissions.[18]In the letter, Dr Kent stated that the claimant was seen in October 2022 when she presented with a serious bereavement reaction, requiring treatment. Dr Kent confirmed that the claimant was ‘unable to attend to her legal and financial matters between May and October [2022] due to her absence from the country and poor mental health’.[19]In her written submission, the claimant contends that ‘justice should not be time bound’ or else ‘justice could never be served’. She made reference to s.33 Limitation Act 1980 as well as, what I understand to be, a reference to the ability of the police to reopen criminal investigations decades after they were closed. Discussion and Conclusion[20]Taking into amount the medical evidence, I am satisfied that the claimant did not behave unreasonably in failing to engage with the litigation process. However, that is not an end to the matter, since the Second Judgment was based on a further ground, that there were no reasonable prospects of the primary time limits being disapplied.[21]Time limits are jurisdictional in nature. The starting point is that they must be complied with. The reasonably practicable test contained in the Employment Rights Act 1996 is a relatively strict one. The just and equitable extension found in the Equality Act 2010 gives the Tribunal a relatively wide discretion, but nevertheless, there is no presumption in favour of claimants, rather the reverse is true; a Tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time: Robertson v Bexley Community Centre t/a Leisure Link [2003] IRLR 434 CA.[22]Although the power to reconsider a judgment is a broad discretion, it is one that must be exercised judicially. As with any power under the Tribunal Rules of Procedure, judges must seek to give effect to the overriding objective when exercising their discretion. Regard must be had not only to the applicant, but also to the other party to the ligation. Furthermore, a central aspect of the interests of justice is that there is, so far as possible, finality of litigation. A reconsideration is not an opportunity for the applicant to have a second bite of the cherry, without there being some compelling reason, and nor is it an opportunity for a Tribunal to review and amend its original decision if it has changed its mind; recently affirmed in Ebury Partners UK Ltd v Davies [2023] EAT 40.[23]The claimant has not only been given an opportunity to have the Second Judgment reconsidered, but in doing her attention has been specifically directed to the finding that the claims had no reasonable prospects of success.[24]On any view, the claimant had a hurdle of considerable magnitude to overcome, being that her claims had been presented over 3 years outside the expiry of the primary time limit. The claims arose out of an assignment that lasted only 18 days; the contents of the claim form suggests that the claimant was in possession of the relevant facts giving rise to her claim, but chose to delay the presentation of those claims. These are compelling facts that might suggest that a Tribunal seized of them would conclude that it had no jurisdiction to entertain them.[25]It is not enough to simply state that justice would be served by acceding to the application or that there exists a legal basis to disapply a primary time limit. Statutory time limits go the Tribunal’s power to consider the claim/s at all; they must be applied unless the claimant can persuade the Tribunal that any extension satisfies the relevant statutory test. The claimant has not provided, at any stage, any compelling ground as to why she had a reasonable chance of persuading a Tribunal to extend the primary time limit so that her claims had been presented in time, or why the discretion should not have been exercised to make the costs order.[26]There is no compelling basis to revoke or vary the Second Judgment.