Ms S Smith v City and County Healthcare Group Ltd: 2501593/2017
EMPLOYMENT TRIBUNALS
Case No 2501593/2017Venue NORTH SHIELDSHearing 23rd February 2018
Between
Ms S SmithClaimantCity and County Healthcare Group LtdRespondent
Before
Employment Judge GarnonDate 19 March 2018
REASONS
[1]The claim was served on 28th November 2017. The address given by the claimant for service was a place of business, shown as such on the respondent’s website, albeit the registered office of the respondent is a different address . I have directed a copy of this judgment be sent to both addresses[2]A response was due by 26th December 2017 but none was received. I am required by rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material whether a determination can be made and , if so, obliged to issue a judgment which may determine liability only or liability and remedy.[3]I have in the claim form sufficient information to enable me to find the claims proved on a balance of probability but not enough to determine the sums to be awarded.[4]The law of unfair dismissal is in Part X of the Employment Rights Act 1996 ( the Act) While normally an employee requires two years continuous employment to have the right, the claim form sets out sufficient to show an exception to that rule under s108(3) Case Number 2501593/17[5]The common law provides a contract of employment may be brought to an end by reasonable notice. Dismissal without such notice is termed ”wrongful”,[6]The Working Time Regulations 1998 say in Regulation 14 that where a worker's employment is terminated during the course of his leave year, and on the date on which the termination takes effect the proportion he has taken of the leave to which he is entitled in the leave year differs from the proportion of the leave year which has expired. his employer shall make him a payment in lieu of untaken leave.[7]The law relating to disability discrimination is in the Equality Act 2010, in particular s15 in this case. TM Garnon[1]The respondent has applied for a reconsideration of a judgment on liability only made by me under Rule 21 of the Employment Tribunal Rules of Procedure 2013 (the Rules) in circumstances where no response had been presented.[2]The claim was presented on 28th November 2017 and served on one of the respondent’s trading addresses stated on the claim form as “ Monkton Business Park, Blue Sky Way, Hebburn, Newcastle, NE31 2EQ “ . No response was received by the due date of 26th December 2017. The file was referred to me on 28th December. Rule 21 (2) provides I must decide on the available material whether a determination can properly be made of the claim or part of it. Taking the content of the claim form as true in the absence of any response, a determination on liability only could be made. Rule 21(2) then says in terms I shall issue a judgement accordingly. The general power under Rule 41 for the tribunal to regulate its own procedure does not appear to give me power to refuse to issue a judgement simply because I have concerns about effective service of the claim.[3]Notwithstanding that, it has always been my practice when I see a respondent which is a limited company first to do a Companies House search then a search on some search engine to see if that company has a different trading address. In the reasons for the judgment, I wrote the respondent had a trading address in Blue Sky Way and a different registered office address . I directed a copy be sent to both addresses .[4]I signed judgment on Thursday 28th December and it was sent to the parties on Thursday 4th January 2018. It would have been received by the respondent in the normal course of post by Saturday 6h January but may not have been seen until Monday 8th by anyone with the authority to deal with it The respondent claims to have emailed the Tribunal on 9th January requesting a reconsideration but no such email arrived . Having received no acknowledgement, Ms Smith for the respondent emailed again 22nd January, the day before the remedy hearing which I had fixed when issuing the Rule 21 judgment. I postponed that the hearing and a reconsideration hearing was fixed for today. If the email 9th January was sent the application for reconsideration was in time. If it was not, Rule 5 empowers me to extend time. The overriding objective contained in Rule 2 is that I must deal with all cases fairly and justly.[5]Having been an Employment Judge for over 20 years, I have been governed by three sets of rules issued in 1993 , 2004 and now 2013. I have heard many fanciful “ lost in the post” arguments put by respondents and claimants but some genuine ones. I always in such cases direct myself to be wary of cynicism. The main difference in the present rules is that the claim form, and sometimes other documents such as notices fixing a preliminary or full merits hearing in practice sent by the tribunal in one envelope ,are the first and only communication a respondent will receive. if it goes astray the next document a respondent will receive is the Rule 21 judgement. In earlier years at least two documents would have been normally sent .Changes to the Rules have largely been in order to streamline procedures .The plain fact is the more documents that are sent, the less chance all go astray.[6]The issue today is whether I accept the evidence in the signed witness statement of Mr Kelvin Blakey , Facilities Manager that the proper full address is 7-8 Blue Sky Way, Monkton Business Park ,Hebburn, Newcaslte NE31 2EQ and that incompletely addressed mail is often delivered to the wrong businesses in Blue Sky Way. Some of the units on Blue Sky Way are unoccupied and mis-delivered post may go unseen for weeks . The claimant urges me not to believe the respondent but accepts that if I do, revocation of the judgment should follow.[7]I heard the sworn evidence of Ms Gill Smith well tested in cross examination by the claimant. Unsurprisingly her main point was that had the claim been received, a company of this size would have no reason at all not to respond. The first they knew of this claim after Early Conciliation had ended was when the judgment sent to the registered office was received there scanned and forwarded to Ms Smith at her base in Hebburn . The next day the hard copy sent by this Tribunal to the Hebburn address arrived . The claim form originally sent has quite simply never turned up anywhere.[8]Noting the detail of the evidence, on balance of probability, I accept what the respondent says. The only ground for a reconsideration is whether one is necessary in the interests of justice. As I believe the claim was not received, it is in the interests of justice to revoke a judgment made without a party having had the opportunity to be heard. . TM Garnon