Mr K StormowskiClaimantHeritage Care LtdRespondentDate 12 July 2018
REASONS
[1]By claim form dated 6 January 201 the claimant brought claims of unfair dismissal, race discrimination and breach of contract. The claims were resisted by the respondent.[2]At a preliminary hearing on 11th and 12th July 2018 the Tribunal found that all of the claims had been presented out of time, and that accordingly the Tribunal does not have jurisdiction to hear them. The Tribunal also found that the claimant had not been dismissed. The Tribunal’s judgment was sent to the parties on 17 July 2018 and should be read alongside this decision.[3]On 30 July 2018 October the claimant applied for reconsideration of the judgment. I have given his application careful consideration.
The relevant law
[4]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provide as follows:- Rule 70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (‘the original decision’”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Rule 71 Application …an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication of the original decision was sent to the parties…and shall set out why reconsideration of the original decision is necessary. Rule 72 Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked…the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing…[5]The only ground upon which a party can now apply for reconsideration of a judgment is ‘the interests of justice’. The reconsideration process is not designed to give a party that is unhappy with the outcome of a hearing, a ‘second bite at the cherry’ and re-argue points that have been properly considered at the hearing. When considering whether it is in the interests of justice to reconsider the judgment, the Tribunal must keep in mind that the interests of justice’ applies to both parties – not just the unsuccessful one. There is also a public policy interest in the finality of litigation.[6]Lord McDonald said in Stevenson v Golden Wonder Ltd [1977] IRLR 474 that the (then) review provisions were “not intended to provide parties with the opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis…" In Trimble v Supertravel Ltd [1982] ICR 440 the Employment Appeal Tribunal held that on an application for what was at the time a review (and is now reconsideration), if a matter has been ventilated and properly argued during the course of Tribunal proceedings, then any error of law falls to be corrected on appeal and not by way of review.[7]In his application for reconsideration the claimant argues that:-a. the Tribunal relied only upon the evidence which supported its decision and ignored evidence which did not support its decision;b. the Tribunal missed some information;c. the Tribunal’s explanation does ‘not make sense’ for him;d. There was no written proof of his resignation from the respondent; ande. The Tribunal made no decision in relation to the claimant’s application for witness orders.[8]I have considered carefully these arguments and the issues raised in the claimant’s application for reconsideration. Relying only on part of the evidence and ignoring or missing evidence[9]One of the primary roles of the Employment Tribunal is to consider the evidence before it and make findings of fact. In many cases, including this one, where there is a conflict between the evidence or arguments of each party, the Employment Tribunal has to weigh up the evidence before it and decide which evidence if prefers.[10]At the preliminary hearing in July only the claimant gave oral evidence. The respondent did not adduce any oral evidence. There was documentary evidence introduced by both parties, and the claimant was given time to adduce additional evidence during the course of the hearing.[11]Having reviewed the decision in this case, I am satisfied that proper weight was given to the claimant’s arguments, to his oral testimony and to the documentary evidence. The fact that a party disagrees with the findings of fact of the Employment Tribunal is not in itself grounds for the Tribunal to reconsider its decision.[12]The claimant has not, in my view, set out any basis for me to conclude that the interests of justice require reconsideration of the evidence and of the findings of fact made at the preliminary hearing. The Tribunal’s explanation does not make sense to the claimant[13]Whilst it is of regret that the claimant believes that the decision does not make sense, I have reviewed and am satisfied that the findings of fact and conclusions are clearly set out. Even if that were not the case, I am not persuaded that it would be in the interests of justice to reconsider a decision on this ground alone. No written proof of the claimant’s resignation[14]The Tribunal did not find that the claimant resigned. It found that the claimant was dismissed, and that the dismissal was overturned on appeal. No decision made in relation to the claimant’s application for witness orders[15]In light of the Tribunal’s findings at the preliminary hearing, the effect of which was that the entire claim failed, it was not necessary for the Tribunal to consider any further case management issues including any application for witness orders.[16]For the above reasons, there is no reasonable prospect of the original decision being varied or revoked, and accordingly the claimant’s application for reconsideration is refused.
Findings of fact
[17]On 12th or 13th July 2017 the claimant was suspended.[18]On 18 July the claimant attended an investigation meeting. On the same day he wrote to the respondent responding to the allegations and also raising a number of complaints.[19]On 26 July the claimant sent two further letters to the respondent providing more information in relation to his complaints, and on 28 July he wrote directly to the respondent’s Chief Executive raising concerns.[20]On 3 August 2017 the claimant attended a disciplinary hearing. During the course of the investigation most of the allegations against the claimant had been ‘dropped’ and the disciplinary hearing proceeded to consider just one allegation. That allegation was that on several occasions the claimant had used his own loyalty card when shopping for the respondent’s service users, so as to benefit from loyalty points, and that he had ripped the bottom off supermarket receipts to cover this up.[21]The respondent considered this to be financial abuse, and found the allegation proven.[22]On 4 August the respondent telephoned the claimant and informed him that the outcome of the disciplinary hearing was that he was being dismissed with immediate effect.[23]On 9 August the respondent wrote to the claimant confirming its decision, a letter which the claimant did not receive for several days.[24]On 22 August the claimant appealed against the decision to dismiss him and raised a further grievance. The claimant gave evidence to the Tribunal, which the Tribunal accepts, that he took advice from a Citizens’ Advice Bureau before writing his letter of appeal.[25]The claimant wrote to the respondent again on 4 September raising another grievance. In that letter he wrote that :”The Equality Act protects employees from discrimination and harassment because of the characteristic of Race…I believe that I have been discriminated against because of a protected characteristic…I have been discriminated by unfair dismissal…” 4 of 11[26]On 6 September the claimant started a new job through an agency. The claimant has worked in a number of jobs since leaving the respondent’s employment.[27]The claimant sent a further letter to the respondent dated 2 October 2017. In that letter he wrote that: “Please be aware that I have sought advice and if this grievance cannot be solved between ourselves in the first instance then I have only 3 months minus 1 day from the date of my dismissal to submit my grievance claim to a tribunal. I hope that this situation can be avoided by both sides. I have spoken to ACAS anonymously and they have advised me to inform you that almost two months have already passed…”[28]In another letter sent to the respondent on the same day the claimant raised a grievance about an “unlawful deduction of pay”.[29]It is clear to the Tribunal, from the oral evidence of the claimant that he took advice from the CAB prior to 22 August, and from the references to specific pieces of legislation and potential claims, that the claimant was well aware, by early October at the latest, of his employment rights. It is also clear, from the content of the letter dated 2 October, that the claimant was aware of the time limit for bringing a claim in an employment tribunal, and of the need to undergo ACAS Early Conciliation before doing so.[30]The claimant was invited to attend a meeting to discuss his appeal and his grievances. The initial meeting took place on 19th October and a further meeting took place on 31 October.[31]The outcome of the claimant’s appeal against the decision to dismiss him was set out in a letter from Dave Chopra, the respondent’s HR Manager, dated 31 October 2017, and posted to the claimant on 3 November. That letter contained the following relevant wording:- “…the appeal panel have concluded that the original decision to dismiss, has been overturned to a final written warning. This is a formal warning which will remain on your file for a period of 18 months… Given that the appeal panel has overturned your dismissal, you are technically no longer dismissed from Heritage Care. This dismissal will now be officially removed from your employment record with us. By this nature you are free to return back to work for Heritage Care. You did explain however at your original appeal that should the outcome be overturned, you had no intention in returning back to Heritage Care. If you have now changed your mind, and would like to return, then please do contact me on …… to discuss further. Should you still not wish to return to Heritage Care, then I would like the opportunity to discuss with you at a face to face meeting, the offer of a modest financial settlement…” 5 of 11[32]After receiving this letter, the claimant contacted Dave Chopra to arrange a meeting. The claimant was limited in the times that he could attend such a meeting, as he was working full time elsewhere.[33]A meeting was arranged for 22 November but cancelled by Mr Chopra due to other work commitments. Mr Chopra apologised for having to cancel the meeting and offered the claimant a discussion over the telephone instead. The claimant did not take Mr Chopra up on his offer of a discussion, nor ask to rearrange the meeting for another day.[34]The claimant suggested in his evidence that he wanted to return to work for the respondent and thought that the purpose of this meeting was to discuss his return. The Tribunal does not accept that evidence, which is not supported by the documentary evidence, and finds that the claimant did not want to return to work for the respondent. The claimant knew that the purpose of that meeting was to discuss a possible settlement, as evidenced by an email that the claimant sent to the ACAS conciliator on 15 November in which he referred to “the next meeting that I have with Dave Chopra to discuss a modest financial settlement.”[35]On 30 October the claimant commenced ACAS Early Conciliation. Early Conciliation concluded and the Certificate was issued by ACAS on 30 November 2017.[36]On 3 January the claimant received a telephone call from the ACAS conciliator informing him that he was now out of time for bringing a claim, but that ACAS would keep their file open for another week.[37]The claimant issued his claim on 6 January 2018.[38]The claimant accepted in cross examination that it would have been possible for him to issue the claim in time. The law Time bar
The law
[39]In relation to the unfair dismissal complaints, the relevant law is set out in section 111 of the Employment rights Act 1996 which provides that:- “(2) …an [employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months” 6 of 11[40]In relation to the breach of contract complaint, the relevant provision is Article 7 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994, namely:- “…an [employment tribunal] shall not entertain a complaint in respect of an employee’s contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or…..(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked int eh employment which has terminated, or…(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.”[41]The time limits for presenting discrimination claims are set out in section 123 of the Equality Act 2010 which provides that:- “…Proceedings on a complaint…may not be brought after the end of-(a) the period of 3 months starting with the date of ths act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[42]Employment tribunals have a wide discretion when it comes to deciding whether to extend time in discrimination claims.[43]The leading case on just and equitable extensions under the Equality Act are Robertson v Bexley Community Centre [2003] IRLR 434 in which the Court of Appeal held that there was no presumption that tribunals should extend time unless they can justify a failure to exercise their discretion to do so, but rather a tribunal cannot hear a complaint unless the claimant persuades the tribunal that it is just and equitable to extend time. The exercise of the discretion should be the exception rather than the rule.[44]In British Coal Corporation v Keeble and others [1997] IRLR 336 the EAT suggested that tribunals, when deciding whether to exercise their discretion, should take account of the factors listed in section 33 of the Limitation Act 1980. More recent decisions however, including the Court of Appeal judgment in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 have held that there is no requirement on tribunals to slavishy consider a list of factors when deciding whether to extend time under section 123 of the Equality Act, as their discretion is very wide. The Court of Appeal did 7 of 11 however state that the length of and reasons for the delay would almost always be relevant, as would prejudice to the respondent.[45]The ACAS Early Conciliation process serves to extend time limits. Section 207B(4) of the ERA 1996 is the relevant provision in this case, and provides that:- “If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.”[46]Where a claim is, on the face of it, out of time, the burden of proof lies with the claimant to persuade the tribunal that the claim was in fact in time, or that the relevant time limits should be extended. Was the claimant dismissed?[47]A claimant can only bring a complaint of unfair dismissal (be that ‘ordinary’ or ‘automatic’ unfair dismissal) to an Employment Tribunal if he has been dismissed. The definition of dismissal for these purposes is set out in section 95(1) of the ERA:- “For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2)…only if)- (a) the contract under which he is employed is terminated by the employer (whether with or without notice)… (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct…”[48]Where an employee has been dismissed and the dismissal is overturned on appeal, then the dismissal ‘vanishes’ and the contract of employment is revived. In Roberts v West Coast Trains Ltd [2004] IRLR 788 the Court of Appeal held that where an initial sanction of dismissal was reduced on internal appeal to demotion to a lower grade, the employee had not been dismissed. The effect of the appeal decision was to ”revive retrospectively the contract of employment terminated by the earlier decision to dismiss” [Lord Justice Mummery, para 26] so as to treat the employee as if he had never been dismissed.’[49]In McMaster v Antrim Borough Council [2011] IRLR 235 the Northern Ireland Court of Appeal held that the automatic reinstatement principle applied whether or not the employer has taken active steps to take the employee back, and without the need for there to be a formal offer and acceptance. 8 of 11[50]The Tribunal was referred also to the case of Folkstone Nursing Home Limited v Patel EAT/0348/15/DM as authority for the proposition that there is no need for the disciplinary procedure to specify that reinstatement would be the result of a successful appeal as that is “inherent in the provision of the appeal” [His Honour Judge Richardson, paragraph 35] . His Honour Judge Richardson in Folkstone also referred to paragraph 36 of the judgment of Mr Justice Lanstaff, President of the EAT in Salmon v Castlebeck Care (Teesside) [2015] IRLR 189:- “I see no reason in principle why in any event it would be necessary for there to be an express revival or reinstatement. It must be implicit in any system of appeal, unless otherwise stated, that the appeal panel has the right to reverse or vary the decision made below. Where a decision is to dismiss, being the most draconian of sanctions, any success on appeal means that the decision is one in which dismissal does not take effect, thought some lesser sanction might.” Conclusions Time bar Unfair dismissal and breach of contract complaints
Conclusions
[51]The claimant accepted that his claims should have been presented to the Tribunal by 30 December 2017. Time started running on those claims on 4 August 2017 at the latest. Primary limitation expired on 3 November, but was extended to 30 December (one month after Day B) by section 207B(4) of the ERA.[52]The claimant gave evidence to the Tribunal that it would have been possible for him to submit his claim to the Employment Tribunal in time. The Tribunal finds that the claimant was aware of the relevant time limits, of his employment rights, and of his right to make a complaint to an Employment Tribunal, by the 2nd October 2017 at the latest. He first took advice from the Citizens’ Advice Bureau in August, prior to appealing against the decision to dismiss him.[53]The claimant did not present any evidence to the Tribunal as to why it would not have been reasonably practicable for him to submit his claim in time. When asked why he had not done so he referred in general terms to delays by the respondent and by ACAS, but without being specific. He also referred to a telephone conversation he had with the ACAS conciliator on 3 January 2018. That conversation took place after the time limit had expired, and was not relevant to the question of why the claimant did not submit his claim by 30 December.[54]In these circumstances, and in light of the claimant’s evidence, the Tribunal has no hesitation in finding that it would have been reasonably practicable for the claimant to submit his complaints of unfair dismissal and breach of contract on 9 of 11 time. As he failed to do so, the complaints are out of time and the Tribunal does not have jurisdiction to hear them. Discrimination claims[55]Those claims were also submitted out of time, as the claimant recognised. The last of the alleged acts of discrimination was an incident on 22nd August 2017. Primary limitation for that act expired on 21 November 2017 but was extended by virtue of the Early Conciliation provisions referred to above to 30 December 2017.[56]The Tribunal has considered carefully whether to exercise its discretion to extend time. In reaching its decision it has considered the following:-(a) The length of and reasons for the delay. The period of the delay in this case is just 7 days. Balanced against that however are the reasons for the delay. No good reason has in the Tribunal’s view been advanced. The claimant was aware of his legal rights (he referred to the Equality Act in a letter to the respondent dated 4 September) and of the time limits for bringing employment tribunal claims. There was no suggestion that the claimant was too unwell to present his claim earlier, and indeed he was at work with another employer from 6 September onwards.(b) The relative prejudice to the parties. The claimant admitted that he could have presented his claim on time. In these circumstances, the prejudice to the respondent of allowing this claim to proceed outweighs the prejudice to the claimant of not allowing it to do so.(c) The promptness with which the claimant acted when he knew of the facts giving rise to his claim. In this case the claimant delayed from 22 August (at the latest) until 6 January – despite having taken advice and been made aware of his rights in August.[57]For those reasons, the Tribunal finds that it would not be just and equitable to extend the time limit. The discrimination complaints are therefore out of time and the Tribunal does not have jurisdiction to hear them. Was the claimant dismissed?[58]In light of the findings above, it is not strictly necessary for the Tribunal to make a finding on this issue. For completeness however, and as this was an issue which it was agreed at the outset of the preliminary hearing would be considered, the Tribunal does make a finding.[59]The Tribunal is satisfied, on the evidence before it, that this is a case which falls within the Roberts v West Coast Trains principle. The appeal outcome letter makes clear that the decision to dismiss the claimant was being overturned on appeal and that the claimant was no longer dismissed. The fact that the claimant chose not to return to work is a matter for him and does not affect the Tribunal’s decision on this issue. The claimant has not advanced a constructive 10 of 11 dismissal argument, but relies purely on the proposition that he was dismissed by his employer.[60]The Tribunal finds that the claimant was not so dismissed. 12 July 2018