Mr I Hussain v Lea Interchange Bus Company Ltd T/a Stagecoach London: 3200490/2024 and 3200552/2024
EMPLOYMENT TRIBUNALS
Case No 3200490/2024, 3200552/2024
Between
Mr I HussainClaimantLea Interchange Bus Company Ltd T/a Stagecoach LondonRespondent
Before
Employment Judge VolkmerNot represented for claimantMr Riley (instructed by solicitor) for respondentDate 15 July 2024
JUDGMENT
[1]The Respondent’s name is amended to Lea Interchange Bus Company Limited T/A Stagecoach London.[2]Claim number 3200490/2024 is dismissed upon withdrawal by the Claimant.[3]Claim number 3200552/2024 is struck out because the Tribunal does not have jurisdiction to consider an unfair dismissal claim in relation to a claimant with less than two years’ service. It does not identify any other complaint which the Employment Tribunal has jurisdiction to determine.
REASONS
[1]The Claimant was employed by the Respondent as a Bus Driver from 16 August 2023 until 30 January 2024 when he was dismissed for gross misconduct by the Respondent.[2]ACAS notification was on to February 2024 and the ACAS certificate was issued on 19 February 2024. Two claims were presented: claim number 3200490/2024 was presented on 29 February 2024 and 3200552/2024 was presented on 6 March 2024.[3]By email to the Tribunal dated 5 June 2024, the Claimant confirmed that claim number 3200490/2024 had been incorrectly submitted. In a letter dated 10 June 2024 the Claimant stated he had requested this claim be cancelled due to the form being incorrect. Therefore this claim is dismissed on withdrawal.[4]The paragraphs below refer to claim number 3200552/2024.[5]In the Claimant’s ET1 form at paragraph 8.1 the Claimant did not tick any box relating to discrimination or unfair dismissal. Instead the Claimant ticked the box which stated “I am making another type of claim which the Employment Tribunal can deal with.”. In the box the Claimant stated “breach of procedures and breach of contract”.[6]In setting out the background to the claim, the Claimant again referred to breach of contract/breach of procedures. He referred to his disciplinary appeal being ignored, no investigations taking place, a grievance being ignored, a manager being inappropriately involved in an investigation, a predetermined outcome of dismissal and vague and unclear charges being brought forward by the employer. The Claim did not refer to any monetary sum to which the Claimant asserted he had a contractual right to but had not been paid.[7]In referring to the grievance which the Claimant alleges had been ignored, the Claimant stated that the grievance related to “behaviour mounting [sic] to racial hatred”.[8]The Grounds of Resistance set out that the Respondent asserted that the Claim should be struck out on the basis that the Claimant could not pursue a complaint of unfair dismissal due to having less than two years’ service and referred to the fact that the Claimant appeared to be bringing an unfair dismissal claim under the guise of breach of contract. The Respondent stated (in paragraph 38 of the Grounds of Resistance) that it had understood there to be no complaint being made that the Claimant had been discriminated against.[9]The Respondent set out that the Claimant had been dismissed on gross misconduct grounds including driving through a red light, becoming physically aggressive with third party in the Respondent’s vehicle, and other customer complaints.[10]The Claimant sent a response to this on 19 May 2024 in which he set out his account of the factual details. In that document he stated “I am bringing forward a claim of breach of contract. The respondent has breached the mutual trust and confidence which is a fundamental breach and this is a breach of contract.” Almost all of the narrative referred to procedural concerns regarding the dismissal and grievance process. However there was reference to the Respondent not investigating a grievance allegedly raised by the Claimant in relation to which he stated that the incident was one “whereby I was inflicted with racial abuse”.[11]By email on 4 June 2024, the Respondent referred to the Claimant’s correspondence of 19 May 2024 and stated that the Respondent objected to the Claimant’s application to amend his claim. On 5 June 2024, the Claimant responded saying “breach of contract I believe this does cover everything”, he appeared to dispute that he was seeking to amend the claim. In a letter dated 10 June 2024 the Claimant stated “the allegations have not changed and my claim has not changed…. I have not asked for anything new or asked for any amendments…. I am putting my case forward to the employment Tribunal to show and clarify the basis of my breach of contract and not unfair dismissal. This also includes breach of trust which is the fundamental part of my breach of contract claim.”.[12]On 20 June 2024 the Respondent sent the Claimant a draft agenda and draft List of Issues which referred to a breach of contract claim only. The Claimant’s amendments to the agenda again stated that his claim related to breach of contract and that he did not seek to amend it.[13]The Claimant wrote to the Tribunal on 15 July 2024 stating in the cover email that he would not be attending the Preliminary Hearing due to work commitments. The Claimant stated that he wished the letter to be used as his written submissions. In the letter he stated that “My claim isn’t about unfair dismissal nor it’s [sic] about constructive dismissal. This isn’t a claim for unpaid wages or seeking rights for sick pay etc. My claim is about breach of contract. A breach of mutual trust and confidence.”. The letter does not refer to bringing a discrimination claim. The Claimant again included a narrative statement relating to the facts, referring to a grievance he raised which he said related to a colleague who became racially abusive. Jurisdiction of the Employment Tribunal[14]The Employment Tribunal is created by statute and an Employment Tribunal only has jurisdiction to hear those claims for which it has been given jurisdiction by statute.[15]Section 3 of the Employment Tribunals Act 1996 sets out that: “(1)The appropriate Minister may by order provide that proceedings in respect of -(a) any claim to which this section applies, or(b) any claim to which this section applies and which is of a description specified in the order, may, subject to such exceptions (if any) as may be so specified, be brought before an employment tribunal. (2) Subject to subsection (3), this section applies to— (a) a claim for damages for breach of a contract of employment or other contract connected with employment, (b) a claim for a sum due under such a contract, and(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract,”[16]By way of section 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, such jurisdiction is extended to the Employment Tribunal where the claim “arises or is outstanding on the termination of the employee’s employment” (article 3(c)).[17]Pursuant to section 94 of the Employment Rights Act 1996, an employee can bring a complaint in the Employment Tribunal that they have been unfairly dismissed. However, section 108 of the Employment Rights Act 1996 restricts that right, setting out that “Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.”[18]Discrimination complaints made under the Equality Act 2010 do not require a qualifying period of service.
Discussion and conclusions
[19]The Claimant’s claim is framed as a breach of contract claim however the substance and content of it relates to the fairness of the disciplinary procedure leading to his dismissal for gross misconduct. References to breach of the implied duty of trust and confidence would be relevant to a constructive unfair dismissal claim, however the parties agree that the Claimant was expressly dismissed by the Respondent. The Claimant does not have the qualifying period of two years’ service to bring an unfair dismissal claim. In this context there is no freestanding ability to bring claims for breach of the ACAS code and/or disciplinary/grievance procedures.[20]In the Claimant’s own words “This isn’t a claim for unpaid wages or seeking rights for sick pay etc” (see paragraph 13 above). Therefore no other type of breach of contract claim is evident from the particulars of claim.[21]Although there is passing reference to an incident alleged to be racial abuse, the focus of the Claimant’s complaint is an alleged breach of procedures by the Respondent, in allegedly not investigating the grievance. The Claimant did not tick discrimination on the ET1 form. The Respondent is clear in its Grounds of Resistance that it understands the Claimant not to be bringing a discrimination claim. The Claimant has not sought to contradict that understanding. The Claimant has repeatedly confirmed that he is bringing a breach of contract claim, and does not seek to amend his original claim. Upon consideration of all the papers, the Tribunal considers that no discrimination claim is brought by the Claimant.[22]The Tribunal cannot identify any other complaint which it has jurisdiction to hear. As such the claim is struck out for want of jurisdiction.
Discussion and conclusions
[1]The Claimant was employed by the Respondent as a Bus Driver from 16 August 2023 until 30 January 2024 when he was dismissed for gross misconduct by the Respondent.[2]ACAS notification was on to February 2024 and the ACAS certificate was issued on 19 February 2024. Two claims were presented: claim number 3200490/2024 was presented on 29 February 2024 and 3200552/2024 was presented on 6 March 2024.[3]By email to the Tribunal dated 5 June 2024, the Claimant confirmed that claim number 3200490/2024 (the “Duplicate Claim”) had been incorrectly submitted. In a letter dated 10 June 2024 the Claimant stated he had requested this claim be cancelled due to the form being incorrect. Therefore this claim was dismissed on withdrawal.[4]A hearing took place on 15 July 2024, which the Claimant chose not to attend, asking for it to go ahead based on his written submissions. At the hearing, claim number 3200552/2024 (the “Claim”) was struck out because the Tribunal did not have jurisdiction to consider an unfair dismissal claim in relation to a claimant with less than two years’ service. It was determined that the claim form did not identify any other complaint which the Employment Tribunal had jurisdiction to determine. The Claimant’s application to reconsider relates to this Claim. The law on reconsideration[5]Rules 70 to 73 of the Employment Tribunal’s Rules of Procedure 2013, make provision for the reconsideration of tribunal judgments as follows: “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. 71. Application Except where it is made in the course of a hearing, 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 or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 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 (including, unless there are special reasons, where substantially the same application has already been made and refused), 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. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be considered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.”[6]Under these rules, the Tribunal therefore has discretion to reconsider a judgment if it considers it is in the interests of justice to do so.[7]Under rule 72(1), the judge must dismiss the application if they consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined for the purposes of rule 72(2): T.W. White & Sons Ltd v White, UKEAT/0022/21.[8]If the judge considers there are reasonable prospects, they must (under rule 72(2)) consider whether a hearing is necessary in the interests of justice to enable the application to be determined. A hearing would, unless not practicable, be a hearing of the full tribunal that made the original decision (rule 72(3)). If, however, the judge decides that it is in the interests of justice to determine the application without a hearing under rule 72(2), then they must give the parties a reasonable opportunity to make further written representations.[9]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the Rule 70 ground for reconsidering Judgments (the interests of justice) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2014 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules.[10]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[11]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[12]Rules 71 and 72 give the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.” Assessment of the application under Rule 72(1)[13]I determined that the Claim did not contain a discrimination complaint for the reasons set out in the Judgment dated 15 July 2024. The Claimant (following strike out) now seeks to amend his claim stating “I am also prepared to amend my claim to a discrimination claim so that it could be herd under Employment Tribunal jurisdiction. ”. However, reference is also made to the Respondent not dealing with this grievance, which the Claimant states to be a breach of contract.[14]As set out in Liddington, a reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. The Claimant was given the opportunity prior to strike out to clarify his claim (for example by correcting the Respondent’s express position that no discrimination complaint was brought) and did not do so. The correct time to amend the Claim was before strike out judgment had been given. The Claimant expressly declined to do so.[15]It would not be appropriate to allow an amendment after the disposal of a claim, simply because the Claimant is a litigant in person. Further, it would not be in the interests of justice to allow a party, having had the benefit of reviewing the Tribunal’s reasons explaining why his complaint was unsuccessful, to amend the claim to something different in order to address the points of weakness set out in the reasons given by the Tribunal. This would be contrary to the policy of finality in litigation and would give the Claimant an unfair advantage in relation to the Respondent.[16]Having carefully considered the Claimant’s application and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked.