Ms M Tennyson v Abbeys Care Support & Training Ltd and others: 3201326/2023
EMPLOYMENT TRIBUNALS
Case No 3201326/2023
Between
Ms M TennysonClaimantAbbeys Care Support & Training Ltd and othersRespondent
Before
Employment Judge Misra K.C.In person for claimantDate 9 January 2025
JUDGMENT
[1]The claimant did comply with the unless order made at the Preliminary Hearing held on 23 November 2023. Therefore, no notice was given under rule 38 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The claim proceeds.
REASONS
The judgment and the reasons were given orally at the hearing. The respondent requested reasons in accordance with Rule 62(3) of the Rules of Procedure 2013. Procedural Background[1]The claimant submitted her claim to the Employment Tribunal on 20 July 2023. A preliminary hearing was listed for case management on 23 November 2023.[2]On 25 October 2023 the Tribunal made an order that the respondent provide a draft list of issues identifying where further information was needed to be Case Number: 3201326/2023 2 provided by the claimant. The claimant was ordered to provide that further information by 10 November 2023.[3]The respondent provided a lengthy draft list of issues. It indicated in capital letters within this document where further particulars were needed from the claimant. The claimant did not provide that information so had not complied with the Tribunal order.[4]As a result it was not possible to clarify the issues at the preliminary hearing on 23 November 2023. An order was made that that the claimant must provide further particulars by addressing the “specific points made in capital letters in the draft version prepared by the respondent”.[5]The order said the claimant needed to provide this information by 5 December 2023 and the direction was made as an Unless Order.[6]The claimant sent a document which she says complied with this order. It was based on the respondent’s draft and she had inserted additional information within that document in response to the questions in capital letters. This document was sent to the respondent at 00.01am on 6 December 2023, so one minute past the deadline for compliance.[7]The respondent says that the claimant did not comply with the unless order and the claim should be struck out. In an email dated 9 February 2024 it sought a strike out stating the following: “The claimant provided the respondent with further particulars on 6 December 2023, which was not in compliance with the unless order in that it was not ‘provided’ by the unless order date. Although the respondent does not contend that this resulted in a material breach of the unless order, considered with the qualitative information contained within the further particulars, it is asserted that this has resulted in a material breach of the unless order.” The claimant’s further particulars[8]The initial draft list of issues was prepared on behalf of the respondent by counsel. It is a lengthy document and set out in a formal and legalistic way. It covers the following areas of law: 8.1. jurisdiction in terms of employment status under the Equality Act 2010 and the Employment Rights Act 1996; 8.2. jurisdiction in terms of time limits; 8.3. direct sex discrimination; 8.4. harassment related to sex; 8.5. victimisation; 8.6. whistleblowing detriment and automatically unfair dismissal; 8.7. ordinarily unfair dismissal (express and constructive); Case Number: 3201326/2023 3 8.8. unlawful deduction of wages; and 8.9. remedy.[9]Within almost every section the claimant was asked to provide further information and the questions asked were detailed. Some of these questions directly related to clarifying the issues, such as asking the claimant to identify what she did that was a qualifying disclosure or asking her to provide details of what she said had happened that was a detriment or less favourable treatment.[10]Other questions went beyond the information needed in order to clarify the issues in the case. For example: 10.1. the claimant was asked to set out in detail how she met the definition of employee under section 83 Equality Act 2010; and 10.2. in respect of the direct discrimination claims, the claimant was asked to set out “how it is said that the claimant’s identified treatment above was significantly influenced by her sex”.[11]The claimant used this document as the basis for her response. She added additional information in response to the majority of questions. However, much of her response included lengthy narrative and it was not always clear from exactly what she was saying or how she was answering the questions.[12]The respondent said that the substance of the information the claimant had provided was not material compliance with the unless order. The respondent had prepared written submissions in which it went through the document commenting on what the claimant had written. It said that the claimant had not provide the necessary further particulars of the claims she was pursuing. The respondent summarised to say that the purpose of the order was to enable the respondent to understand the claimant’s case and the information the claimant provided had not achieved this.[13]I reviewed the document myself carefully and the respondent’s submissions, which were expanded on orally.[14]On my analysis I concluded it was possible to identify much of the information that the claimant had been asked to provide. The claimant had referred clearly to specific correspondence she was relying on that she said were qualifying disclosures. She had included factual allegations about the actions of specific people (mainly the second respondent) that she variously said were detriments, harassment or less favourable treatment on the grounds of sex. This information was not immediately apparent on a first reading of the document, but within the relatively lengthy narrative answers to questions the basic information that was needed had been included. Issues to be determined and the law[15]At this point the sole issue to be determined is whether the claimant’s claim should be dismissed in accordance with rule 38 Employment Tribunals Case Number: 3201326/2023 4 (Constitution and Rules of Procedure) Regulations 2013 for non-compliance with an unless order.[16]Rule 38(1) states: “An order may specify that if it is not complied with by the date specified the claim or response, or part of it shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.”[17]Rule 38(2) states: “A party whose claim or response has been dismissed, in whole or part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so.”[18]In Wentworth-Wood & Others v Maritime Transport Limited UKEAT/0316/15/JOJ the Employment Appeal Tribunal set out the different decisions to be made relating to unless orders as follows: “4. Rule 38 clarifies Employment Tribunal procedure concerning Unless Orders. The Employment Tribunal, usually the Employment Judge alone, is potentially involved at three stages, each involving different legal tests. 5. Firstly, there is the decision whether to impose an Unless Order and if so in what terms. …. 6. Secondly, there is the decision to give notice under Rule 38(1). … The decision to give notice simply requires the Employment Tribunal to form a view as to whether there has been material non-compliance with the Order … 7. Thirdly, if the party concerned applies under Rule 38(2), the Employment Tribunal will decide whether it is in the interests of justice to set the Order aside. … 8. At each of these stages there will be a decision for the purposes of section 21(1) of the Employment Tribunals Act 1996; so there may be an appeal to the Employment Appeal Tribunal on a question of law. They are, however, separate decisions taken at different times under different legal criteria. An appeal against one is not an appeal against another; and the time for lodging appeals will run from different dates. This point must be kept carefully in mind by any party considering an appeal.”[19]To summarise, there are three separate stages with an unless order. These are making the order, deciding if there has been compliance and issuing a notice of dismissal and application for relief to set aside the order. Each stage is separate.[20]When an unless order has been made the Tribunal has no discretion about whether to dismiss a claim or response where the order has not been complied with in any material respect. Therefore, the only issue for the Tribunal to consider is whether there has been material compliance with the order. In Mr A Minnoch and Others v Interservefm Ltd and others 2023 EAT 35 the EAT summarised the correct approach as follows: Case Number: 3201326/2023 5 “33.7 at this stage the employment tribunal is giving notice of whether there has been compliance – it is not concerned with revisiting the terms of the order 33.8. particularly if there has been some asserted attempt at compliance, careful thought should be given to whether an opportunity should be given for submissions, in writing or at a hearing, before the decision is taken 33.9. the question is whether there has been material compliance 33.10. the test is qualitative rather than quantitative 33.11. the approach should be facilitative rather than punitive 33.12. any ambiguity in the drafting of the order should be resolved in favour of the party who was required to comply”[21]This approach was revisited in the recent case of Bauhaus Educational Services Limited v Mr O Elemide 2023 EAT 161. The background to this case is very similar to the current case so we have set this out in more detail. An unless order was made that the claimant serve his statement on both the respondent and the Tribunal by a certain date. The claimant served his statement on the Tribunal but not on the respondent. When the respondent flagged up the lack of compliance the claimant sent his statement. This was some time after the date for compliance under the unless order but before the hearing. The Tribunal did not issue a notice dismissing the claim. This decision was appealed by the respondent. The EAT concluded as follows: “(a) this order is clear: it requires one step which was either done or it was not, service of the witness statement on the Respondent’s representatives. (b) As a matter of fact – and there is no dispute about this – the witness statement was not served in time on the Respondent’s representatives. It seems to me perfectly clear that the only correct conclusion that could be reached is that the Claimant had not complied with the Unless Order because he failed to comply with the requirement to serve his witness statement on the Respondent’s representative. I have to say that there was an error of law on the part of the EJ in reaching the conclusion that the Claimant had complied with the terms of the Unless Order by providing the witness statement to the ET” The EAT overturned the decision of Employment Tribunal and the claim was struck out, but with the claimant having the opportunity to apply for relief from sanction. Discussion and conclusion[22]When making the decision on whether or not to issue notice of dismissal under section 38(1) Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 neither of the following are relevant: 22.1. the procedural history of this case; or 22.2. the current point of proceedings. Case Number: 3201326/2023 6[23]The only matters for us to take into account are the terms of the unless order and whether or not there has been material compliance.[24]The order required the claimant to answer the questions in capital letters in the respondent’s draft list of issues. The claimant needed to provide this to the respondent by 5 December 2023.[25]The relevant findings of fact on what happened are as follows: 25.1. The claimant sent a document to the respondent which she says provided this information. This was based on the respondent’s draft list of issues and incorporated her responses into this document. 25.2. This was sent at one minute past midnight on 6 December 2023, so one minute late. 25.3. The information provided was lengthy. The respondent says that it is not material compliance as it is not possible to easily understand from the document what the claimant’s case is.[26]This is not a case where there has been no compliance. There was clearly an asserted attempt by the claimant to provide the information as directed. She used the document prepared by the respondent before the last preliminary hearing as the template and added her own responses to the questions. She almost did it by the deadline, it was only one minute late. The claimant has attempted to comply with the unless order but there are the following potential defects in compliance: 26.1. the fact that the further information was provided one minute after the deadline for compliance had expired; and 26.2. whether the substance of what the claimant provided was material compliance with the order.[27]The respondent made it clear in the hearing and correspondence it did not take issue with the time. Its argument was that although the claimant had provided information in writing she had not done so in a way that enabled her claims to be fully understood. It was the substance not the timing that was challenged.[28]To decide if there was material compliance in the substance it was necessary to consider what did the Unless Order actually require the claimant to do, i.e. what would amount to material compliance. Did the claimant just need to provide some information by reference to the respondent’s draft list off issues, or was there a certain standard that needed to be met in terms of amount of information or cogency? If there was a certain standard to be met, had the claimant done this?[29]In answering this question it is necessary to look at the tests set out in Mr A Minnoch and Others v Interservefm Ltd and others 2023 EAT 35, as follows: Case Number: 3201326/2023 7 29.1. qualitative rather than quantitative; 29.2. facilitative rather than punitive; and 29.3. any ambiguity in the draft of the order should be resolved in favour of the party who was required to comply.[30]Taking the above into consideration I reached the following conclusions: 30.1. The claimant was ordered to provide information by a certain time. The required information was set out by reference to a relatively complex document that had been prepared by the respondent. There is a level of ambiguity about the order as it is not immediately apparent what was the minimum amount of information the claimant needed to provide in order for there to be compliance with the order. the minimum requirement was for there to be compliance. It was possible that any information provided in response to the questions in the draft list of issues would be sufficient. Alternatively, compliance may, as asserted by the respondent, require a certain level of detail and cogency. Any ambiguity should be resolved in favour of the claimant. 30.2. While the Unless Order itself cannot be revisited, to decide whether there has been material compliance it is helpful to look at the purpose of the order. The order was made to obtain more information from the claimant so the issues could be clarified. This had not been possible at the earlier preliminary hearing because the claimant had not complied with a similar earlier order. 30.3. Taking a facilitative rather than punitive approach, I looked at what the claimant had actually provided, rather than focus on what the respondent said was missing. I then considered the extent to which it was now possible to clarify the claims and issues, based on the information provided by the claimant. 30.4. Although the information was not clear it was still possible to use the claimant’s document as a starting point. Following discussion with the claimant I was able to prepare a list of issues. It is likely this is what would have happened at the earlier hearing had the claimant complied with the previous order. 30.5. The purpose of the Unless Order was to ensure the case progressed and the issues were clarified. As this was possible, based on what the claimant had been provided, I concluded there was material compliance by the claimant in terms of the substance. The case was effectively back on track.[31]I concluded that in terms of the substance of the information provide by the claimant there was material compliance. This left the issue of the timing. Technically the claimant had not complied with the unless order in this respect because the further information was not received until 6 December 2023, and the deadline was 5 December 2023. The email was only one Case Number: 3201326/2023 8 minute late. The claimant had clearly made a very good attempt to provide the information on time. The respondent accepted this minimal delay was not material. I decided that in this respect there had been material compliance. Employment Judge Park Dated: 9 August 2024 EMPLOYMENT TRIBUNALS Claimant: Ms Mary Tennyson Respondent: Heard at: East London Hearing Centre On: 20 September 2024 Before: Employment Judge Misra K.C. Representation Claimant: in person Respondents: Mr. L. Baker (legal advocate, Avensure Limited) PRELIMINARY HEARING IN PUBLIC[1]The Respondent’s application dated 12 September 2024 to strike out the claim under rule 37(1)(c) Employment Tribunal Rules of Procedure for alleged noncompliance is refused.[2]The Second to Fourth Respondents have permission to rely on the ET3 Form filed by the First Respondent and are not required to submit any further ET3 Forms. Employment Judge Misra KC Dated: 20 September 2024 Case Number: 3201326/2023 Abbeys Care Support & Training Limited Anterus Eze Miss Christine Bakunga-Muyizzi[4]Elders Safe Hands Plus Limited Case Number: 3201326/2023 1 EMPLOYMENT TRIBUNALS Claimant: Ms Mary Tennyson Respondents:(1) Abbeys Care Support & Training Ltd(2) Mr Anterus Eze(3) Mrs Christine Bakunga-Muyizzi(4) Elders Safe Hands Plus Ltd Heard at: East London Hearing Centre On: 20 September 20249 January 2025 (CVP) Before: Employment Judge Misra KC REPRESENTATION: Claimant: in person. Respondent: Mr L Baker for First, Second and Third Respondent. Fourth Respondent did not attend and not represented.[5]The Tribunal does not have jurisdiction to hear the Claimant’s complaints, and the claim is dismissed. There are no claims left to be heard in these proceedings. Employment Judge E Misra KC Dated: 9 January 2025 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.