Mr H Sam v Mitie Security (London) Ltd: 3201506/2018
EMPLOYMENT TRIBUNALS
Case No 3201506/2018
Between
Mr H SamClaimantMitie Security (London) LtdRespondent
Before
Employment Judge JonesIn person for claimantMr Bidnell-Edwards (instructed by Counsel) for respondentDate 26 November 2019
JUDGMENT
The judgment of the Employment Tribunal is that: -[1]The claim was not presented in time despite it being reasonably practicable to do so and is dismissed.[2]There are no reasonable prospects of this claim succeeding.[3]The Claim is dismissed.
REASONS
Law
[1]The Claimant issued a claim at the Employment Tribunal on the 18 July 2018 for unlawful deduction of wages and failure to pay to holiday pay.[2]It was the Claimant’s case that he tried to book annual leave between the 21 July and 31 August 2017 but his manager refused him permission to take that much leave. He was told that he had to take less time. The Claimant was granted 15 days leave. He agreed to take 15 days leave. In today’s hearing he was not clear when that period of time was due to start. The Claimant fell ill around the start of the leave on 25 July 2017 and was sick for 6 weeks. It is likely that he returned to work on or around 5 September 2017.[3]The Claimant’s complaint was that he did not get paid properly for that period of time. It is also his complaint that he was not paid properly for a day in November and a day in December 2017.[4]The Claimant had initially issued his complaint together with his colleague, Mr Mazueto who also brought proceedings in the employment tribunal. Mr Mazueto’s complaint was dismissed by way of withdrawal. The Claimant initially brought the claim against Kingdom Services Group Limited, who at the time, were his employers. The Claimant was initially employed by Epping Forest College and then transferred to Kingdom Services Group Limited and then back to the college and then lastly, to Mitie Security (London) Limited.[5]At a previous hearing in this matter, on 24 June 2019, Employment Judge Russell ordered that the Mitie Security Ltd, the 3rd Respondent, should be added as a party to these proceedings. EJ Russell also released the other two Respondents from the case as there were no issues between them and the Claimant. It was agreed by all who attended that hearing that if there were any omissions or deductions from the Claimant’s wages responsibility for those would have transferred to the 3rd Respondent.[6]The claim was served on Mitie and it filed a Response to these proceedings and Grounds of Resistance on 14 February 2019. Mitie is the only Respondent in this matter. In its Response Mitie did not refer to the fact that the claim had been issued outside the statutory time limits.[7]Today, Respondent’s Counsel, raised the issue of the Tribunals jurisdiction to consider this claim given that the claim had been issued late. I was told today that this issue had been raised at the last hearing but there are no notes of that discussion in the minutes of the case management hearing.
The Law
[8]The Claimant has a claim for two shifts he believes that he worked but which remain unpaid. Those were shifts were on 12 September 2017 and 10 November 2017.[9]The Tribunal had sworn evidence from the Claimant today. He gave evidence both on the issue of the apparent late filing of his ET1 complaint and on the claims for holiday pay and the two outstanding shifts. Holiday and other pay claim[10]After the Claimant gave evidence, the Tribunal made the following findings in respect of the holiday pay in 2017: -[11]The Claimant attempted to book 4 weeks leave i.e. between 21 July and 31 August 2017. He did not remember when he submitted the request for the leave. His manager refused him that leave but gave him 15 days which began on 25 July.[12]Unfortunately, at the start of that holiday period, the Claimant was unable to go on holiday as he fell ill and was ill for a period of 6 weeks. On his return to work he submitted medical certificates and supporting evidence to confirm that he had been ill. However, his manager refused to allow him to take annual leave subsequently. The Claimant’s case was that he should be able to take the leave that he lost due to ill-health, at another time. The Respondent refused to allow him to do so. His claim therefore was for the annual leave he was unable to take during that leave year. It is the Claimant’s case that his leave year began on 1 September and continued to 31 August on the following year. It was the Claimant’s case that he was not allowed to carry forward the leave he had been unable to take in 2017 and he lost it.[13]Perusal of the Claimant’s payslips which were in the bundle of documents today on pages 84, 85 and 86 showed that the money that the Claimant was paid during the period of July to end of August 2017 included SSP and holiday pay. The SSP was sometimes described as ‘Unlinked’ and on the 15 August payslip and on the 15 September payslips SSP was described as ‘linked’. The Claimant was therefore paid for the time that he had off as a combination of holiday pay and sick pay. Also, the Respondent paid the Claimant at a higher rate for holiday pay than for sick pay as the sick pay is paid as SSP which is paid at a low flat rate.[14]Also, the Claimant’s contract contained the following clauses:14.1 “The timing of all holidays is subject to the agreement of your line manager.14.2 Outline schedules of significant holidays for individual staff are required to be planned before December 31 in any holiday year.14.3 9.4 In the holiday year in which your employment commences or terminates, your holiday entitlement will accrue on a pro-rata basis for each complete month of service. If on the termination of your employment, you have exceeded your accrued holiday entitlement, the college will be entitled to deduct the excess from any sums due to you, including payment of salary. If on the other hand, you have any unused holiday entitlement, the college may require you to take it during your notice period or may alternatively pay you the appropriate sum in lieu.14.4 9.5 Holiday entitlement for one holiday year cannot be taken in subsequent holiday years unless otherwise agreed by the college. Failure to take holiday entitlement in the appropriate holiday year will lead to forfeiture of any accrued holiday not taken without any right to payment in lieu thereof.”[15]The Claimant’s case today was that the Respondent’s payslips were unclear and that although he worked a block of time in one month he would sometimes be paid for that block of time over a period of weeks so that he was unable to calculate or keep track of his pay and be certain that he was being paid the right amount.[16]The Claimant was unable to categorically state today that he was owed any wages for the dates in November and December that he referred to as being outstanding. The process of issuing this claim in the employment tribunal[17]In relation to the issue of proceedings, the Claimant’s evidence today was that he was unclear about what he should do about his manager’s decision not to allow him to take the annual leave that he lost due to illness in the summer of 2017. He spoke to one of his colleagues who encouraged him to seek advice from the Unison the union. He joined Unison the union and put the matter in their hands. The Claimant blames part of the delay in issuing proceedings on Unison. The Claimant was unable to tell the Tribunal today when he went to see Unison or when he was told that Unison would not be able to help him or assist him in this matter. There was subsequently a dispute between the Claimant and Unison about membership fees which from searches on his phone today the Tribunal believes occurred sometime in October 2018. The Claimant did not know how long after he had spoken to his manager and been refused permission to take his holiday, that he sought advice from Unison.[18]The Claimant had assistance from his colleague, Mr Mazueto in drafting his ET1 claim form and assistance from another colleague in dealing with IT issues that came up in completing and submitting his ET1 claim form as he does not feel fully confident in completing forms online. The Claimant confirmed that he submitted the claim form with the assistance of his friends. The Claimant did not seek any legal or other advice when deciding what to do about his concerns about employment or in issuing proceedings against the Respondent. The initial claim was issued against Kingdom Security Limited and the Claimant obtained an ACAS certificate in respect of that complaint on 16 July 2018 with the date of receipt by ACAS of the Early Conciliation Notification being 13 July 2018. As already stated the 3rd Respondent was added by the Judge at the last preliminary hearing although they were in attendance at that hearing.
Law
[19]Under Section 13 of the Employment Rights Act 1996 the Claimant is entitled to wages earned. An employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the workers contract, or the worker has previously signified in writing his agreement or consent to the making of the deduction. Employers are also allowed to deduct a reimbursement in respect of overpayment of wages or overpayment of expenses.[20]Regulation 13 of the Working Time Regulations 1998 (WTR) establishes the right to 4 weeks annual leave in each leave year. Regulation 14 WTR states that it applies where a worker’s employment terminates during the course of the leave year, and on the date when that termination takes effect the proportion he has taken of his entitlement that year is different from the proportion of the leave year which has expired. In the circumstances, where the proportion of leave taken by the worker is less than the proportion of the leave that has expired, the employer shall make a payment to the worker in lieu of leave accrued but untaken.[21]Regulation 30 of the Working Time Regulations set out how a worker can enforce those rights. To do so, a worker may present a complaint to an Employment Tribunal. The complaint would be that the employer has refused to permit him to exercise the right to take annual leave and/or has failed to pay him the whole or any part of any amount due to him under Regulations 14(2) or 16(1). An Employment Tribunal shall not consider a complaint made under this Regulation unless it is presented before the end of the period of 3 months beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of the rest period or leave extended over more than 1 day, the date in which it should have been permitted to begin) or, as the case may be, the payment should have been made; or (within such further periods 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 time. How does a tribunal decide whether it was reasonably practicable to present a claim in time? And if it was not, what is a reasonable time thereafter? The law states that the question of what is or is not reasonably practicable is essentially one of fact for the employment tribunal to decide. In the case of Walls Meat Co Ltd v Khan [1979] ICR 52 CA Lord Denning explained the test like this: ‘It is simply to ask this question: had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights -- or ignorance of the time limit -- is not just cause or excuse unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault and he must take the consequences ‘.[24]The issue was referred to in the case of Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945. In that case May LJ reviewed the authorities and stated as follows: “‘reasonably practicable’ means more than merely what is reasonably capable physically of being done……. Perhaps to read the word “practicable” as the equivalent of “feasible” ……. And to ask colloquially and untrammelled by too much legal logic -- was it reasonably feasible to present the complaint to the employment tribunal within the relevant three months?”-- Is the best approach to the correct application of the relevant subsection”.[25]In the case of Schulz v Esso Petroleum Ltd [1999] IRLR 488 it was stated by the Court of Appeal that the tribunal must answer this question against the background of the surrounding circumstances and the aim to be achieved. This is what the “injection of the qualification of reasonableness” requires.[26]Where the claimant satisfies the tribunal that it was not reasonably practicable to present his claim in time, the tribunal must then go on to consider whether it was presented within a reasonable time thereafter. In making this assessment the tribunal must exercise its discretion reasonably and with due regard to the circumstances of the delay. The Tribunal has to look at the particular circumstances of each case and make a decision.[27]In the case of James W Cook & Co. (Wivenhoe) Ltd v Tipper [1990] IRLR 386 – a period of two weeks delay in issuing the after the deadline had passed was held to be reasonable and in the case of Walls Meat referred to above, four weeks was held to be reasonable on the particular facts of that case. Applying law to Facts[28]The Claimant issued this claim in July 2018 for failure to pay him holiday pay or allowing him to take holiday in July/August/September 2017. The Tribunal is unable to be certain about the dates as the Claimant was unclear on when he had asked to be allowed to take the leave but it is likely that he did so on his return from his sick leave in September 2017.[29]Sometime at the end of 2017, after he was refused permission to take the leave which he believed was still there for him, the Claimant discussed the possibility of bringing a complaint against the Respondent with colleagues but took no action. He also sought advice and assistance from Unison but it was unclear to the Claimant when he did so.[30]At the time, the Claimant believed at the time that the Respondent owed him outstanding payments for holiday and unpaid wages, but he took no action on this for some time. The Claimant is literate and read in Tribunal today. it was unclear why he had delayed almost 1 year in bringing this case to Tribunal.[31]There was no impediment that would have prevented him from bringing his clam. It was feasible and practicable for him to have done so. The Claimant had access to the internet and knew that he had a right to bring a complaint her.[32]The Tribunal’s judgment is that it was reasonably practicable for the Claimant to have issued these proceedings within the 3-month time limit set out in the legislation.[33]Furthermore, the clauses in the Claimant’s contract referred above mean that the Respondent had precluded any payment being made to the Claimant or any other employee for accrued but unused holiday in any one holiday year. The Claimant confirmed that this was his contract and these was the terms that he signed to.[34]It is therefore this Tribunals judgment, that the Claimant’s claim has no reasonable prospect of success.[35]It is this Tribunals judgment that the Claimant’s claim should be struck out as the Tribunal has no jurisdiction to hear it and in any event, it had no reasonable prospect of success and was bound to fail.[1]The Respondent’s application for a Costs Order is refused. The application is dismissed.[1]This was a claim for holiday pay, unlawful deduction of wages and/or breach of contract in relation to holiday pay for the Claimant who was a security guard employed by the Respondent.[2]The Claimant had been transferred under TUPE which meant that this Respondent was responsible for the claim even though it was not the Claimant’s employer at the material time.[3]The Tribunal heard this matter on 23 July 2019. The Tribunal’s judgment was sent to the parties on 5 August 2019. The Tribunal’s judgment was that the claim had been issued outside of the statutory time limits for issuing the claim and because even if we had jurisdiction, there was no reasonable prospect of it succeeding.[4]The Respondent’s application for an order that the Claimant pay its total costs of defending this claim was received by the Tribunal on 19 August 2019. That application was copied to the Claimant, but it was not apparent that he had appreciated that he needed to respond to it so the Tribunal also sent it to him for comment. The Claimant sought advice from his local Citizens Advice Bureau and got assistance in preparing a response to the application. His response was received on 21 October. That response was sent to the Respondent for their records. The application[5]The Respondent’s application is that the Claimant had acted unreasonably by failing to comply with court orders early on in these proceedings, continuing to pursue the claim despite costs warning letters and continuing to pursue the claim despite a settlement offer having been made by the Respondent. The costs warning letters referred to were dated 10 June and 12 July 2019.[6]The Respondent also based its application for costs on the ground that the claim had no reasonable prospects of success and had been brought out of time.[7]The Respondent sought an order that the Claimant should pay its total costs in this matter of £6,500 plus VAT. The
Law
[8]Rule 76 of the Tribunals Rules of Procedure 2013 set out the circumstances in which an Order for costs may be made. Paragraphs 1 (a), (b) and (c) provide that a Tribunal shall consider making a Costs Order where, in the opinion of the Tribunal the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably; or where any claim/response had no reasonable prospect of success.[9]In assessing whether the party should pay costs because the claim had no reasonable prospects of success, the key question was not whether the party thought he was in the right or had a strong claim, but whether he had reasonable grounds for so believing, (Scott v Commissioners of Inland Revenue [2004] IRLR 713 CA).[10]Having so considered, the Tribunal may make a Costs Order against the paying party if it considers it appropriate to do so.[11]Rule 78(1) makes provision for the amount of costs that a Tribunal can order, which is either:• A sum specified by the Tribunal provided that sum does not exceed £20,000.• Any sum agreed by the parties, or• Such amount as may be determined by the County Court on a Detailed Assessment, (a County Court process whereby a solicitor’s costs are examined in detail and a ruling made on what is payable).[12]Rule 84 states that the Tribunal may have regard to the paying party’s ability to pay when considering whether to make a Costs Order or how much that Costs Order shall be.[13]There is an initial two stage process involved in making a costs order:(a) there must be a finding that the statutory threshold under r 76(1)(a) or (b) has been met, and(b) if it has, the Tribunal must then consider whether it is appropriate to make an order in all the circumstances, i.e. in the exercise of its discretion (see Robinson v Hall Gregory Recruitment Ltd [2014] IRLR 761, EAT, at para 15). It is only when these two stages have been completed that the Tribunal may proceed to the third stage, which is to consider the amount of the award payable under Rule 78 (see Haydar v Pennine Acute NHS Trust UKEAT/0141/17 (12 December 2017, unreported), at para 2.[14]In the discrimination claim of Gee v Shell UK Limited [2003] IRLR 82 Sedley LJ said: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction for ordinary litigation in the United Kingdom, losing does not ordinarily mean paying the other side’s costs”.[15]Mummery LJ in McPherson v BNP Paribas [2004] IRLR 558 stated, referring to a previous version of the Tribunal Rules: “Although employment tribunals are under a duty to consider making an order for costs in the circumstances specified in rule 14(1) in practice they do not normally make orders for costs against unsuccessful applicants. Their power to make costs orders is not only more restricted than the power of the ordinary courts under the CPR, it has also for long been generally accepted that the costs regime in ordinary litigation does not fit the particular function and special procedures of ETs”[16]On the question of the need for any causal link between the unreasonable conduct and the costs awarded, the Court of Appeal considered this in Barnsley MBC v Yerrakalva [2012] IRLR 78 and held that there does not have to be a causal link between the unreasonable conduct and the costs claimed, but that does not mean causation is irrelevant. Mummery LJ said: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”[17]In relation to the power to take into account of the paying party’s means to pay, the Tribunal considered that this was something it ‘may’ have regard to. In the case of Jilley –v- Birmingham Solihull Mental Health NHS Trust EAT 2008 All ER (D) 35 (Feb) the court stated that if we decide not to take into account the party’s means to pay, we should explain why, and if we decide to do so, we should set out our findings about the ability to pay, what impact that has had on our decision whether to award costs and if so, what impact means had on our decision as to how much those costs should be. History of this matter[18]In this case the issue of the claim being out of time was not a matter referred to in the ET3 Response. At that time the claim was one of two brought by the Claimant and one of his colleagues against an earlier employer. At the time, the Response focused on the fact that the Claimant and his colleague had brought the complaint against the wrong Respondent.[19]The Claimant’s colleague was able to reach a resolution of his claim and this was withdrawn in October 2018. It was not until 3 December 2018 that EJ Russell ordered that the correct Respondent be added as a party to these proceedings and work began to clarify exactly what claim was being made. The Judge stated in her judgment that this matter had been significantly complicated by the operation of TUPE as the Claimant had been transferred on two separate occasions during his employment. The Claimant brought his claim against Kingdom Security as in his understanding they were responsible for his outstanding holiday pay claim as he had been dealing with that company over his holiday entitlement. The Claimant did not understand the application of the TUPE Regulations and was clearer about this after the hearing on 3 September.[20]At that hearing, EJ Russell recorded that in addition to adding the now sole Respondent, Mitie to the proceedings, she was also ordering the Claimant to think about whether he was owed money and to set his claim out clearly to the Respondent in writing by 17 January 2019. The Claimant provided copy bank statements with a short email by response on 7 March 2019.[21]Although the Claimant can read and did read from documents shown to him at the hearing in July 2019 it is clear from this email, from the lack of information in his witness statement for the open preliminary hearing and from his evidence that he needed his friends to assist him in completing the ET1 form; that the Claimant is not comfortable with writing things down or with the written word. His evidence was that he was also unfamiliar with computers and needed assistance with navigating the website to submit his ET1 claim form. The Tribunal notes that he waited for assistance from the CAB to respond to the Respondent’s application for costs.[22]The Respondent stated at the open preliminary hearing in July that the issue of the claim being out of time was a matter raised before EJ Russell but it is not a matter that was noted in the minutes of her hearing. It was also not raised in Mitie’s ET3 Response filed on 14 February 2019. The combination of those facts made it highly unlikely that the Claimant was aware of this time limit issue before he received the Respondent’s costs warning letters in June and July. Before that the issue had been who was responsible for his holiday pay claim and whether it could be resolved without the need for further hearing.[23]The issue of the Claimant’s holiday pay, the period it related to and the exact nature of the Claimant’s complaint on holiday pay did not become clear to the parties or the court until the open preliminary hearing in July. The Claimant’s belief was simple and as he explained it – he had leave booked which he was unable to take due to certified illness and he could not understand why his employer did not exercise its discretion to let him take the leave at a later date. That was reiterated in the letter from the CAB on his behalf dated 17 October.[24]The matter was unfortunately not that simple and has already been explained and addressed in this Tribunal’s judgment from the open preliminary hearing held on 23 July but it does not mean that it was always that clear or straightforward to the Claimant as someone who has difficulty with the written word and who had to navigate the complexities of TUPE to even work out who was the correct Respondent to his claim.[25]In addition, the Tribunal notes that the Claimant was unwell during the course of this litigation, having had surgery. His compliance with EJ Russell’s order was delayed due to his stay in hospital as he explained in his short email on 7 March.[26]The recent letter from the CAB refers to the Claimant’s need for debt counselling as he is having financial problems. Further detail of those financial problems was not given in the letter but it does state that he was due to see one of their debt advisors in due course.[27]Lastly, the Tribunal notes that Mitie was served with these proceedings on 17 January 2019. They filed what could be described as a short holding Response on 14 February, engaged in some correspondence and attended two preliminary hearings on this matter. The Tribunal queries how Mitie’s total costs in this matter rose to £6,500 with that limited involvement in the matter.[28]The Claimant’s advisors state that he did not refuse the Respondent’s settlement offer in its letter of 12 July but mistakenly thought that it was an opening offer and attempted to negotiate on it. Clearly that was the only offer available to save costs and expense.[29]In this Tribunal’s judgment, it would not have been clear to the Claimant or to anyone advising him at the start of this litigation that his claim had no reasonable prospects of success. The issue of his claim having been issued late was not a matter explored properly until the July 2019 hearing. The terms of the contract that this Tribunal considered in July and which were referred to in the judgment were not before the court before that day. It was not a matter that EJ Russell considered in her two preliminary hearings.[30]The application of the TUPE Regulations complicated matters. The blame for that cannot be laid at the Claimant’s door. He is a security guard and did not understand the application of TUPE to his situation. Most of the year of this litigation has been taken up with resolving that issue.[31]It is also the Tribunal’s judgment that the Claimant did not conduct his claim unreasonably or vexatiously. He considered that the Respondent could have let him have the time that he had lost by being ill and having seen his colleague’s claim resolved, it is likely that he thought that he might also be able to do the same. Where there has been delay in pursuing this matter this was either due to him being in hospital, recovering from surgery or waiting for assistance to comply with Tribunal orders.[32]His claim had been issued outside of the statutory time limits. That was not a matter that either party fully appreciated until the July open preliminary hearing. It was not a matter referred to in the “without prejudice save as to costs” letters written to him on 10 June or 12 July 2019. It proved fatal to his claim but it was not an issue that had been brought to his attention earlier.[33]In the circumstances, it is this Tribunal’s judgment that the Claimant has not conducted this claim unreasonably. At the time he issued his complaint, it was not vexatious and never became so as the claim he was bringing did not become clear to him or to the Respondent until we clarified it at the hearing. As a litigant in person who needed assistance with the written word, the Claimant clearly did not understand his contract or what had actually happened with his annual leave until we went through it in detail on 23 July 2019. Had the TUPE Regulations not complicated matters it is likely that this case would have been resolved many months earlier which would have saved some costs but as already stated, it is this Tribunal’s judgment that that added complication is not due to the Claimant’s unreasonable, vexatious or disruptive conduct.[34]It was also not clear during the course of the litigation that the Claimant’s claim had no reasonable prospect of success. The Respondent’s without prejudice letters refer to the fact that the Claimant had failed to particularise his claim as the reason the Respondent considered that his claim was likely to fail. No reference is made to what was this Tribunal found in the hearing which was that the contract stipulated that leave could not be carried forward if unused.[35]In this Tribunal’s judgment, the Claimant has not, either in bringing or in conducting these proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably. It was not clear until the final hearing on 23 July that the claim had no reasonable prospect of success. In the circumstances, it is this Tribunal’s judgment that it is not appropriate to make an Order for costs against the Claimant and the Respondent’s application is refused.