Mr J Khan v Xtreme Adrenalin Ltd and The Secretary of State for Business & Trade: 3202075/2023
EMPLOYMENT TRIBUNALS
Case No 3202075/2023
Between
Mr J KhanClaimantXtreme Adrenalin Ltd and The Secretary of State for Business & TradeRespondent
Before
Employment Judge B BeyzadeNot represented for claimantDate 7 June 2024
JUDGMENT
[1]The claimant and the first respondent being neither present nor represented during the Final Hearing listed at 12 noon on 04 March 2024 at the East London Hearing Centre by way of a hybrid hearing and at a point in excess of 25 minutes after the time set for the Final Hearing, and the claimant not having responded to email correspondence sent by the Clerk to the Tribunal at 10.41am on 04 March 2024, and the claimant not having otherwise communicated with the Tribunal in relation to his non-attendance at the Final Hearing thereafter; on the claimant and the first respondent’s non-attendance; and on the second respondent’s application, and having considered the content of the Tribunal file, the Tribunal dismisses the claimant’s claim in terms of Rule of Procedure 47 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
REASONS
[1]The claimant lodged a claim on 09 November 2023 for arrears of pay, holiday pay, notice pay, and a redundancy payment. The claimant also ticked the relevant box to indicate that he was making another type of claim which he stated was “discrimination against a company director” (the claimant also stated in section 8.2 of his ET1 Form that he was owed one month’s salary, notice pay, outstanding holiday pay and redundancy pay as he had been working since 2004), which the second respondent resisted. The second respondent indicated on their Response Form presented on 06 December 2023 that the claimant had previously made claims to the Redundancy Payments Service (“RPS”) and that those claims were rejected as the RPS did not consider that the claimant was an employee of the first respondent as defined in the Employment Rights Act 1996. The first respondent did not enter a response.[2]Notice of today’s Final Hearing was sent to the parties on 28 December 2023. The Notice of Hearing stated, “The claim will be heard by an Employment Tribunal at East London Tribunals, 2nd Floor Import Building, 2 Clove Crescent, London, E14 2BE on 4 March 2024 at 12:00 or as soon thereafter on that day as the Tribunal can hear it.”[3]By an application dated 27 February 2024 sent at 3.34pm the second respondent’s representative requested the Tribunal to convert the Final Hearing listed today to a video hearing or hybrid hearing. The application referred to the fact that Mr Parag Soni, who was representing the second respondent had contracted COVID-19. The claimant replied by email sent on the same day at 5.14pm requesting another hearing date to be listed “… as the appointment has been cancelled by the respondent.” Regional Employment Judge Burgher considered the application and the claimant’s response and by a letter dated 01 March 2024 he directed that today’s hearing be converted to a hybrid hearing. He explained that it was in accordance with the overriding objective for the hearing to be concluded without further delay. His directions were accompanied by the CVP hearing log-in details to enable the respondent to attend by CVP.[4]The claimant sent an email to the Tribunal copied to the second respondent on Friday 01 March 2024 at 4.24pm advising “As I have confirmed many times I cannot I tried to get hold of the tribunal and advised the RPS. I will now be out of the UK.” The claimant sent a further email on the same day at 5.08pm advising that he had contacted the Tribunal by telephone and advised that he had left a message with Ruel (03003230196) to advise that he wished for the hearing to be postponed (and he was advised to send an email to the Tribunal). The claimant stated in his email “I WILL NOW BE OUT OF THE COUNTRY ON MONDAY 4TH MARCH until Thursday 7th March. In the interests of justice I wish to attend a hearing in my case and so does a work collegue, so please could you adjourn this to a future date. He/we were forced to change his plans following the respondants confirmation inability to attend the hearing in person and my now unavailability in person also.”[5]The application was referred to me on the morning of 04 March 2024. At 10.41am on 04 March 2023, the Clerk to the Tribunal sent an email to the claimant copied to the second respondent advising that the claimant’s application had been refused, setting the reasons for refusal, and advising that “The hearing is a hybrid hearing on the basis that the Claimant requested to attend in person. There are video hearing details that were sent to the parties previously (please see attached). The Claimant and Respondents are expected to attend the hearing at 12 noon today, in the absence of which the hearing will continue. In the Claimant’s absence the claim may be dismissed.” Final Hearing on 04 March 2024[6]The case called for Final Hearing at the East London Hearing Centre by way of a hybrid hearing on 04 March 2024 at 12 noon. The claimant was due to attend the hearing in person, whereas the second respondent was to attend the hearing by CVP.[7]There was no appearance for or on behalf of the claimant.[8]The first respondent did not appear and they were not represented.[9]The second respondent were represented by Mr Parag Soni (lay representative), who had attended the hearing by CVP.[10]The case file records that Notice of the date and time set down for Hearing was sent to the claimant and the respondents on 28 December 2023 at the correspondence address provided by them to the Employment Tribunal for the purposes of receiving such communications. No return of the Notice of Hearing issued to the claimant, or the respondents have been received by the Tribunal.[11]Except as referred to in respect of the postponement application sent on Friday 01 March 2024 at 4.24pm which was refused as set out above (this being the last correspondence received by the Tribunal from the claimant prior to this hearing), the claimant did not write to the Tribunal to communicate that they will not be attending the hearing.[12]On the sitting Judge’s directions, the Clerk to the Tribunal checked and confirmed that no contact had been made by the claimant with the Tribunal in connection with the Hearing since correspondence was sent to parties by the Tribunal by email on 04 May 2024 at 10.41am.[13]On the sitting Judge’s direction, accordingly, the Clerk to the Tribunal attempted to communicate with the claimant. The claimant was advised by email sent at 10.41am on 04 March 2024 that the claimant must attend the hearing listed on 04 March 2024 at 12 noon, in the absence of which the Hearing will proceed and the claim may be dismissed.[14]The Tribunal sat at 12.00 and then adjourned briefly at 12.05 and sat again at 12.10 to afford the claimant the opportunity to attend (though late) or to communicate with the Tribunal regarding his non-attendance. Accordingly, after a brief adjournment, the Tribunal reconvened at 12.10. Dismissal of claim pursuant to Rule 47 of the Employment Tribunal Rules[15]At 12.28 and in light of the claimant’s non-attendance and in the absence of a good reason (which was satisfactory to the Tribunal), and on the second respondent’s application, the Tribunal dismissed the claimant’s claim in terms of Rule 47 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”). Rule 47 of the ET Rules provides: “47. If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[16]I took into account the nature of the claimant’s complaints, the issues that the Tribunal were required to investigate and determine (insofar as they were possible to ascertain from the pleadings), and the content of the Claim Form and Response. I considered the documents and correspondences on the Tribunal file. I was satisfied that the claimant had been afforded ample opportunity to attend the Final Hearing and he had failed to attend the Hearing on 04 March 2024. I took into account the Tribunal’s overriding objective (Rule 2 of the ET Rules).[17]I consider that the claimant’s non-attendance is capable of being explained by his having decided not to pursue his claim now that he knows about the potential issues outlined in the Claim Form, the Response and the correspondences between the parties and the Tribunal. That explanation is consistent with the claimant’s apparent failure to communicate with the Tribunal after having been sent an email from the Clerk to the Tribunal sent at 10.41am today.[18]No other explanation (or in any event no other satisfactory explanation) has been put forward explaining why the claimant had not attended the hearing. There was no evidence that the claimant was in fact abroad before the Tribunal (he had not supplied a copy of his flight tickets, booking confirmation or any other evidence). Furthermore, the claimant had not suggested previously that he was abroad on the date and time set down for the hearing despite having been sent the Notice of Hearing on 28 December 2023.[19]I am satisfied that the Tribunal has made all enquiries that may be practicable about the reasons for the claimant’s absence.[20]The claimant did not attend today’s hearing and Rule 47 of the ET Rules specifically deals with non-attendance at a hearing. The second respondent’s representative submitted that the claim could not be heard in the absence of the claimant, that a 234-page bundle had been prepared and the claimant is required to give evidence and to answer questions including in relation to why he believed he was an employee of the first respondent (and not a director).[21]In my judgment, it was not appropriate to hear the claimant’s claim in the claimant’s absence given the nature of the claim and the issues before the Tribunal. I therefore dismissed the claimant’s claim. Prior to dismissing the claim, I considered and gave full effect to the Tribunal’s overriding objective (Rule 2 of the ET Rules). Dismissing this claim under Rule 47 is proportionate and in accordance with the Tribunal’s overriding objective in all the circumstances.
Introduction
[22]There is a public policy principle that there must be finality in litigation and reviews or reconsiderations are a limited exception to that principle. In the case of Stephenson v Golden Wonder Limited [1977] IRLR 474 it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord Macdonald, the EAT Judge in Scotland, said that the review provisions were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence produced which was available before”.[23]The Employment Appeal Tribunal went on to say in the case of Fforde v Black EAT68/80 that this ground does not mean “that in every case where a litigant is unsuccessful is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”[24]“In the interests of justice” means the interests of justice to all parties. The EAT provided further guidance in Reading v EMI Leisure Limited EAT262/81 where it was stated “when you boil down what it said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”[26]I consider that any guidance on the meaning of “the interests of justice” issued under the 2004 Rules (and the earlier Rules) is still relevant to reconsiderations under the ET Rules. I also remind myself that the phrase “in the interests of justice” means the interests of justice to all parties. 57. Further, I have also reminded myself of the guidance to Tribunals in Newcastle upon Tyne City Council – vMarsden [2010] ICR 743 and in particular the words of Mr Justice Underhill when commenting on the introduction of the overriding objective (now found in Rule 2 of the ETRules) and the necessity to review previous decisions and on the subject of a review: “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd. [2008] ICR 841, at para. 19 of his judgment (p. 849), it is “basic” “… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made.”[27]Further, I have also considered the further guidance on the ET Rules from Her Honour Judge Eady QC (as she then was, now Mrs Justice Eady, EAT President) in her judgment in Outasight VB Limited –v- Brown [2014] UKEAT/0253/14. I have considered that guidance and in particular have noted what is said about the grounds for a reconsideration under the ET Rules: “In my judgment, the 2013 Rules removed the unnecessary (arguably redundant) specific grounds that had been expressly listed in the earlier Rules. Any consideration of an application under one of the specified grounds would have taken the interests of justice into account. The specified grounds can be seen as having provided examples of circumstances in which the interests of justice might allow a review. The previous listing of such examples in the old Rules - and their absence from new - does not provide any reason for treating the application in this case differently simply because it fell to be considered under the “interests of justice” provision of the 2013 Rules. Even if it did not meet the requirements laid down in Rule 34(3)(d) of the 2004 Rules, the ET could have considered whether it should be allowed as in the interests of justice under Rule 34(3)(e). There is no reason why it should then have adopted a more restrictive approach than it was bound to apply under the 2013 Rules”.[28]In considering matters in the present case, I also reviewed the EAT judgment in Wolfe v North Middlesex University Hospital NHS Trust [2015] ICR 960 ; [2015] UKEAT/0065/14, and I have noted, from that judgment, at paragraph 75, what the EAT judge, His Honour Judge Serota QC, stated: “There is now a long line of authority to the effect that where a would be Appellant believes there has been a material omission on the part of an Employment Tribunal to deal with a significant issue or to give adequate reasons in respect of significant findings, the proper course is not to lodge a Notice of Appeal, but to go straight back to the Employment Tribunal and ask that the omission be repaired. If reasons are given orally, this should be done as soon as practicable on the completion of delivery of the judgment, and if Written Reasons are later handed down as soon as practicable after the Judgment is received. I would like to make clear that it is the duty of advocates to adopt this course in litigation in the Employment Tribunal.”[29]Further, in considering this reconsideration application, I have also taken into account the helpful judicial guidance provided by Her Honour Judge Eady QC, then EAT Judge, and now EAT President, in her judgment in Scranage v Rochdale Metropolitan Borough Council [2018] UKEAT/0032/17, at paragraph 22, when considering the relevant legal principles, where she stated as follows: - “The test for reconsideration under the ET Rules is thus straightforwardly whether such reconsideration is in the interests of justice (see Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported). The "interests of justice" allow for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.”[30]At Outasight VB Ltd v Brown, at paragraphs 27 to 38, the learned EAT Judge (now Mrs Justice Eady, EAT President) reviewed the legal principles. The EAT President, then Mr Justice Langstaff, in Dundee City Council v Malcolm [2016] UKEATS/0019-21/15, at paragraph 20, states that the current Rules effected no change of substance to the previous Rules, and that they do not permit a claimant to have a second bite of the cherry, and the broader interests of justice, in particular an interest in the finality of litigation, remained just as important after the change as it had been before.[31]Further, I have also taken into account the Court of Appeal’s judgment, in Ministry of Justice v Burton & Another [2016] EWCA Civ.714, also reported at [2016] ICR 1128, where Lord Justice Elias, himself a former EAT President, at paragraph 25, refers, without demur, to the principles “recently affirmed by HH Judge Eady in the EAT in Outasight VB Ltd v Brown UKEAT/0253/14.”[32]Specifically, at paragraph 21 in Burton, Lord Justice Elias had stated that: “An employment tribunal has a power to review a decision "where it is necessary in the interests of justice": see Rule 70 of the Tribunal Rules. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Newcastle on Tyne City Council v Marsden [2010] ICR 743, para. 17 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…” Discussion and Deliberation[33]I have now carefully considered the claimant’s written application, and all correspondences up to and including 08 July 2024, including all correspondences referred to within the claimant’s reconsideration application, my own notes of the submissions at the Final Hearing on 04 March 2024 (including any documents and authorities referred to by parties), the Judgment and written reasons issued to parties following that hearing, and also my own obligations under Rule 2 of the ET Rules, being the Tribunal’s overriding objective to deal with the case fairly and justly.[34]I consider that the claimant has been given a reasonable opportunity, in advance of this Reconsideration Hearing, to make their application for reconsideration of the Judgment.[35]On the test of “in the interests of justice”, under Rule 70, which is what gives this Tribunal jurisdiction in this matter, there is now only one ground for “reconsideration”, being that reconsideration “is necessary in the interests of justice.” That phrase is not defined in the ET Rules upon which a Tribunal could “review” a Judgment under the former 2004 Rules.[36]While there are many similarities between the former 2004 Rules and the ET Rules, there are some differences between the current Rules 70 to 73 and the former Rules 33 to 36. Reconsideration of a Judgment is one of the two possible ways that a party can challenge a Tribunal’s Judgment. The other way, of course, is by appeal to the EAT.[37]Rule 70 confers a general power on the Employment Tribunal, and it stands in contrast to the appellate jurisdiction of the EAT. In most cases, a reconsideration will deal with matters more quickly and at less expense than an appeal to the EAT.[38]Here, in the present case, the claimant has intimated that he will be pursing both routes. The EAT will decide next steps in that appeal after it, and parties, have given consideration to this my Reconsideration Judgment. Disposal Grounds for Reconsideration – is it in the interests of justice to reconsider the Judgment?
Disposal
[41]Having assessed the submissions and representations made by the claimant, I am of the view that this reconsideration application in respect of the grounds set out in the claimant’s cover email, the accompanying two-page letter (and any supporting documents) should be refused because it is not in the interests of justice to grant the claimant’s application.[42]The Tribunal is of the view that it is not in the interests of justice to allow the claimant’s application in respect of those grounds, and nor would it be in accordance with the Tribunal’s overriding objective to deal with the case fairly and justly to allow those grounds of the claimant’s application.[43]In reaching this view, I have again reviewed the documents in the substantial file of papers provided at the Final Hearing (documents within the Final Hearing Bundle, the Tribunal file, and my notes), all relevant correspondences on the Tribunal file, the relevant statutory provisions and case law authorities, the parties’ representations made at the hearing, and I have taken account of all of the relevant circumstances in doing so.[44]I do not believe that I have made any error of law, as suggested by the claimant, but I do recognise that that matter is ultimately a matter for the EAT to decide upon, and not for me.[45]As I see things, in considering whether to dismiss the case under Rule 47 of the ET Rules, following the claimant’s non-attendance at the Final Hearing, I took into account the submissions provided by the second respondent’s representative, the file of documents prepared for the Hearing, the correspondences on the Tribunal file, during my private deliberation in chambers, taking into account all relevant considerations, and I did not have regard to anything irrelevant.[46]I sought to take into account all of the circumstances of the case, and the correspondences, documents, and submissions before me. I applied the facts to the law, and I reached the conclusions that I reached in the original Judgment.[47]Now, on reconsideration, I do not consider it is in the interests of justice to vary my original Judgment and allow the claimant’s application. Put simply, the claimant’s arguments put to me in the reconsideration application have not established for me that it would be in the interests of justice for the original Judgment to be varied or revoked on reconsideration.[48]My view remains essentially the same as it was expressed in the reasons given at the time in the Tribunal’s written Judgment and Reasons ruling on 07 June 2024 and sent to parties on 10 June 2024.[49]As the Employment Appeal Tribunal has made clear, in many other instances, when reviewing any Judgment of an Employment Tribunal, parties should know why they have won or lost, but the Tribunal’s decision is not required to be an elaborate formalistic product of refined legal draftsmanship – it must give adequate reasons for its decision, and failure to do so can amount to an error of law giving rise to an appeal to the EAT.[50]I believe that I gave adequate reasons at the time, when I delivered the written Judgment and Reasons but, in light of the claimant’s reconsideration suggesting that incomplete or inadequate reasons have been given for certain matters, I take the opportunity to amplify those earlier reasons here in the Reasons for this Reconsideration Judgment.[51]I do not believe that I have failed to take into account relevant considerations, and I do not believe that I have had regard to irrelevant considerations.[52]For completeness, I confirm that prior to reaching my conclusion in the original Judgment I reviewed all the documents to which I was referred including but not limited to the correspondences/documents referred to within the claimant’s reconsideration application (save for the Ryanair booking confirmation which was provided with the reconsideration application).[53]I have included below brief observations in respect of each of the numbered grounds (adopting the numbering at paragraph 10 above): - i) It was a matter for the second respondent to arrange appropriate representation at the hearing. The second respondent’s representative attended the hearing. The claimant and the first respondent did not attend the hearing and they were not represented. - ii) It is not clear why the claimant believed the hearing was to be held online only. Although the hearing was initially listed in person, the hearing was converted to a hybrid hearing, to enable the second respondent’s representative to attend the hearing remotely. The claimant states that he did not wish the hearing to take place online, and the claimant, was afforded the opportunity to attend the Final Hearing in person at the London East Employment Tribunal. He did not avail himself of that opportunity. - iii) The Tribunal did not convert the Final Hearing to a video hearing. It is not clear on what basis the claimant asserts the hearing was converted to a remote hearing (i.e., online only). - iv) It is also not clear on what basis it is asserted that the second respondent’s representative’s remote attendance at the hearing would have any impact on the claimant and what matter the claimant was seeking to clarify with the Tribunal. The claimant requested an adjournment on the Friday evening before the hearing by email dated 01 March 2024 sent at 5.08pm. The application was refused and notice of refusal was sent to the claimant on 04 March 2024 at 10.43am. Parties were advised within that correspondence that the hearing is listed as a hybrid hearing on the basis that the claimant requested to attend in person, and further, that the claimant and the respondent are expected to attend the hearing at 12 noon on 04 March 2024 (and that in the absence of the claimant the claim may be dismissed). - v) A Ryanair booking confirmation has been submitted with the claimant’s reconsideration application (which was not provided to the Tribunal with the postponement application dated 01 March 2024), but it is not clear when the flight booking had been made and why the claimant had not applied for an adjournment earlier. Under Rule 30A(2)(c) of the ET Rules I could not be satisfied that there were “exceptional circumstances” necessitating a postponement, nor was it in accordance with the overriding objective to grant a postponement. - vi) I referred to the documents prepared by the second respondent and to any correspondences and documents on the Tribunal file prior to making my decision to dismiss the claim. The claimant describes the second respondent’s documents as “Incredibly verbose/bloated documents provided by the 2nd Respondent, which served to Fili bust the situation and perhaps as the cases therein are different and possibly irrelevant and lead the judge to dismiss.” The claimant could have made submissions in respect of those documents and any case law if he had availed himself of the opportunity to attend the hearing. - vii) Accordingly, there is no reasonable prospect of the original Judgment being varied or revoked and it is not necessary in the interests of justice to vary or revoke the original Judgment on the grounds contained in the claimant’s application.[54]In terms of the claimant’s cover email dated 12 June 2024, the claimant states that the Employment Judge made an error by stating that he did not notify his absence at the hearing. He states that he contacted the Tribunal on 01 March 2024 relating to the same. However, the claimant’s application for a postponement was refused on 04 March 2024 and thereafter the claimant did not attend the hearing. He did not contact the Tribunal following the refusal of his postponement application to explain that he would not be attending the Final Hearing.[55]Furthermore the claimant states that I was in possession of his statement/evidence and that of the witnesses. I had considered the correspondences and documents submitted by the claimant prior to the hearing, and I also considered whether I could determine the claim in his absence. However, taking account of the nature of the complaints and issues before the Tribunal, it was not appropriate for me to determine the claim in the claimant’s absence (based on the documents before me).[56]After having made the enquiries and the steps identified in my Judgment dated 10 June 2024, I decided that in my judgment, it was not appropriate to hear the claimant’s claim in the claimant’s absence given the nature of the claim and the issues before the Tribunal. I therefore dismissed the claimant’s claim. Prior to dismissing the claim, I considered and gave full effect to the Tribunal’s overriding objective (Rule 2 of the ET Rules). I was satisfied that dismissing the claim under Rule 47 is proportionate and in accordance with the Tribunal’s overriding objective in all the circumstances.[57]Having carefully considered the points made by the claimant in this reconsideration application, the Tribunal does not consider that it is in the interests of justice to revoke or vary my earlier Judgment, and I adhere to it, for the reasons given then with the original Judgment, and as now amplified in these Reasons. As such, the Tribunal’s original Judgment stands, and I do not set it aside.
Conclusion
[58]The claimant’s application dated 12 June 2024 for reconsideration of the Judgment the original Judgment being varied or revoked for the reasons set out above. Accordingly, I do not vary or revoke the original Judgment, as I confirm it, that being the appropriate disposal having refused the claimant’s reconsideration application.