Mr S Pursey v Healthcare and Transport Services: 3203206/2022
JUDGMENT
ON RECONSIDERATION Upon the Respondent’s application under Rule 71 (Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) (“Rules”) to reconsider the judgment of 31 October 2022 in the Claimant’s favour, the application to reconsider is refused under Rule 72(1) as there is no reasonable prospect of the decision being varied or revoked.REASONS
[1]The Claimant (a litigant in person, who represented himself at a Preliminary Hearing (Case Management) (PHCM) on 31 October 2022) worked for the Respondent for nearly four years, until February 2022, as a Mental Health Care Assistant. By claim form lodged on 15 May 2022, he claimed unfair dismissal and disability discrimination. The Respondent did not submit a response to the claim, which was first sent out with the usual accompanying documentation on 15 June 2022.[2]On or about 30 June 2022, a PHCM was listed for midday on Monday 31 October 2022. By letter of 28 October 2022, the parties were told, “Due to lack of judicial resources, the telephone preliminary hearing (closed) taking place on 31st November 2022 [sic] will now take place at 10am. The dial in details have also changed.” It then gave the new dial in details.[3]It will be immediately apparent that the date of 31 November 2022 must have been an error and should have read 31 October, firstly because the letter purported to make no change to the date, only to the time and the dial in details, but secondly and more pertinently because 31 November is not a possible date. 1 of 6[4]At 10.00, the Claimant attended the PHCM using the new dial in details. The Respondent did not attend and was not represented. We waited for a short time and then proceeded in the Respondent’s absence. I set out below an extract from the Case Management Summary and Orders. “… (6) By letter received on 5 October 2022 from Croner, it appears the Respondent did not receive the claim form when it was sent on 15 June 2022, with a deadline of 13 July for responding. It says it did not realise the claim had been lodged until 30 June, when it received a Notice of Hearing for the PHCM on 31 October. Accordingly to Croner’s letter, on 11 July 2022, the Respondent’s Director of Shared Services, Mr Graydon, wrote to the Tribunal “requesting copies of the Claimant’s Grounds of Resistance”. Perhaps unsurprisingly (since the Grounds of Resistance is usually a document lodged by the respondent to a case), the Tribunal did not understand this request and on 14 July wrote to seek clarification. Mr Graydon wrote back and explained he was acting on behalf of the Respondent and was asking for the grounds for the claim. The Tribunal responded on 15 July advising that the PHCM was to be a private and not a public hearing. (7) There was a further exchange on 5 and 11 August 2022 respectively, wherein Mr Graydon requested a copy of the claim and one was then sent to him. Other than the Croner letter, I did not have any of this correspondence before me. (8) The Respondent has therefore had the claim by its own account since 11 August. It did not submit a response. On 27 September, the Tribunal wrote advising that consideration was being given to a default judgment. On 5 October, Croner sent in draft grounds resisting the claim, and in a separate email of the same date, the letter seeking an extension of time. (9) There was no explanation in the Croner letter for the delay of eight weeks between receipt of the claim by the Respondent and the submission of the draft ET3/Grounds of Resistance. On the contrary, it was asserted that on receipt of the claim documents on 11 August, the Respondent “sought independent legal advice and to respond in the correct way and ensure that the correct Employment Tribunal Procedure was followed” [sic]. Had that been the case, I would have expected the ET3 response and grounds of resistance to have been submitted within days, not eight weeks, of receipt of the claim. (10) Nobody from the Respondent attended the PHCM but the Claimant attended. He said the only contact he had had from the Respondent or its representatives was a copy of the email saying that the draft grounds were attached, but there was no attachment, and a copy of the separate email with the application for an extension of time. There was no Case Management agenda or bundle for the PHCM. I determined that it was appropriate to proceed in the Respondent’s absence under Rule 47.” 2 of 6[5]It is also relevant to note that the Respondent had been told by letter of 22 October 2022 that its application for an extension of time would be considered at the PHCM on 31 October. Even though the Respondent was not present, I gave careful consideration to the issue and the explanation supporting the application for an extension of time, which the Claimant did not expressly oppose. I determined that it should not be allowed.[6]I was prepared to allow the Respondent the benefit of the doubt in relation to the period between the initial service of the claim and 11 August. What had not been explained adequately, or indeed at all, was the period thereafter.[7]I considered that the Respondent had known since 30 June 2022 of the existence of the claim – at which point it still had time to take advice and submit the defence before the original deadline. The Respondent had not been particularly expeditious in its communications with the Tribunal (e.g. it waited eleven days before seeking further information from the Tribunal about the nature of the claim, by which time the original deadline had passed, and it did not chase that up at all between 15 July and 5 August). It will have known on 11 August that it had already missed the deadline for submission of the defence by almost a month.[8]Even if the Respondent thought, without any basis for so thinking, that time started to run afresh from 11 August when it accepts it received the claim, its failure to submit the defence within a further four weeks has not been explained. The Tribunal had to send a further letter on 27 September which went unacknowledged. The assertion by Croner that the Respondent had sought to respond in the correct way and in accordance with the Rules of Procedure was, quite simply, wrong. By the time the defence was submitted on 5 October, it was 12 weeks late.[9]I also considered it pertinent that the Claimant would have suffered a windfall if he had been granted default judgment in a claim of disability discrimination when his status as a person with a disability was potentially not made out and also where the Tribunal might not have had jurisdiction to hear any part of that claim that had been brought out of time; but the Claimant withdrew that part of the claim so that the Respondent would not be put to that prejudice.[10]As to the unfair dismissal claim, the Respondent appears in the draft defence to say that it had a meeting with the Claimant on 19 January 2022 to discuss an Occupational Health report and then wrote to the Claimant on 17 February “by way of letter as a follow up”, dismissing him. It did not seem to me that the merits of the defence to the unfair dismissal as set out in the draft ET3 were so strong as to outweigh the extremely long and partially unexplained delay in submitting that defence.[11]The Respondent has acted in a cavalier manner by – on the face of it – simply ignoring the Rules of Procedure entirely and assuming that the defence would be accepted on whatever date it chose to submit one. In the circumstances and applying the Kwik Save Stores Limited v Swain1 principles, I determined that default judgment in favour of the Claimant on the complaint of unfair dismissal 1 1997 ICR 49 3 of 6 was appropriate. On 3 November, Croner emailed a letter to the Tribunal requesting reconsideration of the decision to enter default judgment and not to permit the Respondent to enter its response out of time. It gives no additional detail about the chronology, or in particular the period between 11 August and 5 October 2022. Rules[12]The relevant Rules for this application read as follows: RECONSIDERATION OF JUDGMENTS 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 reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a 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.(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, 4 of 6 chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.[13]The Tribunal’s task at this stage is to consider whether reconsideration of the decision of 31 October 2022 is in the interests of justice. Where it considers there is no reasonable prospect of the decision being varied or revoked, under Rule 72(1), the application shall accordingly be refused.Conclusions
[14]This reconsideration application was considered at the initial (Rule 72(1)) stage on the papers. It was not considered necessary to seek the Claimant’s response thereto. The Respondent’s application provides no clear reason as to why it would be in the interests of justice to reconsider the decision.[15]The Respondent had not sent in any documentation other than the draft ET3 and covering letter by Friday 28 October 2022, when it was told of the change in time of the PHCM scheduled for Monday 31 October. It had not made any contact with the Claimant to discuss preparation for the PHCM.[16]Even if the assertion in the Croner letter of 3 November is correct (that the Respondent “acted on [the Tribunal’s letter of 28 October] and only later realised that the Tribunal had erred … since there are only 30 days in November” – something which is manifestly correct, should have been appreciated immediately on any objective basis and was readily apparent to the Claimant) I consider that the Respondent’s representatives could have added nothing at the PHCM that would have persuaded me to extend time. The Respondent had clearly not proposed to call a witness to give evidence or to rely on such evidence, since by 28 October it had not served a witness statement. Nor had it proposed to adduce documentary evidence, because it had not served that either, on the Tribunal or on the Claimant.[17]Hence, there would still have been no explanation at the PHCM for the eightweek delay in the submission of the response after the Respondent, on its own account, received the claim form and particulars. Even now, knowing that this was a significant factor in the decision not to allow the application to extend time, there is no explanation put forward for that delay. The Respondent’s confusion about the PHCM date notwithstanding, the fact remains that applying the rule in Kwik Save, I continue to exercise my discretion not to extend time for submission of the response.[18]In the circumstances, there is nothing in what is now said by the Respondent which indicates that it is in the interests of justice to re-open this issue. This application is refused as there is no reasonable prospect of the decision being 5 of 6 varied or revoked. The Respondent may only participate further in this matter at the discretion of the Employment Judge who conducts the Remedy Hearing.