Miss C Mead v Tyre Tech Mobile Ltd (In Compulsory Liquidation): 3205008/2022

EMPLOYMENT TRIBUNALS

Case No 3205008/2022

Between

Miss C MeadClaimant

Tyre Tech Mobile Ltd (In Compulsory Liquidation)Respondent

Before

Employment Judge Feeny

Members

Mr R Blanco

Mr S Woodhouse

In person for claimant

Not in attendance for respondent

Not in attendance or represented for respondent

Date 5 September 2024

JUDGMENT

[1]The complaint of harassment related to sex pursuant to section 26 of the Equality Act 2010 is well-founded. The Respondent must pay to the Claimant the following sums:a. £10,000 for injury to feelings;

b. £900 interest.

[2]The claim for unpaid annual leave under the Working Time Regulations 1998 is well-founded. The Respondent shall pay to the Claimant the sum of £300 gross of deductions for tax and national insurance.

[3]The Respondent must pay to the Claimant the sum of £2,000 for failure to provide a written statement of employment particulars pursuant to section 38 of the Employment Act 2002.

[4]The complaint of unfair dismissal pursuant to Part X of the Employment Rights Act 1996 is well-founded. Remedy for this complaint will be determined at a further remedy hearing to be listed. Employment Judge Feeny 12 September 2023 Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Miss C Mead Respondent: Tyre Tech Mobile Ltd (In Compulsory Liquidation) Heard at: East London Hearing Centre On: 14 March 2024 Before: Employment Judge J Feeny Members: Mr R Blanco Mr S Woodhouse Representation For the Claimant: In person For the Respondent: Not in attendance Mr Glen Tubbs: Mr Gray, solicitor

REASONS

[1]These are the written reasons in support of the Majority judgment of the Tribunal refusing the Claimant’s application for reconsideration of the Judgment dated 12 September 2023. The application was considered at a hearing on 14 March 2024 and, for reasons given orally at the conclusion of the hearing, refused by a Majority. The Minority decision was to allow the application.

[2]Written reasons were requested by the Claimant at the conclusion of the hearing. Background to the application Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

hearing.

[3]By an ET1 presented on 19 September 2022 the Claimant brought a claim against her employer for sex discrimination, unfair dismissal, and unpaid holiday pay. The Respondent did not actively defend the claim and, following case management by EJ Pauline Feeney at a preliminary hearing (“PH”) on 6 February 2023, the claim came before a full Tribunal panel (chaired by EJ Jack Feeny) at a final merits hearing (“FMH”) on 12 September 2023.

[4]At that hearing, the Claimant represented herself. No-one from the Respondent attended. Following discussion with the Claimant, the name of the Respondent was amended to “Tyre Tech Mobile Ltd (In Compulsory Liquidation)”. The Tribunal proceeded to hear evidence and submissions from the Claimant. It upheld the complaints of harassment related to sex (section 26 of the Equality Act 2010 [“EqA”]), unfair dismissal, and annual leave under the Working Time Regulations 1998 (“WTR”). It also made an award for failure to provide a written statement of employment particulars.

[5]Remedy was assessed for the EqA and holiday pay complaints, with a Judgment promulgated for specific amounts. The issue of remedy for the unfair dismissal complaint was postponed so that the Claimant could collate and provide relevant evidence on loss of earnings and also to allow time to see if the Claimant was able to enforce the existing Judgment against the named Respondent. The Judgment was sent to the parties on 20 September 2023.

[6]On 20 October 2023 the Claimant emailed the Tribunal asking if she could substitute the name of the Respondent in the Judgment for an individual, on the basis that she had been unable to recover any money from the insolvent company. This was treated as an application for reconsideration of the Judgment pursuant to rule 70 and the Claimant was asked to provide written submissions in support, including on whether time should be extended to submit the application pursuant to rule 5.

[7]By email sent on 14 November 2023 the Claimant confirmed that she wished to substitute the director of her employer, Mr Glen Tubbs, as the respondent to the claim. She provided reasons in support, including on the timing of the application.

[8]On 19 December 2023 the Tribunal wrote to the parties to confirm that EJ Feeny had considered the Claimant’s submissions and determined that there was a reasonable prospect of the original decision being revoked. A hearing was listed and it was directed that all relevant documents including the notice of hearing be served upon Mr Tubbs as individual, who was ordered to attend the reconsideration hearing pursuant to rule 35.

[9]It does not appear from the Tribunal file that all documents were served upon Mr Tubbs, as has been ordered, but thankfully sufficient information was received by Mr Tubbs for him to instruct solicitors and attend the hearing, as planned.

[10]At the hearing, the Tribunal heard submissions from the Claimant and Mr Tubbs via his solicitor, Mr Gray. Both parties also provided some written evidence in support of their position, albeit, particularly in the case of Mr Tubbs (as discussed below), far from all relevant documentation was provided. Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

[11]Mr Gray confirmed that Mr Tubbs did not wish to give oral evidence in support of his position and so no evidence was heard by the Tribunal.

[12]For the avoidance of doubt, Mr Tubbs was permitted to attend and make submissions at the hearing pursuant to rule 35. Procedural background

[13]In order to put the Claimant’s submissions in their proper context, it is necessary to set out the procedural background to this claim in more detail.

[14]As already indicated, the ET1 was presented on 19 September 2023. The factual narrative to the claim was, in brief, as follows.a. The Claimant had been off work with an ectopic pregnancy in July 2022, which had included a spell in hospital. Mr Tubbs had been aware of this.

b. She returned to work on 27 July. In the afternoon she was added to a WhatsApp group consisting of her colleagues including Mr Tubbs. Various messages were then sent which sought to mock the Claimant for her absence. Rather than stopping the offensive chat, Mr Tubbs joined in.

c. The Claimant removed herself from the WhatsApp chat. She was very upset and believed Mr Tubbs had told her colleagues about her reason for absence. Despite being at work, no-one (including Mr Tubbs) spoke to her about what had happened.

d. The Claimant emailed the following day to resign and ask for an investigation to be carried out. No investigation was done (to her knowledge).

[15]The Respondent named in the ET1 was “Tyre Tech Autocentre”.

[16]On 26 October 2022 Mr Tubbs emailed the Tribunal without copying in the Claimant. His email said this: “With reference to the above claim. I have on more than one occasion notified Acas the details of the claim need to be correct and accurate. The company miss Mead worked for was Tyretech mobile Ltd. Not the trading retail name of Tyretech Autocentre. However, Acas never listen or changed the details. I have only just received this letter today, so if this could be resent and adressed [sic] to the correct company I would be happy to address, thank you[.] At that point I would like to raise my concerns with how Acas did not listen to my side of events and failed to be the mediation body they are meant to be. Thank you Glen @ Tyretech”

[17]No ET3 was submitted on behalf of “Tyre Tech Autocentre”. Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

[18]On 9 November 2022 EJ J Jones directed that the claim should be re-served on Tyre Tech Mobile Limited (“Mobile Ltd”) at its registered office’s address.

[19]No ET3 was submitted by Mobile Ltd within the relevant time limit and a rule 21 letter was sent to the parties on 5 January 2023.

[20]The Tribunal wrote to the Claimant on 23 January 2023 asking for a copy of her contract of employment and any pay slips.

[21]The Claimant provided some pay slips on 25 January 2023. She said that she had never received a contract from “Tyre Tech”. The pay slips clearly stated that her employer was “Tyre Tech Mobile Limited”.

[22]The Tribunal wrote again to the Claimant on 27 January 2023 to say that “the correct identity of the Respondent will be considered and further direction will be made” at the PH on 6 February 2023.

[23]The Claimant submitted a case management agenda in advance of the PH. In box 1.1 – in answer to the question “Are the names of the parties correct?” – she wrote: “yes, they are a legal entity”.

[24]The PH took place on 6 February 2023 with EJ P Feeney chairing. The Claimant represented herself. No-one attended on behalf of the Respondent. No reference is made in the subsequent Order to the issue of the identity of the Respondent. It is not clear if a discussion about this in fact took place. The Claimant told the Tribunal at the FMH in September 2023 that EJ P Feeney had said that she would amend the name of the Respondent to “Tyre Tech Autocentre Ltd” following the PH, as part of her case management order, but there is no evidence on the Tribunal file that this was done. There is also, however, no evidence on the Tribunal file that this discussion took place at all, or at least in the way that the Claimant suggested.

[25]The Tribunal orders that followed the PH in February 2023 continued to refer to the Respondent as “Tyre Tech Autocentre”.

[26]The claim was listed for a 1 day FMH, initially listed for 9 June 2023 but later relisted due to lack of judicial resources to 12 September 2023.

[27]On 30 August 2023 Mr Tubbs again emailed the Tribunal, again not copying the Claimant in. His email said: “Hi hopefully someone will read this and help. I keep notifying everyone involved the case is incorrect. MISS C MEAD did Not work for Tyretech Autocentre but indeed for Tyretech mobile Ltd as stated on her pay slip. The company Tyretech mobile ltd has gone into liquidation mainly caused by Miss Mead[‘s] abandonment of the company. The new company Tyretech Autocentre Ltd has nothing to do with this case. And I have no involvement in this company. These details are important and needs to be addressed before the the [sic] court date. Can somebody pls confirm receipt of this email.” Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

[28]The Claimant attended the FMH on 12 September 2023. No-one attended for the Respondent. The issue of employer was raised as a preliminary issue by the Tribunal. The Claimant was told that she would need to provide evidence that her employer was Tyre Tech Autocentre Ltd (“Autocentre Ltd”) in order to amend the name of the Respondent, given that her pay slips clearly indicated that her employer had been Mobile Ltd.

[29]After an adjournment to consider her position, the Claimant confirmed that she consented to the Respondent’s name being amended to “Tyre Tech Mobile Ltd (In Compulsory Liquidation)”. She agreed that she had no evidence that she had been employed by Autocentre Ltd. The Claimant said that she appreciated that she would have difficulties enforcing a Judgment against an insolvent company.

[30]The Tribunal then heard evidence and submissions from the Claimant. Her claims were upheld. At the conclusion of the hearing, it was agreed that the Claimant would seek to enforce the Judgment in respect of the EqA and WTR claims before notifying the Tribunal whether she also wanted a remedy hearing for her unfair dismissal complaint (which would include loss of earnings).

[31]As already set out above, the Judgment was sent to the parties on 20 September 2023 and the Claimant applied for reconsideration of the Judgment on 20 October 2023. Claimant’s submissions

[32]The Claimant had made initial submissions in writing, as directed by the Tribunal, in an email sent 14 November 2023. In summary, she said that she had always regarded her employer as “Tyre Tech Autocentre” and had not realised that Mr Tubbs had been operating his business under a trading name via Mobile Ltd.

[33]Her email suggested that Mr Tubbs may have deliberately changed the corporate entity by which he carried on his business (from Mobile Ltd to Autocentre Ltd) around the time of her resignation to avoid having to pay any damages to her.

[34]She said that she had not obtained legal advice before the FMH but had subsequently been advised that Mr Tubbs as an individual may be personally liable for her claim. Her application was therefore prompted by this advice.

[35]As for the lateness of the application, she said that she had undergone (planned) brain surgery on 14 September 2023 and needed time to recuperate, including bed rest at home.

[36]At the hearing itself, the Claimant enlarged upon her reasons for making the application late. She said she had been bed-bound for three weeks after the operation and, even after she started to mobilise, she still could not move much and had to take strong painkillers. She started working from home in December 2023 and returned to normal duties in January 2024.

[37]She also said that she had initially tried to recover her Judgment through the insolvency practitioners dealing with Mobile Ltd but, despite chasing, they had Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 never sent her the form that she needed to claim as a creditor. After losing patience with the practitioners she contacted a university offering free legal advice. This was in the beginning of October. This was when it was first suggested to her that she could add Mr Tubbs as individual respondent.

[38]As for the application more generally, the Claimant confirmed that she had not previously sought legal advice because she could not afford the fees and solicitors would not take the claim on a no-win no-fee basis because of the potential enforcement problems. She could not explain why she had not sought out free legal advice earlier, other than it not having occurred to her. Mr Tubbs’s submissions

[39]All submissions relied on by Mr Tubbs were made orally at the hearing. Submissions were primarily made on his behalf by Mr Gray, solicitor, although Mr Tubbs did seek to address the Tribunal directly on occasions. For ease of reference, the below will refer to Mr Tubbs making the factual submissions and Mr Gray making the legal submissions.

[40]A small bundle of documents was provided by Mr Tubbs. This contained the Companies House information which confirmed that Autocentre Ltd was incorporated on 15 July 2022. Mr Tubbs’s wife Erica Tubbs was appointed as director and person of significant control (“PSC”).

[41]Mr Tubbs explained that he set up Autocentre Ltd in July 2022 as he was looking to reduce his responsibilities and step away from running the business, hence why his wife was PSC. He claimed that his mental health was suffering around this time.

[42]The business operated two branches – one in Chelmsford and one in South Woodham Ferrers. The Chelmsford branch closed after the Claimant had resigned. Mr Tubbs was not able to provide a date for the closure of Chelmsford, other than it was early 2023. (The Claimant agreed that the Chelmsford branch was no longer open.)

[43]At some point in early 2023 Mr Tubbs decided to transfer the business from Mobile Ltd to Autocentre Ltd. He could not explain the timing behind this, given that Autocentre Ltd had been set up back in July 2022, other than – in answers to the Tribunal’s questions – claiming that he had a mental breakdown and was out of the country recuperating for most of the latter part of 2022. He suggested that the Claimant’s abrupt resignation had lost the business a lot of money, triggering a deterioration in his mental health.

[44]As for submissions on the application more generally, Mr Gray pointed out that if Mr Tubbs was to be joined as a party at this stage there would be a significant delay in the claim coming back for a fresh determination on the merits. There would therefore be prejudice from fading recollections and also difficulties contacting witnesses that were no longer employed by Mr Tubbs’s business.

[45]Mr Gray also submitted that any claim now against Mr Tubbs would be significantly out of time. The Claimant could have brought the claim against Mr Tubbs at the outset and had a number of opportunities to seek legal advice during the litigation and prior to the FMH in September 2023. If she had sought Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 that advice, it would have been recommended to her to have joined Mr Tubbs as individual respondent, as that was the advice she belatedly received in October 2023.

[46]As for the timing of the application, the Tribunal was urged to not extend time to hear it. In essence, it was said that the Claimant had not produced any evidence of her medical problems (other than the hospital discharge letter) or her correspondence with the insolvency practitioners and that her submissions should therefore be disregarded. The Tribunal commented to Mr Gray that this was a somewhat bold submission given that Mr Tubbs had sought to make a number of important factual submissions about the state of his own health and the operation of his business despite providing no documentary evidence in support whatsoever.

The Law

[47]Rules 70-71 of the Employment Tribunal Rules of Procedure 2013 dealing with reconsideration applications are as follows: Principles70. 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. Application

71. 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.

[48]Rule 5 provides for extensions of time: Extending or shortening time 5. The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.

[49]Both the applications under rule 5 and rule 70 must be considered consistently with the overriding objective in rule 2: Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable –(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.

[50]The Tribunal has had the overriding objective very much at the forefront of its mind whilst considering these applications.

[51]For the reconsideration application, the Tribunal has considered guidance from the EAT on the test to be applied. Firstly, Outasight VB Ltd v Brown

UKEAT/0253/14/LA

, para. 33: “The interests of justice have thus long allowed 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.”

[52]Secondly, the recent case of Ebury Partners UK Ltd v Davies

[2023] IRLR 486

, 489, para. 24: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so ‘in the interests of justice’. A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.” Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

[53]One of the key factors, therefore, in a reconsideration application is the requirement that there be finality in litigation. However, there may be circumstances where the injustice to a party sufficiently outweighs this public interest. Ultimately, it is a discretionary decision for the Tribunal, albeit one which must be exercised consistently with the overriding objective.

Conclusions

[54]The Tribunal agreed unanimously to extend time to hear the application pursuant to rule 5. The reasons for this were as follows.

[55]Documentary evidence was provided to show that the Claimant was in hospital for brain surgery from 14 to 18 September 2023. The Tribunal accepted the Claimant’s factual submissions as to the effects the surgery had had on her health and mobility immediately following discharge. Whilst the Claimant was clearly capable of carrying out some activities, such as chasing the insolvency practitioner, the Tribunal accepted that she had more pressing concerns, namely her state of health and recovery, in the weeks immediately following the Judgment being sent out.

[56]Furthermore, it was reasonable for the Claimant to attempt to engage with the insolvency practitioner for a period of time before applying for reconsideration. The 14 day time limit would not have provided sufficient time to have explored this option. There would be no point her seeking an alternative remedy from the Tribunal (i.e. the claim against Mr Tubbs) until it was clear that her original Judgment would not be satisfied.

[57]The Tribunal accepted the Claimant’s factual submission that she had contacted the insolvency practitioners numerous times and that they did not properly respond to her queries. She acted promptly once she had obtained the advice from the university law centre to apply to join Mr Tubbs as respondent.

[58]In these circumstances, the Tribunal did not consider that an additional 16 day delay in making her application should prevent it from being heard. There was no prejudice to Mr Tubbs from such a short period of delay.

[59]As for the application itself, as already indicated, the Tribunal was not unanimous. The Majority (which included the Judge) decided ultimately to refuse the application. The Minority would have allowed it.

[60]The Tribunal was unanimous in its view on the factual submissions made by Mr Tubbs. The following is therefore the combined view of the Tribunal.

[61]Mr Tubbs did not give evidence under oath, despite the Tribunal asking if he intended to do so. Furthermore, the factual assertions he made during submissions were entirely unsupported by documentary evidence, other than some limited Companies House documentation relating to Autocentre Ltd, which is publicly and freely available online.

[62]In particular, there was no evidence provided on the date when Mobile Ltd stopped trading and Autocentre Ltd started trading in its place. No evidence was provided on when the Claimant’s colleagues transferred their employment across to Autocentre Ltd. Despite pressing by the Tribunal during submissions, Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 Mr Tubbs was not able to provide even an approximate date for when his employees stopped being employed by Mobile Ltd and began working for Autocentre Ltd instead.

[63]Given no evidence was adduced, the Tribunal was not in a position to make any findings of fact. The following was therefore provisional conclusions on the factual matters relied on by Mr Tubbs.

[64]The Tribunal accepted that the Claimant must have been employed by Mobile Ltd prior to July 2022 as Autocentre Ltd was not set up as a legal entity until 15 July 2022. The Tribunal further accepted that Mrs Erica Tubbs was the SPC given that this was clear from the Companies House documentation.

[65]The Tribunal accepted that the Chelmsford branch closed down after the Claimant had left as the Claimant herself agreed with this.

[66]The Tribunal could not accept Mr Tubbs’s account as to why he stopped trading with Mobile Ltd, i.e. to step back from the business. There were no documents which showed when Autocentre Ltd took the business over from Mobile Ltd and started trading. Mr Tubbs said that he had planned in July 2022 to step back from the business due to health reasons (hence making his wife SPC) but yet, on his own case, did not suffer from a breakdown until after the Claimant resigned (which – the Tribunal assumed – was unforeseen by him prior to 28 July 2022). No documentary evidence was provided to substantiate the alleged ill health. Mr Tubbs said that he had been out of the country to recuperate in the latter part of 2022 but yet had been emailing the Tribunal about the claim in October 2022.

[67]Indeed, Mr Tubbs’s email to the Tribunal sent on 20 October 2022 is inconsistent with(a) him being out of the country, recuperating due to ill health and

(b) “stepping back” from the business. It also suggests that he may have begun to trade with Autocentre Ltd earlier than his proposed date of early 2023.

[68]Ultimately, the Tribunal concluded that the setting up of Autocentre Ltd could not have been in response to the Claimant’s claim, given it preceded it; and therefore Mr Tubbs probably had the intention of switching trading companies prior to the discrimination occurring. However, the Claimant’s resignation and her efforts through ACAS to resolve her claim probably accelerated Mr Tubbs’s (pre-existing) plans to trade under the new company. We therefore considered it likely that Mr Tubbs had taken steps to deliberately avoid paying damages to the Claimant.

[69]Thereafter the Majority and Minority part ways.

[70]For the Majority, the overriding consideration is finality of litigation. The Claimant could have included Mr Tubbs as individual respondent from the outset. She certainly could have applied to add him as respondent in the autumn of 2022, when it became clear that there was an issue about the identity of the respondent.

[71]Whilst it was unhelpful that Mr Tubbs did not copy the Claimant into his emails to the Tribunal, there was enough information coming from the Tribunal to alert her to the uncertainty about the identity of the respondent. Perhaps most Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 critically, the Claimant had been asked to provide her pay slips, which showed that Autocentre Ltd could not have been her employer (or at least it would be impossible to prove this, without further evidence).

[72]The Claimant was aware by early 2023 that there was an issue about the solvency of Mobile Ltd. It appeared (to the Majority) that this motivated the Claimant to keep her claim against Autocentre Ltd. However, this application is not about which corporate entity employed her, it is whether she should have acted earlier to bring Mr Tubbs in as individual respondent. That option remained open to her at the time of, and after, the PH in front of EJ P Feeney.

[73]The matter was raised again at the commencement of the FMH. The Claimant did not at that point apply to join Mr Tubbs as respondent.

[74]The essential point is that it was not until she received (free) legal advice to this effect in October 2023 that she realised the power existed to add Mr Tubbs as an individual respondent.

[75]The effect of allowing the application would be to return the litigation back to “square one”. There would be no purpose in revoking the Judgment if Mr Tubbs was not added as respondent pursuant to rule 34. He would be entitled to defend the claim on the merits, which would necessitate submitting an ET3 and the claim being case managed by the Tribunal all over again. This will impact on other Tribunal users.

[76]The Majority accepted there was some prejudice to Mr Tubbs in that the trial would be held at least two years after the events complained of. Mr Tubbs said that most of the witnesses had left the business although, given he claimed this had happened by early 2023, he would be in no worse position than if he had been joined to the claim originally (given the FMH was in September 2023). A period of two years from the events complained of to trial, in the experience of this Tribunal, is not particularly unusual or problematic.

[77]The period of delay is not therefore a significant factor. Moreover, any minor prejudice to Mr Tubbs in his ability to defend the claim is outweighed by the Tribunal’s provisional conclusion (albeit without hearing evidence) that it is likely that Mr Tubbs took steps to deliberately avoid having to pay any damages to the Claimant.

[78]The main point the Majority had in mind is public policy. The Claimant arguably made a mistake in the conduct of her claim by not applying to join Mr Tubbs before the FMH. She could have obtained free legal advice – and did just that in October 2023 – but opted to continue against the wrong company notwithstanding being on notice that(a) the only evidence available (i.e. the pay slips) suggested that the correct employer was Mobile Ltd and

(b) there would be problems enforcing a judgment against that company.

[79]If it was in the interests of justice to unwind a judgment in these circumstances it would allow or at least encourage all litigants who have made a tactical error - who may have failed to argue the correct point or frame their claim in the correct way - the opportunity to make the same application following the conclusion of their trials. Case Number: 3205008/2022 10.5 Reserved judgment with reasons – rule 62 March 2017

[80]Importantly, the Claimant’s application was not about which corporate entity employed her, it was to bring in an individual respondent who would potentially be liable pursuant to s. 110 EqA. The fact that the Respondent operated with a trading name and the Claimant was not provided with written particulars of terms and conditions of employment is only of secondary relevance.

[81]The Majority recognised that Mr Tubbs received a windfall from its decision, in that he escapes liability for a claim in circumstances where it at least appears that he used his new company to avoid a liability to the Claimant. But that is not itself sufficient to override the principle of finality of litigation; it is not in the interests of justice to do so.

[82]The Minority decision was to allow the application and add Mr Tubbs as individual respondent. In the Minority’s view, the correct identity of the employer is a complicated area of law. The Claimant’s employer operated under a trading name at the time that she was employed. She was not provided with a written contract of employment or written particulars that would have named her employer. It is difficult for a litigant in person in these circumstances to know how best to proceed.

[83]The Claimant cannot be held to the standards of a qualified legal advisor. It is understandable that the Claimant did not know that she could have added Mr Tubbs as an individual respondent prior to trial. It is not fair, in these circumstances, for the Claimant to be shut out of a potential remedy against him.

[84]The Minority considered that justice to the Claimant should take precedence over the principle of finality of litigation and it is more important that she is put in position where she may get compensation for her claim than considerations about the impact on the Tribunal system and further delay resolving the litigation.