Mrs N Ibrahim v Alam and Alam Ltd: 3300338/2017
JUDGMENT
[1]After hearing from the parties and reading the documents to which the parties referred, the respondent’s applications to strike out the claims and to make a deposit order are dismissed.REASONS
[1]There was an agreed bundle of documents and outline submissions from the claimant. It was agreed that it would not be practical to hear evidence from the claimant or respondent though the claimant provided a witness statement. The hearing proceeded with the parties making submissions and referring to relevant documents in the agreed bundle of documents. The ET1 and ET3 were both full.[2]The application to strike out the claims is on the ground that there was “no reasonable prospect of success” under Rule 37(1)(a).[3]A claim should not usually be struck out where there are crucial facts in dispute and there has been no opportunity for all the evidence in relation to those facts to be considered. The claimant’s case is that the respondent wanted her out of the 1 ph judgment + cm Nov 2014 wip version business because she was on maternity leave and that there had been a previous attempt to make her redundant and to reduce her pay and that the reason given for her dismissal was not genuine. The respondent argued that the claimant was dismissed for gross misconduct as she had been working for her uncle during her maternity leave and on her return which was, the respondent alleged, a breach of her contract.[4]It was clear from the ET1 and ET3 as well as the parties’ submissions, that the facts were not agreed nor indeed could it be said that they were clear from the documents provided to the tribunal. There was more evidence needed to resolve the differences between the parties. For example, there was a dispute about whether the respondent was aware that the claimant had sometimes carried out work for her uncle, which was the reason for her eventual dismissal.[5]Further, tribunals should be cautious about striking out discrimination claims which often rely on inferences that are fact sensitive. This is true of these claims.[6]The application to make a deposit order is on the basis that the claim “has little prospect of success”; see Rule 39(1). This is a lower threshold. This application is rejected for similar reasons to the strike out. There are clearly significant factual issues to decide as set out above and it is not possible to say, on the documents presented and submissions, that this test is satisfied. Further, in the alternative, it is unlikely that the claimant would have the resources to pay a deposit as she is currently on maternity leave, claiming maternity allowance and tax credit and has no capital.[7]I would add that although the tribunal’s letter giving notice of the preliminary hearing referred only to the issue about whether there was “little prospect of success”, suggesting that it was listed only for a deposit order, the parties agreed to proceed on the basis that the tribunal would decide both the application to strike out and the application for a deposit order.The issues
[8]Remedies 8.1 If the claimant succeeds, in whole or part, the tribunal will be concerned with the issues of remedies. This will include loss of earnings and injury to feelings, breach of contract and/or the award of interest. Judicial mediation[9]The parties raised the possibility of this case being considered for an offer of judicial mediation. The parties were given two notes giving an explanation of the judicial mediation scheme.[10]The judicial mediation will be on 18 December 2017. There will be a case management discussion by telephone at 10am on 8 November 2017. ORDERS Made pursuant to the Employment Tribunal Rules 2013The issues
The issues
[1]Disclosure of documents1.1 The respondent will provide any further relevant documents to the claimant on or before 31 January 2018. 4 ph judgment + cm Nov 2014 wip version1.2 On or before 14 February 2018 the claimant will provide to the respondent any further copy documents which are to be included in the bundle. This will include any documents relating to mitigation of loss including all attempts to find alternative work.[2]Schedule of loss 2.1 The claimant will provide to the respondent with a copy to the tribunal, a schedule of loss on or before 11 December 2017. This will need to take into account the claimant’s period on maternity leave.[3]Bundle of documents3.1 On or before 28 February 2018 the respondent will prepare a bundle of documents and provide one copy to the claimant.3.2 It is ordered that the respondent has primary responsibility for the creation of the single joint bundle of documents required for the hearing. The respondent is ordered to bring sufficient copies (at least five) to the tribunal for use at the hearing by 9.30am on the morning of the hearing.[4]Witness statements4.1 Witness statements are to be exchanged 21 days before the hearing fixed for 21-24 May 2018, ie by 1 May 2018.4.2 Exchange of statements should be contemporaneous.4.3 The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the tribunal, relevant to the issues as identified above.4.4 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.4.5 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.[5]Other matters5.1 The respondent will provide a chronology to the claimant seven days before the hearing which should be agreed by the parties if possible. It must list, in alphabetical order of surname, the full name and job title of all the people from whom or about whom the tribunal is likely to hear.5.2 The claimant is ordered to prepare a short, neutral chronology for use at the hearing.5.3 These documents should be agreed if possible. 5 ph judgment + cm Nov 2014 wip version CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.