Mr J Cheung v North West Anglia NHS Foundation Trust: 3300585/2021
JUDGMENT
[1]The Respondent’s application for an extension of time for submission of its response (ET3) succeeds.[2]The Claimant’s application for an anonymity Order (Rule 50) fails.REASONS
[1]The Claimant is a doctor and was employed by the Respondent from 30 July 2019 to 25 August 2020.[2]On 20 November 2020 he first notified ACAS and on 20 December 2020 an Acas Early Conciliation certificate was issued.[3]The Claimant presented this claim on 20 January 2021 and brings claims of breach of contract, failure to comply with the Working Time Regulations (WTR) and unlawful deduction from wages.[4]On 19 April 2020, the Claimant applied for an anonymity order pursuant to Rule 50 Employment Tribunal Rules 2013 (the Rules). PHCM Order (NEW August 2020) 1 of 6 August 2020[5]An Open Preliminary Hearing (OPH) was listed to take place on 5 January 2022 to consider this application and also whether to enter judgment pursuant to Rule 21, no response having been received from the Respondent.[6]On 30 December 2021, the Respondent’s solicitors wrote to the Tribunal to advise they had just been instructed (that day) and asking for copies of documents.[7]On the same day, the Tribunal sent a Notice of Claim to the Respondent.[8]On 31 December 2021, the Respondent’s solicitors wrote to the Tribunal to say that the Respondent was not aware of these proceedings until 23 December 2021 when they received the notice of the OPH to be held on 5 January 2022.[9]The OPH on 5 January 2022 was then postponed at the Claimant’s request.[10]On 17 January 2022, the Respondent applied for an extension of time for submitting its response and enclosed with that application a proposed response (ET3) and a request for further and better particulars of claim.[11]On 19 March 2022, EJ Tynan (on the papers) made case management orders. The issues at the OPH were extended to include the Respondent’s application for extension of time. The Claimant was ordered to provide a response to the request for Further & Better Particulars by 26 April 2022.[12]The Claimant wrote to the Tribunal on 26 April 2022 objecting to the Rspondent’s application for an extension of time. Procedure at the OPH[13]The OPH was conducted remotely via CVP.[14]The Respondent provided a bundle of documents (70 pages) which the Claimant confirmed he had received and had access to. I did not have access to the Tribunal file other than documents I could access remotely.[15]I heard and determined the Claimant’s application for anonymity order first and then heard the Respondent’s application for an extension of time. As the latter was successful, I then closed the hearing for the purposes of listing the final hearing and case management. My case management orders are set out in a separate document. Claimant’s application for anonymity: Rule 50[16]The Claimant wrote to the Tribunal on 19 April 2021 as follows: “The Claimant wishes to apply for an order preventing the public disclosure of any aspect of the tribunal proceedings under Rule 50 of the Employment Tribunal Rules of Procedure”[17]I explained to the Claimant that a restriction on public disclosure is only imposed in exceptional circumstances. It can only be imposed if the Tribunal considers it PHCM Order (NEW August 2020) 2 of 6 August 2020 necessary in the interests of justice; to protect Convention rights; and/or prevent disclosure of confidential information. The Tribunal must then give full weight to the principle of open justice by properly evaluating competing rights.[18]I asked the Claimant to explain to me why he wanted a restriction on disclosure. He told me his Article 8 (right to private life) rights would be breached as it would affect his reputation and future employment prospects if proceedings were reported. I asked him why he thought his reputation and employment prospects would be detrimentally affected; he said things could be misinterpreted.[19]Mr. Craig, on behalf of the Respondent, objected. He said this type of order should only be made in exceptional circumstances which do not apply in this case and it would undermine the principles of open justice to make a rule 50 order.[20]Having listened to both parties, I gave my decision orally that it was not appropriate to make a rule 50 order in this case. I am not satisfied that it is in the interests of justice; the Claimant has not persuaded me that his Convention rights would be breached; and it is not necessary in order to protect disclosure of confidential information. There are therefore no competing rights to evaluate and weigh against the important principle of open justice. Respondent’s application for extension of time[21]In accordance with Rule 20 the Tribunal has an absolute discretion to extend time but must also take into consideration the overriding objective to deal with cases fairly and justly (Rule 2).[22]In Kwik Save Stores Ltd v Swain & ors [1997] ICR 49, the EAT held that “… the process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice". The case established that an Employment Judge should always consider the following three factors. First, the explanation supporting an application for an extension of time. The more serious the delay, the more important it is that the