Mrs S N Laique v Al Iman Community Educational Services Ltd: 3300866/2022 Mrs S N Laique v Al Iman Community Educational Services Ltd: 3300866/2022

EMPLOYMENT TRIBUNALS

Case No 3300866/2022

Between

Mrs S N LaiqueClaimant

Al Iman Community Educational Services LtdRespondent

Before

Employment Judge G. King

In person for claimant

Mr S. Hoyle for respondent

Date 24 April 2023

JUDGMENT

[1]The Claimant’s claim of unfair dismissal is not well founded and is dismissed.

[2]The Respondent’s application for a costs order was served prior to the hearing, as required by the Order of 1 February 2023. The Respondent must by 2 May 2023, provide to the Claimant and to the Tribunal confirmation of the sums claimed in respect of costs.

[3]On reconsideration, the Tribunal finds that the Respondent’s application is suitable to be dealt with on the papers, without a hearing.

[4]The Claimant must by 16 May 2023 send to the Respondent and to the Tribunal her response to the Claimant’s application, and include details of her current financial situation.

[5]If the either party does not agree that the Respondent’s application should be decided on the papers, without a hearing, the party must write to the Tribunal and the other side by 16 May, setting out the reasons why they say the application should be dealt with at an attended hearing.

REASONS

[1]The Claimant was employed by the Respondent for two periods, starting on 1 September 2016 until 31 May 2017. She then re-joined the Respondent in the same position from July 2019 until the Effective Date of Termination (“EDT”) on 27 November 2021.

[2]In her claim form dated 4 February 2022 the she brings a claim of unfair dismissal against the Respondent.

The Law

[3]S.95 Employment Right Act — Circumstances in which an employee is dismissed.(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) [...]1, only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if— (a) the employer gives notice to the employee to terminate his contract of employment, and (b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer's notice is due to expire; and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given. Deliberation

[4]In her claim form the Claimant has brought a claim of unfair dismissal against the Respondent.

[5]This is a case that very much depends upon the facts. It is the Claimant’s case that she was unfairly dismissed on 27 November 2021, following failures by the Respondent to abide by any sort of process. The Respondent’s case is that the Claimant resigned voluntarily on 27 November.

[6]I begin my consideration by looking at the events of 18 November. It is the Claimant’s case on this day, her son was assaulted at school, and she informed the Respondent of this. The Respondent denies that she did. I do not make any findings on this point, as I do not consider that the unfortunate events that happened to the Claimant’s son are relevant to her claim of unfair dismissal.

[7]What also happened on 18 November is that the Claimant sent a message [A45] via WhatsApp to the Ms Khera, informing the Respondent that she would not be able to work on Saturday 20 November. The message states “I have been unwell for the past few days and I’m literally on my knees now, I don’t think I can cope for Saturday”.

[8]The Respondent replied, asking the Claimant to let them know if she felt better on the next day, and asking if she had done a COVID test. The Claimant replied that she had done a test and it was negative.

[9]The next significant event is Saturday 20 November. This was the day when the Claimant was due to work but had informed the Respondent that she was sick. The Claimant says that she took her son to an organised scout hike, and it was as she dropped him off there that she realised, or was informed, that there was insufficient adult supervision for her son to be able to go on the hike. She says that as her son wish to go on the hike, she agreed to accompany him. The hike lasted approximately 1 ½ hours.

[10]At 11:25 on 20 November, the Claimant sent a text message to Ms Iqbal [A47]. The text message states “took a day off, pretending I’m not well. I’m actually volunteering for scouts. And guess who joins the team? Your kids and husband. I just asked them to not tell I was here”.

[11]The text message exchange also has messages which say “when I saw your son, I went oh please keep my secret” [A47] and “Oh, I’m going to be popular” [A48]. The text exchange also suggests that Ms Iqbal asked for Saturday 20 November off work so she could go on the same hike but her request was refused by the Respondent [A47]. This is supported by Ms Iqbal’s witness statement [C18] and she was not challenged on this point.

[12]Seven photos of the scout hike were taken which showed Claimant was on the hike.

[13]Ms Iqbal then informed the deputy manager at the Respondent, Ms Mushtaq, about the photos and text message. Ms Iqbal says Ms Mushtaq would have been aware of these anyway, as she is on the Scouts WhatsApp group.

[14]It is agreed that, on 22 November, the Claimant sent a message to Ms Khera, informing her that the Claimant would no longer be able to work on Saturdays and therefore needed to resign from her post [A32]. Ms Khera replied, asking when the Claimant was hoping her last day might be. The Claimant said she hoped mid-December. It was accepted by the Claimant in cross examination that this did constitute her resignation. The Claimant still maintains that her resignation was not accepted as she did not receive confirmation of when her last day was, but I am satisfied that the Claimant did properly resign, with notice, and that her last working day would have been 11 December, given that this is the last day the Claimant would have worked before the middle of December.

[15]Ms Mushtaq and Ms Khera then decided to meet the Claimant when the Claimant came into work on 27 November. It has been accepted by the Respondent that no advance notice was provided of this meeting. It is the Respondent’s case that it was merely a chat and not part of any disciplinary process. The Claimant’s case is that this was a disciplinary meeting, she should have been informed about this meeting, and she should have been formed of her right to be accompanied to this meeting.

[16]The Tribunal therefore needs to decide, what was the nature of this meeting?

[17]In considering any disciplinary process, or the build up to a disciplinary process, the Tribunal will take into account the size and resources of an employer. A small organisation, employing a few members of staff, will not be held to the same standard as a large employer with an internal HR department.

[18]It is clear from the statements of Ms Khera and Ms Mushtaq, and from cross examination, that they wished to find out from the Claimant why she had been seen on the scout hike when she had been off sick, and that this was the purpose of their meeting on 27 November. Therefore, I do not accept that it was merely a chat. Nor, however, do I accept that it was a disciplinary meeting. The evidence of Ms Khera and Ms Mushtaq was both coherent and supportive, and agreed that they wanted to ask the Claimant questions about why she been on the scout hike. I therefore conclude that the meeting of 27 November was akin to an investigation meeting.

[19]There is no statutory right for an employee to be accompanied to an investigation meeting, and the ACAS code of conduct refers to such meetings as being held without undue delay. I therefore do not feel it is unreasonable for the Respondent to have held this meeting on Saturday 27 November.

[20]I then need to look at what happened at and following this meeting. The Claimant’s case is that she was dismissed for gross misconduct without notice, and escorted from the premises. The Respondent’s case is that the Claimant was sent home on full pay, as they believed she was not in the right frame of mind to do her job. It is the Respondent’s further case that, having been told to go home, the Claimant, by her actions, resigned from her job.

[21]I accept the evidence that, immediately after the meeting, the Claimant went to her desk, and was alone and unsupervised for a short period of time. It was at this point that she checked her phone, and realised that she had been removed from the various WhatsApp groups that were used to discuss the activity of the school.

[22]Ms Khera’s evidence is that she then spoke to the Claimant and told her to go home, as Ms Khera did not feel the Claimant was in the right frame of mind to carry out her duties. Ms Khera accepted in cross examination that the Claimant had not raised her voice, but she had been agitated and was giving angry response to questions. This is supported by evidence of Ms Mushtaq, who also agreed the Claimant did not shout, but was adamant on her views and kept reiterating that she had done nothing wrong.

[23]The Respondent’s case is that the Claimant’s agitated state is further evidenced by the Respondent allegation that the Claimant threw her ID badge down on her desk. The Claimant says she did not throw it but placed it on the desk. The Tribunal made no findings on whether it was thrown placed, but the important thing to note, in the view of the Tribunal, is that the Claimant returned her ID badge to the Respondent.

[24]The Claimant then collected her son from a class that he was attending and went to her car. The Respondent says the Claimant was in a rage, while the Claimant says that she was emotional, because her son was crying, blaming himself for what has happened. I accept that it was an emotional time for the Claimant, and the Tribunal which is to make it clear that her son should not be blamed for anything that has happened. It is however accepted between both parties, that as the Claimant was driving off, she stopped her car and threw her headscarf out of the window.

[25]The Respondent’s case is that the headscarf landed in a puddle and that this is disrespectful. The Claimant says she did not know there was a puddle there, but accept she did throw her scarf on the floor out of the window of her car. The Claimant accepted in cross examination that she did not wear the headscarf outside of the school and it was akin to being part of her staff uniform.

[26]The Claimant has cited the case of Townsend v Commercial Storage Ltd ET/2701352/2014, of 2015, which she says support her case. In the case of Townsend, Mr Townsend the Claimant was asked by the Respondent to come into work whilst on annual leave to work on a vehicle along with his boss, Mr Cooke. An argument ensued, regarding why Mr Townsend was having to do this when he was on leave, and Mr Cooke angrily told Mr Townsend “Get out of the yard and don’t bother coming back on Monday.” Mr Cooke subsequently tried to argue at a Tribunal that Mr Townsend had resigned, but the Tribunal found that Mr Townsend had been dismissed.

[27]In my view, Ms Laique’s case is suitably different from the case of Townsend. There is no evidence of any angry words from the Respondent, and, in contrast to the Townsend case, the Tribunal must consider the interpretation of the Claimant’s behaviour on 27 November, not the Respondent’s.

[28]The Tribunal therefore has to consider the actions of a person who returns their ID badge to their employer, and then, shortly afterwards, throws their uniform on the floor while leaving the Respondent premises.

[29]In the view of the Tribunal, this is the action of an employee who is resigning and does not intend to return. She had returned both her identification and has staff uniform to the Respondent, the uniform in particular in a dismissive manner, and then had driven off. I do not accept that removing the Claimant from WhatsApp groups constitute a dismissal. There could be various reasons why the Claimant was removed from the WhatsApp groups, such as being suspended from work, which effectively was when she was told to go home on full pay. Such a suspension does not equate to dismissal.

[30]I also reject the Claimant’s suggestion that, when the Respondent acknowledged that she would not be attending on Saturday 20 November, this amounted to an authorised day off in which she could do as she wanted. She was very clear in her message [A45] that she was sick, and it was on this basis that the Respondent was not expecting her to be at work.

[31]I further reject the Claimant’s argument that the Respondent should have enquired of her whereabouts on 4 December, which was the next Saturday after 27 November. First of all, employees have a duty to attend work. It is not for the employer to constantly remind employees that they should be at work. Secondly for the reasons I’ve outlined above I find that the Respondent was entitled to consider the Claimant as having resigned without notice on 27 November. The Respondent therefore was not expecting the Claimant to be at work and had no obligation to contact her.

[32]I will add that if I am wrong about the Claimant’s resignation occurring by her actions on 27 November, I would have found that the Respondent was entitled to view the Claimant’s conduct as gross misconduct, given the exchange of text messages where the Claimant effectively asks people to lie on her behalf. Considering the case of Polkey, I am satisfied that, if a fair process had been followed, the Claimant would have been dismissed in any event. Any potential damages would accordingly be reduced by 100%.

[33]The findings of this Tribunal are therefore that the Claimant resigned without notice by her actions on 27 November. There was no dismissal. The Claimant’s claim for unfair dismissal therefore fails. Respondent’s application for a Costs Order

[34]The Respondent made an application for a Costs Order on 14 April 2023. It was therefore made in accordance with the Tribunal’s order of 1 February 2023. The Tribunal accepts it was not possible to quantify some of the amounts claimed at the time. The Tribunal orders that the details of the sums claimed be sent to the Claimant and to the Tribunal by no later than 2 May 2023.

[35]In Tribunal announced that the application should be heard at an attended hearing, however on reconsideration the Tribunal finds that this application is suitable to be determined on the papers alone, without the need for a further hearing.

[36]The Claimant is therefore ordered to send her written response to the Respondent’s application to the Respondent and to the Tribunal by 16 May 2023. The Claimant is to include details of her current financial situation, so as to assist the Tribunal when it considers whether or not to make a Costs Order.

[37]If the either party does not agree that the Respondent’s application should be decided on the papers, without a hearing, the party must write to the Tribunal and the other side by 16 May, setting out the reasons why they say the application should be dealt with at an attended hearing.

The Law

[1]The Claimant has applied for a reconsideration of the reserved judgment dated 24 April 2023 (“the Judgment”). The grounds are set out in her email dated 18 May 2023 which was received at the Tribunal office on the same day.

[2]This has been a remote hearing on the papers. A face-to-face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.

[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.

[4]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.

[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.

[6]The grounds relied upon by the Claimant are as below, copied from the Claimant’s email: The only point I want to mention is, the card that has been returned was not the ID badge, it was the magnetic card that opens all the door of the institute. It was our responsibility to return it at the end of every working day, as it belongs to the hired venue and it would represent a safeguarding issue. The ID badge is still with me. If, as the respondent claimed, the magnetic card was thrown with some noise on the table, it is because additional keys were attached to it. As this action was considered as a resignation from my side, I would like it to be reconsidered, even though we are out of the time frame.

[7]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.

[8]The ground relied upon by the Claimant is that she disputes that it was her ID badge that she returned to the Respondent, but says it was a keycard which would have been returned to the Respondent in any event.

[9]The matters raised by the Claimant were considered in the light of all of the evidence presented to the Tribunal before it reached its decision.

[10]Rule 70 of the Rules provides a single ground for reconsideration, being the interests of justice. This replaced the previous test, which gave five grounds for reconsideration; one of these was that new evidence had become available since the conclusion of the Tribunal hearing to which the decision related, the existence of which could not have been reasonably known of or foreseen at that time. However, it is clear that, following Outasight VB Ltd v Brown [2015] ICR D11 EAT that the interests of justice test can be viewed through that lens. The EAT confirmed in that case that the test set out by the Court of Appeal in Ladd v Marshall

1954 3 All ER 745

, CA.

[11]In that case, the Court of Appeal established that, in order to justify the reception of new evidence, it is necessary to show three separate matters – that the evidence could not have been obtained with reasonable diligence for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing and, finally, that the evidence is apparently credible.

[12]Applying the Ladd v Marshall test, I have reviewed the notes of the hearing and the card in question was referred to as the Claimant’s ID card throughout the hearing. The Claimant had opportunity to dispute this, or put forward any argument that it was a key card, not her ID card, during the hearing, but did not do so.

[13]In any event, the Claimant returning this card was just one factor in the Tribunal’s decision. The fact of it being a key card as opposed to her ID card would not have altered the Tribunal’s decision.

[14]Accordingly, I do not find that the determination in this case should be reconsidered by virtue of the purported new evidence or argument as this does not pass the tests in Ladd v Marshall. I do not consider that it is in the interests of justice to allow the Claimant a second attempt to present her case because she did not bring to the Tribunal’s attention evidence and argument that was available in support of her case at the original hearing. Furthermore, there are important public policy reasons for the rule of finality in litigation. Importantly, reconsideration is not an opportunity to improve upon original submissions and/or to expand upon the same once the case has concluded. Nor is it an opportunity to continue to press the extent to which a Claimant feels that they have been treated unfairly by a Respondent.

[15]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd

[1982] ICR 440

decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he 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 the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.

[16]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the Tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd

[2004] IRLR 607

EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden

[2010] IRLR 743

, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.

[17]Taking the above into account, I do not consider it is in the interests of justice to reconsider the original judgment and continue the litigation beyond the final hearing of the case.

[18]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked. COSTS JUDGMENT 1. The Claimant shall pay the Respondent’s costs in the sum of £300.00.

The Law

[1]The Claimant’s claim was originally listed for 1 February 2023. The claim was to be heard via CVP before a Judge from the Employment Tribunal’s Virtual Region.

[2]I was assigned to sit in the Virtual Region on 1 February 2023 and allocated this case.

[3]The Claimant said she was representing herself, but was supported by her husband, who was in attendance at the hearing. The Respondent was represented by Mr Hoyle - litigation consultant.

[4]After preliminary matters have been dealt with, the Claimant gave her evidence. She confirmed her statement under oath. Mr Hoyle then started his cross-examination.

[5]It was during the Claimant’s cross-examination that the Claimant’s husband could be heard muttering to the Claimant. I had to ask him to stop communicating with the Claimant during her evidence. Despite this warning, the Claimant’s husband could continue to be heard communicating with the Claimant when she was answering Mr Hoyle’s questions. I therefore asked that her husband sit at the back of the room away from the Claimant, which he did.

[6]As cross-examination continued, the Claimant’s husband could be seen typing on his mobile phone. The Claimant was repeatedly looking down at something off-camera, and I suspected that she was receiving messages from her husband on her own phone. I asked her husband to put his phone away during the hearing.

[7]After cross-examination resumed, the Claimant appeared to be writing notes for her husband to read over her shoulder. Both Mr Hoyle and I were concerned that the Claimant’s husband was influencing her evidence. Mr Hoyle made an application for the hearing to be adjourned part-heard, and to be relisted for an in-person hearing, as this was the only way in which it was possible to be assured that the Claimant was giving evidence without being influenced by her husband. I granted the application, as I was not satisfied that a fair hearing could take place in the circumstances.

[8]The matter was relisted for 17 and 18 April before me in the Reading Employment Tribunal. All the parties, or parties’ representatives, had to attend in person, as did the Judge. The Respondent’s main witness attended in person. Two witnesses for the Respondent attended remotely.

[9]The Respondents have made a costs application on the basis that the Claimant’s conduct amounted to unreasonable conduct, and it was this unreasonable conduct that caused the hearing to be adjourned and relisted. The Respondent says that the relisted hearing, and the fact that the Respondent’s witnesses had to attend in person, have put the Respondent to additional expense. The Law - Costs

[10]Rule 75 of the Employment Tribunal Rules of Procedure 2013 sets out the definition of a preparation time order: -(1) …

(2) A preparation time order is an order that a party ('the paying party') make a payment to another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented. 'Preparation time' means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.

(3) A Costs Order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.

[11]Rule 76 sets out the test to be applied by the Tribunal in considering whether to grant a costs application: - (4) A Tribunal may make a Costs Order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted;

(b) any claim or response had no reasonable prospect of success; [or (e) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.] (5) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. …

[12]Rule 77 sets out the procedure for determining such applications: - A party may apply for a Costs Order or a preparation time order at any stage up to 28 days after the date on which the Judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.

[13]The principle in the Rules is that “costs” (the Tribunal will use this term as shorthand for both costs and preparation time) do not follow success as they do in other areas of civil litigation. Rather, the Tribunal has power to make awards of costs in the circumstances set out in the Rules. In this case, the relevant provision is Rule 76(1)(a) which gives the Tribunal a discretion to award costs of the conduct of a party meets the threshold test set out in the Rule.

[14]The Tribunal’s discretion to award costs is not fettered by any requirement to link any unreasonable conduct to the costs incurred (McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

and Salinas v Bear Stearns International Holdings Inc

[2005] ICR 1117

, EAT). However, that is not to say that any issue of causation is to be ignored and the Tribunal must have regard to the “nature, gravity and effect” of any unreasonable conduct (Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

[15]The Tribunal takes into account that the “no reasonable prospect of success” provision is not the same as that when assessing whether a claim should be struck out or not. In those cases, the Tribunal as not heard full evidence, and so the test for strike out is a high bar. In assessing whether or not a claim has no reasonable prospect of success when considering an argument for costs the Tribunal has the benefit of having heard all the evidence in relation to the Claimant’s claims and the Respondent’s response to those claims Deliberation

[16]As noted above, the hearing was relisted due to the conduct of the Claimant and her husband. Despite warnings, the Claimant and her husband continued to try to discuss the Claimant’s answers during her evidence. The Claimant was also observed to be writing notes which her husband was then attempting to read. I am satisfied that this was not a one-way process on behalf of the Claimant’s husband. I am satisfied that the Claimant was also attempting to communicate with him and pass messages to him during her evidence. I am satisfied that it was this conduct alone that caused the necessity of the hearing being adjourned and relisted in-person.

[17]Such conduct on behalf of the Claimant, in my view, does amount to unreasonable conduct. The gateway for making a costs order is therefore open.

[18]I do accept that the Respondent has incurred costs due to its witnesses having to travel to Reading Employment Tribunal in person.

[19]Before making any costs order, however, the Tribunal is obliged to make enquiries into the paying party’s ability to pay. The Claimant has confirmed that she is currently not working but is getting a carer allowance. That allowance is £76 per week.

[20]The Tribunal has a discretion, even if the threshold for making a costs order is met, to decide whether or not to make such an order. If such an order is made, the Tribunal has discretion to decide what the appropriate level of costs payable should be, based on the paying party’s ability to pay.

[21]Having considered the nature, gravity and effect of the Claimant’s unreasonable conduct, and balance this with the Claimant’s current financial situation and ability to pay, the Tribunal orders that the Claimant shall pay the Respondent’s costs in the sum of £300.00