Ms S Muralidhar v Landmark Space Ltd: 3302742/2023
EMPLOYMENT TRIBUNALS
Case No 3302742/2023
Between
Ms S MURALIDHARClaimantLandmark Space LimitedRespondent
Before
Employment Judge TyDate 12 July 2023
JUDGMENT
The Claimant’s complaint that she was unfairly dismissed by the Respondent is struck out.
REASONS
[1]By a letter dated 13 April 2023 the Tribunal gave the Claimant an opportunity to make representations or to request a hearing, as to why her complaint of unfair dismissal should not be struck out because she is not entitled to bring that part of the claim, as she was employed by the Respondent for less than two years.[2]The Claimant has failed to make representations in writing why this should not be done or to request a hearing. The complaint of unfair dismissal is therefore struck out.[3]The claimant’s remaining claim(s) remains listed for hearing on 6 September 2023.[1]Any page references in these Reasons are to the 68-page reconsideration hearing bundle (“the Bundle”).[2]On 26 March 2024, we dismissed the Claimant’s claims against the Respondent following their withdrawal by her (“the Judgment”).[3]On 28 April 2024 the Claimant emailed the Tribunal. In the email header, she wrote, 1 of 7 “URGENT - 3302742/2023 - Judgment. Help required with completing T444 Form to make an Appeal and reinstate my case please ??” (page 12) Her email has been treated as an application for reconsideration of the Judgment. As such, the application has been submitted within the prescribed 14-day time limit for making an application.[4]Unfortunately, the Claimant’s email of 28 April 2024 was not brought to Employment Judge Tynan’s attention until 27 September 2024, when he gave certain directions, including for the Respondent to provide their written comments in the matter. Unfortunately, these were issued to the Respondent’s former representatives, resulting in further delay. In the meantime, on Employment Judge Tynan’s further direction, the Administration wrote to the parties drawing their attention to the Court of Appeal’s decision in Khan v Heywood & Middleton Primary Care Trust [2006] EWCA Civ 1087 and the EAT’s decision in Campbell v OCS Group and another UKEAT/0188/16. In light of the Court of Appeal’s ruling in Khan, the parties were reminded that Tribunals have no power to set aside a withdrawal or to revive a withdrawn claim. The Claimant either has not taken this on board or else has not understood its relevance to the case, since in an email to the Tribunal dated 24 January 2025 she set out a summary of how she said she had been treated by the Respondent, before going on to say, “I request for a fair and compassionate view of my case and for you to give your verdict based on ALL the documents i have presented before you todate since 2023 with hopes of Justice. In essence, the Claimant was asking the Tribunal to provide a substantive decision on the merits of her claim, something Khan makes clear we cannot do.[5]In none of her various emails to the Tribunal since her application for reconsideration has the Claimant addressed the dismissal of her claim nor has she indicated how she believes the Tribunal should have dealt with matters on 26 March 2024. Her application is essentially focused upon her decision to withdraw her claim and whether she might be permitted to change her mind in that regard. She wrote: “I hate myself for not giving the judges the chance to do what they do best - of going through the evidence fairly and impartially. It will do more damage end of racism, harassment and bullying at my work place …” to my mental health if I withdraw the case despite me being on the receiving “If all else fails... please can I humbly request the honourable judge to deliver the verdict based on my witness statement, which has everything I need to say /defend myself, please.” Again, she was asking the Tribunal to decide her case notwithstanding it had been withdrawn.[6]For the reasons set out above and explained in detail to the parties on 5 December 2024, this Tribunal has no power to set aside the withdrawal or to 2 of 7 revive the claim that was withdrawn, and no power therefore to deliver a verdict as the Claimant has requested. Instead, we are limited to considering whether it is necessary in the interests of justice to reconsider our decision to dismiss the claim following its withdrawal.[7]In Campbell, the President of the EAT observed: “23. Although I accept that Rule 52 involves a judicial determination and that the principles of natural justice and the overriding objective both apply, there is nothing in the wording of Rule 52 itself that requires tribunals as a matter of course to invite representations from the parties before concluding that the proceedings should be dismissed. The Rule is in mandatory form and simply requires a tribunal to dismiss the proceedings unless there is good reason not to do so. The draughtsman could have provided for notification of an intention to make such a decision to be communicated to the parties to enable representations to be made before the decision to dismiss is made by the tribunal but chose not to do so. In the circumstances, I do not accept Mr Matovu’s submission that tribunals are under a mandatory obligation to invite representations from the parties before any decision in the absence of the parties under Rule 52 is made. 24. However, as Mr Matovu submits, tribunals are empowered to regulate their own procedure and to conduct hearings in a manner considered fair having regard to the overriding objective. They are empowered to avoid undue formality and to question parties so far as appropriate in order to clarify the issues or elicit evidence. It seems to me that it is a matter for the judgment of the tribunal to decide whether it is necessary to make further enquiries of the withdrawing party before making a dismissal decision. If there is material available that puts a tribunal on notice that the party seeking to withdraw his or her claim intends to resurrect the claim in fresh proceedings, even though no such notification is given, or puts the tribunal on notice that the decision to withdraw the claim was ill-considered or irrational for some reason, or that there are other good grounds for suspecting that dismissal may not be in the interests of justice in the particular circumstances of the case, those would all afford a proper basis for enquiries to be made by the tribunal of the withdrawing party before moving to a decision to dismiss. Whether to make enquiries at all and the extent of those enquiries will depend entirely on an assessment of the facts and the relevant context and is a matter of judgment falling squarely within the margin of discretion of the tribunal, which will in most if not all cases have a better understanding and feel for the case than the EAT can itself ever have.”[8]When the Claimant did not attend Tribunal on 26 March 2024, we did not simply dismiss her claims. Instead, the Administration was directed to write to the Claimant to confirm that she did indeed intend to withdraw her claims against the Respondent. She was informed that if she withdrew her claims the Tribunal would dismiss them upon withdrawal and that there would be no findings or judgement on her claims, as she now seeks. Those observations were partly 3 of 7 offered by way of reassurance in so far as the Claimant had expressed concern that the Respondent had sought to portray her as incompetent: the dismissal of her claims on withdrawal would not imply any adverse findings by the Tribunal in relation to either party.[9]The Claimant responded a little over two hours later as follows: “At this point in time, my decision to withdraw from the ongoing legal process is made regrettably against the background of compromised mental and physical health. It needs to be said that I maintain my claims of racism, bullying and harassment in my work environment. This has been clearly purported by my witness, Ms Kim Nguyen's in the investigation notes of 23/03/23 (Page 55- 57 of the bundle) and another manager, Ms Mandy Kaya's comments on Olga Wilson's racist remark of "I wouldn't live in Bedford as there's too many Asians" (On Page 61) of the investigation notes. Ms Gail Locks comments on Olga Wilson (Page 50) of the Investigation notes. I should also add that I strongly refute purported allegations of incompetency in my work commitments as I clearly demonstrated my proficiency/abilities by preparing clear, precise and comprehensive Work Instructions (Page 272) of my tasks (Task List - Page 106) on my 3rd day of my tenure there, followed by me being tested (by Ms Olga Wilson) and performing those tasks unaided at my desk on 7th February 2023 and passing them. I really am grateful and appreciate all your time, support and patience you've shown throughout my claim.” (page 12) She did not express any objection to her claims being dismissed or intimate that she might wish to resurrect them in the future, even if she stood by her allegations. In our experience, Claimants who settle and/or withdraw their claims frequently do so on the clear understanding that it is without admission on their part that their claim lacks merit or that the Respondent has grounds to refute their claim. In our judgement, the Claimant’s email above evidences that her decision to withdraw was both considered and rational, even if it was against a background of health issues and concerns. As many Claimants do, the Claimant had decided not to continue with her claims because she was concerned about the ongoing impact of the litigation upon her health and general wellbeing. We feel bound to observe that her evidence had not stood up well under cross-examination on 25 March 2024: we question whether this had some further bearing upon her decision. It is, of course, entirely possible that the case would have looked very different once the Respondent’s witnesses had finished giving their evidence, but as things stood at the conclusion of the Claimant’s evidence, her case was in some difficulty.[10]There were no other grounds on which we might have thought dismissal to not be in the interests of justice. No new evidence or potential lines of enquiry had been identified at the point at which the Claimant withdrew and there had been 4 of 7 no procedural mishaps or irregularities which might have affected the Claimant’s decision. On the contrary, the Claimant thanked the Tribunal for its time, support and patience.[11]We agree with Mr Olszewski that the Claimant was referring in particular to the steps taken by the Tribunal on 25 March 2025 to facilitate her continued participation in view of what she had said about her health, including the Tribunal’s decision at the Claimant’s request on the first day of the hearing to convert the remainder of the hearing to CVP. We note in this regard that the relatively limited medical evidence sought relied upon by the Claimant indicated that her health issues were perhaps not as pronounced as she was suggesting. For example, an initial short report dated 22 March 2024 from Carla Spencer, a Primary Mental Health Practitioner referred to the Claimant having been offered talking therapy for anxiety and stress, but did not suggest that the Claimant was unfit to attend Tribunal or participate in the proceedings. A more detailed report dated 25 March 2020 from Dr Pinto-Rivero (submitted to the Tribunal by the Claimant on 26 March 2024) referred to chronic back pain, asthma and fibroids, in addition to the anxiety condition, but again there was no suggestion that the Claimant was unfit to continue with the hearing, let alone that her judgement was sufficiently impaired that it might lead her to make ill-considered or irrational decisions. Instead, Dr Pinto-Rivero merely requested that the Claimant be offered additional support in view of her difficulty in travelling long distances, something that had already been addressed the previous day by converting the remainder of the hearing to CVP.[12]The position today is essentially unchanged. On Friday 24 January 2024, the Claimant emailed the Tribunal and wrote: “Due to my existing health conditions (herniated discs and menorrhagia) I cannot make plans in advance and commit myself to the hearing of 30/1/2025. I have good days and bad days. I slip and slide out of bed and go through spasms that lasts for hours. Further to the medical documents that I submitted on 09/01/2025 upon your request, I wish to bring to your kind attention that I mebtal and physical health are still fragile and i am suffering from extreme stress and anxiety issues wgich has only worsened with time. I am not in a position to represent this case without legal help…” There is no up to date medical report on the Claimant, merely the record of two interactions with the Community Clinic on 10 December 2024 and 6 January this year. These suggest no overall change in the Claimant’s lower back pain issues since last year. We have no direct or independent medical evidence to confirm that the Claimant was unfit to attend today’s hearing.[13]Rule 68 of the Employment Tribunals Rules of Procedure 2024 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Any suggestion that a Tribunal has made an error of law or that its findings were perverse is generally a matter for appeal – Ebury Partners UK Limited v Acton Davis [2023] EAT 40. 5 of 7[14]In Outasight VB Limited v Brown UKEAT/0253/14, the Employment Appeal Tribunal considered the Tribunal’s powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 to 38 of her judgment, Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed: “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, insofar as possible, be finality of litigation.”[15]The need to have due regard to the interests of both parties was recognised by the Employment Appeal Tribunal over 20 years earlier in Redding v EMI Leisure Ltd EAT/262/81 in which it was said: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”[16]The reconsideration procedure can be used to correct any error that occurs in the course of the proceedings, whether or not it is a significant error. An important consideration is whether or not a decision has been reached after a procedural mishap, meaning that a party has been denied a fair and proper opportunity to put their case. Reconsideration should not ordinarily be used to correct alleged errors where the parties were afforded that opportunity.[17]The Claimant was afforded a fair and proper opportunity to put her case, with adjustments in place in an effort to put the parties on an equal footing. In our judgement, the Claimant made a considered and rational decision to withdraw in the interests of her health, but possibly also because she recognised that her case had not stood up particularly well during cross examination: if so, that was her own decision in the matter rather than because of any conduct on the part of the Respondent or a procedural mishap.[18]Even had the Claimant persuaded us that it was necessary in the interests of justice to reconsider our decision to dismiss her claims following their withdrawal by her, on reconsideration we would have confirmed our original decision since there is no further evidence before us that points to the Claimant having made an ill-considered or irrational decision in the matter or that there are other good grounds for believing that dismissal was not in the interests of justice. The Claimant does not suggest that she would pursue a new claim against the Respondent if the Judgment was revoked. Her failure to attend today’s hearing, even though it was listed by CVP to support her attendance, does not bode well in terms of progressing any future claim (which would in any event now be considerably out of time). Instead, and as we have identified already, what the Claimant hopes to achieve by her application is something we 6 of 7 are not empowered to do, namely to revive her claim and adjudicate upon it, with or without her further active participation.[19]For all these reasons, the Claimant’s application to reconsider the Judgment is refused.