Ms N Homans v Metropolitan Housing Trust and Thames Valley Housing Association: 3303644/2024
JUDGMENT
[1]The Respondent’s application to strike out the Claimant’s claim under rule 37(1) (a) is refused.[2]If the Claimant is an employee, she has 2 years continuity of service.REASONS
[1]The Claimant was engaged by the Respondent who provides affordable housing for people living in the South of England as a Bank Care and Support Worker from 6 December 2021 – until a date at the end of January 2024. The Claims and Issues[2]The matter came before EJ McGregor on 2 September 2024. EJ McGregor listed the matter for an open preliminary hearing to consider the Respondent’s strike out application made in their response form which included the jurisdictional issue of whether the Claimant has continuous service. The Hearing and Evidence[3]The hearing was via CVP over 3 hours. The Respondent provided me with a 233 page bundle and written skeleton argument, although Candice Gow Smith and Aneeka attended from the Respondent, the Respondent did not rely upon any oral evidence from the Respondent. The Claimant provided a witness statement only dealing with the issue of whether the Claimant was an employee. The Claimant gave oral evidence on the issue of continuity of employment.Findings of Fact
[4]On a balance of probabilities, I make the following findings of fact. All references in square brackets are a reference to the page numbers of the preliminary hearing bundle.[5]The Claimant started work for the Respondent on 6 December 2021. The Claimant’s did her last shift at the end of January 2024. Between the dates of Sunday 10 September-Tuesday 20 September 2022 [151], Thursday 10 November 2022 – Thursday 24 November 2022 [151], Saturday 25 February 2023 – Tuesday 7 March 2023 [152] and Saturday 3 June – Tuesday 13 June 2023 [153]. The Claimant did not do work for the Respondent. The Claimant’s evidence is that she was on annual leave in those periods. The Claimant would ask her manager verbally for annual leave when she required it and would not send an email or put it in writing. The Claimant’s evidence was straightforward and clear about how she requested holiday, and I accept the Claimant’s evidence on this point. Law Strike OutLaw
[6]Rule 37(1) of the Employment Tribunals Rules of Procedure provides that the Tribunal may strike out all or part of a claim or response on any of the following grounds“(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”[7]Cox v Adecco Group UK & Ireland and Ors [2021] ICR 1307 EAT establishes that if the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is unlikely that it will be appropriate to strike out.[8]In Malik Birmingham City Council and anor EAT 0027/19 Mr Justice Choudhury, then President of the EAT, stated that there was an obligation to take the claimant’s case at its highest for the purposes of a strike-out application, particularly where a litigant in person is involved. Continuity[9]Section 212 Employment Rights Act 1996 sets out the weeks of work that count in respect of continuous service and the exceptions to the breaks in service.[10]Section 212(3) refers to cessation of work counting in the computation of employees’ period of employment.[11]Fitzgerald v Hall, Russell and Co Ltd [1970] AC 984 (HL) established that whether or not a cessation of work is temporary is a question of fact for a tribunal to decide Analysis/ Conclusions[12]I heard oral submissions from both parties. I was provided with a written skeleton by the Respondent and the Claimant provided a witness statement. In considering the Respondent’s strike out application, it was clear that the argument put forward accepted that there were findings of facts to be determined. In those circumstances applying Cox v Adecco, I conclude that it could not be said that the Claimant’s case had no reasonable prospect of success as I would need to determine the facts of whether the Claimant was an employee or not. The Respondent did not provide any evidence regarding the issue and so I could not deal with the matter as a preliminary issue and in any event, there was not sufficient time. I therefore gave the parties the opportunity to relist the issue. Both parties agreed to that. The Respondent still wanted their alternative argument regarding continuity determined.[13]In respect of the continuity issue, I find that there reason for the Claimant’s breaks in employment (I make no finding that the Claimant was an employee or not) was due to a temporary cessation under section 212(3) (b) Employment Rights Act 1996 in her employment. The Claimant was on holiday for these periods and in those circumstances those temporary cessations count as work. I was not convinced by the Respondent’s submission that they regarded there to be no contract during this period as determinative of the question. Section 212 (3) (b) only becomes relevant if there is no contract in place during the period the Claimant is absent from work, that is its purpose. It is in those circumstances that I conclude that if the Claimant is an employee she has 2 years continuous service.