Ms Dascalescu v Sainsbury’s Supermarkets Ltd: 3304717/2018
JUDGMENT
[1]The claimant’s claim for age discrimination is struck out as having no reasonable prospect of success.[2]The claimant’s claim for unauthorised deductions/breach of contract is permitted to proceed at the full hearing already listed for 8 and 9 April 2019. This is the only claim which will now proceed.[3]Case management orders were made as set out in the Case Management Summary and Orders of today’s date. Employment Judge McNeill QC Dated: 7 March 2019 15 March 2019 For the Tribunal: ………………………….. 1 of 2 Case Number: 3304717 /2018 Reasons having been given orally at the hearing, written reasons will not be provided unless a request is presented by either party within 14 days of the sending of this written record of the decision. 2 of 2[1]The claimant’s claim of unauthorised deductions from earnings/breach of contract is well-founded.[2]The respondent satisfied its liability of £3,665.48 (net) by payment to the claimant on 13 March 2019. JUDGMENT having been sent to the parties on 16 March 2019 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:REASONS
[1]At an open preliminary hearing on 7 March 2019, I struck out the Claimant’s claim for age discrimination. I permitted the Claimant’s claims for unauthorised deductions/breach of contract to proceed and made case management orders to enable to the parties to prepare for a full merits hearing already listed for 8 and 9 April 2019.[2]It is noted that following the hearing on 7 March 2019, on 13 March 2019 the Respondent paid to the Claimant the amounts claimed by her in her claims for unauthorised deductions/breach of contract. By a judgment dated 14 May 2019, Employment Judge Smail upheld the Claimant’s claims and held that the Respondent had satisfied its liability to the Claimant.[3]At the hearing on 7 March 2019, I refused an application by the Claimant to amend her claim form. I also gave directions, among other matters, for the preparation for the bundle to be used at the hearing on 8 and 9 April 2019.[4]By a letter dated 21 March 2019, the Claimant asked for reasons for the tribunal’s decision regarding: “1. The bundle for the final hearing on 8&9 April this year 2. the amendment of ET1”.[5]As a result of an administrative error, that request was not referred to me until 3 June 2019. I now provide reasons in accordance with the request. The bundle[6]By an order of Employment Judge Bedeau dated 17 September 2018, the Respondent was ordered to send to the Claimant a joint bundle of documents for use at the final hearing by no later than 4pm on 25 February 2019. I varied that order so as to provide that the date for serving the final hearing bundle was extended to 14 March 2019.[7]I further ordered that the Respondent should provide the Claimant with clocking in and clocking out documents between 19 November 2017 and 14 March 2018 and return-to-work records relating to the Claimant for 28 February 2018 and 14 March 2018, if such documents were within the Respondent’s possession or control. The Claimant requested these documents and I was prepared to order that they be disclosed. I considered that these documents were relevant to the issues between the parties because there were disputes as to the dates when the Claimant worked, when she left work and why and whether she had been paid for all the days when she worked.[8]I further ordered that relevant pages from the Respondent’s employee handbook should be included in the bundle and that some CCTV footage could be adduced at the final hearing. This was by agreement between the parties and was potentially relevant to the issues in the case. Amendment[9]The Claimant’s application to amend was first notified to the tribunal on 21 February 2019. Her claim had been presented to the tribunal on 13 March 2018. She was dismissed by the Respondent on 18 March 2018. The first case management hearing was on 17 September 2018.[10]At the case management hearing on 17 September 2018, the issues in the case were identified. The two claims that were identified were a claim for direct age discrimination and a claim for unauthorised deductions/breach of contract.[11]The application to amend related largely to matters occurring after the hearing on 17 September 2018. It was stated that the Respondent admitted discrimination. This was disputed by the Respondent and the Employment Judge’s order does not reflect any such admission. The Claimant alleged that the Respondent, through its legal representatives, had not obeyed the Judge’s orders; had not provided evidence which would enable her to have a fair trial; had pestered her to the point of rage; and had behaved in a hostile and mocking way towards her and her case/documents.[12]The Claimant stated that the above matters together with everything that occurred before entitled her to amend her claim. She listed seven claims which she wished to bring: breach of contract; unlawful deduction from wages; harassment; victimisation; age discrimination; gender discrimination; and injury to feelings. She did not provide details of any of those claims. Her claims for breach of contract, unauthorised deductions and age discrimination were already included in her claim form and injury to feelings was a matter of remedy only, if any discrimination claim was successful.[13]On 25 February 2019, Employment Judge Alliott directed that if the Claimant intended to apply to amend her claim, she must prepare and serve on the Respondent, by no later than 4pm on 5 March 2019, a document setting out each head of claim and all facts and matters relied upon in support.[14]In response to that direction, the Claimant merely re-served her letter of 21 February 2019. No details were provided of facts and matters relied on in support of the proposed amendments.[15]At the hearing, the Claimant sought to amend her claim in accordance with that letter. In relation to the gender discrimination claim, she indicated that she had read something online which made her believe that she and her female colleagues were paid less than male colleagues. In other words, she wished to pursue an equal pay claim.[16]In relation to her harassment and victimisation claims, these were matters relating to the conduct of the proceedings. She said, for example, that not obeying the Judge’s orders was harassment, although she did not specify whether she relied on a particular protected characteristic in so alleging. In relation to victimisation, again she relied on the conduct of the proceedings as victimisation.[17]The Respondent’s Counsel opposed the application to amend. He referred to the guidance set out in Selkent Bus Co. Ltd v Moore [1996] ICR 836. In considering an application to amend, the tribunal should consider the interests of justice, taking into account the position of both parties. He submitted that none of the proposed amendments was properly particularised. The Claimant’s claim form had been presented to the tribunal a year ago and the issues had been clarified in September 2018. The case was already listed for a full merits hearing on 8 and 9 April 2019, which gave insufficient time for any further claims to be properly particularised and responded to.[18]This was not a case where the Claimant was simply seeking to clarify or relabel claims already made. A month before the listed hearing, she was seeking to add claims which were entirely new and separate and distinct from the existing claims. In relation to the equal pay claim, apart from being wholly without detail, it was being proposed well out of time.[19]The claims for harassment and victimisation related to the conduct of the proceedings and were not particularised in such a way as to identify claims under the Equality Act. Although the point may be arguable and I did not embark on any detailed assessment of the merits of the proposed claims, claims based upon the acts of legal representatives in the conduct of proceedings did not, on their face, constitute obvious acts of harassment or victimisation by the Respondent employer. The proposed amendments were, in any event, suggested very late and within only six weeks or so of a full merits hearing which had been listed since September 2018. When the Claimant was given an opportunity to provide further particulars of her proposed amendment on 25 February 2019, she did not take that opportunity.[20]The refusal of the amendment meant that the Claimant could not pursue claims which might, if particularised, have merit. On the other hand, the grant of the requested amendment a year after the commencement of proceedings would mean that the Respondent would have to meet new claims, at least one of which was out of time, which were only raised at a very late stage of the proceedings and were likely to lead to considerable delay in determining the case. Fundamentally, the proposed amendments did not contain such particulars as would enable the Respondent to know the case that it had to meet.[21]Balancing the injustice to the Claimant if the amendment were refused against the injustice to the Respondent if the amendment were allowed, I concluded that the injustice to the Respondent in allowing the amendment was greater than the injustice to the Claimant in refusing it. I therefore refused the amendment.[1]On 14 May 2019 I entered Judgment to the effect that the Claimant’s claim of unauthorised deductions from earnings/breach of contract was wellfounded and that the Respondent had satisfied its liability of £3,665.48 net by payment to the Claimant on 13 March 2019.[2]This followed the order of Employment Judge McNeill QC on 7 March 2019 which struck out the Claimant’s claim of age discrimination but permitted the Claimant’s claim for unauthorised deductions/breach of contract to proceed.[3]Employment Judge McNeill QC also refused an application to amend to add harassment, victimisation and gender discrimination. Reasons for her decisions were promulgated on 13 June 2019.[4]At the Preliminary Hearing before Employment Judge Bedeau on 17 September 2018 it was identified that the unauthorised deductions/breach of contract matter related to sick pay. The Respondent noted that the Claimant’s schedule of loss in respect of that matter was for £3,665.48 net. Accordingly, the Respondent paid it on 13 March 2019. That was the last matter to be resolved, following the orders of Employment Judge McNeill QC. Case Number: 3304717/2018[5]In the light of that I made the Judgment that I did on the papers. The Claimant won that issue and has been paid what she claimed. There is no remaining claim before the Employment Tribunal. Case No: 3304717/2018 EMPLOYMENT TRIBUNALS Claimant Respondent Ms Dascalescu Sainsbury’s Supermarkets Ltd v[1]By a letter dated 20 June 2019, the Claimant applied for reconsideration of decisions which I made at an open preliminary hearing on 7 March 2019: in particular, my decisions in relation to the bundle for the final hearing, the Claimant’s age discrimination claim and the amendment of the ET1. Following the hearing on 7 March 2019, a judgment and orders were sent to the parties on 15 and 16 March 2019. Following a request by the Claimant for written reasons regarding the bundle for the hearing and the amendment of the ET1, reasons for those decisions were sent to the parties on 13 June 2019.[2]In considering the Claimant’s application for reconsideration and pursuant to rule 72 of the Employment Tribunals Rules of Procedure, I must first consider whether there is any reasonable prospect of the decisions which the tribunal is being asked to reconsider being varied or revoked. I have taken into account the matters set out in the Claimant’s letter dated 20 June 2019.[3]In relation to the bundle and the amendment, full reasons were given for my decisions on those matters in the written reasons sent to the parties on 13 June 2019. I have nothing to add to those reasons, to which the Claimant is referred, and which explain why the particular decisions and orders were made. I do not consider that there is any reasonable prospect of those decisions being varied or revoked on reconsideration.[4]In relation to the claim for age discrimination, that claim was struck out at the preliminary hearing on 7 March 2019 as having no reasonable prospect of success. Full reasons for that decision were given orally at the hearing. The Claimant did not request written reasons in relation to that decision. She therefore makes this application well outside the applicable 14 day time limit for making applications for reconsideration set out in rule 71 of the Rules of Procedure. The 14 day time limit expired on 29 March 2019.[5]In any event, there is no reasonable prospect that the decision on age discrimination would be varied or revoked on reconsideration. It was a Case No: 3304717/2018 claim for direct age discrimination. The Claimant alleged that the comparator on whom she relied, Sudesh, was paid when off sick but she was unable to say whether there was any evidence that Sudesh had not complied with the sickness procedure. This was relevant because a failure to comply with the sickness procedure was the reason relied on by the Respondent for not paying the Claimant. Further, the Claimant could not explain, when asked, any basis for her assertion that the difference in treatment was age-related. Indeed she stated that Sudesh may have been treated differently because her problems were of a physical and not a mental health nature. I did not accept that the Respondent had admitted discrimination and the claim was struck out as having no reasonable prospect of success.[6]For all these reasons which should be read with the reasons sent to the parties on 13 June 2019, I have concluded that there is no reasonable prospect of the decisions referred to being varied or revoked and the application is refused.