Ms M Ansari v Buckingham Nursery Ltd: 3305335/2020
REASONS
[1]This Hearing started on 3 February 2021 to hear the Claimant’s complaint of unpaid wages. While she was cross examining Ms F Kalhor, there was reference to further documentation which the parties wished to rely upon, which had not been disclosed. The matter was adjourned with Case Management Orders made. The Hearing was re-listed for another three hours.[3]On resuming today, it transpired that further witness statements had been served on behalf of Ms Kalhor and also Ms Al Katib on behalf of the Respondent. The Claimant had only received those on Tuesday and had not been able to check her emails and consider those witness statements as she had been attending her fiancé’s birthday party.[4]The Judge adjourned to read the statements and suggested the Claimant did likewise. On returning, the Claimant was most upset and was not able to continue. The Judge suggested adjourning until the afternoon for her to prepare her cross examination, but she was unable to do so due to work commitments. Case Number: 3305335/2020 (V)[5]In all of the circumstances, there was no alternative but to grant a further postponement and it was possible to find a date convenient to all of 4 February 2022.[6]The Judge has been prepared to allow in the late service of these statements as a crucial matter in this case will be the credibility of the witnesses. However, the cross examination of, in particular Ms Kalhor, will need to be kept within proportionate limits and the Judge will remind all parties as necessary on the resumed Hearing that the key issue that the Tribunal has to decide is whether there are unpaid wages due to the Claimant. Some of the matters raised by the Claimant and Ms Kalhor are extremely peripheral, but insofar as the credibility of the witnesses needs to be assessed, the witness statement has been allowed.[7]There will be no further witness statements or documents tendered before the adjourned Hearing.[1]This matter has been before the Tribunal on two previous occasions: 2 December 2021 and 3 February 2022.[2]On 1 February 2022, the Claimant wrote to the Employment Tribunal advising she wished to amend her claim to bring a claim of the assertion of a statutory right as the reason for her dismissal. She did not provide any further information as to the basis of that claim and why it had not been brought forward sooner. The adjourned Hearing that was scheduled for a date in February 2022 had to be postponed to today’s date. The application was considered at this Hearing. Decision on Application to Amend[3]The Claimant’s application for leave to amend her claim is refused. There was no suggestion in the ET1 that the Claimant was claiming unfair dismissal of any kind; there is a box to tick to claim unfair dismissal so the Claimant would have been alerted to that type of claim.[4]The application does not detail the claim, but having discussed it with the Claimant today, it appears she is saying she was dismissed for invoking ACAS Early Conciliation, or starting the claim in the Employment Tribunals which she did on 6 June 2020.[5]The Claimant, however, waited until February 2022 to suggest she was dismissed for the assertion of a statutory right, even though the claim form was issued nearly two years ago.[6]The Claimant was dismissed on 8 June 2020, the claim is significantly out of time and the Claimant has not explained why it was not reasonably practicable to have brought the claim in time. The Claimant has stated she is a qualified lawyer in Iran and is now seeking to qualify here. She is better placed than most to find out about her rights. In a letter to the Respondent of 8 June 2020, she stated she needed to seek advice from the Citizen’s Advice Bureau, so she was aware of that entity’s existence. For those reasons the application is refused.[8]The Tribunal then called the Claimant to be cross examined on supplemental documents. The Claimant’s connection was not good and she kept dropping in and out of the Hearing. She was urged to speak to the Helpline to see if the problems could be resolved. Despite numerous attempts, it was necessary to adjourn the case at approximately 1pm as the Judge was not satisfied a fair Hearing could take place with these difficulties.[9]In view of the connectivity problems experienced by the Claimant, she will have to attend the Tribunal Hearing Centre on the next occasion. As the Respondent’s representative resides abroad and his business is based there, he and the Respondents will not need to attend, but will take part by way of the CVP link.[10]Dates to avoid are to be provided by the parties within 7 days of the date upon which these Reasons are sent to the parties and the matter will then be relisted[11]The application for reconsideration to amend to claim unfair dismissal was refused and the Hearing proceeded to deal with the claim for wages.[12]The Tribunal heard from the claimant and from Mrs F Kalhor and Mrs J Al Katib on behalf of the respondent.[13]From the evidence heard, the Tribunal finds the following facts.The Facts
[14]The respondent is a Montessori Nursery and at the time employed approximately 20 staff.[15]The claimant commenced working for the respondent as a Nursery Assistant on 24 February 2020. The Claimant had no experience or qualifications in working in a Nursery and the Tribunal saw from a reference provided for her from a previous employer that since 2018 she had worked with and lived with a Mrs Sandra Lambros, described as a friend. The Claimant had helped at the Church in several areas. The reference said she had, “engaged with the children in the church who seemed to react very well with her”.[16]In the tribunal bundle, was the respondent’s probation period policy and also a document which the Claimant had signed saying that she had been made aware of the probation period. The Tribunal accepts the evidence given on behalf of the Respondent that it always offered a probation period because it needed to assess the suitability of the new employee, but also to give that person an opportunity to decide whether the work was suitable for them.[17]The Tribunal is satisfied that the claimant was taken on with a zero hours contract, or as “bank staff” as shown on the payroll records seen in the supplemental bundle at page 5. Whilst this shows the claimant working nine hours a day in her first few weeks of employment, the Tribunal is satisfied that was because that was required by the respondent at that point to cover for absent staff and not that they had agreed to employ the claimant on fixed hours. The Tribunal is satisfied that the respondent would not have made that offer as it required bank staff to cover for absences and did not have a position for the claimant at that time which required her to provide fixed hours and nor were they in a position to offer it.[18]The rota also shows at the bottom of the page that the claimant had a day of induction. Mrs Kalhor confirmed and the tribunal accepts that the claimant was not working with the children on that day but given time to read through all the policies. The claimant and Mrs Kalhor have the same native language and the tribunal accepts Mrs Kalhor’s evidence that had the claimant had any difficulty in reading these policies she could have spoken to her. She did not. Neither did the respondent witness any difficulties with the claimant’s use of English and ability to understand it during her time with them.[19]The claimant gave evidence that she had lived with Mrs Kalhor. This led to the supplemental statement which Mrs Kalhor submitted, in which she explained that due to personal difficulties the claimant had experienced (which do not need to be set out in this decision) she and her husband had offered the claimant a room at their property but that this was only ever for a few nights to help the claimant over her emergency situation. From the evidence heard and the WhatsApp messages received, the Tribunal is satisfied that that was for the period 12 – 14 March 2020 only. The tribunal accepts her evidence that she had not wished to write about this in her first witness statement as she was frightened by the references the claimant had made to criminal gangs who were targeting her and who would likewise target Mrs Kalhor and her family if they knew they were assisting the claimant.[20]Again, from Mrs Kalhor’s evidence the Tribunal is satisfied that there was then a few days when the claimant either did not attend or was not fit to work. On 18 March 2020 the Claimant was at work but told Mrs Kalhor that she was feeling sick and left work at 9.30. She failed to attend work for the shifts the next day.[21]On 20 March 2020, the claimant came to the nursery at about 6pm. It was at that point that it was necessary to advise the Claimant that due to the Covid-19 situation the nursery was going into lockdown and would be closed from the Monday, so there were no roles to offer the Claimant.[22]Whilst the respondent wrote to the claimant stating that she had been put on furlough, it subsequently transpired that as the claimant had not been on the company payroll, submitted to the Inland Revenue before the required deadline of 19 March 2020, she did not meet the necessary criteria of the Coronavirus Job Retention Scheme. The claimant had only started with the respondent on the 24 February 2020. In any event, as she was on a zero hours contract and there was no obligation to provide work.[23]The claimant’s evidence has in a number of respects been confusing and contradictory. At the first Hearing, she explained to the Tribunal that she was a qualified lawyer in her own country, Iran, and that ten days prior to the first Hearing in this matter, she had passed the qualified lawyers’ transfer scheme meaning that in six months she would be a fully qualified Solicitor in this country. When making her application to amend, however, at a Hearing on 30 May 2022, the claimant when it was put to her that she had some legal knowledge and would therefore have been in a better position than most litigants in person to find out about her rights and to make her application to amend in a timely manner, the claimant stated that she was due to take the qualified lawyer exam on 21 July 2022. This contradicts what she said on the previous occasion.[24]The issue of the claimant’s qualifications came up again at the Hearing on 30 September 2022 in relation to the claimant’s application for reconsideration. With that she submitted documents and stated that she had not passed the transfer test. When the above evidence she had given previously was put to her the claimant stated she had used the wrong words and had meant that she had ‘taken’ the test and ‘might’ be qualified in 6 months. The tribunal did not find her explanation credible.[25]The respondent had also obtained a copy of another ET1 claim form which had been submitted by the claimant to the Watford Employment Tribunal, relating to other employment. This stated that she had worked as a lawyer for a period between October and December 2019.[26]After the first lockdown commenced the respondent asked the claimant to sign a form on 15 April 2020, (page 58 and 59 of the Bundle) confirming her agreement to being placed on furlough. The document stated:- “By placing you on furlough your terms and conditions will be amended on a temporary basis such that you will not be required to work and your entitlement to claim benefits would be limited to the amount of 80% of your earnings up to the maximum of £2,500 per month. All other terms and conditions of your Contract of Employment would continue to apply”.[27]The document stated that the proposed change was intended to commence on 21 March 2020 and at that time the employer did not know how long the furlough period would last. It also provided that by agreeing to be placed on the furlough scheme, this would enable the employer, “To take advantage of the Coronavirus Job Retention Scheme”.[28]That had been designed as stated to help employers like themselves avoid any potential redundancies. Under the scheme, HMRC would reimburse 80% of the Claimant’s salary up to a cap of £2,500. They also explained, “During any period of furlough you are not able to carry out any work for the company. It has been confirmed that payments to employees from the scheme would be subject to tax and national insurance contributions.”.[29]At the bottom of the declaration, the Claimant signed that:- “My employer would designate me as a furloughed employee. I have been notified of the change of my status as that of a furloughed employee. I have agreed to temporary change in my Terms and Conditions of employment that enable my employer to implement a period of temporary layoff and reduce my pay to the levels payable under the Scheme, until such time as I am no longer considered a furloughed employee.”[30]On the 5 June 2020 the claimant was sent a contract of employment by the respondent’s HR advisor who has appeared at these hearing for it. This showed quite clearly that the claimant was not being offered any fixed hours and that the hours were as and when required by the business based on the needs of the service of the business. The contract also provided (in accordance with the probation policy) for a 3 month probation period.[31]As the claimant did not agree to these contractual terms by letter of the 8 June 2020 the respondent terminated her employment. She was given one weeks notice but not required to work it. She was required to take her accrued annual leave during that period which was calculated as 7 days and paid for all those seven days. She was also paid a statutory guarantee payment of £150.Conclusions
[32]The claimant is claiming for what she says was 80 days of lockdown at £40 per day. It appears from the document filed in response to the ET3 that she is trying to assert that there was an implied term that the respondent was obliged to provide her with a minimum number of hours per day and that these should have been all the weekdays Monday to Friday 9 am to 7 pm. She stated at paragraph C of that document: ‘…the implied term did exist due to a regularity of hours….So this is clear that there was an implied term between us by conduct although nothing was written’[33]There was no such implied term. The arrangement between the parties is quite clear that the respondent required its staff to be flexible to fit in with the needs of the business and to cover staff absences and to ensure that the required ratio of staff to children was maintained. The respondent was not in a position to offer a set number of hours. The fact that the claimant did work for a few weeks a set number of hours a day was purely because that was the cover the respondent needed at that time.[34]The respondent’s documents, the rota, the probation policy, the contract that was subsequently offered all demonstrate that it was not offering or obliged to offer fixed hours to the claimant.[35]When the country went into the first national lockdown and the Job Retention scheme was launched the claimant agreed to be furloughed. She also signed to accept that she would only receive such sum as was paid under the Job Retention Scheme. As she was not on the payroll at the relevant date the 80% payable did not apply to her. But further during that time she had no entitlement to fixed hours of work.[36]The claimant’s claim must therefore fail and is dismissed. Respondent’s application for preparation time costs[37]The respondent made an application for preparation time costs for work carried out by its HR advisor since May 2020. The schedule was calculated in minutes totalling 2647, which equates to approximately 44 hours for which £41 per hour has been claimed making a total claim of £1808.78. In submissions at this Hearing however it was stated that the claim was for 34 hours at £42 per hour (the rate since May 2022). Costs had not been claimed for attending the hearings.[38]The respondent relied on two ‘Costs Warning’ letters dated 1 February 2021 and 16 November 2021 in which it set out, as in its Grounds of Resistance its arguments as to why the claim had no reasonable prospects of success. It was also argued that the claimant had acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’ within the meaning of the Rules. The matters relied upon for making that assertion appeared to be that the claimant had, without evidence, written to the tribunal on the 14, 19 and 24 February 2021 claiming that Mrs Kalhor was seeking to mislead the tribunal and had made ‘false statements’.[39]At this Hearing it was submitted by the respondent that the claims never had any reasonable prospects of success and that the claimant is a vexatious litigant. The tribunal’s decision very much reflected the points it had made in its costs warning letters. The claimant has good legal knowledge and should not have brought the claims. She was fully aware of the costs consequences and it would be wholly reasonable to award the sums claimed.[40]The claimant reminded the tribunal that two of the hearings had been postponed due to late service of evidence by the respondent. She maintained that the claim had had reasonable prospects as she was on fixed hours. She has been on Universal Credit for a year. She works as a volunteer at the CAB. She lives in a rented property and has not passed the solicitors qualifying exam. Although she had previously stated she could not attend a hearing if it continued in the afternoon due to work commitments she sometimes works but than has to resign. The tribunal’s conclusions on costs[41]The relevant Rules are as follows: Costs orders and preparation time orders 75.—(1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) the receiving party in respect of a Tribunal fee paid by the receiving party; or (c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual's attendance as a witness at the Tribunal.(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. When a costs order or a preparation time order may or shall be made 76.—(1) 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; or (b) any claim or response had no reasonable prospect of success; or (c) 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. The amount of a preparation time order 79.—(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £33 and increases on 6 April each year by £1. (3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2). Ability to pay 84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay.[42]Whilst the tribunal has been shown an ET1 the claimant brought against another employer it has no evidence from which it can conclude that she has been vexatious even if she has now lost this claim. It has no other details about the other claim.[43]The Rules and the authorities are clear that the tribunal must focus on the making of the claim and that it had no reasonable prospects.[44]In Radia v Jefferies International Ltd EAT/0007/18 the EAT emphasised that the test is whether the claimant had no reasonable prospects of success, judged on the basis of the information that was known or reasonably available at the start. The tribunal must consider how, at that earlier point the prospects of success in a trial that was yet to take place would have looked. In doing so, it should take account of any information it has gained and evidence it has seen by virtue of having heard the case that may properly cast light back on that question but it should not have regard to information or evidence which would not have been available at that earlier time. The existence of factual disputes that can only be determined at trial does not necessarily mean that the tribunal cannot conclude that the claim had no reasonable prospects from the outset.[45]The tribunal is satisfied it should have been clear to the claimant from the outset that the claim had no reasonable prospects and that contrary to the position advanced by her she had no reasonable prospects of establishing she had been offered fixed hours.[46]Further the claimant signed the furlough agreement in which she accepted that she was only entitled to be paid that which the respondent received under the Job Retention Scheme and unfortunately in the claimant’s case that was to be nil.[47]The claimant does however make a relevant point that some of the postponements were occasioned by late service of evidence by the respondent. At the Hearing on 3 February 2021 the claimant only received the respondent’s witness statement that morning and Mr Plume accepted it was an oversight on his part and apologised. The tribunal therefore felt it had to adjourn to allow the claimant to bring further evidence in rebuttal to points made that might go to credibility.[48]There would therefore be an issue about the extent of preparation time costs that could be recovered[49]Rule 84 however states that the tribunal may have regard to the ability to pay of the paying party. It did so and finds that the claimant is on Universal Credit and has limited means. In all the circumstances the tribunal does not exercise its discretion to award preparation time costs against the claimant.