Ms S Hewitt v Home Care Preferred: 3305958/2018
JUDGMENT
[1]The claimant’s claims for unfair dismissal is dismissed on the claimant not having the requisite length of service to be entitled to claim unfair dismissal.[2]The claimant’s claim for discrimination on the protected characteristic of age is dismissed on withdrawal by the claimant.[3]For clarity, the claimant’s claim for discrimination on the protected characteristics of race and an unlawful deduction from wages remains a live issue for the Tribunal’s determination.[1]The claimant’s application to “reinstate” the unfair dismissal claim is dismissed.[2]The respondent’s application to strike out parts of the discrimination claim as being out of time is dismissed.[3]The claim for unauthorised deductions is struck out as being out of time, contrary to s.23 of the Employment Rights Act 1996, the tribunal not being satisfied that it was not reasonably practicable for the complaint to be presented in time.REASONS
[1]The claimant’s claim for unfair dismissal was dismissed on 18 July 2018 by Employment Judge Henry on grounds that the claimant did not have the requisite length of service to be entitled to claim unfair dismissal. By letter to the tribunal dated 5 November 2018 the claimant requested the tribunal:… “to re-enter my 1 ph judgment + cm Nov 2014 wip version case .. against [the respondent]… for Unfair Dismissal as it has now been two years, I have been with this company.” In my judgment the application appeared misconceived because the claimant’s initial claim of dismissal on 11 January 2018 still stands and the passage of time thereafter can make no difference to the insufficiency of her qualifying period at he date of dismissal. The claimant suggested before me a later date of dismissal but there was no evidence showing a dismissal after the period of two years from the commencement of her employment on 7 November 2016. Indeed everything militated against such a later dismissal. It was common ground that the claimant had performed no further work since January 2018 and not been offered work any since that date. Further, I was told that a P45 had been issued to the claimant in April 2018 although I do not regard that as a matter of great significance. In conclusion there was no basis for “reinstating) the unfair dismissal claim, even if that were possible without commencing a new claim (which might itself have time problems).[2]In relation to the respondent’s application to strike out aspects of the discrimination claim, this was in respect of the claim for harassment relating to race referred to in paragraph (10)(vii) and direct discrimination paragraph (10)(iii)(4) referred to in the case management summary part of the record of a preliminary hearing on 18 July 2018. The allegations were that the respondent subjected the claimant to “observations” in May 2017 and October 2017. That was referred to in paragraph 8 under the heading of “The Claim” in the case management summary. Employment Judge Henry said: “In respect of the claimant raising issues as to increased pay and training the claimant states that she then had someone sent to observe her, which was not the case for white colleagues. The claimant here states that she was observed in May 2017 and again in October 2017, having raised the issue as to increased pay and training and that in respect of her being observed in October 2017, this took place while the claimant was seeing a client…” While the respondent maintains that the observations were not connected with any issue regrading increased pay and training, there is plainly an issue in that regard. The claimant confirmed to me her case. The observations were (she maintains) in connection with reviews of increased pay. In the circumstances it seemed to me to be inappropriate to strike out these parts of the claim for discrimination, it being at least arguably intimately related to the matters which will be heard at the tribunal at the full merits hearing on 13 May 2019. It would be dangerous for me to tease these allegations out from the rest of the discrimination claims, particularly in relation to increased pay and training allegations which are part of the discrimination claims. Accordingly, I did not accede to this strike out request.[3]In a different vein was the application to strike out a claim for unauthorised deduction of wages. I was shown a schedule of the alleged deductions of wages put together by the claimant after the preliminary hearing in July 2018. It covered the period from 13 December 2016 to 3 December 2017. The alleged deductions relate almost exclusively to unpaid waiting time and unpaid work as particularised in the schedule. The respondent had pointed out that, given that the last deduction was on 3 December 2017, the claim should have been filed by the latest on 5 April 2018 taking into account the ACAS conciliation period from 9 February 2018 until the ACAS Certificate was issued on 9 March 2018. The claim form was in fact presented to the tribunal on 12 April 2018. 2 ph judgment + cm Nov 2014 wip version[4]Accordingly, the question was whether the claimant satisfied me that it was not reasonably practicable for a complaint to be presented before the end of the period (5 April 2018 at latest). There was a secondary matter as to whether a tribunal might consider the complaint if it was presented within such further period as the tribunal considered reasonable as matters developed. That did not in the vent arise.[5]There were some difficulties in relation to my hearing this matter given that there were no witness statements and no documents before me. No directions had been given in that regard, so the parties were not at fault. The claimant gave evidence and was cross-examined by Mr England. The facts in brief were: the claimant first thought that she was being underpaid by August 2017, her employment having commenced in November 2016. The reason for this realisation was at that point the amount of work which she was performing or requested to perform was less than had previously been the case. She felt, as she described, “wronged”.[6]By October 2017 she had a formal meeting with a more senior manager and it became clear that the CEO of the respondent had indicated that her claim for waiting time and travelling time between assignments would not be met. She knew after October that she had a legal claim (as she believed), By that time she had done some research on the internet and obtained advice from a CAB and/or Trades Union indicating that she had a claim. She spoke to a solicitor from Barnes & Company on the telephone in November 2017 and he told her that she would have to prove the unlawful deductions and that this could be quite difficult. She thought about this but matters came to a head with her dismissal (as she believed) on 11 January 2018. She had continued to work from November until January, being on holiday for part of that time. She saw a CAB advisor about a week after 12 January and was unclear as to whether or not that concerned only an unfair dismissal claim (as she perceived) or whether she also discussed with the CAB advisor the unauthorised deductions claim.[7]ACAS were notified on 9 February 2018 and the ACAS Certification provided on 9 March 2018. Thereafter, as set out above, the claim was presented to the tribunal on 12 April 2018. The claimant sought to explain the delay in presenting the claim and referred to personal considerations including a bereavement and eviction or threatened eviction from her property although she had not referred to this in her evidence before me (as opposed to submissions). More pertinently she stated that she did not understand the time limits, and thought that it would take time to put together the claim - and it was not therefore practicable for her to have presented the claim by 5 April 2018. She received no advice regarding time limits or that she could or should have presented two different claims, one in respect of the unlawful deduction and a separate one in respect of the claim for unfair dismissal and discrimination.[8]Mr England on behalf of the respondent submitted it was entirely feasible for the claimant to have presented her claim for unauthorised deductions in time. She had available to her and took legal advice as well as consulting the websites of 3 ph judgment + cm Nov 2014 wip version the Union and ACAS. In particular, in relation to her taking advice from the CAB in January 2018, the advice was available to her and it was not sufficient that she did not discuss (or may not have discussed) with the CAB separately the claim for unauthorised deductions. He responded to a point which the claimant had made during her evidence, namely that she had been waiting for payslips. There was no evidence of requests for payslips although it is plain from the Case Management Orders of Judge Henry that these were ordered to be provided by the respondent at the hearing on 18 July 2018. Further, the detail of the payslips were not necessary to formulate the claim and that was demonstrated by the ET! Itself which referred in the broadest terms to the unauthorised deductions without particularising them. Particularisation occurred only after the hearing on 18 July 2018.[9]In circumstances where a claimant is not represented, the tribunal will often have considerable sympathy with that claimant who has a short amount of time and misses a deadline for bringing a claim such as that for unauthorised deduction of wages. However, (even applying what some of the cases describe as a liberal approach in favour of the employee) I concluded that there was in truth no persuasive reason for the claimant not to have brought the unauthorised deduction claim by 5 April 2018. The claimant was not entirely on her own. She had access to resources referred to above including CAB, legal advice and advice from external solicitors. I did consider whether the reason for the lateness of the claim was that the claimant wished to bring only one claim, the most significant of which was of course the unfair dismissal and discrimination claim. I am persuaded by Mr England that is not a relevant or persuasive factor, the question being whether or not it was reasonably practicable for the claimant who brought the claim for unauthorised deduction of wages in time. While the claimant referred to difficulties in drafting the claim form, that also seemed to be illusory, given the general terms in which the claim form was eventually formulated.[10]In all the circumstances the claimant did not persuade me that it was not reasonably practicable for her to bring the claim on or before 5 April 2018. EMPLOYMENT TRIBUNALS DOCUMENT RECORD OF A PRELIMINARY HEARING[1]The Order of 18 July is amended as follows: Paragraph 3 Statement of Remedy/Schedule of Loss: the date is 30 January 2019 (instead of 22 August 2018). By way of explanation to the claimant, the schedule of loss should set out each element of her claim in financial terms, for example where she says that she did not receive an appropriate salary increase she should set out the amount of the increased claimed and the date she should have received the increase. She should set out the total amount of her loss in that and in all other respects. A pro-forma Schedule of Loss is attached to this Order for the claimant’s reference. Paragraph 4.2 13 February 2019 (instead of 18 October 2018) Paragraph 5.2 27 February 2019 (instead of 8 November 2018) Paragraph 5.3 13 March 2019 (instead of 22 November 2018)[2]For the avoidance of doubt, dates for exchange of Witness Statements (in the Order at paragraph 6.6) will remain as 12 April 2019. 5 ph judgment + cm Nov 2014 wip version CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.