Mr H Lakkad v S & H Wholesale and Distribution T/a Max Distribution Ent Ltd and others: 3309674/2022
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. _____________________________ Employment Judge R Lewis Date: 22 February 2023[1]This public preliminary hearing was ordered by Employment Judge Lewis on 21 February 2023 to determine the following issue: Case Number: 3309674/2022 ph judgment + cm Nov 2 2014 wip version “Whether the claims should be struck out because they have no reasonable prospect of success.”[2]In purported compliance with a case management order requiring the claimant to provide details of his claims made on 5 March 2023, the claimant sent an email to the employment tribunal on 17 March 2023. Whilst this is in very general terms and incudes parties who are not parties to this case, the claimant has clarified the dates of his alleged employment with the Second, Third, Fourth and Fifth Respondents. These are as follows:-2.1 With the Fifth Respondent: From 1 January 2020 until 31 July 2020.2.2 With the Third Responded: From 1 August 2020 until 31 January 2021.2.3 With the Fourth Respondent: From 1 February 2021 until 30 June 221.2.4 With the Second Respondent: From June 2021 for four or five months (claimant) or until August 2021 (Second Respondent).[3]The claimant presented his claim on 20 July 2022. The Acas certificates covered the period from 3 to 5 July. Consequently any acts or omissions prior to 4 April 2022 are out of time.[4]The claimant gave evidence on oath. The claimant told me that after ceasing to provide work for the Second, Third, Fourth and Fifth Respondents he had no further contact with them thereafter. Consequently, I find that all allegations made against the Second, Third, Fourth and Fifth Respondents are out of time.[5]The claimant’s claims are out of time as follows:-5.1 Against the Second Respondent by 4-7 months.5.2 Against the Fourth Respondent by 9 months.5.3 Against the Third Respondent by 1 year and 2 months.5.4 Against the Fifth Respondent by 1 years and 8 months.[6]The claimant complains of a failure to pay him commission which, were he to be an employee, would be an unauthorised deduction of pay/breach of contract claims. He also brings complaints of age and/or religion and belief and/or race discrimination. As such, I need to consider whether it was reasonably practicable for the claimant to bring his unauthorised deduction of wages/breach of contract claim in time and, if not, whether it has been brought within a reasonable time thereafter. As regards the discrimination claims I need to consider whether his claims have been brought within such other period as I think just and equitable.[7]The onus on establishing that it was not reasonably practicable and/or that it would be just and equitable to extend time rests on the claimant.[8]In the exercise of my discretion I have to take into account all the circumstances. Case Number: 3309674/2022 ph judgment + cm Nov 3 2014 wip version[9]The length of the delay is significant in the context of employment tribunals being at least four months at its least and one year and eight months at its maximum.[10]The claimant in essence said to me that he did not know where to go for justice. He told me that friends had advised him to go and see a solicitor but that he had no money, was struggling and so could not hire a solicitor. Significantly, the claimant told me that he brought his claim having researched how to bring a claim online He said this was in around June 2022 and that was why he had only launched his claim in July 2022.[11]A significant factor in the claimant’s complaints is that he was not paid the correct amounts of commission. In my judgment, not being paid the correct amount is something that virtually everyone picks up at the time of payment and would prompt a desire to claim any shortfall. Similarly, in my judgment everyone in the workplace is aware of legislation that prospects them against discrimination on, at least, the grounds of race. The claimant clearly had a capacity to research the law and bringing a claim online because this is what he did. In my judgment, I find that the claimed ignorance of his rights generally and of any time limits specifically until June 2022 is unreasonable. In my judgment he could and should have begun his research earlier back in 2020 and, had he done so, he would have been able to present his claims in time. The claimant was not ignorant of any crucial facts.[12]Consequently, I find that it was reasonably practicable for the claimant to present his claims in time and that the claimant did not present his claims in such other period as I consider just and equitable.[13]Consequently I strike out the claims against the Second, Third, Fourth and Fifth Respondents. Costs[14]At the conclusion of the hearing Mr Hurst, on behalf of the Fourth Respondent, Applied for his costs. On 16 March 2023 he had written to the claimant making the point that the claimants claim against the Fourth Respondent were nine months out of time, asserting that the claim was scandalous or vexatious or had no reasonable prospect of success and warning the claimant that such a costs order would be made.[15]I take as my starting point that the normal expectation is that costs will not be awarded against the losing party in the employment tribunal. Nevertheless, I have a discretion to consider whether to make a costs order if I consider that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of proceedings (or part) or the way that the proceedings (or part) have been conducted (Rule 76 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013).[16]Obviously enough the claimant has brought his claim nine months out of time as regards the Fourth Respondent. However, it is always open to a claimant to present reasons why his claim is out of time and seek to persuade an Employment Judge why time should be extended, and the claim can proceed. Case Number: 3309674/2022 ph judgment + cm Nov 4 2014 wip version That is what the claimant in effect has done in this case. I do not conclude that his conduct was unreasonable. Consequently, I decline to make a costs order. ____________________ Employment Judge Alliott Date: 21 July 2023 Sent to the parties on: 26 July 2023 For the Tribunal: Case Number: 3309674/2022 1 of 4 EMPLOYMENT TRIBUNALS Claimant: Mr Hitesh Kumar Lakkad Respondent: S & H Wholesale & Distribution t/a Max Distribution Ent Ltd RECORD OF A PUBLIC PRELIMINARY HEARING Heard at: Watford On: 18 September 2023 Before: Employment Judge Alliott (sitting alone) Appearances For the claimant: In person For the respondent: Mr I Hurst (solicitor)[1]This public preliminary hearing was ordered by myself on 20 June 2023 to determine the following issues:-1.1 Any application for a strike out order and/or a deposit order.1.2 Further case management orders may be made.[2]The claimant presented his claim on 20 July 2022. In it he ticked the boxes in section8.1 for unfair dismissal, age, race and religion or belief discrimination and a claim for a redundancy payment. The claimant asserted that his employment began on 1 October 2021. In section8.2 he refers to his employer.[3]Obviously enough, the claimant did not have sufficient continuous service to bring a claim for unfair dismissal.[4]In my judgment, the claim was close to being in a form which cannot sensibly be responded to but was nevertheless accepted. Case Number: 3309674/2022 2 of 4[5]In its response, the respondent disputed that the claimant was an employee and asserts that he was engaged as a Sales Commission Agent.[6]For obvious reasons, by an order made on 22 February 2023 and sent to the parties on 5 March 2023, the claimant was ordered to send to the employment tribunal and the respondent a list, in date order and numbered paragraphs, of each event of age discrimination or race discrimination, saying for each event: “1. What happened. 2. When it happened. 3. Which respondent was responsible for it.”[7]As noted before, religion/belief was not specified.[8]On 17 March 2023 the claimant purported to comply with that case management order. The claimant may also have sent this document on 15 March 2023. As I set out in my case management summary from 20 June 2023, in my judgment, that document is largely incoherent and lacks the detail that it ought to have had.[9]On 20 June 2023 a preliminary hearing was heard in front of myself. As recorded, I explained to the claimant that it was vital that he set out all information in support of his assertion that he was an employee or a worker, each act that he complains about as discrimination and full details of the shortfall in commission payments he is alleging.[10]Consequently I ordered the claimant as follows:- “1. By 4pm 18 July 2023 the claimant must send to the tribunal and the First Respondent a document setting out the following:- 1.1 Full details of why the claimant says he was an employee or worker of the First Respondent, including: (ii) What his agreement with the First Respondent was. (iii) How the claimant was paid. (iv) Whether his pay was subject to tax and National Insurance deduction. (v) Whether he was paid expenses. (vi) Who supplied any equipment he used in his work. (vii) Whether the First Respondent was obliged to provide him work and whether he was obliged to undertake that work. (viii) Where he worked. (ix) Whether the respondent directed him how to do his work. 2. Full details of each alleged act of discrimination including: Case Number: 3309674/2022 3 of 42.1 What was said or the gist of what was said.2.2 What was done or not done.2.3 Who said or did what is being complained about.2.4 When it happened.2.5 Where it happened.2.6 Whether anyone else was there to witness it.2.7 Why it was the clamant says it was because of his race and/or age and/or religion and belief.2.8 Full details of his claim for unpaid commission, including the amount of commission he says he was entitled to and how much he was actually paid.”[11]The claimant showed me a number of emails that he says he sent in response to those orders.11.1 Firstly, an email sent on 27 June 2023. This refers to orders he took and an amount of orders and complains about lack of access to an app.11.2 An email dated 30 July 2023. In it he asserts that he was a worker. He complains about not being paid his commission and makes general assertions of discrimination.11.3 An email dated 15 July. The claimant goes into his difficulties with his housing and again makes very general assertions of discrimination that fall far short of being able to understand what his claim concerns.[12]In my judgment, the claimant has had three opportunities to set out his claims. Firstly, in his claim form. Secondly, in response to the case management order of Employment Judge Lewis. Thirdly, in response to the case management order of myself. I have taken into account that the claimant is a litigant in person but in my judgment, the claimant has failed to comply with orders of the tribunal on two occasions and that in doing so the manner in which he has conducted the proceedings has been unreasonable.[13]I considered at this hearing whether any useful purpose would be served by ordering the claimant yet again to particularise his claim. I endeavoured to see if it was possible to articulate even some of the matters that the claimant was complaining about in terms of what, when, where and whom. I noted down that the claimant made long complaints about being made homeless, difficulties with landlords, housing issues, VAT fraud allegations, bribery of the police and local authority housing officials, money laundering, human trafficking, modern slavery, no commission being paid and an allegation of corruption against the respondent’s solicitor. In my judgment, it was not possible to identify the specific complaints of discrimination that the claimant was seeking to litigate. Further, there was a complete and utter absence of any detail of commission claims. Case Number: 3309674/2022 4 of 4[14]I concluded that the prospects of this claim ever being in a triable format were negligible. I do not consider that any lesser sanction than strike out would achieve anything. Consequently, I determine to strike out the claim pursuant to Rule 37 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013.