Ms N Walcott v Sainsburys Supermarkets Ltd: 3311678/2020 and 3312064/2020

EMPLOYMENT TRIBUNALS

Case No 3311678/2020, 3312064/2020

Between

Ms N WalcottClaimant

Sainsburys Supermarkets LtdRespondent

Before

Employment Judge Frazer

Mr T Welch (instructed by Counsel) for respondent

Date 16 March 2023

JUDGMENT

[2]The Respondent’s application dated 14th July 2022 for an extension of time for presentation of responses to the above-numbered claims is allowed under rule 20 of the Employment Tribunals Rules of Procedure 2013.

REASONS

[1]This is the Respondent’s application under rule 20 of the Employment Tribunals Rules of Procedure 2013 to present its response to the two of the Claimants’ claims out of time. Those claims are claims that have been referred to in this application as claims 2 and 3. Claim 1 which was number ending 677 was dismissed upon withdrawal. Claim 2 was presented on 14th September and is numbered ending 678. Claim 3 was presented on 29th September and is numbered ending 064

[2]I was referred by Counsel for the Respondent to two authorities which assist with decisions on this point: Kwiksave Stores ltd v Swain and others

[1996] ICR 49

and Thornton v Jones 2011 UKEAT0068 which follows Kwiksave.

[3]In reaching this decision I am to take into account all relevant factors including the explanation for the delay and the merits of the defence. I must also have regard to the balance of prejudice as between each party.

[4]I have had regard to the case management order of EJ Lewis dated 24th May 2022. He referred to the files relating to the three claims being indicative of ‘muddle and delay’. At that hearing EJ Lewis recorded that the Respondent’s solicitor, Ms Pourtival, said that claims 2 and 3 had not been received by her. The tribunal file had shown that claims 2 and 3 had been served on 20th November 2020 along with claim 1 and that responses to all claims were due on 18th December 2020. She stated that as she had not seen those claims there had not been responses to them, which is the explanation advanced today by the Respondent. On that basis EJ Lewis provided for the Respondent to apply for permission to submit responses out of time.

[5]The application is dated 14th July 2022. I am satisfied that it complies with rule 20. It is in writing and was copied to the Claimant. It is accompanied by a draft of the response. The Respondent says that upon investigation it found that three separate emails were sent by Watford ET on (sic) 20 November to Ben Bradburn: at 1025, 1031 and at 1044. Those emails are in the bundle. The Respondent makes the point that the actual claim forms themselves did not contain case numbers but the emails and notices did. The Respondent’s case management system uploads the claims onto a shared online drive from which a solicitor responds to the claim. In this case it was not discerned that there were three separate claims and only 377 was uploaded. This claim was responded to by Ms Pourtival on time.

[6]On 22nd February 2021 the Claimant’s representative wrote to Watford and queried whether all claims had in fact been sent to the Respondent and if so which claim forms had been sent. This adds to the plausibility of the Respondent’s explanation.

[7]Following on from this on 24th February 2021 the Respondent advised the Claimant that they had received claim 3311677 but did not appear to have received any others. There was a consolidation email that had been sent to the Respondent by the tribunal on 20th November 2020 but this had escaped the Respondent’s representative’s notice. On 21st May the Claimant’s representative said that she requested the claims. In the event she says that they were not received by the Respondent until after the preliminary hearing - in June of this year.

[8]The Respondent sent the application and response approximately a month later which is not unreasonable and mirrors the time given in the rules for service of a response in my finding.

[9]I have had regard to the Respondent’s explanation. The Claimant submits that there has been deliberate procedural abuse but I find that the Respondent’s actions are at best an oversight. It seemed that on the chronology the Respondent was alerted to the existence of the two other claims in the February after the Claimant had enquired as to whether the claims had been served on the Respondent. There seemed to be somewhat of an impasse until the matter reached the tribunal for a case management hearing when the matter was considered by EJ Lewis. The Claimant says that it sent the claims to the Respondent but that the Respondent chose not to respond to them and that this is something I should take into account when looking at the Respondent’s actions and explanation. I do take into account that there is a significant elapse of time between the point at which it appears to come to the Respondent’s attention that there are other Et1s and the point at which the Respondent says that it receives them and responds to them. This is over a year later.

[10]I do consider that there was oversight to start with by the Respondent and that also there was a lack of proactivity within the period between February 2021 and the PH in May 2022. However, having regard to Kwiksave, I do not consider that the failure to act can be said to be deliberate. The Respondent would have nothing to gain by defaulting on providing an ET3 and everything to lose namely the risk of a judgment in default. While I did not consider the points made by the Respondent’s Counsel about lack of case numbers being on the face of the ET1 to be compelling, the account does suggest more oversight and lack of attention than a deliberate act. There was some overlap in the pleaded cases on the claim forms as well which, while it doesn’t perhaps excuse the oversight, does again lend some credence or plausibility to the Respondent’s explanation of this being an oversight.

[11]I have to look at the prejudice to the Respondent in not allowing it to enter a response. The claims are for a failure to be allowed to exercise the right to be accompanied, for unfair dismissal and detriment arising under the Employment Relations Act 1999 and for discrimination. Those are claims which may result in compensation to be paid by the Respondent and allegations of discrimination are serious. There is nothing before me today which suggests that a fair trial would not still be possible despite the delay. The Claimant will still have the opportunity of advancing a case and could even win whereas the prejudice to the Respondent is greater if it does not have the opportunity of presenting a defence.

[12]I have looked at the merits of the defence. This is not a high threshold but one of whether the response is arguable. The Respondent’s defence is one which can be run. It says that it did provide an opportunity for the Claimant to have a representative. That will be a matter which turns on the evidence. It says that the reason for dismissal was the Claimant’s conduct, which was why she was invited to the disciplinary hearing in the first place. That must make sense because the invitation precedes the Claimant seeking to exercise her right under s.10 ERelAct 1999. In terms of sex discrimination, the Respondent says that there is no prima facie case but the Claimant says that there was another individual (male) involved in the altercation/ incident who was the aggressor and was not dismissed (which may require further information). The Respondent will want to lead evidence to counter why the Claimant says that she was subjected to detriments or dismissed. In relation to the appeal the Respondent’s case is that the representative at the appeal hearing was aggressive and covertly recorded the proceedings. Much of this will be a matter of evidence and there is nothing on the face of the response which suggests that none of the defences are not at least arguable. I accept that when looking at the merits of a defence it follows that if a claim has little or no prospects of success on the face of it it follows that the defence will be arguable. The points made by Counsel are all arguable. JUDGMENT of PRELIMINARY HEARING

Background

[1]There was a Case Management Hearing before Employment Judge Fraser on 2 November 2022, at which the Claimant was Ordered to provide further and better particulars in respect of her claims for direct sex discrimination, sexual harassment and victimisation and to provide that information by 7 January 2023. Neither the Claimant, or her Representative, have provided that information in breach of the Tribunal’s Orders.

[2]There was also before Employment Judge Fraser, at the above Hearing a Strike Out and / or Deposit Order. Employment Judge Fraser made a Deposit Order in the sum of £50 in respect of each allegation, again to be paid by 7 January 2023, in respect of the following:2.1 Under claim dated 14 September 2020,

a. detriment on the grounds of exercising a right to be accompanied under s.12(1) Employment Relations Act 1999 and s.48 Employment Rights Act 1996; and

b. dismissal on the grounds of exercising a right to be accompanied under s.12(1) Employment Relations Act 1999 and Part X of the Employment Rights Act 1996. Case Number: 3311678/2020 3312064/2020

2.2 Under claim dated 29 September 2020, a. detriment on the grounds of exercising a right to be accompanied under s.12(1) Employment Relations Act 1999, s.48 Employment Rights Act 1996; and b. dismissal on the grounds of exercising a right to be accompanied under s.12(1) Employment Rights Act 1999 and Part X of the Employment Rights Act 1996.

[3]In default of that Order, as the sums Ordered have not been paid, those claims are automatically struck out.

[4]In relation to the failure by the Claimant / her Representative to comply with the Tribunal’s Orders in relation to the claim under the Equality Act 2010 for the protected characteristic of sex, those claims are struck out for the failure to comply with those Orders by the due date of 7 January 2023.

[5]Counsel for the Respondents tells me that Mr Neckles representing the Claimant, telephoned his Chambers this morning to suggest he had not received the Case Management Orders or Deposit Orders made by Employment Judge Fraser on 2 November 2022. Clearly those Orders were made at the time of those Hearings and they would have been aware of those Orders, as was at that Hearing the date set for today’s Case Management Hearing.

[6]In those circumstances, there is no reason why the Claimant / her Representative should not be attending today and would thus appear in any event, they are wasting the Tribunal’s and the Respondent’s time. In effect are not actively pursuing the claims against the Respondent which Employment Judge Postle notes the claim was filed way back in September 2020.

Background

[1]The Claimant’s Application dated 8 April 2023, first seen by Employment Judge Postle on Thursday 25 July 2024, for a Reconsideration of the Judgment made on 3 March 2023 and sent to the parties on 26 March 2023.

[2]The Claimant’s Application for a Reconsideration is refused.

[1]Employment Judge Postle will repeat the procedural history of the Claimant’s claim:- 1.1. On 9 September 2022, the Claimant brought a claim for automatic unfair dismissal and detriment pursuant to s.12 of the Employment Relations Act 1999 (3311677/2020 – Claim 1). 1.2. On 14 September 2022, the Claimant brought claims for automatic unfair dismissal and detriment and refusal of the right to be accompanied pursuant to §.10 and 12 Employment Relations Act 1999 and a claim for discrimination, harassment and breach of contract (3311678/2020 – Claim 2). 1.3. On 29 September 2022, the Claimant brought a similar claim to Claim 2 pleading the same causes of actions essentially complaining about the internal Appeal process and the dismissal process (3312064/2020 – Claim 3). 1.4. On 18 December 2020, the Respondents filed an ET3 and Grounds for Resistance to Claim 1 (not realising the Claimant had also brought Claims 2 and 3 to which at that stage clearly the Respondents did not respond). 1.5. On 24 May 2022, there was a Preliminary Hearing before Employment Judge Lewis, Claim 1 was dismissed upon withdrawal. There was then a further Hearing Ordered to hear the Respondent’s Application for Extension of Time in which to file a Response to Claims 2 and 3. 1.6. On 2 November 2022, at a Preliminary Hearing before Employment Judge Frazer the Respondent’s Application for Extension of Time was granted. At that Hearing Employment Judge Frazer made the following Orders:-a. A Deposit Order in the sum of £50 payable within 28 days in relation to Claim 1, (the Order was sent to the parties on 10 December 2022 and the sums being paid on or before 7 January 2023);

b. A Deposit Order in the sum of £50 payable within 28 days in relation to Claim 2, (the Order was sent to the parties on 10 December 2022 and the sums failed to be paid on or before 7 January 2023); and

c. An Order for further information to be sent to the Respondents within 28 days by reference to Claims 1 and 2, for

(i) discrimination,

(ii) sexual harassment and

(iii) victimisation, (that Order was sent to the parties on 10 December 2022 and the further information was due to be sent on or before 7 January 2023). 1.7. It is correct that on 7 January 2023 the Claimant failed to make any payments pursuant to the Deposit Order and at the same time failed to send to the Respondents the further information requested, see above. 1.8. On 3 March 2023, the matter came before Employment Judge Postle at a Preliminary Hearing. The Claimant’s Representative failed to attend. In relation to the matter before Employment Judge Frazer where he Ordered Deposit Orders in respect of the Claim dated 14 September 2022 and the Claim dated 29 September 2022 in default of that Order the sums Ordered under the Deposit Order had not been paid and therefore they were automatically struck out. 1.9. Judge Postle then went on, in respect of the failure by the Claimant and / or her Representative to comply with the Tribunal’s Order in relation to the Claim under the Equality Act 2010 for the protected characteristic of sex, Judge Postle struck those claims out for failure to comply with those Orders by the due date of 7 January 2023. 1.10. Counsel for the Respondent at the Hearing before Employment Judge Postle informed him that Mr Neckles who was representing the Claimant, telephoned Counsel’s Chambers on the morning of the Hearing to suggest he had not received the Case Management Orders or Deposit Orders made by Employment Judge Frazer on 2 November 2022. Clearly those Orders were made at the time of those Hearings and they would have been aware of those Orders. Employment Judge Postle can see no reason why at the time the Claimant’s Union would not have known of the Deposit Orders and they had therefore failed to comply with the Deposit Order. Secondly, the Union clearly did know of and failed to comply with the Order for further information and that may be a matter between the Claimant and her Union if the Union in some way failed to keep the Claimant informed.

[2]Finally, for the avoidance of doubt, the Rules of the Employment Tribunal Rules and Procedures 2013, particularly Rule 56 which allows for Hearings to be in public where any matter involves a determination of Rule 53(1)(b) or (c), to take into consideration whether a Claim, Response or any part should be struck out.

[3]In relation to Mr Neckles assertions regarding the Hearing listed for 1400hrs on 3 March 2024, the following chronology appears to be an accurate reflection. Namely, according to the Respondent’s Counsel:- 3.1. At 0749 the Respondent’s Counsel emailed the Tribunal a copy of the Respondent’s Case Management Agenda and that was copied to the Claimant’s Representative John Neckles. 3.2. There was then a brief conversation between Counsel and Mr Neckles at 0958 which lasted apparently less than three minutes. 3.3. According to the Respondent’s Counsel, Mr Neckles said he had been unaware of the Hearing, that he had read the Respondent’s Case Management Agenda which had alerted him to Employment Judge Frazer’s Order (2 November 2022) and apparently he asserted he was only aware of an Order of Employment Judge Lewis (24 May 2022). 3.4. Further, there was no reason for the Claimant failing to comply with Employment Judge Frazer’s Order because the Claimant was represented by Frances Neckles at the 2 November 2022 Hearing at which Employment Judge Frazer’s Order was made and the Claimant (and her Union) were therefore on notice of it. 3.5. Thereafter at 1100 on the morning of the Hearing, John Neckles emailed the Tribunal a document saved as “John Medical Letter” which contained a letter about Mr Neckles’ health (hypertension and memory issues) dated 3 October 2022, together with booking information for return flights from London to New York in November and December 2022 for passengers Maureen Bascombe and a Marton Tomlin. It is difficult to understand the relevance of these documents. They certainly do not suggest that John Neckles could not attend the Hearing, nor could they be offered as an explanation for non-compliance with Employment Judge Frazer’s Order because the Union certainly did know of the Order.

[4]For all the above reasons, the Claimant’s Application for a Reconsideration is refused.