Ms S Messi v Manpower UK Ltd and Teleperformance UK Ltd: 3314273/2021
EMPLOYMENT TRIBUNALS
Case No 3314273/2021
Between
Ms S MessiClaimant(1) Manpower UK Ltd (2) Teleperformance UK LtdRespondent
Before
Employment Judge McNeill QCNot represented for claimant(1) Mr Sutherland (instructed by Solicitor) for respondentDate 4 November 2022
JUDGMENT
(1) The Claimant’s application to postpone the hearing of her application for interim relief is refused.(2) The Claimant’s application for interim relief against the First and Second Respondents is dismissed.
REASONS
[1]The Claimant has brought claims for automatic unfair dismissal against the First and Second Respondents. Those claims are brought pursuant to section 103A of the Employment Rights Act 1996. She alleges that she was employed by the First and/or Second Respondents between 17 July and 11 August 2021 and that she was dismissed for making protected disclosures. Those protected disclosures have not yet been properly detailed.[2]The First Respondent admits that it employed the Claimant at the relevant times. It contends that it still employs the Claimant and has never dismissed her. The First Respondent is an employment business that places its employees on assignments with clients.[3]The Second Respondent contends that it never employed the Claimant. It engages the First Respondent for the provision and administration of temporary workers. The Claimant was a temporary worker who was assigned to work for the Second Respondent until her assignment was terminated on 11 August 2021.[4]The Claimant has made an application for interim relief to the Tribunal. That application was made in the Claimant’s ET1, presented to the Tribunal on 12 August 2021 and was listed to be heard today. Application to postpone[5]On 17 November 2021, the Claimant applied to postpone this hearing of her application for interim relief. This was her second application to postpone the interim relief hearing.[6]Applications for interim relief fall under section 128 of the Employment Rights Act 1996 (ERA).[7]Pursuant to section 128(3) of the ERA, the Tribunal “shall” determine such applications “as soon as practicable after receiving the application”.[8]Pursuant to section 128(5) of the ERA: “the tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so”.[9]The Tribunal has a general power to postpone a hearing under rule 30A of the Employment Tribunals Rules of Procedure. Where an application to postpone is made less than 7 days before the date on which the hearing begins, the power to postpone is restricted as set out in rule 13(2) of the Rules of Procedure. A postponement may be granted where there are “exceptional circumstances”.[10]The application to postpone that was before me was made by the Claimant on 17 November 2021, less than 7 days before this hearing. The grounds for the application were stated as follows: “I am asking for a postponement due to Covid 19 symptoms because I am not well enough to participate physically or mentally”. The Claimant attached an NHS Isolation Note to her application. The isolation period started on 14 November and ended on 24 November 2021. The note stated that the Claimant had been advised to self-isolate by an NHS service or a healthcare professional because she had symptoms or coronavirus or had tested positive. In the heading to her email, the Claimant stated that she had “coughing, running nose and fever”.[11]Both Respondents objected in writing to the application to postpone by emails dated 18 November 2021, copying in the Claimant.[12]The First Respondent pointed out that this was the second application to postpone, the first application having been granted on 8 September 2021 just two days before the hearing.[13]On further examination of this earlier application to postpone, it transpired that a first hearing of the Claimant’s application had been listed for 10 September 2021. In an email to the Tribunal dated 27 August 2021, which was not copied to either Respondent, the Claimant asked for a postponement because she had a wedding to attend on 10 September. The First Respondent only learned of this application on 7 September, when the Claimant mentioned her application to postpone in correspondence concerning the preparation of a bundle for the 10 September hearing. The First Respondent, on 8 September, wrote to the Tribunal objecting to the application to adjourn but it appears that his correspondence may have arrived too late, as an order was made on that day to postpone the hearing. The Second Respondent only learned of that application to postpone after the postponement had already been granted.[14]Returning to the First Respondent’s objections to the application to postpone made on 17 November, the First Respondent further contended that interim relief hearings should be dealt with as expeditiously as possible, in accordance with the overriding objective. The First Respondent pointed out that the Claimant had provided no medical evidence confirming her state of health or why she could not attend a hearing, contrary to the Presidential Guidance on seeking postponements. He also referred to rule 30A(2) of the Rules of Procedure.[15]The Second Respondent, in its email of 18 November, adopted and supported the First Respondent’s objections. It further relied on the fact that the hearing was to be by CVP (Cloud Video Platform) and there was no medical evidence that supported the Claimant’s contention that she could not take part in such a hearing. Rather than acting promptly, the Claimant had delayed after the beginning of her self-isolation period (14 November) before making the application to postpone. A postponement would be contrary to the overriding objective of the Rules, which was to enable Tribunals to deal with cases fairly and justly.[16]On 22 November 2021 (yesterday) by an email at 15.03, Employment Judge Tynan directed that the Claimant’s application for a postponement would be considered at the start of this interim relief hearing. The Claimant was asked to confirm whether she had “subsequently tested positive for Coronavirus and, if so, to supply a copy of [her] test result or other evidence in this regard”.[17]Five minutes later, at 15.08, the Claimant responded: “Not taking a test as not received one and already requested another one. I mentioned I have symptoms and not well enough due to fever, cough and headache and will not be able to participate fully which will put me at a disadvantage”. She asked the Tribunal to take this into consideration.[18]In objecting to the postponement in oral submissions, both Respondents relied on their emails of 18 November 2021. They contended that there was no medical evidence that the Claimant had tested positive for Covid-[19]They further drew attention to the urgent nature of applications for interim relief; the absence of any medical evidence to support the application for postponement made on grounds of ill-health; and the fact that although the Claimant was able to respond to yesterday’s email containing EJ Tynan’s direction within five minutes, she did not join the video hearing today, even to make her application to postpone. 19. The Respondents submitted that, although this was not a hearing to determine the merits of the case, no evidence had been produced by the Claimant which contradicted the very clear evidence from documents in the bundle that the Claimant remained employed by the First Respondent and that she was never employed by the Second Respondent.[20]In deciding whether to postpone, I took into account that this was a second application to postpone and that interim relief applications should be dealt with urgently. There was evidence in the form of assertions by the Claimant that she was unwell, with symptoms that might be consistent with a diagnosis of Covid 19 and that she had been advised to self-isolate on 14 November, nearly ten days ago. However, there was no medical evidence that supported her state of health being such that she was unfit to attend a video hearing, even to make an application to postpone. The fact that she was able to respond to an email from the Tribunal within 5 minutes yesterday, suggested she could at least have attended today’s hearing by video, even if only to explain that she could not proceed. Even when she was specifically asked to provide evidence of a test or other evidence supporting what she was saying about her health, the Claimant did not do so. She had been advised to self-isolate nearly 10 days ago, which would normally signal that a test should be taken.[21]It was not appropriate to determine any merits issues when considering a postponement, I did, however, take into account that there was nothing in the bundle of documents produced to me that indicated that the Claimant was either dismissed by the First Respondent (some of the Claimant’s own evidence indicated to the contrary) or that she was in an employer/employee relationship with the Second Respondent.[22]Taking into account all these matters, I did not consider that there were either “special circumstances” within section 128(5) of the ERA or “exceptional circumstances” within rule 30A of the ET Rules of Procedure for granting a postponement.[23]I therefore refused the application to postpone and went on to consider whether the application for interim relief should be granted. Application for interim relief[24]Pursuant to section 129(1) of the ERA, an application for interim relief should be granted only where one of the types of claims referred to in section 129 is “likely” to succeed at a full hearing. “Likely” means “a good chance” and “a good chance” means a higher degree of probability than just more likely than not: Ministry of Justice v Sarfraz [2011] IRLR 562, EAT. The relevant claim here is a claim under section 103A of the ERA, namely that the Claimant was dismissed and that the reason or principal reason for her dismissal was that she had made one or more protected disclosures.[25]The test of likelihood applies to all aspects of the Claimant’s claim. For example, she must not only show that it is likely that she will prove at a full hearing that she was dismissed but also that it is likely that she will show that she made protected disclosures and that she was dismissed because she made those protected disclosures.[26]I first considered the issue of dismissal. Unless there was a good chance that the Claimant could show that she was dismissed, within the meaning of section 95 of the ERA, by the First or Second Respondent, her application for interim relief could not succeed.[27]I considered first whether there was any evidence in the documents before me that the Claimant was dismissed by the First Respondent, which admitted that it was her employer.[28]There was a document headed Terms and Conditions of Employment for Temporary Employees, which described the First Respondent as the employer and the Claimant as the Temporary Employee. In that document, it was made clear that the First Respondent was an employment business providing the Claimant with temporary work. Her job title and duties were explained, including the offering of assignments to work with the First Respondent’s clients. It was made clear at paragraph 1.6 of the Terms and Conditions that the First Respondent or the client could terminate an assignment at any time, without prior notice or liability and that termination of an assignment was not termination of the Claimant’s employment.[29]The First Respondent’s handbook for Temporary Employees explained at paragraph 2.2 the difference between an assignment being ended and the employee’s employment with the First Respondent being terminated. This was explained again at section 9 of the Handbook.[30]Other documentation in the bundle indicated that the Claimant herself knew that her contract of employment with the First Respondent was continuing after 11 August 2021. For example, in an email dated 12 August 2021, she said that she should be paid in full until the expiry of her fit note, which was 30 October 2021. On 16 August 2021, she asked about what she should do with her timesheets moving forward. On October 20 2021, she complained to the pensions regulator that she had not be been automatically enrolled in the pension scheme after 12 weeks. On the Claimant’s own case, 12 weeks from the start of her employment was 9 October 2021.[31]There was no evidence before me that the Claimant was dismissed by the First Respondent. On the contrary, all the evidence from both the First Respondent and the Claimant herself indicated that she remained in employment.[32]On the basis of all these matters, and taking into account what is before me at this interim relief application, I did not consider that it was likely that the Claimant would establish that she was dismissed by the First Respondent. In the circumstances, I did not consider whether other aspects of her claim were likely to be determined in her favour. If it did not appear likely that the First Respondent dismissed the Claimant, her application for interim relief against the First Respondent could not succeed.[33]In relation to the Second Respondent, I could find no evidence that the Second Respondent was the Claimant’s employer. Unless the Second Respondent was the Claimant’s employer, an unfair dismissal claim against it could not succeed. Again, I was not determining the matter on any final basis. However, in considering whether there is a good chance that the Claimant would establish that essential aspect of her claim, namely that she was employed by the Second Respondent, I have concluded that there is not. The Claimant was assigned to work for the Second Respondent but the applicable contractual documentation made It clear that she remained employed by the First Respondent. Again, I do not go on to consider the other aspects of the claim.[34]The interim relief application against both Respondents therefore fails.[37]Striking out(1) a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[39]Deposit orders(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. Conclusions 20. Although the respondents focused their arguments for strike out primarily on the failure to comply with orders and the claims not being actively pursued the judge was satisfied that all the grounds in rule 37 could have been argued to apply in this case and consequently all claims are dismissed against both respondents. (a) that it is scandalous or vexatious or has no reasonable prospects of success 21. The claims in their current form do not have any reasonable prospects of success as they are completely unparticularised. 22. In relation to the 2nd respondent in the 2nd claim it was not the employer the 1st respondent accepting that it was. The was a point noted by E J McNeill at her hearing. The claim therefore of unfair dismissal as against the 2nd respondent has no reasonable prospects of success. 23. It was also noted that as found by E J McNeill the claimant had not been dismissed by the 1st respondent her employer (paragraph 31 of her reasons). Mr Sutherland confirmed at this hearing that the claimant remained on the books of the first respondent. 24. It goes without saying that a claimant who has not been dismissed has no reasonable prospects of claiming unfair dismissal on any basis. 25. Whilst it was suggested on behalf of the respondents that the claims have been bought vexatiously the tribunal did not have sufficient evidence before it to come to that conclusion. It has however noted that the respondents have discovered by a search of the online register that the claimant has brought at least 10 other claims against multiple respondents alleging multiple claims of breaches of the Equality Act 2010 and the raising of protected disclosures like the claims in these proceedings (b) that the manner in which the proceedings have been conducted by the claimant have been scandalous unreasonable or vexatious 26. It is quite clear that the manner in which these proceedings have been conducted has been unreasonable. The claimant has provided very little information in her claim forms and has put the respondents to the cost of defending them. Although acknowledging she is a litigant in person the Employment Tribunal hears from numerous litigants in person and they are generally well able to set out the case they believe they have against their employer. 27. The claimant applied for interim relief which is a claim that had to then be listed for hearing urgently, yet she applied for a postponement was granted it and then did not attend the adjourned hearing. The application was refused 28. The claimant then failed to attend the hearing before EJ Lewis. She has failed to comply with his order to explain why that was. 29. Detailed orders having been made for further information the claimant has failed to comply with them and neither the tribunal nor the respondents’ have heard from her since her correspondence with the respondents’ following Judge Lewis’s hearing 30. All the above amounts to unreasonable conduct (c) non-compliance with any order of the tribunal 31. As has been stated the claimant has not complied with the detailed orders made EJ Lewis. They could not have been clearer in what was required. The respondents are entitled to know the claims they have to meet. The respondents did what they were directed to do and brought the orders to the claimant’s attention. She was well able to respond from the email address that both the respondents and the Employment Tribunal have been using and which was used to notify of the date and time of this hearing (d) that the claim has not been actively pursued 32. This again is also self-evident from the chronology. The claimant applied for interim relief but did not attend the hearing. She has not attended other hearings and failed to comply with orders. It is now over a year since the proceedings were commenced and neither the respondents nor the tribunal know the detail of the claims that are being pursued. 33. The tribunal at the present time has a significant backlog of cases waiting to be heard. The claimant’s cases have already occupied 3 days of judicial time and as stated the claims are still not clarified. The claimant has not participated, this is not proportionate and is clear evidence that the claimant does not intend to pursue the claims (e) The that the tribunal considers it is no longer possible to have a fair trial 34. Although detailed evidence was not heard from the respondents’ the difficulties they may face if this matter were to proceed are again selfevident and the judge is aware from other listing decisions taken that in a multi-claim case it is unlikely to be heard until 2024. That would be 3 years from the date of the acts complained of. A fair hearing though also involves the respondents being able to take instructions on the allegations against it once it has received the proceedings. These respondents are not able to do that as they do not know what allegations are being made. 35. The judge asked both respondents if they were aware of what the claimant’s disability was but they were not. The 2nd respondent’s representative explained that the claimant did have DSE assessment and stated that she would be assisted by a back support for her chair. Other than that they know nothing about her condition. 36. In the first ET1 claim form at box 12 the claimant ticked the box stating she had a disability. She did not disclose what it was and only stated that she would need ‘frequent breaks and late hearing and by video or telephone’. 37. In all the circumstances the judge was satisfied that it was appropriate to strike out all the claims brought by the claimant against both respondents. Deposit order 38. In the alternative both respondents invited the judge to consider whether a deposit order should be made. The grounds are slightly different than in relation to strike out and a deposit can be ordered where the tribunal is satisfied that a claim or response has “little reasonable prospect of success”. It can order a deposit not exceeding £1000 as a condition of continuing to advance that ‘allegation’. The authorities have made it clear that therefore the tribunal can in total award more than £1000. 39. The tribunal was satisfied that the claims as currently put have little reasonable prospects as they are not clarified and not clear. Further that the claim against the 2nd respondent for unfair dismissal has little reasonable prospects as the 2nd respondent was not the claimant’s employer and cannot therefore be liable for unfair dismissal. As against the 1st respondent the claimant has not been dismissed.
Conclusions
[40]Rule 39 (2) states the tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. The tribunal has done all it reasonably can in the absence of the claimant to provide details of her ability to pay. She was on notice of this hearing and has chosen not to attend and provide such evidence.[41]Although the respondents sought a deposit of £1000 in respect of each claim the judge did not think that would be fair in the circumstances. The judge has considered the information in the ET1 which disclosed that the claimant was earning £264 a week whilst working at the 2nd respondent.[42]In relation to the 1st claim the claimant has alleged claims of age, race religion, disability and sex discrimination (5 protected characteristics) notice pay, holiday pay and arrears of pay (3 money claims) and detriment for raising protected disclosures. Even without the detail that is needed that is 9 distinct heads of claim.[43]The tribunal has therefore determined that had the claims not been struck out it would have ordered in relation to the 1st claim that the claimant pay £250 in respect of each of the 9 heads of claim brought against each respondent. That would be a total of £2250 in relation to the claims against the 1st respondent and the same amount in relation to the claims against the 2nd respondent making a total of £4500 that would have been ordered to be paid as a condition of continuing to advance the 9 heads of claim that have by now been identified above[44]In relation to the 2nd claim it would have ordered £250 to be paid in relation to the claim of unfair dismissal against the 1st respondent and £500 in relation to the claim against the 2nd respondent as a condition of continuing to advance that claim.