Case No 3323772/2017Venue ReadingHearing 8 November 2018 Representation Claimant: In person Respondent: Mr J French-Williams, counsel
Between
In personClaimantMr J French-Williams, counselRespondent
Before
Employment Judge MrDate 23 August 2019
JUDGMENT
[1]The Tribunal heard evidence on oath from the Claimant and submissions from the Respondent’s representative and read documents provided by the parties. Application to amend[2]It is not just and equitable to allow the claim to be amended by the addition of complaints of disability discrimination and automatically unfair dismissal which were not pleaded in the ET1 claim form presented on 15 March 2017 and which are now presented out of time. The application is refused.[3]The complaints in respect of notice pay and bonus pay will proceed to be considered at the full merits hearing listed below.[4]Reasons for this judgment were given orally at the hearing. Written reasons will not be provided unless a written request is presented within 14 days of the date this judgment is sent to the parties. CASE MANAGEMENT ORDERS Full Merits Hearing[1]With the agreement of the parties, the case is listed for a 1 day full merits hearing before an Employment Judge on 9 August 2019 commencing at 10.00 am at the Employment Tribunals, 30-31 Friar Street (Entrance in Merchants Place), Reading RG1 1DX.[2]The Respondent is to provide to the Tribunal 3 copies of the bundle of documents, witness statements and chronology at the start of the hearing.[3]No postponement of the full merits hearing will be granted unless there are exceptional and unforeseen circumstances. Claims[4]The following claims will be considered by the Tribunal at the full merits hearing. No other claims will be considered without the permission of the Tribunal.[5]Wrongful Dismissal – article 3 Employment Tribunals Extension of Jurisdiction (E&W) Order 1994.5.1 The Claimant claims 3 months notice pay of £11,900.79 under clause 21 of the contract of employment.5.2 The Respondent claims that the Claimant was summarily dismissed and is not entitled to notice pay.[6]Breach of Contract - article 3 Employment Tribunals Extension of Jurisdiction (E&W) Order 1994.6.1 The Claimant claims that he is entitled to a company bonus of £4,174.43.6.2 The Respondent claims that the Claimant was dismissed and is no longer entitled to receive a bonus payment under the Management Incentive Scheme. Statement of Loss[7]A statement of loss has already been produced by the Claimant. Disclosure of Documents[8]No later than 6 December 2018 the parties shall send to each other party a copy of all documents they hold relevant to the matters to be determined at the hearing. Hearing Bundle of Documents[9]No later than 17 January 2019 the Respondent shall send to the Claimant an indexed, paginated bundle of the disclosed documents for use at the hearing. Chronology[10]No later than 17 January 2019 the Respondent shall send to the Claimant a short neutral chronology for the use of the Tribunal at the hearing. Witness Statements[11]The parties shall produce a witness statement for all witnesses to be called to give evidence at the hearing and shall simultaneously exchange with each other all witness statements on 28 June 2019. Public Access to Employment Tribunal Judgments[12]The parties are informed that all judgments and reasons for judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the Claimant(s) and Respondent(s). NOTES: CONSEQUENCES OF NON-COMPLIANCE WITH ORDERS[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 the response shall be struck out on the date of non-compliance without further order or the need to give notice or hold a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or on the initiative of a judge.
REASONS
Conclusions
[1]This is a public preliminary hearing and the issues I have to determine are as follows:1.1 What claims are being pursued by the Claimant;1.2 Whether any of the claims have no reasonable prospect of success and should be struck out;1.3 Whether any of the claims had little reasonable prospect of success and should be made the subject of a deposit order of up to £1,000;1.4 Whether any case management orders are necessary for the future conduct of the proceedings.[2]I am also required to make a decision on the Claimant’s application to amend his claim.[3]The Claimant presented an ET1 claim form to the Tribunal on 15 March Page 1 of 6 2017. He complained of wrongful dismissal or breach of contract and sought notice pay, unpaid salary, pay in lieu of holiday pay, and a company bonus. He did not claim unfair dismissal but in a schedule of loss dated 17 April 2017 he claimed a basic award, a compensatory award and compensation for loss of statutory rights.[4]On 13 April 2017, the Respondent presented a response and resisted all the claims and it also raised jurisdictional bars for claims under the Data Protection Act and for compensation for injury to feelings which it said were included in the claim form but which the Tribunal had no jurisdiction to deal with.[5]A preliminary hearing was held on 11 December 2017 which the Claimant did not attend. However, the Employment Judge on that occasion decided to proceed in his absence. Claims of unfair dismissal, holiday pay and salary were struck out leaving two claims, that is notice pay and a claim for a bonus payment.[6]The case management order also said this: In his ET1, the Claimant did not tick the box indicating that he wished to bring a claim of discrimination on any ground. However, in the compensation or remedy section of the ET1, the Claimant indicated that he is seeking injury to feelings, middle band Vento guidelines left under Employment Tribunal’s decision.[7]It also records that in his ET1 claim form, he referred to work-related stress and severe depression illness. The Judge also noted that the Claimant’s Schedule of Loss included a reference to compensation for injury to feelings and referred to the Respondent’s unlawful discriminatory acts. The case management order therefore contained an order as follows at paragraph 11.5: The basis for a discrimination complaint by the Claimant is not at present clear and I have therefore made an order in paragraph 2 in the orders section below:(1) In respect pf any complaint which was included in the ET1 and/or claim statement, the Claimant must provide for information about this complaint; and(2) If the Claimant wishes to pursue any discrimination complaint which was not included in his ET1 or claim statement, he would need to make an application to amend his claim. Application to Amend the Claim[8]On 1 March 2018, the Claimant produced a document which was six pages long headed ‘ET1 discrimination claim’. It was in narrative format so it was not clear what claims were being pursued in respect of what events but it referred to, amongst other events, hospital appointments, occupational health reports, a workplace risk assessment (or lack thereof), a breach of duty of care, a breach of the company’s policies, the ACAS Code of Practice, bullying, a grievance, and a performance improvement plan. Page 2 of 6[9]Mention was made in that narrative document of direct discrimination, harassment, indirect discrimination and a failure to make reasonable adjustments. Also, it seems, a claim for automatically unfair dismissal for making a claim for breach of statutory rights. The Claimant’s covering letter referred to amending his ET1 claim form in regard to the discrimination acts that were brought against him by the Respondent as listed in the case summary in the case management orders. Evidence and Submissions[10]In his evidence before me today, the Claimant said that the contents of his ET1 claim form were true and correct as were the contents of paragraphs 1 to 16 in the two-page script attached to the claim form. He also confirmed that he had made an application to amend the claim on 1 March 2018. I asked him if he took the view that his ET1 claim form included a disability discrimination claim and he said “no”. He said that he took legal advice before he made the claim from a “senior barrister” who told him not to mention his disability because he did not work long enough for the company. He said “He told me not to tick the disability box. He said not a strong case for disability”.[11]He said that he had made his application to amend in response to the case management summary made on 11 December 2017. He confirmed that it was an application to amend the ET1 claim form to include a disability discrimination claim. He said that section 15 of his claim form did refer to his stress and depression and he said that his application to amend sets out more information about his claim. He said that he took legal advice from a solicitor before he made the application to amend who said that the barrister who had advised him before he made his original claim had misguided him and that he should make the application. I asked him why he did not make the application to amend before 1 March 2018 and he said “I was not familiar with the process. I thought it would be dealt with later in the procedures and I only got limited legal advice”. He said “If I had been advised properly, I would have filled in the ET1 form correctly.”[12]Mr French-Williams on behalf of the Respondent objected to the application to amend. He produced a written skeleton argument and also made oral submissions. He referred to the claim form being presented on 15 March 2017 and the application to amend being presented almost a year later on 1 March 2018. He said that there were claims for disability discrimination and automatically unfair dismissal which were not in the ET1 claim form. He referred to the fact that the Claimant had accepted that he made no mention of disability discrimination in the claim form but he had had legal advice from a senior barrister beforehand. He said that it took 12 months for the Claimant to make the application to amend. So far as prejudice was concerned, there would be significant prejudice to the Respondent if the application was granted because the Claimant was dismissed over two years ago (18 October 2016) and the Respondent does not know whether the people involved were still employed. Medical evidence would be required because disability was not conceded. Page 3 of 6[13]The tests I have to apply are set out in the following authorities: Selkent Bus Company Ltd v Moore [1996] ICR 836; Abercrombie v Argo Rangemaster Ltd [2014] ICR 209; and there is also guidance set out in the Employment Tribunals Presidential Guidance, the relevant part reads as follows: In deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all the relevant factors having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment.
The Law
[14]It goes on to say that relevant factors would include firstly, the amendment to be made; secondly, time limits; and thirdly, the timing and manner of the application. It says that the Tribunal draws a distinction between amendments that seek to add or substitute a new claim arising out of the same facts as the original claim and those that add a new claim entirely unconnected with the original claim.[15]I am satisfied that the claims and the facts now the subject of the application to amend dated 1 March 2018 were not included in the ET1 claim form presented on 15 March 2017.[16]The Claimant accepts that they were not included. Indeed, he said that the barrister advising him advised him specifically not to include a claim for disability discrimination and he therefore did not do so. It is clear that he did mention stress and depression at part 15 of the form but did not, deliberately it seems, mention anything about a disability or about discrimination nor did he tick the box marked disability. He deliberately passed over that box and ticked a later box headed ‘another type of claim’ and directly below that he wrote “Wrongful dismissal or breach of contract”. There was nothing about being dismissed for requesting statutory rights.[17]I find that he now making an application to amend his claim by adding claims for disability discrimination and automatically unfair dismissal. These are entirely new claims and not a relabelling of facts already pleaded in the ET1 claim form.[18]The amendment sought is a substantial alteration to the claim. It is also significantly out of time. It is made one year after the ET1 claim form was presented and 17 months after the termination of the Claimant’s employment. The Claimant had legal advice before presenting the ET1 claim form and if he had second thoughts about not presenting a claim for disability discrimination or automatically unfair dismissal, he could have sought alternative legal advice in a timely manner.
Conclusions
[19]Indeed, he did seek legal advice before making the application to amend but waited a year before doing so. He has given no good reason for that delay. I took account in terms of time limits of the case of Robertson v Bexley Community Centre [2003] IRLR 434 where the Court of Appeal Page 4 of 6 said: When Employment Tribunals consider exercising the discretion under what is now section 123 of the Equality Act 2010, there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse – a Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule.[20]I also took account of the comments of the EAT made in the case of Chandhok v Tirkey [2015] which said that The ET1 is not just something to set the ball rolling and an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the party chooses to add or subtract at some later date. It is required to set out the essential case.[21]I also took account of the decision in British Coal Corporation v Keeble [1997] IRLR 336 where the Employment Appeal Tribunal said that A Tribunal is required to consider the prejudice that each party would suffer as a result of the decision reached and to have regard to all the circumstances of the case, in particular the length of and reason for the delay, the extent to which the cogency of evidence is likely to be affected by the delay, the extent to which the party sued has co-operated with any requests for information, the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action and the steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[22]In this case, the delay has been considerable and it is clear that the cogency of evidence is likely to be adversely affected.[23]Finally, I took account of the Abercrombie case where the Court of Appeal said that in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old, the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.[24]In my view, the prejudice to the Respondent if I grant the application to amend would be substantial. The Respondent would have to embark upon significant different areas of enquiry to deal with the new claims and as Mr French-Williams pointed out, it does not concede disability and so medical evidence would need to be obtained and all of that over two years after the Claimant was dismissed. The case would be unlikely to be heard until over three years after the dismissal. Mr French-Williams also pointed out that some of the Respondent’s employees involved may no longer be employed and indeed even if they are, no doubt after that length of time, memories would have faded and documents may no longer be available. Page 5 of 6[25]However, if I refuse the application, the Claimant would be in no worse position than he was after having presented his original ET1 claim. Although some claims were struck out at the preliminary hearing which he failed to attend, he can still pursue his claims for notice pay and unpaid bonus, claims which were clearly and exclusively set out in the claim form on 15 March 2017.[26]For the above reasons, I find that the balance weighs in favour of the Respondent’s objection to the application and that application to amend is refused. I shall now proceed to list the case to deal with the outstanding claims.[1]The claimant worked for the respondent as an asset graphical data BIM manager from 25 August 2015 until his dismissal on 18 October 2016.[2]The claimant’s claim form was presented on 15 March 2017 after a period of ACAS early conciliation from 16 January 2017 to 16 February 2017. The respondent defended the claim. Previous hearings[3]There have been a number of previous hearings and postponements in this case. I set out here a summary of the procedural history to explain the issues for determination at this hearing, and because it is relevant to an application for recusal made by the claimant, to which I return below.[4]Originally, the full merits hearing was listed for 9 June 2017 for 1 hour, but this was postponed and re-listed to 22 August 2017 for one day on the tribunal’s initiative. Page 1 of 13[5]The precise complaints being made by the claimant were not clear from the claim form. In section 8 of his claim form the claimant described his complaints as ‘wrongful dismissal or breach of contract’. He said that he was seeking compensation for notice pay, unpaid salary, pay in lieu of holiday and bonus. He also made reference to his dismissal being unfair and requested compensation for injury to feelings.[6]On the respondent’s request, the hearing listed for 22 August 2017 was converted to a public preliminary hearing to clarify what claims the claimant was pursuing, to consider applications by the respondent for strike out/deposit orders, and for case management.[7]The preliminary hearing on 22 August 2017 went ahead. The claimant did not attend but made a written application for postponement because of a bereavement. The respondent did not object. The postponement application was granted at the hearing, and the preliminary hearing was relisted to 11 December 2017.[8]On 1 December 2017 the claimant made an application for postponement of the 11 December hearing. He enclosed copies of two fit notes from his GP relating to fitness for work. His postponement application was refused; he was informed in a letter from the tribunal on 8 December 2017 that if he was unfit to attend the hearing, his application must include a statement from a medical practitioner to confirm this. No correspondence was received from the claimant in response to the tribunal’s letter.[9]The second preliminary hearing took place before me on 11 December 2017. The claimant did not attend. I decided that the preliminary hearing should proceed as it would not be in line with the overriding objective, in particular with avoiding delay, to postpone the hearing again.[10]At the second preliminary hearing, I decided that the claimant did not have sufficient service to bring a complaint of unfair dismissal, and that, his holiday pay and arrears of pay having been paid by the respondent, those complaints should be struck out. I identified that the complaints remaining for determination were therefore a) wrongful dismissal or breach of contract in respect of notice pay and b) breach of contract in respect of bonus.[11]I also made case management orders to enable clarification of whether the claimant was seeking to pursue any complaint of discrimination (or to amend his claim to do so). On 1 March 2018 the claimant made an application to amend his ET1 to include discrimination claims.[12]A preliminary hearing to determine the claimant’s amendment application was listed for 6 August 2018. This was postponed at the claimant’s request because of a bereavement and was relisted for 8 November 2018. Page 2 of 13[13]At the third preliminary hearing on 8 November 2018 the claimant attended and gave evidence. His application to amend his ET1 to include a complaint of discrimination was refused. The
Issues
[14]The issues for determination at the full merits hearing were identified and set out in the case management summary following the preliminary hearing of 8 November 2018. They are:[15]Wrongful dismissal – article 3 Employment Tribunals Extension of Jurisdiction (E&W) Order 1994 15.1. The claimant claims notice pay of £11,900.79 under clause 21 of the contract of employment. 15.2. The respondent claims that the claimant was summarily dismissed and is not entitled to notice pay.[16]Breach of contract - article 3 Employment Tribunals Extension of Jurisdiction (E&W) Order 1994 16.1. The claimant claims that he is entitled to a company bonus of £4,174.43. 16.2. The respondent claims that the claimant was dismissed and is no longer entitled to receive a bonus payment under the Management Incentive Scheme. Claimant’s application for recusal[17]In response to a call from the tribunal administration on 8 August 2019 (the day before this hearing) the claimant informed the tribunal at 13.33 that he would not be attending the hearing.[18]At 17.16 on 8 August 2019, the evening before the hearing, the claimant sent an email to the tribunal and the respondent’s representative. It was addressed ‘Dear appointed Tribunal Judge’ and headed ‘Application for the Judge to recuse himself or herself from case or making Final Hearing Judgements’.[19]In his email, the claimant says that he does not know which judge will be hearing his case. He had been told that a judge had not yet been appointed, and said ‘hence I have not been able to address my email or application to named or appointed judge’.[20]The claimant’s email is around two and half pages long and the grounds for his application for recusal are unclear. He refers to his “right to access justice without judicial potential conflict of interest or lack of impartiality” but does not explain the basis on which he says there is any conflict of interest Page 3 of 13 or lack of impartiality on the part of any specific judge. He says that he believes that the Employment Tribunal or members of the judiciary and the court or Tribunal staff that have been involved in his case have violated his statutory rights, his equality rights and his human rights. He refers to a number of statutes and statutory instruments.[21]Two central points emerge from the claimant’s email which appear to be reasons why the claimant says the hearing should not proceed. These are: 21.1. Issues relating to disclosure/bundle: he received late disclosure from the respondent on 8 August 2019. Also, the bundle prepared by the respondent for the hearing did not include all the documents he requested or expected to be disclosed; and 21.2. Ill-health: the claimant says he is “psychologically and emotionally affected by certain aspects of the case proceedings and the judgments that were given in the previous case hearings”. He also says he has a severe mental health condition due to his unfair dismissal.[22]The claimant’s email refers to attachments, of emails and documentation. I only had only one other document, an email from the respondent’s solicitor sent at 16.45 on 8 August 2019 to the claimant enclosing additional disclosure and an amended bundle index.[23]I have considered the claimant’s email carefully. It does not appear to me to disclose any reason why I should recuse myself from hearing his case. The claimant was not aware that I would be hearing his case when he made his application. The only possible ground referred to in his email on which he could base a request for me to recuse myself is my previous involvement in his case, namely that I heard the second preliminary hearing. I did not consider that this suggests any potential conflict of interest or lack of impartiality on my part. I have decided that I should not recuse myself.[24]The claimant does not expressly say in his email that he is applying for the hearing to be postponed. However, it seems to me that the underlying thrust of his email is that the hearing should not proceed, and that this should be treated as an application to postpone the hearing. I have therefore gone on to consider whether the hearing should be postponed.[25]The respondent’s representative says that the respondent objects to the hearing being postponed and would like it to proceed. The respondent’s two witnesses had attended the tribunal and the case was ready to proceed.[26]Rule 30A(2) of the Employment Tribunal Rules of Procedure provides: Page 4 of 13 “Where a party makes an application for a postponement of a hearing less than 7 days before the date on which the hearing beings, the Tribunal may only order the postponement where – a) all other parties consent to the postponement and – i) it is practicable and appropriate for the purpose of giving the parties the opportunity to resolve their disputes by agreement; or ii) it is otherwise in accordance with the overriding objective; b) the application was necessitated by an act or omission of another party or the Tribunal; or c) there are exceptional circumstances.”[27]The claimant’s email request for the hearing not to proceed was made less than seven days before the hearing, in fact it was made at 17.16 the evening before the hearing was due to start. If the claimant’s email is treated as an application to postpone, Rule 30A(2) applies. I may only order a postponement if one of the situations in sub-paragraphs (a) to (c) arises.[28]As to 30A(2)(a), the respondent does not consent to a postponement, so this sub-paragraph does not apply.[29]I have considered whether sub-paragraph 30A(2)(b) applys, that is whether the claimant’s request for the hearing not to proceed was necessitated by an act or omission of another party or the Tribunal.[30]In this context, I have considered the points made by the claimant about the respondent’s disclosure and the bundle. The additional disclosure sent by the respondent to the claimant on 8 August 2019 was sent at 16.45. I note that this was after the claimant had confirmed to the tribunal staff at 13.33 that he would not be attending the hearing. The additional disclosure included the respondent’s disciplinary policy. This had already been sent to the claimant in the course of the disciplinary proceedings, on 29 September 2016. As the claimant had already had this document, I do not consider that the late addition of the document into the bundle would necessitate a postponement of hearing.[31]The additional disclosure also included 5 pages which were screenshots from the respondent’s log in and intranet pages. These were relied on by the respondent as evidence of employees being made aware of (and being able to access) the policy documents which were already in the bundle. These 5 additional pages of disclosure were sent to the claimant by the respondent very late. However, I conclude that given the nature of the documents, the late disclosure of these screenshots would not necessitate a postponement of the hearing.[32]I also considered the claimant’s suggestion that the respondent had failed to disclose any requested documents or had failed to include documents he asked to be included in the bundle. Although this general point was Page 5 of 13 made in the claimant’s email, and he referred to a failure by the respondent to manage and process his personal information or data accurately in accordance with the Data Protection Act 2018, he did not detail or specify any documents which he had asked the respondent to disclose and which had not been disclosed or which he had asked to be included in the bundle but which had not been. There was therefore no basis for me to make a determination that there had been any failing by the respondent to disclose any requested document or to include any particular document in the bundle.[33]I conclude therefore that sub-paragraph 30A(2)(b) does not apply.[34]This means that I can only order a postponement if sub-paragraph 30A(2)(c) applies, that is that there are exceptional circumstances. In considering whether there are exceptional circumstances which would permit an order to postpone the hearing, I also bear in mind the overriding objective to deal with cases fairly and justly, which includes, so far as practicable, avoiding delay so far as compatible with proper consideration of the issues.[35]In considering whether there are exceptional circumstances, I take into account what the claimant says about his ill health. However, I note that he has not provided any medical evidence as to unfitness to attend the tribunal hearing. The claimant was made aware by the tribunal in its letter of 8 December 2017 that a request to postpone a hearing must include a statement from a medical practitioner that the claimant is unfit to attend a hearing.[36]I also take into account the unfortunate history of postponements in this case, which has meant that the full merits hearing is taking place almost three years since the claimant was dismissed, and well over 2 years since he presented his ET1.[37]For these reasons I have concluded that there are no exceptional circumstances that would permit postponement of this hearing under subparagraph 30A(2)(c) of the ET rules of procedure. I also conclude that continuing with the hearing is in accordance with the overriding objective and in particular the objective of avoiding delay, bearing in mind the procedural history, for the hearing to proceed.[38](After I made this decision (during the respondent’s witness evidence) I was handed by the clerk a further copy of the claimant’s email, this time with the attachments. After the conclusion of the respondent’s witness evidence, I considered the attachments and reconsidered my decision not to postpone the hearing. I concluded that there was no further information in the attachments which meant that I should vary or set aside my earlier decision not to postpone the hearing.) Evidence Page 6 of 13[39]At the hearing on 9 August 2019 I heard evidence from the respondent’s witnesses Mr Chestney (the dismissing manager) and Mr Palmer (the respondent’s Policies and Procedures Manager). Both had produced written witness statements which had been sent to the claimant.[40]There was a bundle of 248 pages which had been prepared by the respondent.
Findings of fact
[41]The claimant worked for the respondent as an asset graphical data BIM manager from 25 August 2015. Contract and policy documents[42]The claimant was sent his contract of employment on 15 July 2015. The cover letter advised that he should take the time to read through his contract. The contract itself stated: “These documents together with relevant policies which can be found on the company’s intranet site form your contract of employment.”[43]In relation to notice, the contract provided at clause 21: “The company will give you three months’ notice unless you are dismissed for gross misconduct in which case you will forfeit your right to notice.”[44]In relation to bonus, the contract provided at clause 7: “The company may operate a bonus scheme related to personal and/or company performance from time to time at its absolute discretion. Details of the bonus scheme operated for the calendar year 2015 can be found on the company’s intranet site. There is no guarantee that you will be entitled to a bonus in any year.”[45]There was a separate document about the bonus scheme, the ‘Management Incentive Scheme 2016’. This stated: “3.2 The bonus payment is non-contractual and discretionary based on the success of the company and subject to approval from the remuneration committee… 3.6 Participants who have been dismissed by Heathrow during the period 1 January 2016 to 31 March 2017 will not be entitled to receive payment under the management incentive scheme.” Page 7 of 13[46]The respondent’s policies are included on its intranet to which all staff have access. The claimant therefore had access to the respondent’s policies, including the information security policy, the acceptable use policy and the disciplinary policy. The respondent’s log in screen for all staff (ie the screen which comes up on the computer before every log-in) has a message headed ‘Important Notice’ which says that by accessing and using the computer system they are confirming that they will comply with the information security policy and says that unauthorised use of or access to the computer system may subject the user to disciplinary action.[47]The information security policy makes clear at clause 1.1 that although it refers to email, internet and messaging systems, the spirit of its provisions and the standards of acceptable behaviour apply to all communication systems.[48]Clause 2.1.2 says that ‘undesirable, inappropriate, offensive or illegal emails’ are prohibited and that where breaches of the policy are found, action may be taken under the disciplinary code of conduct and procedures.[49]Clause 2.1.7 of the information security policy tells staff that they must not send emails containing abusive, malicious or offensive language.[50]The policy also makes clear that: “Non-compliance (breach) of this policy may constitute a disciplinary offence and will be dealt with under the Disciplinary Code of Conduct and Procedures, and in serious cases may be treated as gross misconduct leading to summary dismissal.”[51]The respondent’s acceptable us policy provides at paragraph 1.1 that: “IT infrastructure should not be used to record, store, send or in any way use material that is offensive, malicious or which contains inaccurate or bad taste material or harass or bully anyone in any way.”[52]This policy also says that failure to follow the policy will be dealt with under the disciplinary policy.[53]The disciplinary policy itself has a non-exhaustive list of gross misconduct which includes: “Serious and/or deliberate breaches of the company’s policies including IT policies” “Deliberately bringing the good name of the company into disrepute through acts or conduct in either work or personal life.” Page 8 of 13 The ‘Message for you’ document[54]The computer used by the claimant was loaded with a CAD software system which was not on all of the respondent’s computers. For this reason, the computer used by the claimant was also used by others, either physically as it was at a hot desk, or by accessing it remotely.[55]On 5 August 2016, a contractor of the respondent was remotely logged on to the claimant’s computer for the purpose of using the CAD software. On the ‘c’ drive of the computer, the contractor saw a folder called ‘LOOK INTO MY FILES’ and opened it. The folder contained one file which was saved with the name ‘Message for you’. The contractor opened the file.[56]The file was a Word document which said: “I know that there is an asshole LIKE YOU looking into what I am currently INTERNET searching right now and what I write in my emails. If you are monitoring me right now I suggest you go f*ck yourself as I already know who you are as I have already sassed [sic] you out and am monitoring you too. I already know everything about you. Don’t fuck around with an ex-military intelligent [sic] officer; I am not a dumb fuck like you. WATCH YOUR BACK & HAVE A GOOD NIGHT SLEEP BECAUSE I’LL BE WATCHING YOU. YOU WON’T KNOW WHEN YOUR TIME IS UP. BUT I KNOW.”[57]The highlighting was included in the original, the first three lines were highlighted in yellow and the last line in red.[58]The contractor found the content of the file threatening and the language abusive, and reported it to the respondent. A disciplinary investigation was commenced. The contractor participated in the investigation but asked that they be kept anonymous. Disciplinary proceedings[59]The document properties of the ‘Message for you’ document named the claimant as the author of the document. The claimant was suspended on 9 August 2016 pending an investigation. The suspension letter said that there were allegations of serious and/or deliberate breach of the company’s IT and other policies, and of bringing the company into disrepute. Page 9 of 13[60]The respondent’s analysis of the file properties of the document showed that the document was created on 26 April 2016 and last saved on 11 May 2016. There were four revisions of the document. The analysis of data from the claimant’s security pass (used to access the respondent’s buildings and systems) showed that the claimant was at work and using that computer on the date and time the document was last saved.[61]The claimant was invited to an investigation meeting on three separate occasions but chose not to attend. The investigating officer’s report was produced on 22 September 2016 and recommended that the case should proceed to a disciplinary hearing. The claimant was invited to two disciplinary hearings; he did not attend. The disciplinary manager decided that the allegations were proven and that they amounted to gross misconduct. The claimant was summarily dismissed on 18 October 2016. He was not given an any notice or pay in lieu of notice.[62]The respondent held an appeal hearing. This was rescheduled twice at the claimant’s request. The appeal hearing was held on 17 January 2017. The claimant attended. He was asked to explain the message but chose not to do so.[63]At the appeal, the claimant did not deny creating the document. In his ET1, he described it as his personal note.[64]In deciding whether the claimant created the file ‘Message for you’, I have found the following helpful: the analysis of the file properties and the security pass information contained in the investigation report, and the claimant’s response to the allegations including what was said by him in the appeal hearing.[65]Based on that evidence, I find that the document was created by the claimant on 26 April 2016, amended by him and then saved by him in its final form on 11 May 2016. This was the version opened by the contractor on 5 August 2016.[66]Because of the way in which the file was named and saved, and the way in which the document was addressed to a person, I find that the claimant intended that someone (it does not matter whether the claimant had a particular person in mind) to access the file, and that it was not a personal note of his.
The relevant law
[67]Under article 3 of the Employment Tribunals Extension of Jurisdiction (E&W) Order 1994, a claimant who has left their employment may bring a breach of contract claim in the employment tribunal.[68]Wrongful dismissal is an example of a breach of contract. It arises where an employee is dismissed without notice in circumstances where they had an entitlement to notice. Page 10 of 13[69]In cases of dismissal for gross misconduct, to avoid a wrongful dismissal, the burden is on the respondent to show that: 69.1. the claimant committed the alleged misconduct; and 69.2. the misconduct was of a sufficiently serious nature to amount to a repudiatory breach justifying summary dismissal.[70]The approach is not the same as in a complaint of unfair dismissal. It is not sufficient for the employer to demonstrate a reasonable belief that the employee was guilty of gross misconduct. (Shaw v B&W Group Limited UKEAT/0583/11).[71]The question of whether the misconduct was sufficiently serious is a matter of fact for the tribunal to decide. In Briscoe v Lubrizol Ltd [2002] IRLR 607 CA, the Court of Appeal held that the test can be summarised as follows: “Was there a deliberate intention to disregard the fundamental requirements of the contract of employment, or does the conduct so undermine the trust and confidence between the employer and the employee that the employer should no longer be required to retain them?”[72]The conduct must be a deliberate and wilful contradiction of the contractual terms, or amount to gross negligence (Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 1 WLR 698 CA.[73]The terms of the contract of employment and the employer’s policies, and whether the employer has made clear that certain acts will lead to summary dismissal, are also relevant factors (Dietmann v Brent London Borough Council [1988] ICR 842 CA). Conclusions[74]I applied these relevant legal principles to my findings of fact as set out above to decide the issues. Wrongful dismissal (dismissal without notice)[75]First, I remind myself that this is a claim for wrongful dismissal and breach of contract, not a complaint of unfair dismissal. The fairness or sufficiency of the investigation are not issues for me to consider. Instead, I must be satisfied firstly, that the claimant committed the alleged misconduct and secondly, that the misconduct was sufficiently serious to amount to repudiation of the contract.[76]As to the first of these questions, I have found that the claimant committed the alleged misconduct; he does not deny writing the note or give any explanation for it. There is substantial evidence to suggest that the note was written by him and I have found on the balance of probabilities that it was. Page 11 of 13[77]On the second question, I conclude that the claimant’s conduct was sufficiently serious to amount to repudiation of the contract of employment, justifying summary dismissal. I have based this on the following factors.[78]The specific circumstances of the message and the way it was written made the conduct particularly serious for a number of reasons. 78.1. Its content is clearly offensive, using swear words and threatening language. The contractor who read it found it threatening and found the language abusive. They participated in the investigation but asked to be kept anonymous. 78.2. The message was clearly intended for somebody to read and was not a personal note just for the Claimant. The names of the folder and file suggest that he wanted it to be read by another user. I have found that it was deliberately created by the claimant with the intention that someone else should read it. 78.3. The document was created intentionally, worked on on at least two different days, written and saved on different days and amended on four occasions – this was not a one-off or spur of the moment act.[79]The message was in clear breach of the respondent’s IT policies. It used abusive and threatening language. The contract and policy guidance made it clear that this was the sort of conduct which would be treated as gross misconduct and the claimant was, or should have been, aware of this.[80]The document was read by an outside contractor which is a factor which further erodes trust and confidence; it was not just employees of the respondent who saw the document. This gave rise to the element of reputational risk for the respondent which was expressed in the allegation that the conduct brought the company into disrepute.[81]Lastly, there was no explanation or mitigating circumstance put forward by the claimant. He did not for example say that he wrote it because he was unwell. He mentions work-related stress in his appeal letter but that is in the context of an earlier grievance complaint.[82]For these reasons I have concluded that the conduct was sufficiently serious to amount to repudiation of the contract entitling the respondent to summarily dismiss the claimant. There was a deliberate breach of the claimant’s fundamental contractual terms which undermined the respondent’s trust and confidence in the claimant.[83]The complaint of wrongful dismissal therefore fails. Bonus
Claim
[84]The claimant’s contract of employment and the respondent’s bonus scheme documents expressly state that the scheme is not contractual. It is discretionary; there is no guarantee of a bonus. Page 12 of 13[85]Further, the scheme makes clear that there is no bonus payable if an employee is dismissed during the period 1 January 2016 to 31 March 2017. As the Claimant was dismissed during this period, this term applies to him and he has no entitlement to a bonus.[86]The claimant’s complaint of breach of contract in relation to bonus therefore fails and is dismissed.[1]The claimant’s complaints of breach of contract relating to non-payment of notice pay and bonus were decided by me at a hearing on 9 August 2019. The claimant’s complaints were dismissed.[2]The claimant did not attend and was not represented at the hearing on 9 August 2019. He made an application at 17.16 on the evening before the hearing which was described as an application for recusal. I considered the application and decided that I should not recuse myself. The claimant referred to his ill-health in his application although he did not say that he was unfit to attend the hearing and did not include any medical evidence. I considered whether the hearing should be postponed for any of the reasons referred to in the claimant’s recusal application, and decided that it should not.[3]The hearing proceeded and I heard evidence from the respondent’s witnesses. I gave judgment dismissing the complaints. Written reasons were requested; reasons dated 23 August 2019 were sent to the parties on 13 September 2019.[4]The claimant made an application for reconsideration of the judgment. This was refused because it was made more than 14 days after the decision was sent to the parties and the claimant gave no explanation for the delay. Page 1 of 6 The respondent’s application for costs[5]On 11 October 2019 the respondent’s solicitors made a written application for costs against the claimant. The respondent relies on rule 76(1)(a) of the Employment Tribunal Rules 2013; it says that the claimant should be ordered to pay costs because he acted unreasonably in the way in which he conducted proceedings.[6]The conduct of the claimant relied on by the respondent as unreasonable is: 6.1. In his claim form issued on 15 March 2017, the claimant raised complaints which were unclear; he described his complaints as "wrongful dismissal or breach of contract" and said that he was seeking compensation for notice pay, unpaid salary, pay in lieu of holiday and bonus. He made reference to his dismissal being unfair and requested compensation for injury to feelings. 6.2. There were three preliminary hearings. At the respondent's request, a hearing on 22 August 2017 was converted to a public preliminary hearing to clarify the claimant’s claims and to consider an application made by the respondent to strike out the claimant's claim. The claimant did not attend this hearing. 6.3. The second preliminary hearing took place on 11 December 2017. An application for postponement by the claimant was rejected by the tribunal. At this preliminary hearing the claimant’s complaints of unfair dismissal and for holiday and arrears of pay claim were struck out. 6.4. In March 2018 the claimant made an application to amend his claim to include discrimination claims. This was dealt with at a third preliminary hearing on 8 November 2018 which the claimant attended. The claimant's application to amend was refused. 6.5. In November 2018 the respondent sent the claimant a letter which was “without prejudice save as to costs”. This asked the claimant to consider his position and withdraw his claim, and said that if he did not do so the respondent would make an application to the tribunal for an order that the claimant pay all, or a significant contribution to the costs the respondent incurred in defending the proceedings from 6 December 2018. 6.6. The claimant has written to the respondent's legal representatives and the Tribunal in June 2019, August 2019 and in November 2019 accusing the respondent and their representatives of GDPR breaches, discrimination, professional negligence and a failure to properly comply with disclosure, all of which are strongly denied by the respondent and their representative.[7]The respondent relies on a schedule of costs which show that the respondent’s solicitors fees from 6 December 2018 were £15,448.71 plus Page 2 of 6 VAT and counsel’s fees for the hearing on 9 August 2019 were £2,000 plus VAT. The claimant’s response[8]The tribunal sent the respondent’s application to the claimant on 24 November 2019 and invited the claimant to give reasons why the application should not be granted.[9]The tribunal also asked the parties to give their view on whether the application should be decided with or without a hearing. The respondent replied on 9 December 2019 giving its view that the application should be decided without a hearing.[10]On 9 December 2019 the claimant sent objections to the respondent’s application for costs. He did not make any comment on whether the application should be decided with or without a hearing. I decided that it would be proportionate and in line with the overriding objective to decide the application without a hearing. Both parties had sent written submissions. An additional hearing would add to the expenses of both parties.[11]In his objections to the respondent’s application, the claimant said that the costs order should not be granted and: 11.1. That he is a litigant in person; 11.2. That he reserves the right to appeal against the decision of 9 August 2019 and that he does not expect any form of discrimination or professional negligence while pursuing and exercising his access to justice and rights to a fair hearing through the courts; 11.3. That he has been severely affected psychologically (disabled) by the decision to continue with the hearing on 9 August 2019, the judgment and the refusal of his request for reconsideration; 11.4. He would like to exercise his right to access justice without being subjected to judicial conflict of interest or lack of impartiality; 11.5. That the tribunal or members of the judiciary are aware of his severe mental health condition due to his unfair dismissal and he does not expect any form of negligence that will further aggravate severe mental illness and injury to his feelings.[12]The claimant asked the tribunal to consider his objections in the interest of justice and under the principles of natural justice.[13]On 2 February 2020 a hearing in chambers was listed on 26 June 2020 for me to consider the respondent’s costs application; the parties were informed that they did not need to attend. Page 3 of 6 The Law
The Issues
[14]The power to award costs is set out in the Employment Tribunal Rules 2013. Under rule 76(1) a tribunal may make a costs 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 .... the way that the proceedings (or part) have been conducted.”[15]Rules 74 to 78 provide for a two-stage test to be applied by tribunals in considering costs applications under Rule 76. The first stage is for the tribunal to consider whether the ground or grounds for costs put forward by the party making the application are made out. If they are, the second stage is for the tribunal to consider whether to exercise its discretion to make an award of costs, and if so, for how much.[16]In this case the respondent relies on unreasonable conduct as the grounds for the costs application. In determining whether to make an order on the basis of unreasonable conduct, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct (McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA). However, it is not necessary to analyse each of these aspects separately, and the tribunal should not to lose sight of the totality of the circumstances (Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420, CA). At paragraph 41 of Yerrakalva, Mummery LJ emphasised that: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it has.”[17]When considering whether the rejection of an offer of settlement amounts to unreasonable conduct, the tribunal should consider the position of the party whose conduct is said to be unreasonable, and then apply the ‘range of reasonable responses’ test, since there may be more than one reasonable course to take (Solomon v University of Hertfordshire and anor EAT 0258/18) EAT).[18]In costs applications, litigants in person may be judged less harshly than those who are professionally represented (AQ Lted v Holden 2012 IRLR 648 EAT).
Conclusions
[19]I first need to consider whether there are grounds for an award of costs under rule 76(1). The respondent has applied for costs under rule 76(1)(a) on the basis that the claimant acted unreasonably in the way in which he conducted the proceedings. Page 4 of 6[20]I do not consider that the lack of clarity in the claimant’s claim form and the allegations made in correspondence sent to the respondent’s representative and the tribunal amount to unreasonable conduct. In reaching this conclusion I take into account in particular the fact that the claimant was a litigant in person and that he had difficulty in conveying the legal basis of his claims.[21]For the same reason, I do not consider that the claimant’s failure to accept the respondent’s without prejudice offer (to withdraw the claim or face a costs application) was unreasonable conduct. His decision as a litigant in person to continue with his claim to obtain a tribunal judgment was within the parameters of reasonableness.[22]However, I have concluded that two aspects of the claimant’s conduct were unreasonable such that grounds for costs under rule 76(1)(a) are made out. These are: 22.1. The claimant failed to attend the preliminary hearing on 11 December 2017 or to explain why he did not attend. I recorded in the judgment on liability that it had been explained to the claimant on 8 December 2017 that he had to provide a medical statement if he wanted to apply for a postponement on grounds of ill health, but he did not do so. The consequence of the claimant’s failure to attend the preliminary hearing on 11 December 2017 was that the hearing was less effective. One of the matters to be dealt with at the preliminary hearing was the identification and clarification of the complaints being made; it was more difficult to do this without the claimant being present. The claimant’s absence also meant that a further preliminary hearing was necessary, to consider an amendment application which it might have been possible to consider at the hearing on 11 December 2017 if the claimant had attended. As a consequence, additional costs were incurred by the respondent, and the proceedings as a whole took longer. 22.2. The claimant also failed to attend the hearing on 9 August 2019. He made an application that the hearing should not go ahead, but this was made very late, at 17.16 the evening before the hearing, apparently prompted by the call from the tribunal administration to check his attendance. It was unreasonable to make the application so late. The claimant’s application was long and it was unclear what he was asking the tribunal to do. The claimant referred to his illhealth in his application but he did not say that he was not fit to attend the hearing or include any medical evidence (as he had been told in December 2017 would be necessary). The effect of the claimant’s conduct was that a significant part of the hearing was spent by the tribunal considering the application, hearing submissions from the respondent and deciding how to proceed. Further documents arrived mid-way through the hearing, and this necessitated reconsideration of the decision. As a consequence, the hearing was prolonged. Two of the respondent’s managers had Page 5 of 6 attended the hearing to give evidence and had to spend longer at the tribunal while the application was considered.[23]For these reasons, I have concluded at the first stage that the grounds for costs to be awarded against the claimant are made out. I need to consider the second stage, that is whether I should exercise my discretion to award costs and if so what award I should make.[24]In considering whether I should award costs, I have taken into account the costs warning that the claimant was given by the respondent. However, the following factors suggest that I should not exercise my discretion to make an award of costs: 24.1. orders for costs in the employment tribunal remain the exception rather than the rule; 24.2. the claimant is a litigant in person; 24.3. the claimant has referred to his severe mental health condition in his correspondence and, although he has not provided any medical evidence, this seems to me to be an important factor to take into account in the context of a costs application based on unreasonable conduct.[25]I did not take into account the claimant’s ability to pay, as he did not provide any information about this.[26]After weighing up these factors, I have decided not to exercise my discretion to make a costs award. The respondent’s application is refused.