Mrs O Swieca v Unique Employment Services Ltd: 3328632/2017 and others
JUDGMENT
[1]The judgment of the tribunal is that the claim is dismissed.[2]The claimant’s application for an adjournment in order to make an application to amend the claim is refused.REASONS
[1]By a claim form presented on 29 October 2017, the claimant made a claim for Statutory Maternity Pay. In a response dated 22 November 2017, the respondent disputed the claimant’s entitlement to statutory maternity pay.[2]On 3 November 2017, notice of a preliminary hearing case management was sent to the parties. The hearing was scheduled for Tuesday 3 April 2018 at 2.00pm.[3]On 27 January 2018, notice of extension of hearing was sent to the parties indicating that the hearing had now been allocated three hours to hear the evidence and decide the claim. Various directions were given concerning disclosure, agreed bundle and witness statements. The time of the hearing was changed to 10.00 am.[4]The claimant and her husband were not in attendance at 10.00 am today. They were contacted and were still under the impression that the hearing was scheduled for 2.00 pm. The start of this hearing was delayed in order to allow them to attend.[5]The claimant has indicated that she did not receive that notice of extension of hearing. From the file that I have it would appear that copies were sent by email to the claimant’s husband’s email address on 12 February 2018. He has indicated that he did not receive those documents.[6]I have been provided today with a bundle of documents. One of these is headed Particulars of Claim at page 22 of the bundle. This had not previously been served on the Employment Tribunal, but had been sent to the respondent on 12 February 2018. Within that document reference is made by the claimant to the preliminary hearing notice scheduling the preliminary hearing for 3 April 2018 at 2.00pm in Watford. In the circumstances, I am prepared to accept that the notice of this hearing being a full merits hearing was not received by the claimant.[7]The claim as currently constituted is a claim for entitlement to Statutory Maternity Pay. Although jurisdiction is not challenged in the respondent’s response form, in an email dated 15 March 2018, Mr Carr, on behalf of the respondent, did challenge the jurisdiction of the Employment Tribunal to determine eligibility for Statutory Maternity Pay. In an email dated 15 March 2018, the claimant asserts that her claim was extended by submitting further particulars of claim along with remedies sought by the claimant. This is a reference to the Particulars of Claim document in the bundle. The matter was considered and Employment Judge Manley directed as follows: “The case remains listed on 3 April 2018, any preliminary matters of jurisdiction or applications to amend can be made at the outset. If necessary and proportionate the Judge may decide to postpone the final hearing depending on the outcome of the preliminary matters. If time permits, the Judge may decide it is proportionate to determine all matters.”[8]As far as jurisdiction is concerned the relevant facts are as follows:-8.1 The claimant applied to HMRC for a determination that she was entitled to Statutory Maternity Pay. In the bundle I have a letter from HMRC dated 14 December 2017, which states “as you appear to have met all the qualifying conditions, your employer is liable to pay the SMP due.”8.2 The respondent invited HMRC to reconsider the preliminary decision and I have been shown today a letter dated 27 February 2018 which states:- “It is therefore my decision that Mrs Swieca is not entitled to SMP and you are correct not to pay.”8.3 The claimant has indicated to me today that that decision is currently on appeal and has yet to be determined.[9]I have been provided with the case of Hair Division Ltd v Mrs Lisa MacMillan appeal no. UKEATS/0033/12/BI.[10]In that judgment, the Honourable Lady Smith determined at paragraph 37:- “The code for determination of disputes must apply as much to SMP as it does to SSP and it is one which excludes the jurisdiction of the Employment Tribunal.” I am bound by that authority and consequently I have determined that the claim as currently made is doomed to failure as the Employment Tribunal does not have jurisdiction to determine eligibility for Statutory Maternity Pay.[11]During the course of this hearing, the claimant made an application to adjourn the hearing in order to allow the claimant to formulate and make an application to amend her claim form and apply for an extension of time.[12]Any application to adjourn a hearing is a matter of discretion for myself taking into account all the circumstances of the case. I have taken into account the fact that the claimant appeared today seemingly unaware that it was a full merits hearing and expecting a preliminary hearing to include an application to amend the claimant’s claim. In preparation for that the claimant has submitted an agenda for case management that was received by the Employment Tribunal on 29 March 2018. This sets out the complaints that are brought as follows:- “No provision of employment particulars Unlawful non-payment of SMP Unlawful non-payment of antenatal care Unlawful non-payment of wages and annual leave Sex discrimination Unfair dismissal”(told to me today to be on the basis of pregnancy related)[13]To an extent those claims may be echoed in the Particulars of Claim document contained in the bundle. The Particulars of Claim document was never sent to the Employment Tribunal and is not on file, although, as I have said, it was sent to the respondents on 12 February 2018. The claim for Statutory Maternity Pay is in the sum of £6,364.86. The schedule of loss attached to the claimant’s agenda for the preliminary hearing claims a total of £169,100. The proposed amendments are significant in substance and value.[14]Thus it is that at this hearing listed for a full merits hearing, there is not a properly particularised draft amended claim before me.[15]The decision I must make is whether I should grant the application to adjourn this hearing to allow the claimant to draft an amended claim, make an application to amend accompanied no doubt with reasons why time should be extended, which in turn would necessitate the respondent putting in an amended response. A further preliminary hearing would then need to be listed to determine issues relating to extension of time, prospects of success and possibly a Deposit Order. The alternative is not to grant the adjournment and allow the claimant to take such action as she sees fit to issue a fresh claim to deal with the claims she now wishes to make. I make clear that the claims that the claimant now wishes to make are not contained within the current claim and so an issue of res judicata would not arise.[16]Although I am not deciding on the application to amend, I take note of the relevant factors that would come into play when determining whether or not such an amendment should be allowed. Those factors are required in order to exercise my discretion taking into account the balance of hardship and injustice. The nature of the amendment is relevant and it has been said that 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. In this case the nature and extent of the likely amendments are very significant. The applicability of the time limits has to be taken into account and clearly, on any of the application to amend, the claims are well out of time. Lastly the timing and manner of the application are to be taken into account. In actual fact the application is being made at the full merits hearing, but I do take into account the fact that the claimant was not aware that this was a full merits hearing.[17]Nevertheless, even if this was a preliminary hearing, it would have been open to the Employment Judge to dismiss the claim as the Employment Tribunal lacks jurisdiction as it is currently constituted.[18]One factor I do take into account is that if I were to adjourn these proceedings and put in place directions for draft amendments and responses, this would entail the respondent in further time and expense in relation to these proceedings.[19]Taking into account the overriding objective and proportionality, I have decided that it would not be in the interest of justice to adjourn this hearing to allow the claimant to seek permission to amend her claim. In my judgment, this claim should be dismissed and if the claimant wishes to bring a further claim in relation to the very substantial new matters, then she will have to issue a new claim, deal with any time issues and that will be dealt with in due course.[1]The claimant has applied for reconsideration of my reserved Judgment and Reasons dated 17 December 2020 and sent to the parties on 21 January 2021 following a three-day hearing on 21 to 23 September 2020 (the third day in chambers).[2]By rules 70-73 of the Employment Tribunals Rules of Procedure 2013, parties may apply for reconsideration of judgments made by a tribunal. The sole ground upon which a judgment may be reconsidered is that it is necessary in the interests of justice to reconsider it.[3]Rule 71 provides that an application must be sent within 14 days of the date on which the decision was sent to the parties. The application must be in writing and must set out why reconsideration of the original decision is necessary.[4]By rule 72(1), the application to have a decision reviewed shall be considered, where practicable, by the employment judge who made the decision, or who chaired the tribunal which made the decision. The judge shall refuse the application if he considers that there is no reasonable prospect of the decision being varied or revoked.[5]In her application of 15 pages (86 numbered paragraphs), the claimant seeks a reconsideration of the tribunal’s decision on the asserted grounds that can be more generally categorized as: a) making incorrect findings of fact; and b) failing to apply the law correctly.[6]Much of the claimant’s application is seeking to challenge the factual conclusions I reached on the evidence before me. As I made clear in my Judgment and Reasons, I did not find the claimant to be a credible witness. In short, I regarded much of her evidence and her assertions to be, quite simply, unbelievable (or rather “implausible” – see paragraph 15). I reached the findings that I did after careful consideration and analysis of all the evidence (including all the documentary evidence) before me. The claimant’s assertion that I have applied the law incorrectly is for the most part dependent on the proposition that I have reached incorrect findings of fact. In essence it is a challenge based on the premise that I reached findings of fact that happened to be favourable to the respondent’s case and not that of the claimant.[7]I should add that I wholly reject the assertion made by the claimant in her second unnumbered paragraph headed “Introduction”. Having reviewed the file, the claimant made an application to postpone the hearing on 9 September 2020 by email. The reason given was that the COVID restrictions in place did not allow individuals to attend such a Hearing. She did not make any mention of having COVID symptoms at that time. That application was refused by the REJ on the basis that attendance at the tribunal hearing was a lawful excuse under the relevant Regulations imposing restrictions. On 17 September 2020 she applied for reconsideration of that decision based primarily on a repeated assertion that attendance at the tribunal was not permitted under the Regulations even though the REJ had explained previously that it was lawful. Again there was no mention or suggestion that the claimant was suffering COVID symptoms in her communications. In response to the reconsideration request, EJ Manley informed the parties that the REJ’s previous decision regarding the postponement request remained in place and that the hearing would proceed as listed. Accordingly, it does not appear there was any such ‘note’ produced in advance of the Hearing.[8]In any event, the claimant did not display any obvious signs of illness (COVID19 or otherwise) throughout the two days she was present at the tribunal and appeared entirely able to function properly during her evidence and the Hearing generally. Furthermore, the claimant did not produce sufficient medical evidence to this effect either at the start of the Hearing, on day two of the Hearing or subsequently.[9]Putting aside the issue of relevance, paragraph 44 (and sub-paragraphs 44a to 44g) is one example of an attempt within the reconsideration application to introduce new evidence or expand upon existing evidence that was available at the time of the hearing. I am satisfied that it is not appropriate for the tribunal to consider this further information nor does it provide grounds for reconsideration of the tribunal’s decision in the ‘interests of justice’ (r70 of the Employment Tribunal Rules 2013) not least because it should have been produced in advance of the hearing and, in any event, has no material bearing on the facts or decision that I have reached.[10]I reached my unanimous findings of fact and Judgment on the basis and in the light of all the evidence presented at the Hearing. Having carefully considered the claimant’s application for reconsideration I am satisfied that it is no more than an attempt by the claimant to re-litigate, without proper cause, an entirely reliable decision that is not to her liking.[11]The fact that the decision went against the claimant and that she was unsuccessful in persuading me otherwise is no basis for me reconsidering my decision.[12]I have therefore, for the reasons given above, decided to reject this application for reconsideration. I do so because there is no reasonable prospect of the Judgment being varied or revoked.