Mr S Wilson-Roberts v Network Rail: 3334623/2018
JUDGMENT
The claim is struck out because it was submitted out of time and the Tribunal does not have jurisdiction to hear it.REASONS
[1]This is a claim for unfair dismissal following the claimant’s dismissal for gross misconduct. The claimant was dismissed for, amongst other things, falsifying a safety record; that is stating in a document that safety tests had been undertaken on the rail network when they had not been. The claimant was dismissed on 13 July 2018 and his claim form was presented to the tribunal on 5 November 2018. The claimant lodged a further claim form on 1 January 2019 effectively providing further and better particulars of his first claim, stating that at the relevant time of the misconduct he was suffering from stress, that he had been treated unfairly compared to his depot supervisor and that the respondent had not taken into account his employment history of 27 years when applying the sanction of dismissal.[2]The respondent subsequently made an application that the claim be struck out on the grounds that it had been presented out of time and/or that it disclosed no reasonable prospect of success and/or that a deposit order should be made on the grounds that the claim disclosed little prospect of success. 1 of 3[3]The claimant was and is represented by his Trade Union representative, Mr Raymond Marney. Notice of today’s open preliminary hearing was sent to Mr Marney and to the respondent’s representatives by letter of 31 March 2019. I was also informed that the Watford Tribunal Office had left a telephone message with Mr Marney on Friday 9 August 2019 reminding him of today’s hearing. However, at the hearing today both the claimant and his representative failed to attend. When the claimant was telephoned he said that he had no knowledge of the hearing and was unable to attend today because he was at work. Having heard submissions from the respondent’s counsel, Mr Oduje, and in view of the fact that the claimant’s representative had had proper notice of the hearing I decided to proceed in the claimant’s absence. It will be a matter for the claimant as to whether he subsequently decides to make an application for a reconsideration of this judgment.[4]As regards to the question of whether the claim was submitted out of time, Mr Oduje submitted that allowing for the early conciliation period the claim should have been presented by or on 3 November 2018 but had not been presented until 5 November 2018. Further, although 3 November 2018 was a Saturday this made no difference because the non-working day rule does not apply in the tribunal. In support of this proposition he cited Miah v Axis Security Services Ltd – a judgement of Judge Eady QC, sitting in the EAT, of 23 March 2018. He said the claim had been presented out of time, there was no reason why it could not have been presented in time and it could therefore not be said that it was not reasonably practicable for the claim to have been presented in time. Accordingly, the tribunal had no jurisdiction to hear it. His alternative submission was that the claim had no reasonable prospect of success, the respondent is a safety critical industry and the claimant had admitted falsifying a safety report, which was plainly a matter that justified his dismissal. There was no factual dispute, the procedure had been fair and a qualitative assessment of the claim was capable of being made. Alternatively, the claim had little reasonable prospect of success and a deposit order should be made.[5]My conclusions are that it appears from the file that there is no dispute as to when the claim form was presented, i.e. the 5 November 2018, and that it should have been presented by or on 3 November 2018. Although 3 November 2018 was a Saturday, in the case of Miah v Axis Security Services Ltd Judge Eady QC held that rule 42 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 does not apply to s.111(2) of the Employment Rights Act 1996. Further, the claimant has not suggested any reason in his amended claim form of 1 January 2019 (or subsequently) why it was not reasonably practicable for him to have submitted his claim form by 3 November 2018. It therefore follows that the claim form was presented out of time and that the employment tribunal does not have jurisdiction to hear it. It is therefore struck out on this basis. 2 of 3[6]I would add that I would not have been minded to strike the claim out on the basis that it had no reasonable prospect of success on its merits, however I would have been minded to make a deposit order on the basis that the claim has little reasonable prospect of success.[1]The claimant was dismissed on 13 July 2018 for, amongst other things, falsifying a safety record; that is stating in a document that safety tests had been undertaken on the rail network when they had not been. His claim form was presented to the tribunal on 5 November 2018. He lodged a further claim form on 1 January 2019 effectively providing further and better particulars of his first claim, stating that at the relevant time of the misconduct he was suffering from stress, that he had been treated unfairly compared to his depot supervisor and that the respondent had not taken into account his employment history of 27 years when applying the sanction of dismissal.[2]The respondent subsequently made an application that the claim be struck out on the grounds that it had been presented out of time and/or that it disclosed no reasonable prospect of success and/or that a deposit order should be made on the grounds that the claim disclosed little prospect of success. This application was heard at a Preliminary Hearing on 12 August 2019.[3]Notice of that hearing was sent to Mr Marney, the claimant’s Trade Union representative, and to the respondent’s representatives by letter of 31 March 2019. However, both the claimant and his representative failed to 1 of 4 attend. When telephoned, the claimant said he had no knowledge of the hearing and was unable to attend because he was at work.[4]I considered the application in the claimant’s absence and concluded that his claim should have been presented by 3 November 2018. I found that it had therefore been presented out of time and the employment tribunal did not have jurisdiction to hear it. The claim was struck out.[5]On 2 September 2019 the claimant sent an email to the Tribunal stating that he was not aware of the date of the hearing because his representative had in March 2019 sent an email to him (the claimant) and to the respondent’s solicitors stating that he was no longer representing the claimant and that all further correspondence should be sent directly to the claimant.[6]I informed the parties that this email would be treated as an application for reconsideration of a judgment by the claimant pursuant to rule 71 of the Employment Tribunals Rules of Procedure 2013. The Respondent was asked to provide any response to the claimant’s application within 14 days and to inform the Tribunal whether it considered the application could be determined without a hearing. The claimant was also asked to inform the Tribunal within 14 days whether he thought his application could be determined without a hearing. Unfortunately, due to an administrative oversight, this direction was not sent to the parties until 23 November 2019.[7]In the meantime, the claimant had sent another email to the Tribunal dated 20 November 2019 in which he reiterated that he had not been aware of the hearing date of 12 August 2019. He stated that the original hearing date for the Preliminary Hearing was cancelled on 6 March 2019 (due to the non-availability of a judge) and that in between the original date of the hearing and the new rearranged date, his representative had ceased to act for him and had notified the Tribunal and the respondent that all correspondence regarding the claimant’s case should be sent directly to him. That email attaches an email dated 8 January 2019 to Emma Doble of the respondent’s solicitors in which Mr Marney states that “he believes Sebastian will be having solicitors representing him with regards to the tribunal hearing but have no contact details for them…It would be better for you that all future correspondence is done via him and his solicitors and not addressed to me as I may not have the relevant information.”[8]The respondent’s solicitors responded to the Tribunal’s direction of 23 November 2019 by letter and email of 27 November 2019 stating that it had not received any correspondence from Mr Marney in March 2019 advising that he was no longer representing the claimant, and further that if Mr Marney had informed the claimant of this, the claimant should have informed the Tribunal. It therefore submitted that the claimant’s representative was given proper notice of the hearing and that a further hearing was not required.[9]I decided that it was not necessary for the claimant’s application for a reconsideration to be determined at a hearing. Each party was given until 4pm on Friday 17 January 2020 to make any further written representations. 2 of 4[10]The respondent responded by email dated 21 January 2020 effectively stating that it had already written to the Tribunal with its comments by email dated 27 November 2019.[11]The claimant responded by email dated 17January 2020. He stated that he was informed by his union that Mr Marney was not going to represent him anymore, and that Mr Marney sent him an email to this effect and stating that he was going to send the same email to the respondent’s solicitors and to the Watford Tribunal. In support of this contention the claimant relied on the email he had previously sent to the Tribunal on 20 November 2019 (attaching the email from Mr Marney of 8 January 2019). The claimant further stated that it had become apparent that Mr Marney had not carried out his duties correctly and did not send an email to the Tribunal.CONCLUSIONS
[12]The issue is whether it is necessary in the interests of justice to reconsider the original judgment striking out the claimant’s claim. I have come to the conclusion that it is necessary to do so.[13]On the basis of the evidence and chronology set out above, I accept that the claimant was genuinely not aware of the hearing and that he would have attended the hearing had he been aware of it. Further, I also accept that the reason he was not aware of the hearing is not, primarily, his fault.[14]In this latter respect, the claimant’s assertion that Mr Marney told him via email that he, Mr Marney, was going to inform Tribunal and the respondent’s solicitors that he was no longer representing the claimant is only partially borne out on the evidence, in that I have not seen such an email from Mr Marney to the claimant. Nevertheless, it is clear from the email of 8 January 2019 from Mr Marney to the respondent’s solicitors that Mr Marney informed them that he was not intending to represent the claimant going forward, and that all correspondence should be addressed to the claimant. Although the claimant should have ensured that the Tribunal was made aware of the position, I consider that it is reasonable of him to have assumed that Mr Marney would have done that, given that Mr Marney was, until that point, his representative and had taken it on himself to inform the respondent.[15]It is therefore in the interests of justice that the original judgment be revoked. However, the claimant is alerted to the fact that the same decision (to strike out his claim) may be taken again following the re-hearing of the respondent’s application(s).[16]The respondent’s application to strike out the claim on the grounds that it was presented out of time and/or that it stands no reasonable prospect of success, and/or for a deposit order on the grounds that the claim stands little prospect of success, should therefore be relisted. The time estimate for the re-listed hearing is 3hrs and the parties should come prepared to agree case management orders for the further conduct of the case, should the claim not be struck out. 3 of 4CONCLUSIONS
[1]These Reasons should be read with all earlier Judgments and Orders.[2]This was an Open Preliminary Hearing that I listed on 12 June 2020 to consider whether or not to strike out the Claimant’s claim because it was out of time and/or because it had no reasonable prospect of success.[3]The law is set out in S.111 Employment Rights Act 1996:- 111 Complaints to employment tribunal(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.(2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Case Number: 3334623/2018 (V)[4]It was common ground that the Claimant’s claim was presented two days later than it should have been.[5]When I asked the Claimant to tell me why he had presented his claim late he replied to say, “I misinterpreted it, I was working hard, there’s no excuse for it. I thought I had a long time but it come round quickly.” and “I’m very sorry, I didn’t take it seriously.”[6]I have had regard to the following guiding principles:- Wall's Meat Co Ltd v Khan [1978] IRLR 499, Lord Denning, quoting himself in Dedman, 'It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the matters to be considered include:- The substantial cause of the claimant's failure to comply with the time limit; Whether there was any physical impediment preventing compliance, such as illness, or a postal strike; Whether, and if so when, the claimant knew of his rights; Whether the employer had misrepresented any relevant matter to the employee; Whether the claimant had been advised by anyone, and the nature of any advice given; and whether there was any substantial fault on the part of the claimant or his adviser which led to the failure to present the complaint in time.[7]In light of the what the Claimant told me he has failed to satisfy me on the balance of probabilities that it was not reasonably practicable for him to present his claim in time.[8]The Claimant’s claim must be dismissed because there is no jurisdiction to hear it.