Mr N Navaratnam v BP (MRH Ltd) and others: 3400537/2017
JUDGMENT
The complaints of unfair dismissal, unpaid wages and holiday pay are struck out.REASONS
Conclusions
[1]By a letter dated 4 April 2018 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the complaints should not be struck out because they had not been actively pursued.[2]The claimant has failed to make representations in writing why this should not be done or to request a hearing. The complaint of unfair dismissal, unpaid wages and holiday pay are therefore struck out.[1]On 17 May 2017 the claimant presented claims of unfair dismissal, unpaid wages, and a claim for outstanding holiday pay against the above respondents. The claim was accompanied by an early conciliation certificate which name the prospective respondent as “MRH Linford Wood”. The proceedings were served on the three named respondents. The hearing date of 21 September 2017 was fixed to hear the claims. The response served on behalf of the first and second respondents denied that the claimant was at any stage employed by either respondent and further raised the issue of jurisdiction applying the provisions of S.13A of the Employment Tribunals Act 1996 on the basis that the early conciliation certificate was not obtained against any of the named respondents to the proceedings and accordingly the Tribunal has no jurisdiction to consider the claims. The first and second respondents requested the Employment Tribunal list a preliminary hearing to determine both jurisdiction and the identity of the correct respondent.[2]On 2 August 2017 a response was received from the third respondent. The third respondent admitted it was the claimant’s employer and took the point of jurisdiction there being no early conciliation certificate issued against the named third respondent. The third respondent defended the claims for the factual reason set out in the response, disputing the claimant’s factual allegations, and sought a jurisdictional hearing because of the S.18A Employment Tribunals Act 1996 on prevention.[3]An application was made by the first and second respondent by letter dated 14 August 2017 for a preliminary hearing to determine the jurisdictional issue. That letter does not appear to have been responded to by the Tribunal. On 12 September 2017 an application was made on behalf of the third respondent for the one-day hearing of the claims listed for 21 September 2017 to be postponed and re-listed over two days. That letter does appear to have been responded to in that on the direction of an Employment Judge the hearing fixed for 21 September 2017 was postponed to a date to be fixed and the claimant was ordered within 7 days to provide the correct full name and address of his actual employer.[4]On 19 October 2017 the Tribunal received a letter from Adi Sivalingam Legal Consultancy Ltd stating that organisation was instructed to act for the claimant. By letter dated 25 November 2017 the parties were notified that the hearing had been re-listed for two days for 24 and 25 April 2018.[5]On 22 December 2017 the first and second respondents made an application for the claim to be struck out in accordance with Rule 37(c) and 37(d) of the Employment Tribunals Rules of Procedure 2013, the claimant having failed to respond to the Tribunal in making it clear who his former employer was and further stating that the issue of jurisdiction should be determined at a 2 hour preliminary hearing and the two day hearing vacated.[6]On 11 February 2018 on the direction of Employment Judge Sigsworth a copy of the respondent’s representatives letter of 14 August 2017 and Tribunal letter dated 14 September 2017 were sent to the claimant’s representative with a direction that the claimant respond by the 19 February 2018.[7]On 15 February 2018 an Employment Judge directed that the third respondent be served with the proceedings and a further direction was given by an Employment Judge requesting a copy of the claimant’s letter of employment when commencing his employment together with any payslips in his possession.[8]By letter dated 16 February 2018 the claimant’s representative responded to the Tribunal stating “Mr Navaratnam has confirmed to the best of his knowledge his employer was BP MRH (Ltd) and JS Thurai Ltd”. That letter appears to have simply been placed on the file and not copied to any party.[9]On 23 March 2018 on consideration of the first and second respondent’s representatives letter of 19 March 2018 setting out details of the claimant’s failure to provide a copy of the letter of employment and payslips as requested by the Tribunal I directed that a strike out warning be sent to the claimant providing until the 9 April 2018 for his to reply and the strike out warning stating that consideration was being given to strike out because the claim was not being actively pursued. That instruction was not actioned by the administration until the 4 April 2018 and the administration of their own volition extended time until the 13 April 2018.[10]The file was referred to me on 20 April 2018 there having been no response from the claimant to the strike out warning and accordingly by judgment of that date the claims for unfair dismissal, unpaid wages and holiday pay were struck out because they were not being actively pursued. The hearing listed for 24 and 25 April was vacated although there is no record on the administration file that this was ever communicated to the parties in writing.[11]On 24 April the claimant attended the hearing and was informed that the proceedings had been struck out. An application was then made on 30 April 2018 on behalf of the claimant, received by the Employment Tribunal on 2 May 2018, for reconsideration of the judgment dismissing the proceedings. The thrust of the reconsideration application was that the claimant was unaware the proceedings had been struck out, not having received a judgment from the Employment Tribunal and further explained that the claimant had not complied with the order to provide copy payslips because the claimant had received wages in cash without a payslip. A witness statement provided with the application for reconsideration set out further details of the alleged lack of any documentation from the claimant’s employer accompanying payment in cash of his wages. It is clear from that witness statement that the claimant accepts that employment had transferred under the provisions of the Transfer of Undertakings Regulations to the third respondent JS Thurai Retail Ltd. Although it is not directly relevant to the matters I have to consider in connection with the reconsideration application the claimant in that witness statement denies that there was any theft on his part from a customer’s wallet, the alleged theft being the pleaded basis for dismissal.[12]That application was copied to the respondent on my direction. On 28 August 2018 I directed that the respondents notify the Tribunal whether they were content for the reconsideration application to be dealt with (it not having been refused by me under the provisions of Rule 72(1)) without a hearing on the basis of written submissions, giving the parties to the 14 September 2018 to make their written submissions.[13]Inexplicably the file was not subsequently referred back to me by the administration for consideration until 26 November 2018. I was extensively committed across the South-East Region in December and was unable to consider the reconsideration application until 27 December 2018, the date on which I am dictating these reasons.Conclusions
[14]Having fully considered the application in this case and applying the overriding objective given that the claimant’s case is that he was never provided with any written payslips or other documentation by the third respondent, and it was his failure to provide those payslips and comply with the Tribunals letter of 23 January requiring he provide copies of his payslips, the basis of the subsequent strike out warning of 4 April 2018, it is in my view in the interests of justice to set aside the judgment of 20 April 2018 and to reinstate the claims.[15]Given that in an email dated 19 October 2018, referred to me by the administration on 26 November 2018, the third respondent’s representatives state:[1]We are instructed to inform the Tribunal that with effect from 4 July 2018, JS Thurai Limited relinquished the franchise to BP MRH Limited.[2]We are also instructed that the JS Thurai Limited commenced voluntary winding up proceedings which process was completed on 29 August 2018.[3]Further, Markel Law are no longer instructed in this case, therefore the Tribunal is respectfully requested to direct any enquiry to Mr Jegatheepan Sinnathurai who has been added as a recipient; it appears appropriate to leave at this stage as respondents to the proceedings not only the third respondent but also the first respondent BP (MRH Ltd). 16. However, it is also clear to me on a thorough reconsideration of the file, (and it is unfortunate that the earlier applications made by the respondents in this request were simply not actioned) to list a preliminary hearing to consider the jurisdiction issues applying the provisions of S.18A of the Employment Tribunals Act 1996. That must be dealt with before any substantive claims can be listed for hearing. This should have been actioned before and I regret that it was not done. I accordingly direct that a preliminary hearing with a time allocation of 2 hours be listed to consider whether applying the provisions of S.18A of the Employment Tribunals Act 1996 the Tribunal have jurisdiction to deal with these claims if the requirements of early conciliation have not been applied with in that no early conciliation certificate has been obtained against a named respondent to these proceedings. Applying the overriding objective it appears to me proportionate in those circumstances that the remaining respondents may well wish to provide written representations for consideration by the Tribunal at that preliminary hearing and not actually attend the hearing.[1]The background to consideration of the jurisdiction point applying the provisions of Section 18A of the Employment Tribunals Act 1996 was set out in a judgment on reconsideration together with reasons sent to the parties on 16 January 2019. I do not propose to repeat in detail in giving my reasons today what is set out in that judgment. However, it was clear from paragraph 16 of those reasons that on a thorough reconsideration of the file, (and I record again that it is unfortunate that early applications made the respondents in this request were simply not actioned), it was necessary to list today’s preliminary hearing to consider the jurisdiction issues applying the provisions of Section 18A of the Employment Tribunals Act 1996.[2]The requirements of that legislation were helpfully set out in the document provided by Mr Navaratnam’s solicitor today, namely that before instituting relevant proceedings a prospective claimant must provide prescribed information to ACAS in order that the mandatory requirements of pre-action conciliation are met.[3]The requirements of the contents of an early conciliation certificate , to be found at rule 8 of the Schedule to Regulation 5 of the Employment Tribunals ( Early Conciliation: Exemption and Rules of Procedure ) Regulations 2015 include the requirement that it must contain the name and address of the prospective claimant and the name and address of the prospective respondent , the date of notification to ACAS of early conciliation , the unique reference number of the early conciliation certificate and the date upon which it was issued.[4]Mr Navaratnam worked at a petrol station forecourt in Milton Keynes, as a cashier, initially for BP Express Shopping Limited, and the premises are located at 7 Saxon Street, Milton Keynes, MK14 6PBP.He was dismissed from his position as cashier on 25 March 2017 due to, as set out in his ET1 “False allegation of theft made against me”. He presented a claim to the Employment Tribunal on 17 May 2017 bringing claims of unfair dismissal, for holiday pay and for unpaid wages, accompanied by an Early Conciliation Certificate.[5]In this case the early conciliation certificate correctly records the claimant’s name and address, and it was issued by ACAS on the 2 May 2017. It describes the prospective respondent as “MRH Linford Wood, Saxon Street, Linfordwood, Milton Keynes, Buckinghamshire MK14 6PB. The claim form names a number of respondents, the first being MRH Ltd (BP) and the second being BP (MRH) Linford Wood. The addresses given in the ET1 for those two respondents are respectively Vincent House, 4 Grove Lane, Epping, Essex CM164LX (a different address to that contained in the early conciliation certificate) and for the second respondent, namely BP (MRH) Linford Wood the address of BP Saxon Street, Linford Wood, Milton Keynes, Buckinghamshire MK14 6PB, the same address as in the early conciliation certificate.[6]The point on early jurisdiction was raised in responses that were sent in on behalf of the first and second respondents. Those responses stated that neither the first or second respondent are legal entities or trading names or other identifiable entities, and that the location at which the claimant worked is owned by Malthurst Ltd which falls within a group of companies of which MRH (GB) Ltd is the parent company, Malthurst being a separate legal entity, and that neither Malthurst Ltd or Malthurst Ltd MRH (GB) Ltd employed the claimant. The responses stated that Malthurst Ltd owned the site at which the claimant worked, a petrol station, but that the site was operated by JS Thurai Retail Ltd who employed staff to operate the petrol station. Subsequently a third respondent was joined to the proceedings; JS Thurai Retail Ltd and their position is that in their response they accepted that they were the claimant’s employer at the time of his dismissal and for the reasons set out in their response they disputed that there was any unfairness in his dismissal.[7]As I have previously stated and as is explained in the reasons to the judgment sent to the parties on 16 January 2019 there have been unacceptable delays in the administration of this file and the matter I am dealing with today should have been dealt with way back at the beginning of these proceedings, but I am now able to deal with it today.[8]Other matters I should mention by way of general background is that in correspondent on the file it appears that JS Thurai Retail Ltd are insolvent Documentation was sent to the Tribunal by Mr Brotherton of Croner Consulting representing MRH GB Ltd, which company has effectively given instructions for the responses which were presented on behalf of the first and second named respondents, but which is a company which was not a named respondent in either the early conciliation certificate or the claim as presented. MRH GB Ltd stated in an email that the claimant was employed by JS Thurai Retail Ltd and that subsequently there was a TUPE transfer of that business on the 4 July 2018 (which post-dates the claimant’s dismissal which was on the 25 March 2017) to a company called SLR Salon Ltd and in turn there has been a further transfer from SLR Salon Ltd to Glen and Freda Trading Ltd.[9]Mr Navaratnam has given evidence today as to why he believed his employer was either of the first or second respondents and has also had an opportunity to explain why the early conciliation certificate was obtained in the name of MRH Linford Wood. Mr Navaratnam’s first language is Tamil and he has had today the benefit of a Tamil interpreter, Ms Lanchelian. His evidence is that initially he was employed at the service station by BP Express Shopping Limited and there were no issues arising whilst that company was his employer. His evidence to me is that that changed in 2016 and he says that MRH GB Ltd then became his employer. I asked him whether he had any documentation which confirmed any payments to him by that employer. He told me that he had not received any payslips and that he was paid by a mix of cash and by payments direct into his bank account, but he has not produced any bank statements which would assist an audit trail as to the identity of the employer. He simply said, when I asked him that yes it was MRH GB Ltd.[10]I asked how he was aware of a change of his employer from BP Express Shopping Limited to MRH GB Ltd and he said that there was a document posted up on the notice board at his place of work, but he did not have copy of any document with him or any other documentary evidence. I asked him who gave him instructions at work after the change of employer on a day-today basis to see if that could assist in getting to the bottom of who the employer was. He said that that instructions were given to him by a white person, but he did not know their name.[11]I asked him about the circumstances of his dismissal. He told me that he was dismissed in the course of a telephone conversation by somebody called Mr Dilan, but he said that Mr Dilan was somebody that he had not had any previous dealings with, but he believed they were part of MRH Ltd. He was unable to explain why that was his belief or what it was based on. I asked him why the early conciliation certificate was in the name of MRH Linford Wood but he was not unable to give any substantive response to that beyond that he thought “Everybody was working through Linford Wood”.[12]I asked Mr Navaratnam whether the name JS Thurai Retail Ltd meant anything to him because that company having been added as a respondent to the proceedings they accepted in their response to the proceedings that they were his employer. He said he had no knowledge of them.[13]Mr Navaratnam’s solicitor argues that the early conciliation certificate is a valid one and, in that connection, relies on the judgment of His Honour Judge David Richardson handed down on 13 September 2017 in the case of Mr V C De Mota against(1) ADR Network(2) The Co-operative Group Ltd case number UKEAT 0303-16-1309. I accept that case is authority for one early conciliation certificate covering more than one respondent but the difficulty I have to address is whether it could be said that the differences between the early conciliation certificate obtained in the name of MRH Linford Wood and the names of first and second respondents against whom the proceedings were issued , is something that it is simply a minor matter of an inaccurate name or whether it is more substantial than that . Mr Navaratnam has not provided any evidence to day to show that either the first or second respondent in these proceedings is an extant legal entity or, if either were, that they had any direct connection with J S Thurai Retail Ltd.[14]The other factor I must consider is that there is no evidence before me, other than Mr Navaratnam’s assertions, that MRH Linford Wood, MRH LTD (BP) or BP (MRH) Linford Wood were ever his employer. There is nothing by way of documentary evidence to show that any payments form any entity of that name, or a variation of that title, made any payment to Mr Navaratnam for work done by him at the petrol station. However, what is supported by the documentation I have seen is that the first and second respondents were not his employer but that JS Thursi Retail Ltd was. That is confirmed by JS Thurai Retail Ltd in their response to the claim. They refer to their acquisition of the site form BP Express Shopping Limited on 5th September (which is consistent with Mr Navaratnam’s account of a transfer by BP) and accept that they the claimant’s contract of employment transferred to JS Thurai Retail Limited on 5 September 2016.[15]In their response to the claim J S Thurai Retail Ltd set out the detail of the alleged dishonesty on the part of the claimant, namely the theft of monies from a till and the hiding of a customer’s wallet, actions which the third respondent says were recorded in CCTV recordings. The response set out who investigated the allegations, opportunities given to Mr Navaratnam to attend a disciplinary hearing and how and by whom the decision to dismiss was arrived at. The response stated that the dismissal was confirmed to the claimant in writing and that he was given an opportunity to appeal which he did not exercise. None of that was put to the claimant to comment on by his solicitor in the hearing before me, and one might expect it to be if, as is the case, Mr Navaratnam does not accept that JS Thurai Retail Ltd were his employer. I do not find Mr Navaratnam’s assertion that he does not know of J S Thurai Retail Ltd to be credible, nor do I find it credible that he has been unable to provide any documentary evidence such as payslips or bank statements to show from whom and when monies were paid into his bank account , which was he told me a part of how he was paid. . I am satisfied that on a balance of probabilities Mr Navaratnam’s employer at the time of his dismissal was the third respondent J S Thurai Retail Ltd.Conclusions
[16]The claimant’s employer at the time of his dismissal having been J S Thurai Retail Ltd the early conciliation certificate was obtained in the name of entities neither of which were the correct respondent to these proceedings. I have taken into account that the address from which the correct respondent J S Thurai Retail Ltd traded and where Mr Navratnam worked namely Saxon Street Linfordwood Milton Keynes Buckinghamshire was correct. Were J S Thurai a linked company to MRH LTD (BP) or BP (MRH) Linford Wood then it could be argued that the spirt of early conciliation had been complied with in that the claim had been notified to one company, linked to another, the actual employer, and that therefore they were aware or could reasonable have been expected to be aware of the proceedings. This is not a situation such as that which existed in Drake International Systems Ltd and ors v Blue Arrow Ltd 2016 ICR 445 EAT where a claimant completed the EC procedure in respect of a parent company and sought to amend when the parent company indicated that the correct respondents were four of its subsidiary companies. J S Thurai Retail Ltd is not a subsidiary of the first and second named respondents. 17.JS Thurai Retail Limited is a distinct and separate legal entity, who became the Mr Navaratnam’s employer when they acquired the petrol station business at Saxon Street Linfordwood from BP Express Shopping Ltd who, Mr Navaratnam appear to accept, certainly to the extent of it being “BP”, were his original employer at the site. The early conciliation certificate having failed to contain the name of the prospective respondent, in this case the claimant’s employer, the requirements of Section 18A of the Employment Tribunals Act 1996 have not been complied with and accordingly the Tribunal has no jurisdiction to consider the claim and it must be dismissed.