Ms R Scott v PJGH Ltd T/a Papa Johns: 4100031/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4100031/2020

Between

Ms R ScottClaimant

PJGH Ltd t/a Papa JohnsRespondent

Before

Employment Judge M Robison

Date 7 September 2020

JUDGMENT

[1]The judgment of the Employment Tribunal is that claimant’s claims for sex discrimination and equal pay under the Equality Act 2010 are withdrawn and dismissed.

[2]This case will proceed to be listed for a three day in person final hearing on the outstanding claims relating to unfair constructive dismissal, notice pay, failure to provide particulars of employment and the Working Time Regulations. ETZ4(WR) NOTE OF PRELIMINARY HEARING ON CASE MANAGEMENT ISSUES

[1]At a case management preliminary hearing which took place by way of telephone conference call on 20 May 2020, the respondent was ordered to provide further details of their defence, and that was sent in by Mr Haidar by e-mail on 2 June 2020.

[2]The claimant Miss Scott was required to lodge further details of her claim, which she did in an e-mail dated 10 June 2020. In that e-mail she stated that she was withdrawing the sex discrimination part of her equal pay claim, but claiming that she was entitled to “the same equal pay for work of equal value” as two other managers, one of whom is female.

[3]As it was not clear to me what the claimant intended by that statement, I ordered this case management preliminary hearing by telephone conference call to be listed. Parties were advised that the issue for consideration at this case management preliminary hearing was: 1. whether the claimant intends to pursue her claim for sex discrimination; 2. whether the claimant intends to pursue an equal pay claim based on undertaking “like work” with named comparator(s) (i.e. whether the jobs of the claimant and a male comparator are the same or broadly similar); 3. and/or whether the claimant intends to pursue a claim of “equal pay for work of equal value” and which comparators she says her job was of equal value with (i.e. whether the jobs are different but the role and responsibilities are such that she should have got paid the same as a male comparator).

[4]The claimant was invited to research the position so that she could confirm her intentions following further discussion at this telephone hearing.

[5]At the outset of the call, the claimant advised that having looked into the matter she had decided that she would withdraw her claim for sex discrimination and equal pay. These claims are accordingly dismissed.

[6]I explained that the case will now be listed for a final hearing, as set out in the preliminary note of 20 May, as the position has not changed since that time and this case is not deemed suitable for a remote hearing.

[7]The Tribunal will therefore proceed to consider the claimant’s claims of unfair constructive dismissal, for notice pay, for failure to provide written particulars and for breaches of the Working Time Regulations at that final hearing on dates to be appointed.

[8]Mr Haidar re-iterated that it is his position that the claimant was not employed but rather he was self employed. He thought that the position with regard to any benefits claimed by the claimant would confirm the position, but Ms Scott said that she had claimed benefits before but not during her time working for the respondent.

[9]I now realise that Mr Haidar was referencing the orders issued by the Tribunal at the preliminary hearing on 20 May (a copy of which are annexed to this judgment for ease of reference). For the avoidance of doubt, the reference there to the requirement for Miss Scott to lodge information about benefits claimed relates to the position after she was dismissed.

[10]I explained to Mr Haider, and this applies to Miss Scott, that these were matters which were disputed, and will require to be decided by the Tribunal, and could not be decided at this telephone hearing. I explained to Mr Haidar that he will require to send in all documentation which he says proves that Miss Scott was self-employed. These documents will require to be sent in to the Tribunal 28 days before the dates listed for the final hearing, as set out in the orders issued on 20 May, a copy of which is attached for ease of reference. Miss Scott will also require to send in all of the documents which she intends to rely on, as directed in the Tribunal orders dated 20 May 2020.

[11]This case should now be listed for a three day in person final hearing before a judge sitting alone.

[12]Unfortunately in person hearings are not yet being listed in light of the Presidential Direction on the Covid-19 Pandemic, but parties should expect to receive a notice of hearing as soon as it is possible for these to be issued. Employment Judge: Muriel Robison Date of Judgment: 15 July 2020 ORDERS ISSUED 20 MAY 2020 Under Rule 29 of the Employment Tribunals Rules of Procedure 2013, the following case 5 management orders are issued for the purpose of the final hearing in the above proceedings:-

[1]The respondent will provide to the claimant within 14 days of this case management preliminary hearing further details of their defence to the claim, that is by 3 June 10 2020.

[2]No later than 28 days prior to the final hearing, the parties shall provide copies to each other of any documents upon which they intend to rely.

[3]Each party shall prepare a set of documents, in chronological order and with numbered pages, incorporating all documentary productions intended to be referred 15 to at the hearing, and shall bring to the hearing the required number of copies as indicated in the Notice of Hearing.

[4]The claimant shall send to the respondent, copied to the tribunal, within the next 21 days, (by 10 June 2020 at the latest), a written statement with supporting documentation setting out:-(a) what the claimant seeks by way of remedy if the claim succeeds.

(b) if the claimant seeks the remedy of compensation, how much is sought in respect of each complaint with a detailed explanation of how each sum is calculated; 25

(d) a summary of jobs applied for, details of any interviews attended or jobs obtained and details of any income whether from temporary, casual or permanent employment or self-employed work;

(e) details of any other efforts made by the claimant to minimise her loss 30 5. The claimant shall provide to the respondent, with a copy to the tribunal, no later than 7 days before the final hearing, an updated written statement of the calculation of the sum claimed (together with copies of supporting documentation). 35 Notes: (1) You may make an application under Rule 29 for this Order to be varied, suspended or set aside. Your application should set out the reason why you say that the Order should be varied, suspended or set aside. You must confirm when making the application that you have copied it to the other party(ies) and notified them that they should provide the Tribunal 40 with any objections to the application as soon as possible. (2) If this order is not complied with, the Tribunal may make an Order under Rule 76(2) for expenses or preparation time against the party in default. (3) If this order is not complied with, the Tribunal may strike out the whole or part of the claim or response under Rule 37.

REASONS

[1]Following two case management preliminary hearings a final hearing was set down in this case to take place in person at the Glasgow Tribunal Centre.

[2]At the case management preliminary hearing which took place by telephone conference call on 20 May 2020, case management orders in regard to ETZ4(WR) 2 4100031/20 Page 2 preparation for the final hearing were issued. That final hearing was not be an in person hearing and parties were advised that the hearing was unlikely to be listed before September.

[3]At a further case management preliminary hearing which took place on 15 July, and a copy of those case management orders annexed to the note of the preliminary hearing.

[4]The Notice of Final Hearing was sent to parties by e-mail on 7 August 2020. Specifically, the Notice of Hearing was sent to the claimant at her e-mail address.

[5]Mr Haidar for the respondent received that e-mail. He subsequently sent five e-mails on 17 August 2020, copied to the claimant at that address, consisting of the productions upon which he intended to rely at this hearing. He received no response from the claimant.

[6]Mr Haidar made an application for the claim to be dismissed, on the grounds that the claimant had not attended, and had not responded to his e-mails. He also argued that the documentation he had lodged proved beyond reasonable doubt that the claimant was self employed.

[7]The claimant did not attend to represent herself at this hearing or to pursue her claim. I noted that the claimant had not complied with the case management orders regarding the exchange and lodging of documents. I noted that she had not responded to the respondent’s e-mails forwarding productions.

[8]In these circumstances, I decided that the claim should be dismissed. I explained to Mr Haidar that I was dismissing the claim for these reasons, and not because I had taken any view on the evidence which he had lodged. In order to do so, I would require to hear evidence from him, and from the claimant.

[9]It subsequently transpired that the claimant had sent an e-mail to the Tribunal dated 4 September at 16.46, copied to the respondent, advising that she had heard nothing from the Tribunal since she had made a request for advice. It appears from this e-mail that the claimant was not aware that of the dates of the final hearing, despite the e-mail having been sent to the same e-mail address, as well as the various documents from the respondent. 2 4100031/20 Page 3

[10]In the event that the claimant has a valid reason why she did not attend the hearing, or comply with the case management orders, then she should make an application for this decision to be reconsidered.