Mr T McCafferty v Mitie Property Services (UK) Ltd: 4100374/2018
JUDGMENT
The judgment of the Employment Tribunal is that the claimant`s complaint of discrimination on the grounds of race succeeds. The remedy to which the claimant is entitled will be determined at a hearing.REASONS
[1]A copy of the claim form setting out the claimant`s complaint was sent to the respondent on 23 January 2018.[2]In accordance with the terms of Rule 16 of the Rules to be found in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the respondent was required to enter a response within twenty eight days of the date on which a copy of the claim was sent to it but failed to do so.[3]The Employment Judge decided that on the available material a determination could properly be made without a hearing as to the liability of the respondent for the claim.[4]The remedy to which the claimant is entitled for the claim will be determined by an Employment Judge at a hearing. Employment Judge: Murdo Macleod Date of Judgement: 09 March 2018 Entered in register: 14 march 2018 And copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100374/2018 Employment Judge: M A Macleod I ? Mr T McCafferty Claimant Mitie Property Services (UK) Ltd Respondent[5]He also attached a copy of an ET3 for which he sought an extension of time for lodging.[6]The application was duly intimated to the claimant’s agent, Margaret Gribbon, of Quantum Claims. She had been engaged in correspondence with the Tribunal relating to the re-listing of the remedy hearing, which had been postponed upon her application given the need to ingather more information to set out the claimant’s position on remedy.[7]On 29 March 2018, Ms Gribbon emailed the Tribunal to say that in light of the respondent’s solicitor’s correspondence dated 27 March 201 8 including a Rule 70 application, she would refrain from completing the date listing stencil for the remedy hearing. No objection to the reconsideration and extension applications was submitted on behalf of the claimant. S/4100374/1 8 Page 3 Discussion and Decision[8]The respondent’s application falls under Rule 70 and the Rules following of the Employment Tribunal Rules of Procedure 2013, in relation to reconsideration, and Rule 20, in relation to the application for an extension of time to lodge the ET3.[9]Under Rule 72, the process to be adopted is set out, wherein if the application has not been refused on initial consideration (as here), the original decision shall be reconsidered at a hearing unless the Employment Judge considers that a hearing is not necessary in the interests of justice. In that event, the parties shall be given the opportunity to make further written representations.[10]In my judgment, this is not a case where a hearing is necessary in the interests of justice. The parties have had the opportunity to make written representations, though the claimant has not submitted any response to the application. The requirement to make further written representations appears to me to be unnecessary in this case, in the interests of justice, in light of the full explanation provided by the respondent’s solicitor in his application, and the absence of any opposition to the application by the claimant.[11]The Tribunal is empowered under Rule 41 to regulate its own procedure and conduct a hearing in the manner it considers fair, having regard to the principles contained in the overriding objective.[12]In light of these provisions, it is my judgment that it is in the interests of justice, and consistent with hearing the case justly under Rule 2 (the overriding objective) to proceed on the basis of the information provided at this stage. It would not be proportionate, nor would it be efficient or save expense, were a hearing to be convened, or parties required to make further submissions. S/41 00374/1 8 Page 4[13]The reason why I have reached this conclusion is that the respondent has set out an explanation for its failure to respond to the claim, and the claimant has not opposed the respondent’s application. There has been no unnecessary delay, and it appears that the respondent has acted as soon as it has become apparent that the claim had been received by them.[14]The explanation given suggests a degree of chaos in the manner in which the matter was handled, but given the size of the respondent’s organisation, and the fundamental problem arising given the incorrect address attributed to them on the ET1 (and no fault is ascribed to the claimant or her representative in this matter), it is understandable that such a sequence of events might befall the respondent. It was unfortunate that the papers were sent by email to an individual no longer employed by the organisation, but there is nothing to suggest that that was other than a genuine error made by the person who sent the email.[15]The respondent wishes to defend the claim. The claim is one which includes allegations of discrimination, and therefore bears a degree of gravity.[16]It is therefore my judgment, in all the circumstances, that it is necessary in the interests of justice to grant the respondent’s application to reconsider the Judgment of 14 March 2018 for the reasons set out above. As a result, the Judgment of 14 March 2018 is revoked.[17]It follows, then, that the application for an extension of time to present the ET3 is granted. The ET3 is taken to have been received as at the date of this Judgment. S/41 00374/1 8 Page 5[18]It is now appropriate that the case be listed for a Preliminary Hearing for the purposes of case management in order to make progress with the proceedings. Employment Judge: M Macleod Date of Judgment: 12 April 2018 Entered in register: 23 April 2018 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100374/2018 Mr T McCafferty Claimant Mitie Property Services (UK) Ltd Respondent