Mrs C Fairbairn v Easyjet Airline Company Ltd: 4101656/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4101656/2022

Between

Mrs C FairbairnClaimant

Easyjet Airline Company LtdRespondent

Before

Employment Judge Porter

Date 15 July 2022

REASONS

1 . The claimants remain employees of the respondents. The claims brought by them in these proceedings are resisted and there was a Preliminary Hearing (“PH") on case management on the 6th June 2022 at which the claimants’ representative (Mr Maisey) identified the claims as claims of breach of contract, unpaid wages and holiday pay. ETZ41WR)

[2]At that PH Further and Better Particulars of the claimants’ claims were ordered and the case was set down for a Preliminary Hearing on time bar to take place on the CVP Kinky platform.

[3]The Further and Better Particulars were intimated by the claimants on the 26 June 2022. The Further and Better Particulars identified the claimants’ claims as being claims under Regulation 5 of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Hearing on time bar took place on the 14th July 2022.

[4]The Preliminary At the PH the claimants were represented again by Mr Maisey of the Cabin Crew Union UK and the respondents were represented by Ms Greenley, barrister.

[5]At the outset of the PH there was discussion on the Further and Better Particulars submitted by the claimants. It was agreed that these identified new claims. After taking instructions Ms Greenley did not oppose the same as an amendment of the existing pleadings. The claimants’ claims of breach of contract, unpaid wages and holiday pay were accordingly dismissed.

[6]At the PH evidence was heard from Cheryl Fairburn only. Parties made reference to a bundle of documentation numbered 1-100.

[7]An oral Judgment was delivered on the 14tn July 2022. On the 28 tn July 2022 solicitors instructed by the claimants asked for written reasons. Findings in Fact

[8]It was not in dispute that agreement was reached between the respondents and Unite the Union to introduce a minimum number of non working days for part time staff such as the claimant. This agreement was intimated to the parties on the 10 th September 2021 and implemented on the 1 st of October 2021. The Tribunal had no reason to disbelieve the evidence of Ms Fairbairn that at the material time cabin crew had difficulty accessing their emails; however the Tribunal observed that the changes implemented by the agreement reached by Unite the Union on their behalf must have been apparent to the claimants given the change in rosters that took place from 1 st October 2021.

[9]Neither was it in dispute that in the period prior to and after 1 st October 2021 all cabin crew including the claimants had access to legal advice via Unite the Union and the Cabin Crew Union UK. The Tribunal observed that in the time period of 3 months from 1 st October 2021 the claimants were aware of cabin crew employed by the respondents in Glasgow raising Tribunal proceedings under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 against a similar factual matrix.

[10]On the 25th November 2021 7 of the 8 claimants raised a collective grievance concerning the number of part time days worked by them compared to full time colleagues during the period prior to the implementation of this agreement. The grievance was investigated and the outcome intimated on the 15 th December 2021 . The claimants were unsuccessful in their grievance in that the respondents concluded that looking back over a 3 year period the claimants had in fact been available to work proportionately fewer days than the number of working days set out in full time contracts; and that, further, payment for days off for part and full time staff were subject to a separate agreement with Unite the Union which they concluded resulted in no historical unfairness.

[11]The claimants commenced early conciliation on 13 th January 2022 and an ACAS Certificate was issued on 23 rd February 2022.

[12]Ms Fairbairn gave evidence that she contacted ACAS with a view to raising proceedings on 21 st December 2022. She then provided ACAS with the history to this dispute. The Tribunal found Ms Fairbairn overall to be a credible witness; however the Tribunal found it difficult to believe that in the course of discussions with ACAS on the 21 st December 2022 discussions on the issue of time bar did not take place.

[13]ACAS then sent links by email to Ms Fairbairn with a view to her commencing proceedings on behalf of the other claimants. The Tribunal accepted that the links sent were not for the bringing of a multiple but were for the bringing of an individual action only. Ms Fairbairn took no further action in the matter until 7th January when she contacted ACAS again and 6 days later (on the 13 January 2022) the Early Conciliation Certificate was issued.

[14]The explanation given by Ms Fairbairn for the delay in raising proceedings was that she believed that time started to run from the date of lodging the claimants’ grievance being the 25th November 2021. Again, whilst the Tribunal found overall Ms Fairbairn to be a credible witness the Tribunal did not find it credible that she was unaware of the fact that time began to run after the changes to the claimants’ contract were implemented on 1 st October 2021. The Tribunal reached this conclusion having regard to the fact that Ms Fairbairn had access to advice from 2 unions; that she was aware of similar claims being raised by Glasgow colleagues and that she had contacted ACAS on 21 st December 2022 within the 3 month time limit and then had a discussion about the claims.

[15]The Tribunal observed that it would have been of assistance to hear evidence from additional claimants. However Mr Maisey chose to lead evidence from Ms Fairbairn only.

[16]Regulation 8 of the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 provides that an Employment Tribunal shall not consider a complaint unless it is presented before the end of the period of 3 months beginning with the date of the less favourable treatment or detriment to which the complainant relates. The Regulation also provides that a Tribunal may consider a complaint which is out of time if in all the circumstances of the case it considers that it is just and equitable to do so.

[17]The “just and equitable” discretion is a wide discretion. However, the onus remains on claimants to persuade a Tribunal that the extension should be granted (Robertson v Bexley Community Centre

[2003] IRLR 434

: Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

[18]In essence the discretion is a question of fact and judgment to be answered by the Tribunal of first instance which is empowered to answer it. There is considerable case law on the “just and equitable” extension; however if there is a matter in which the appellate authorities are united it is that the exercise of the just and equitable discretion is one for the Tribunal to exercise at first instance with only a limited scope to challenge the exercise of that discretion on appeal.

[19]Adedeji v University Hospitals Birmingham gave guidance to Tribunals in determining whether to grant the just and equitable extension. The Tribunal concluded that, from the caselaw, relevant factors are the length of and reasons for the delay; the prejudice which each party would suffer as a result of granting or refusing to grant an extension; and the potential merits of the claim. Discussion and Decision

[20]The Tribunal considered firstly the length of and reasons for the delay. The Tribunal noted firstly that the delay itself is relatively short being a matter of weeks. However on the Findings in Fact the Tribunal were not satisfied that adequate reasons had been given for that delay. To this end the claimants must have been aware of their course of action at the latest by 1 st October 2021 when the changes to the Contract of Employment were implemented. They were also aware that similar proceedings had been raised by part time cabin crew based in Glasgow. The claimants at all time had access to advice from 2 unions.

[21]Further, during the critical period between the outcome of the grievance and this case being time barred only one call was placed by Ms Fairbairn to ACAS and she did not contact them again until 7 th January 2022. The Tribunal noted that there was a further delay before the Early Conciliation Certificate was requested and granted on 13 January 2022.

[22]The Tribunal then proceeded to determine the important issue of prejudice. On the one hand the claimants face the undoubted prejudice of being unable to pursue their claim. Against this, the Tribunal observed it was not in dispute that if the claimants were allowed to engage in their claim the respondents would have to engage in detailed scrutiny of historic rotas which would involve considerable manpower.

[23]In considering the issue of prejudice, the Tribunal noted that whilst this factor is of importance it is not, in itself, determinative of whether the Tribunal should exercise their just and equitable discretion to extend time.

[24]Finally, the Tribunal considered the merits of the claim. To this end, the Tribunal noted that at the PH on the 6 th June 2022 Mr Maisey submitted that the claimants intended to take legal advice from a barrister in early course.

[25]The Tribunal noted that the claimants have had 2 opportunities to articulate their claim. The Tribunal agreed with the respondents that notwithstanding this opportunity the claim before the Tribunal remains unclear and unspecified. In particular, there is no adequate specification of the periods over which the claimants claim less favourable treatment; no comparator is specified; and further clarity is required the basis of the claim for each contractual element in respect of which less favourable treatment is alleged. Remedy remains unspecified. 4MW56/22 Page 7

[26]In all of these circumstances it is the decision of this Tribunal that the claimants have failed to discharge the onus upon them. The Tribunal concludes that it is not just and equitable to extend time in all the circumstances of this case.

Introduction

[1]In these proceedings the claimants bring claims under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In terms of an oral judgment of the 14 July 2022 the claimant’s claims were dismissed for want of jurisdiction. Written reasons were requested by the claimant’s solicitors and were intimated to the parties on the 9 August 2022. ETZ4(WR)

[2]The claimant’s solicitors requested a reconsideration of the written reasons by correspondence of the 19 August 2022. This request was opposed by the respondents in terms of their correspondence of the 25 August 2022.

[3]As both parties were in agreement that the application could be determined on written submissions only, a Hearing Date of the 13 September 2022 was listed to determine the application on those submissions. The Hearing Date was intimated to parties on the 29 August 2022. The parties thus had the opportunity to provide any additional submissions they chose to make in the timeframe between the 29 August 2022 and the 13 September 2022. “Interests of Justice”

[4]In terms of Rule 70, a Tribunal will only reconsider a judgment where it is “necessary in the interests of justice to do so.”

[5]In Outasight VB Ltd v Brown 2015 ICR D11 EAT, Her Honour Judge Eady QC accepted that the words “necessary in the interests of justice” in Rule 70 allows employment tribunals a wide discretion to determine whether reconsideration of a judgment is appropriate in all the circumstances. However, the discretion must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.” (para 33)

[6]A Tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ in accordance with Rule 2. This includes: ensuring parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay; and saving expense. The Application for Reconsideration

[7]The claimant’s application for reconsideration of the 19 August 2022 was made in two parts being firstly, the reason for the delay and secondly, the issue of prejudice. Delay

[8]The Tribunal considered firstly the issue of the reason for the delay. To this end, the claimant’s solicitors state that “From the reasons given for the decision, it did not appear to have been asked of Mrs Fairbairn why she believed the time limit ran from the lodging of the grievance, or what particular advice she had received about time limits. We therefore argue that the decision has been made on the assumption that Mrs Fairbairn would have been advised on the specifics of the time limits and should have known time began to run from 1 October 2021: a matter which would not be obvious to her as a lay person.”

[9]The Tribunal commenced its deliberations by observing that(i) at the PH on the 14 July 2022 the claimants had professional representation by Mr Simon Maisey of Cabin Crew Union UK;

(ii) there are eight claimants in total in this action- it was the decision of Mr Maisey to call only one claimant to give evidence, namely Mrs Fairburn and

(iii) in any event this overlooks the fact that at the material time the claimant had access to advice from two Trade Unions.

[10]The Tribunal concluded that the evidence on delay could well have been expanded; however it was the decision of the claimants’ representative to predicate the case on the evidence which he led before the Tribunal.

[11]After having regard to these observations, the Tribunal concluded that it is not in the interests of justice to reconsider the judgment on the grounds of the evidence on delay; and that in these circumstances the public interest requirement of finality of litigation must prevail.

[12]In reaching this decision the Tribunal had regard to the fact that in any application for reconsideration the onus remains on the claimants to persuade a Tribunal that the extension should be granted (Robertson v Bexley Community Centre

(2003) IRLR 434

; Adedeji v University Hospitals Birmingham NHS Foundation Trust

(2021) EWCA Civ 23

– cf para 19 of the written reasons). To this end the Tribunal were entitled to conclude, as they did, that the evidence of Mrs Fairburn did not discharge that onus. Prejudice

[13]In determining whether to exercise the ‘just and equitable’ discretion, the Tribunal was guided by the case of Adedeji. To this end, the Tribunal concluded that, from the caselaw, relevant factors to take into account are the length of and reasons for the delay; the prejudice which each party would suffer as a result of granting or refusing to grant an extension; and the potential merits of the claim (cf para 20 of the written reasons). The Tribunal noted that this approach does not appear to be challenged by the claimant’s representative.

[14]The Tribunal observed that, following the approach taken in Adedeji, the issue of prejudice whilst of importance is not, in itself, determinative of whether the Tribunal should exercise their just and equitable discretion to extend time.

[15]In the application for a reconsideration the claimants’ solicitors query para 22 of the written reasons and state that the phrase “engage in detailed scrutiny of historic rotas which would involve considerable manpower” is an overestimation of the prejudice that the respondents would face due to the fact that similar claims have been raised by colleagues of the claimants in Glasgow and also due to the fact that the claimants had raised a collective grievance prior to the inception of these proceedings. The Tribunal noted that these assertions are disputed by the respondents in their submissions in that they say that the claims for less favourable treatment under the Part-Time Worker Regulations 2000 require detailed analysis of the working time for each individual claimant and that to refute these claims it is necessary to consider the individual circumstances of each claimant.

[16]The Tribunal observed that this disputed issue in fact was not explored in evidence or submissions by the claimants at the PH on the 14 July 2022 and that the claimants were content that this reconsideration be determined by written submissions only. Against that background the Tribunal considered that they were entitled to accept the submissions of the respondents on this point at the PH on the 14 July 2022 and that principle of finality of litigation must prevail.

[17]In the application for reconsideration, the claimant also raises the point that esto this exercise requires to be carried out, the respondents are a FTSE 250 company with in excess of 10,000 employees and that the prejudice to them in carrying out this exercise is minimal compared to the prejudice to the claimants in not being able to carry out their claims. For their part, the respondents state that size and listing of the respondents does not mean it has indefinite resources to conduct this exercise.

[18]The Tribunal noted that the resources of the respondents was not an issue that was raised in evidence or submissions by the claimants at the PH on the 14 July 2022. Against that background it is not for the Tribunal to presume that a FTSE 250 company would have indefinite resources to scrutinize historic rotas for refuting Tribunal claims. In these circumstances the Tribunal were entitled to accept the submissions of the respondents on this point at the PH on the 14 July 2022. Again, the principle of finality of litigation must prevail.

[19]The claimants’ solicitors submit that the failure to properly articulate their claim should be “given less weight with regard to the issue of time bar.” From this, the Tribunal noted that it is not in dispute that this is a factor that can be taken into consideration. The failure on the part of the claimants to properly articulate their claim was considered by the Tribunal as one of several relevant factors in refusing to extend time in this case. To this end the Tribunal observed that by the PH on the 14 July the claimants had had two opportunities to properly articulate their claim but had failed to do so and that throughout the proceedings, they had the benefit of representation by Mr Maisey (cf para 25 of the reasons).

[20]Finally, the Tribunal noted that the claimants submit that the level of prejudice suffered by the claimants in not being allowed to advance their claims is significantly greater than the prejudice suffered by the respondents. The Tribunal observes that if this were a determinative factor then every application for reconsideration by a claimant would succeed. To this end, the Tribunal noted that such an outcome would be inconsistent with the public interest requirement that there should be finality of litigation.

[21]It is for all these reasons that the claimants’ application for reconsideration is refused. Employment Judge: Jane Porter Date of Judgment: 14 September 2022 Multiple Schedule Multiple: 4100203 - Easyjet Airline Company Limited Case Number Case Name 4101656/2022 Mrs Cheryl Fairbairn -v- Easyjet Airline Company Limited 4101657/2022 Miss Claire Bartlett -v- Easyjet Airline Company Limited 4101658/2022 Mrs Nicola Mann -v- Easyjet Airline Company Limited 4101659/2022 Miss Julie Finlayson -v- Easyjet Airline Company Limited 4101660/2022 Mrs Andrea Milne -v- Easyjet Airline Company Limited 4101661/2022 Mrs Julie Shaw -v- Easyjet Airline Company Limited 4101662/2022 Mr Mark Priestley -v- Easyjet Airline Company Limited 4101663/2022 Mrs Hazel Samson -v- Easyjet Airline Company Limited