Mr C I Nunez Medina and others v Rox Hotel LLP: 4102738/2020 and Others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102738/2020
Between
Mr C I Nunez Medina & OthersClaimantRox Hotel LLPRespondent
Before
Employment Judge J M HendryDate 2 March 2022
JUDGMENT
The Tribunal refuses the Respondent’s application for strike out as not being well founded and allows the Claimant Mr Nunez Medina to amend the ET1 to add his Early Conciliation number.
REASONS
[1]This matter came before the Tribunal on the 3 December 2020 when the Respondent’s agent’s application for strike out was considered at a CVP E.T. Z4 (WR) hearing. That hearing also dealt with case management matters which are recorded in a separate Note.[2]The factual position was straightforward and not in dispute. Staff at the Rox Hotel lodged what is commonly known as a ‘multiple’ claim seeking payment of various sums such as accrued wages and redundancy payments. Mr Medina as the Manager organised this for the staff. He also had claims. He completed the ET1 without legal advice. The claims were defended.[3]An objection was taken to Mr Nunez Medina’s claim by the Respondents who had observed that he had not lodged the application along with an ACAS Early Conciliation Certificate Number (‘EC’ number). He had not been included in the Schedule submitted to ACAS when a ‘‘multiple’’ number had been assigned. In fact, he had applied on his own behalf and had obtained a valid ACAS Certificate.[4]The Respondents defended the claims that were being made and lodged an ET3. Strike out application/amendment[5]Both parties had set out their legal position in correspondence specifically in the Claimants’ representative’s email of the 4 September (JB25) and 19 October (JB27 ) and the Respondents’ e-mail of 6 October 2020 (JB26).[6]Ms Fraser at the outset indicated that her position was that Mr Nunez Medina was in the same position as one of the Claimants in the case of Walsh v. Govia Thames Link Railway Ltd and that I should adopt the reasoning of the Employment Judge there to allow his claim to proceed. In that case, one of the Claimants, Mr Brooks was in an analogous position to that of Mr Medina. It was held there that Mr Brooks was entitled to rely on the group claim and also on his own ACAS Certificate. The Claimant’s representative asked me in particular to consider paragraphs 4, 5, 7, 15, 17, 20, 21 and 22 of the Judgment. She also relied on section 3 of the Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 Regulation 3 which allows parties to join a validly raised group or multiple claim.[7]Mr Morris referred me to his submissions contained in correspondence. He accepted that a summary of his clients’ position was that the failure by Mr Nunez Medina to make reference to his Early Conciliation Certificate in the ET1 meant that the claim in so far as it related to him had not been properly raised. There was no continuing process in relation to the claim on his behalf. I asked if he was taking any point in relation to there being any difference in the fundamental acts being relied on by the Claimants and Mr Medina. He accepted that the claim arose out of the same matters. However, his position was that Mr Nunez Medina could not use the section the way Ms Fraser intended.[8]I put to him that the situation here was that irrespective of Mr Nunez Medina’s position there were continuing proceedings and I queried whether or not he accepted that I had power to allow amendment either to allow the Conciliation Certificate to be added to the process or indeed the Claimant to be added. His position was that amendment was not an appropriate procedure as it was an amendment on behalf of the current Claimants and Mr Medina had no locus to make such an application.[9]Mr Morris referred me to the recent case of E.ON Control Solutions Ltd v Caspall UKEAT/0003/19/JOJ which confirmed that if an inaccurate Early Conciliation number was used the Tribunal had no discretion except to reject the claim.[10]The law was, he said, to be judged at the point at which the claims were made namely in May 2020. The claimant could not take advantage of the recent change in the rules ( October 2020) which allowed the Tribunal to rectify minor errors. The Tribunal had no option but to reject the claim (Sterling v. United Learning Trust UKEAT/0439/14). The claim form submitted on behalf of the first Claimant without the correct Early Conciliation Number fell, he said, within the scope of those claims described under Rule 12(1)(c) and must be rejected under 12(2). The Claimant did not fall within the scope of Rule 12(2)(a) and accordingly the Tribunal has no discretion in the matter.[11]Ms Fraser had also referred me to her email of 4 September. She had set out various facts there which were accepted by both parties as not being in dispute. She also made reference to the Caspall which in her submission had no bearing on the current situation because there was a valid “properly instituted claim on which Mr Nunez Medina could rely. She also made reference to the reasoning in the case of Walsh & Others v. Govia Thames Link Railway Ltd which is available on the Employment Tribunal Website. In that case one of the Claimants, Mr Brooks, was not noted in the Group ACAS Certificate. The Certificate reference on the ET1 was relied on by him. Mr Brooks undertook conciliation within the time periods and initiated the ACAS Early Conciliation Process. His ACAS Certificate Number was not noted on the ET1 form. In that case Mr Brooks claims were allowed to proceed on the basis of the exemption set out in Regulation 3(1)(a) allowing on Mr Brooks to rely on the Group Conciliation Certificate despite that he was not noted in the schedule of names on the Group ACAS Conciliation Certificate.[12]Mr Morris had responded by email on 6 October (JB26) to Ms Fraser’s submissions and pointed to the requirement for the Tribunal to reject the claim and indicating that to do otherwise would not be to follow the statutory regime. Mr Morris submitted that in terms of Regulation 3(1)(a) which allows a prospective Claimant to present a claim in relevant proceedings without having participated in Early Conciliation applies only in prescribed cases (Section 18(a)(7) ET 1996) and Regulation 3 of the Early Conciliation Regulations. None of these prescribed cases apply in his view. The Walsh case was he concluded not binding authority. Discussion and Decision[13]Since 2014 Claimants are required to take part in a process called Early Conciliation and the issue by ACAS of an Early Conciliation (‘EC’) number is a necessary preliminary to being able to raise Tribunal proceedings (Section 18A of the Employment Tribunals Act 1996). The Tribunal also has to have regard both to the Employment Tribunal Rules and to the Regulations contained in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (‘‘Exemption Regulations’’).[14]Rule 2.2 of the Tribunal Rules (the Overriding Objective) provides: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a). ensuring that the parties are on an equal footing; (b). dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c). avoiding unnecessary formality and seeking flexibility in the proceedings; (d). avoiding delay, so far as compatible with proper consideration of the issues; and (e). saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[15]Rule 6 addresses “Irregularities and non-compliance”. The Rule provides that: “6. A failure to comply with any provision of these Rules (except rule 8(1), 16(1), 23 or 25) or any order of the Tribunal (except for an order under rules 38 or 39) does not of itself render void the proceedings or any step taken in the proceedings. In the case of such non-compliance, the Tribunal may take such action as it considers just, which may include all or any of the following— (a). waiving or varying the requirement; (b). striking out the claim or the response, in whole or in part, in accordance with rule 37; (c). barring or restricting a party’s participation in the proceedings; (d). awarding costs in accordance with rules 74 to 84.”[16]The Tribunal Rules also set out the process for starting a claim ( Rules 8- 14). Rule 8 states: “(1). - A claim shall be started by presenting a completed claim form (using a prescribed form) ….”[17]In Rule 10, provision is made for a claim to be rejected. The Rule is headed “Rejection: form not used or failure to supply minimum information”. At Para (1), it provides in mandatory terms that a Tribunal “10.- … shall reject a claim if- (a). it is not made on a prescribed form; (b). … (c). it does not contain all of the following information- (i). an early conciliation number; …” If the form is missing this information it is required to be returned to the claimant. Para (2) says: “The form shall be returned to the claimant with a notice of rejection explaining why it has been rejected. The notice shall contain information about how to apply for a reconsideration of the rejection.”[18]There are a number of authorities dealing with the situation where the EC number is wrong or inaccurate (Sterling v United Learning Trust UKEAT/0439/14) Where the Tribunal finds that the claim form did not have an EC number or an accurate EC number then it was obliged to reject it. In the present case the Tribunal did not reject the claim as it was a ‘Multiple’ and was, in respect to the other Claimants, properly presented containing as it does their Early Conciliation number.[19]The Claimant argued that he can take advantage of the fact that there is a valid claim to ‘piggyback’ on it and amend that claim to include his EC number if required to. The Employment Tribunal has wide powers of amendment which includes the power to remove, substitute and add parties (Rule 34)[20]The Claimant principally relies on Regulation 3 of the Exemption Regulations which is in these terms: “Exemptions from early conciliation 3.—(1) A person (“A”) may institute relevant proceedings without complying with the requirement for early conciliation where— (a)another person (“B”) has complied with that requirement in relation to the same dispute and A wishes to institute proceedings on the same claim form as B;”[21]In the case Cranwell v Cullen UKEATPAS/0046/14 the claim had been rejected because the Claimant had failed to comply with Early Conciliation and could not demonstrate that her case fell within any of the exempted categories in Regulation 3. Amendment was deemed incompetent as the claim (the proceedings) had come to an end. There was no “multiple” for her to rely upon.[22]In the present case the Respondents did not argue that the claims being made by the first Claimant (redundancy pay, notice etc) did not arise from the same situation that he found himself in as the other Claimants had namely the closure of the Hotel. This words ‘same dispute’ seems sufficiently wide to cover this situation.[23]In the present case, the Claimant did contact ACAS and obtained an EC certificate pursuant to section 18A(4) Employment Tribunals Act 1996. That could have enabled him to begin his own claim against the Respondent but, in order to be able to do so, he still needed to comply with the relevant regulations by including an accurate EC number. This he did not do. Interestingly Ms Fraser commented that there was no clear ‘space’ on the form for him to do so.[24]The obligation arising under Rule 12(2) continues to apply. The issue is whether the claim in respect of Mr Medina should be rejected. The situation here is different from the case of Caspall as there would still be a competent claim before the Tribunal in which proceedings the Tribunal would have the power to amend as we have seen to add or remove parties.[25]It seems clear that irrespective of the Respondent’s misgivings and hope for what could be described as a technical knockout the ambit of Regulation 3 appears to apply in this case and Mr Medina is entitled to rely on that Regulation to ‘piggyback’ on the Multiple or group claim. There was no failure to comply with the principles of Early Conciliation as he underwent the process in good time. If there was any failure or rather ambiguity then it occurs when he does not put his conciliation number on the ET1. I do not regard that as being fatal to his claim and in any event, I am of the view that I have the power to allow the ET1 to be amended, as I have been requested, to allow, the ET1 to include his Early Conciliation number. This I do in order to put the matter beyond doubt.[26]I was also mindful that when the claimants submitted the claim form they were not represented and there are a variety of claims by a number of claimants. In my view, had time bar been the only issue, there would have been a reasonable prospect of the Tribunal exercising its discretion and allowing the claim to proceed on the basis that it had not been “reasonably practicable” to submit the claim in time.[27]Further, as Mummery LJ said in Selkent, the fact that an amendment would introduce a claim that was out of time was not decisive against allowing the amendment, but was a factor to be taken into account in the balancing exercise. The timing and manner of the application/prejudice and hardship[28]I have already set out above the timing and manner of the application. The respondent had knowledge of the breach of contract claim some time before the formal application to amend. Were I to refuse the application, the claimants will not be able to pursue a claim which, at least on the face of it, is stateable. On the other hand, were I to grant the application, the respondent will require to defend the claim but I am not persuaded that that will involve significant additional expense or that the progress of the claim will be delayed.[29]I am also satisfied that were I to grant the application that the cogency of the evidence would not be affected.[30]I am satisfied, therefore, that the balance of prejudice favours the respondent.[31]I decided, therefore, in all the circumstances that the application to amend should be allowed. In arriving at this view I was mindful, as Underhill LJ noted in Abercrombie & Others v. Aga Rangemaster Ltd [2014] ICR 209 that Mummery LJ’s guidance in Selkent “Was not intended as prescribing some kind of a tick box exercise……..It is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4). No one factor is likely to be decisive. The ‘balance of justice’ is the paramount consideration.”[32]In arriving at my decision I was also satisfied that it was consistent with the “overriding objective” in Tribunal Rules of Procedure and the “interests of justice”.[33]In arriving at our view we were also mindful of the case of Chapman v. Letheby [1981] IRLR 440, to which we were referred, that if the effect of a dismissal letter is unclear it should be construed in a way that is most favourable to the employee.[34]For all these reasons, therefore, we arrived at the unanimous view that the submissions by the claimants’ representative were well-founded, by and large, and are to be preferred. In short, the EDT in the present cases could only be determined on or after the claimants’ received their dismissal letters, dated 21 March in the period from 30 March to 14 April.[35]However, when determining the EDT for each claimant a distinction requires to be drawn given the different terminology used in the letters.[36]In Addams v. GKN Sankey Ltd [1980] IRLR 416 the EAT explained that the phrase “PILON” is imprecise because it can have two possible consequences depending upon whether it is used in a colloquial sense or in a legal one. The colloquial usage is where the employee can be regarded as having been dismissed with notice, but given a payment in lieu of working out that notice. In that case the EDT is the date in which the notice expires in accordance with s.97(1)(a) or s.145(2) of the Employment Rights Act 1996.[37]The “legal usage” is where the employee is regarded as having been dismissed immediately with payment in lieu of the notice of which he or she has been deprived. In that case, the EDT is the date upon which termination takes effect (s.97(1)(b) or s.145(2) of the 1996 Act).[38]So far as the present cases are concerned, therefore, those claimants who received letters using the terminology, “Length of notice to be worked (if any): as and when required in the month ahead” (such as P.355), fall into the first category and the EDT, in the absence of a contractual notice period, will be the date on which the statutory notice expires following the date of receipt of the dismissal letter.[39]Those claimants who received letters using the terminology: “Length of service to be worked (if any): none” fall into the second category and their EDT is the date of receipt of the dismissal letter. S/4102738/2020 & Others SCHEDULE Notice pay Weekly Weekly Effective Notice received Agreed notice wage before wage after Received Date of period in Notice pay from the pay owed by the NMW NMW ET1 ET3 Name letter Termination weeks claimed Respondent Respondent TOTAL increase increase 1 12 Adrian Podgórski 06/04/202006/04/2020 1.00 £348.80£328.40£20.40£1,593.93£328.40£348.80 3 4 Beata Nalepa 02/04/202002/04/2020 8.00 £2,790.40£2,082.50£707.90£328.40£348.80 8 5 Fiona Nugent 31/03/202030/04/2020 7.00 £2,441.60£1,970.40£471.20£328.40£348.80 13 7 Magdalena Galas 03/04/202030/04/2020 4.33 £1,511.47£1,245.18£266.29£328.40£348.80 14 8 Nigel Chabwa 31/03/202030/04/2020 4.33 £1,511.47£1,473.33£38.14£340.00£348.80 15 13 Radoslaw Rojecki 06/04/202006/04/2020 1.00 £348.80£328.40£20.40£340.00£348.80 16 15 Zoran Mizhimakoski 30/03/202005/04/2020 1.00 £139.52£131.36£8.16£131.36£139.52 5 17 Costin Iliescu 30/03/202005/04/2020 1.00 £348.80£287.35£61.45£340.00£348.80 Notice pay received Agreed notice pay from the Notice pay owed by the ET1 ET3 Name Respondent Weekly pay claimed Respondent TOTAL 7 6 Fernandes £1,833.05£423.01£2,115.06£282.01£1,354.01 George Duncan 9 10 Gordon £1,248.00£420.00£1,820.00£572.00 Kinga Killingback 12 3 (Indraszczyk) £3,500.00 500 £4,000.00£500.00 Agreed compensation for failure to provide written statement of T&Cs owed by the ET1 ET3 Name Weekly pay Respondent TOTAL 1 12 Adrian Podgórski £348.80£697.60£3,012.32 5 17 Costin Iliescu £328.40£656.80 14 8 Nigel Chabwa £348.80£697.60 15 13 Radoslaw Rojecki £348.80£697.60 16 15 ZORAN MIZHIMAKOSKI £131.36£262.72 AGREED REDUNDANCY PAY OWED BY THE RESPONDENT TAKING INTO ET1 ET3 CLAIMANT'S NAME CONSIDERATION THE CAP, INCREASE IN NMW & REDUNDANCY PAY NUMBER NUMBER RECEIVED TOTAL £1,244.00 Carlos Nunez 4 1 £58.50 Fiona Nugent 8 5 £706.80 Nigel Chabwa 14 8 £17.60 Beata Nalepa 3 4 £92.40 Magdalena Galas 13 7 £368.70 Received letter Weekly Agreed Date of advising of wage Daily Holiday Agreed holiday pay ET1 ET3 Name termination dismissal applicable pay entitlement outstanding TOTAL £1,591.32 Adrian 1 12 Podgórski 06/04/202006/04/2020£348.80£69.76 0.5 £34.88 Aleksandra 2 2 Blaszczyk 30/04/202030/03/2020£500.00£100.00 2.4 £240.00 Beata 3 4 Nalepa 02/04/202002/04/2020£348.80£65.68 0.2 £13.14 Carlos 4 1 Nunez 30/04/202002/04/2020£673.08£134.62 2.4 £323.08 7 6 Fernandes 30/04/202031/03/2020£423.08£84.62 2.4 £203.08 Fiona 8 5 Nugent 30/04/202030/04/2020£348.80£69.76 2.4 £167.42 Kinga Killingback 12 3 (Indraszczyk) 30/04/202007/04/2020£500.00£100.00 2.4 £240.00 Magdalena 13 7 Galas 30/04/202003/04/2020£348.80£69.76 2.4 £167.42 Nigel 14 8 Chabwa 30/04/202008/04/2020£348.80£69.76 2.4 £167.42 Radoslaw 15 13 Rojecki 06/04/202006/04/2020£348.80£69.76 0.5 £34.88 Agreed outstanding Agreed outstanding ET1 ET3 Name EDT Weekly wage Daily rate holidays holiday pay TOTAL £1,142.13 5 17 Costin Iliescu 30/03/2020£328.40£65.68 4.60 £302.13 George Duncan 9 10 Gordon 31/03/2020£420.00£84.00 10.00 £840.00 Weekly pay Rate of pay (gross) - WITH applicable at INCREASE TO Agreed Protective Hours date of NMW where Date of Protective award ET1 ET3 Name p/w termination appropriate termination Award Period compensation 1 12 Adrian Podgórski 40 £8.72£348.8006/04/2020 70 days £3,488.00 2 2 Aleksandra Blaszczyk na £500.0030/04/2020 70 days £5,000.00 3 4 Beata Nalepa 40 £8.72£348.8030/04/2020 70 days £3,488.00 4 1 Carlos Nunez na £673.0730/04/2020 70 days £6,730.70 5 17 Costin Iliescu 40 £8.21£328.4030/03/2020 70 days £3,284.00 7 6 Fernandes na £423.0730/04/2020 70 days £4,230.70 8 5 Fiona Nugent 40 £8.72£348.8030/04/2020 70 days £3,488.00 George Duncan 9 10 Gordon na £420.0031/03/2020 70 days £4,200.00 11 9 Julia Wilkosz 40 £7.70£308.0030/03/2020 70 days £3,080.00 Kinga Killingback 12 3 (Indraszczyk) na £500.0030/04/2020 70 days £5,000.00 13 7 Magdalena Galas 40 £8.72£348.8030/04/2020 70 days £3,488.00 14 8 Nigel Chabwa 40 £8.72£348.8030/04/2020 70 days £3,488.00 15 13 Radoslaw Rojecki 40 £8.72£348.8006/04/2020 70 days £3,488.00 ZORAN 16 15 MIZHIMAKOSKI 16 £8.21£131.3630/03/2020 70 days £1,313.60