Mr K Chisholm v First Bus Glasgow: 4112622/2018
JUDGMENT
The judgment of the Employment Tribunal is that the claimant`s complaint of unfair dismissal 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(s) was sent to the respondent on 19 July 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 but not in respect of the remedy.[4]The remedy to which the claimant is entitled for the claim will be determined by an Employment Judge at a hearing. Employment Judge: Lucy Wiseman Date of Judgement: 27 August 2018 Entered in register: 28 August 2018 And copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4112622/2018 Held in Glasgow on 4 October 2018 Employment Judge: Robert Gall Mr K Chisholm First (Glasgow No.1) Limited Claimant In Person Respondent Represented by: Ms E McIlroy - Solicitorclaim.
[5]Mr O’Connor, the Operations Manager, said that there was no record of receipt of Form ET1 or of any communication from the Tribunal until 31 August 2018 when notification of the remedies hearing was received by the respondents.[6]Mr Chisham put to him that a call had been made by the Tribunal office on August 2018 to the respondents with a message being left. Mr O’Connor said that he had no information as to such a call or message. Whether or not such a call was made is not material to my Judgment upon the point today.[7]On the evidence I accepted that, for whatever reason, Form ET1 was not received by the respondents and that the first the respondents were aware of the claim was on 31 August 2018. That was the position even if a message had been left on 25 August 201 8. On the evidence I accept that on becoming aware that there had been a claim form sent to the respondents, they took steps to try to trace Form ET1. I accept that it has been established that possible recipients namely HR offices in Glasgow, in Leeds, at the training school at Cathcart Road together with the secretary of the managing director based at Cathcart Road did not receive Form ET1 .[8]On becoming aware that a claim existed and that a Rule 21 Judgment had been issued, the respondents made prompt contact with their solicitors and instructed steps to be taken which led to this hearing.[9]Determination of an application of the type made by the respondents involves an exercise of discretion. Regard must be had to the interests of justice.[10]There is a stateable defence in my view. That defence may be found ultimately to be successful or to be unsuccessful. It may be found that there has been a fair dismissal or an unfair dismissal. What I can say at present however is that there is a stateable position put forward for the respondents and set out in the proposed Form ET3. 1 1 . There is also a reason for Form ET3 not having been lodged. That is that the respondents did not receive Form ET1 . lam satisfied that is the case. Steps have been taken to try and trace Form ET1 but they have not proved successful.[12]It is also of relevance that the respondents made the application currently before the Tribunal promptly on becoming aware of the claim. 1 3. I weighed prejudice to each party if the application was permitted or refused.[14]There is prejudice to Mr Chisholm if the defence is permitted to proceed. The claim will be defended rather than proceeding to a remedies hearing. There will be delay in the outcome. Nevertheless, if Mr Chisholm’s claim is well founded, it will be successful, albeit at a later date than if there was no Form ET3 permitted.[15]If Form ET3 is not permitted the respondents will face being liable for a remedy which may not be warranted if the unfair dismissal claim was to be successfully defended. On that view, the claimant would receive what might be referred to as a “windfall” Form ET3 is not permitted to be lodged.[16]I am satisfied that although the position is not ideal, there has not been blameworthy conduct by the respondents and that, given the stateable defence, it is in the interests of justice to allow Form ET3 to be received late and to revoke the Rule 21 Judgment. I therefore do that. 1 7. The case is to be set down for hearing. It was agreed that date listing letters would be sent to parties with a view to having availability confirmed and consequently dates set for the hearing. The claimant said that he was likely to take advice and to seek to secure representation. It is therefore appropriate to allow him the chance to do this and for availability on the part of any such potential representative to be factored in when setting dates for the hearing.