Mr R John v Select Service Partner UK Ltd: 6003755/2024
EMPLOYMENT TRIBUNALS
Case No 6003755/2024
Between
Mr R JohnClaimantSelect Service Partner UK LtdRespondent
Before
Employment Judge B SmithNot represented for claimantMs I Baylis (instructed by Counsel) for respondentDate 2 September 2024
REASONS
[1]The claimant did not attend the hearing and the respondent was represented by counsel.[2]In a claim form presented on 11 June 2024 the claimant, a former Night Shift Team Member at the respondent which operates food and drink outlets at locations such as airports and railway stations, makes a claim of unfair dismissal including an allegation that it is unfair because the dismissal was because, or partly because, of trade union activities. The claimant was employed from 9 July 2015 until his dismissal on or around 6 June 2024. The respondent says that the claimant was fairly dismissed for reasons of long-term ill health (capability). The claimant makes a claim for interim relief.[3]The tribunal had previously permitted the claimant an in-person hearing as a reasonable adjustment for reasons of disability. The claimant is unrepresented. These factors were taken into account by tribunal in making all of its decisions.[4]This decision should not be taken as a ruling on the claim itself. Nothing in these reasons should be interpreted as a factual finding which binds the tribunal. These reasons are based on the material available to me which has not been tested under oath or affirmation, or under cross-examination.[5]The tribunal took into account a bundle paginated to 184 and witness statements from Andrea Taylor and James Turner. The respondent relied on oral submissions and a skeleton argument.[6]There is no substance to the claimant’s unspecified objections to the respondent’s material for this application. The objections are dismissed for those reasons. Claimant’s application to postpone the hearing[7]The notice of hearing was dated 19 July 2024. At some point on 26 July 2024 after the majority of tribunal staff had left the building the claimant telephoned the tribunal requesting a postponement of today’s hearing because of caring responsibilities and his own therapy appointment. He was informed by email at 17:19 on 26 July 2024 that any application for a postponement should be sent to a named individual at the tribunal administration and he was warned that, until he was otherwise notified, that the hearing would still go ahead.[8]No evidence of any medical appointment was provided to the tribunal before or during the hearing. Similarly, no evidence of urgent caring responsibilities was provided to the tribunal. Also, the claimant had notice of the hearing in good time and left it until the very latest moment to apply for a postponement. Although the claimant had stated in email correspondence that he had been unsuccessful in reaching the tribunal by telephone this does not explain why he did not put any postponement application in writing at any relevant stage. The claimant has at least some prior experience of employment tribunal litigation: a previous claim which was dismissed in July 2023 (claim number 2206442/2022).[9]The claimant did not attend the hearing. He informed the clerk by telephone on the day that he requested a postponement due to caring responsibilities of his mother and medical appointments. These are unspecified other than two said to be on the day of the hearing, and one the day after the hearing.[10]The claimant by email sent to the tribunal at 05:20 on 29 July 2024, the day of the hearing, referred to difficulties in getting through to the tribunal switchboard, and stating that ‘things have continued to be difficult and delayed over the weekend’ for reasons that would be explained ‘in my communication by email I intend to get to you within the next few hours’. He raises the possibility of attending via remote video hearing although his email is unclear about whether this is an express request or not. His email also refers to a need to monitor his 89 year old mother and guard against the risk of a medical issue which he says he had become aware of the previous Thursday.[11]The claimant also informed the clerk by telephone on the day of the hearing that he objected to the respondent’s lack of ET3 and their documentary bundle. There was no specification as to what the objections were. The claimant stated to the clerk that he would be making a postponement application but it would not be ready until midday on the day of the hearing. The claimant was informed by the tribunal clerk at around 10:30 that the judge was only prepared to wait until 11:00am to start the hearing in the circumstances. This was fair and proportionate in the circumstances given that the claimant had the weekend, and a reasonable time before the weekend, before the hearing to prepare and evidence any written application for a postponement. Although the claimant had expressed a hope that waiting until midday would amount to a reasonable adjustment, there is no evidence to support this need as a reasonable adjustment, and the claimant was entirely capable of sending a five paragraph email with a reasonable level of detail at 5:20am on the morning of the hearing. The claimant was informed by the tribunal by email sent at 10:38 on the morning of the hearing that he should send any application to postpone the hearing by 11am in accordance with the judge’s request.[12]The claimant did not submit anything to the tribunal by 11:00am on the day of the hearing despite having been informed of the clerk that the hearing would start at that time. Also, the claimant did not expressly request a remote video hearing. The hearing did not in fact start until 11:10 to ensure that there were unfairness to the claimant from administrative delay. The tribunal also did not receive any further material from the claimant by or shortly after midday on the day of the hearing. The hearing resumed at 12:20 and ended at 12:22 when a very brief oral judgment was given.[13]The tribunal also did not consider it to be appropriate to convert the hearing to a remote video hearing in circumstances where the claimant himself had stated that he cannot attend a video or telephone hearing due to disability. Specifically, the claimant had previously requested that he needed to avoid visual stress, and he cannot tell or guarantee when his symptoms and daily impediments would be under control sufficiently take part by video or phone. The ET1 specifically states ‘No, I cannot take part in either video or phone hearings’.[14]For an application for interim relief under s.161 Trade Union & Labour Relations (Consolidation) Act 1992 the application must be determined as soon as practicable (s.162(1)) and the tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. Similarly, The Employment Rights Act 1996 (‘ERA’) s.128(3) requires hearings for interim relief to have been determined as soon as practicable after receiving the application, and under s.128(5) the tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.[15]The tribunal finds that there would be considerable prejudice to the respondent if the hearing was postponed both in terms of delay and additional costs. The prejudice to the claimant if the hearing goes ahead in his absence is limited because the hearing can still take place and the merits of the application considered in any event. There is no need for live evidence. The only real prejudice to the claimant is an inability to make oral submissions although the claimant did have an opportunity to make any written submissions that he wanted to before the hearing. Also, the tribunal had the benefit of the written application. The tribunal was also careful to consider all of the available material and not hold it against the claimant that he was absent.[16]Taking all of the above into account, there were no special circumstances which would justify the tribunal exercising its discretion to postpone the hearing. The claimant’s application to postpone the hearing was refused for all of the above reasons. Jurisdiction on the substantive application[17]For an unfair dismissal contrary to s.152 TULCRA, the application is made under s.161 TULCRA.[18]Section 161(3) TULRCA 1992 provides that: ‘In a case where the employee relies on section 152 (1)(a), (b) or (ba)…the tribunal shall not entertain an application for interim relief, unless before the end of that period, there is also so presented a certificate in writing, signed by an authorised official of the independent trade union of which the employee was, or proposed to become a member stating –(a) that on the date of the dismissal, the employee was or proposed to become a member of the union, and(b) that there appear to be reasonable grounds for supposing that the reason for his dismissal (or, if more than one, the principal reason) was one alleged in the complaint.’[19]The period referred to is set out in subsection (2) and is before the end of the period of 7 days immediately following the effective date of termination.[20]This requirement is mandatory and the Tribunal has no discretion to hear an application without a certificate under any circumstances.[21]No such certificate was presented to the tribunal.[22]The claimant’s ET1 and interim relief application states that ‘The sole or principal reason for dismissal is, in truth, my trade union membership. That is to say, my time as a trade union member, being represented by the RMT vis-à-vis the employer, my activities as a Branch Officer … and most recently as an Employee (or Lay) Representative for two vulnerable members …. ‘.[23]The claim made for unfair dismissal relating to trade union activities is therefore contrary to ss.152(1)(a), (ba), and (b) TULCRA and a certificate is required. The claimant was aware of the need for a certificate because it is referenced in his written application for interim relief. Although the claimant’s written application refers to an application under s.128 ERA, the appended written application expressly refers to s.152 TULCRA. Properly analysed, the application is made under TULRA rather than the ERA.[24]The tribunal finds that the claimant did not present the required certificate to the tribunal within the time required, or at all, and so the tribunal has no jurisdiction to hearing the application for interim relief in relation to unfair dismissal for reason of trade union activities.[25]In fairness to an absent (unrepresented) claimant, the tribunal considered whether or not the application for interim relief should be considered under the ERA. This is because the application for interim relief, albeit in relation to the certificate, that ‘among other things, the dismissal is automatically unfair’. However, there is nothing in the ET1 or written application for interim relief which suggests that any of the other gateways under s.128(1) ERA are engaged. In those circumstances, there is no application under the ERA to be considered.[26]The application is therefore refused because the tribunal does not have jurisdiction to hear it. However, if this is wrong, the tribunal expresses the conclusions below which are the conclusions that it would have made if it did have jurisdiction to consider the application. The substantive application[27]In Taplin v C Shippam Ltd [1978] IRLR 450 EAT, the EAT held that it must be shown that the claimant has a 'pretty good chance' of succeeding in the relevant claim.[28]A 'pretty good chance' of success was interpreted in the whistleblowing case of Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, as meaning 'a significantly higher degree of likelihood than just more likely than not'. Underhill P stated that: ‘[16] …In this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood” and … [19]…the essential point which emerges from Taplin: ‘likely’ connotes something nearer to certainty than mere probability.’[29]Rule 95 Employment Tribunals (Rules of Procedure) 2013 provides that: ‘When a Tribunal, hears an application for interim relief… the Tribunal shall not hear oral evidence, unless it directs otherwise.’ There was nothing in this case that justified a direction for oral evidence.[30]The tribunal must make its best assessment on the available documentary evidence provided by the parties: London City Airport Ltd v Chacko 2013 IRLR 610 EAT [23].[31]To succeed under s.163(1) TULCRA the claimant must establish ‘that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed’.[32]The respondent accepts for the purposes of this hearing only that it is likely that the claimant will establish that he meets at least some of the criteria to engage TULCRA. However, in order to be successful in an interim relief application the claimant must have a pretty good chance of succeeding in all elements of the claim.[33]The tribunal does not find that there is evidence (or even a clearly asserted factual basis from which it could find) that the respondent was in any way hostile to trade union members. Also, on the available material there is no implausible reason for dismissal from which hostility towards trade union members or membership could be inferred.[34]Taking the claimant’s case at its highest, the only material and clear reference to trade union discrimination is a complaint dated 22 December 2023 which arose from a request by the claimant for information about accrued holiday entitlement being dealt with, initially, as a subject access request. This falls far short of anything from which a trade union related dismissal could be inferred, not least because on the documentary evidence this appears to have been nothing more than an error of understanding (at worst). In any event, the respondent agreed to deal with the request outside of its own subject access request procedures. The respondent did not uphold the claimant’s grievance about this.[35]Contrary to the claimant’s case, the tribunal also considers that there is a wealth of documentary evidence in support of the respondent’s case that he was fairly dismissed for reasons of health/capability or long-term absence.[36]On the basis of the available material, the claimant stopped work on or around 3 August 2020 and was not dismissed until the letter dated 4 June 2024. Between that time there was a high number of fit notes, some input from occupational health, and a large number of meetings and considerable attempt by the respondent to put in place reasonable adjustment and exploring other options with the claimant. There was a significant period during this time when the claimant was assessed as not fit for work. Alternatively, when the claimant was assessed as potentially fit for work, there is documentary evidence consistent with the claimant not fully engaging with the respondent. Meets were rescheduled on a frequent basis.[37]More specifically, at a welfare meeting by MS Teams on 8 August 2023, which the claimant did not attend, reference is made to a previous meeting on 10 March 2023, during which the claimant had explained that despite there being a fit note for the claimant to return to work with adjustments, the claimant had explained that he wasn’t in a position to return to work until his grievances had been heard and he disagreed with his doctor’s advice. The respondent concluded during the meeting of 8 August 2023 that in the absence of evidence from the claimant – in person, medical, or by way of written submissions - the claimant remained absent from work with no indication that he would be fit and able to attend in any capacity within a reasonable time period, he had been given lots of opportunities to engage, and he had been continuously absent from work effectively since 8 April 2021 (the claimant was in fact absent from work for reasons of ill-health since around 3 August 2020, but was subsequently furloughed).[38]Later fit notes dated 13 February 2024 and 8 April 2024 recorded the claimant as being ‘may’ be fit for work with adjustments. Following a welfare meeting dated 8 March 2024 the respondent offered to provide the claimant with reasonable adjustments such as prescription goggles and a phased return, some limited paid time to deal with grievances, and invited the claimant to agree to return to work. Although the respondent did not agree to provide the claimant with exclusive use of a dark room should he get migraines because this would unfairly impact on other employees ability to use the break room, and it was open to the claimant to not attend work if he was unwell. The claimant was warned of possible termination by letter dated 23 April 2024. Further meetings took place. The claimant’s employment was terminated by letter dated 4 June 2024 for reasons of ill-health and or continued sickness absence. This letter is very detailed.[39]Subject to the evidence being tested, the tribunal considers that there is every prospect of the respondent establishing that the claimant was dismissed for a fair reason having followed a fair process. This possibility seriously undermines the claimant’s prospects of establishing that he is likely to be successful in his claim.[40]For all of the reasons above, the tribunal does not find that the claimant is likely to be successful in his claim. The application is therefore refused. Postscript[41]At 14:00 on the day of the hearing, after a decision had been made and announced and the hearing concluded, and after the judgment was sent for promulgation, the claimant emailed to the tribunal an application to postpone the hearing with supporting material. However, this was not copied to the respondent pursuant to rule 92 Employment Tribunals Rules of Procedure (2013). It was not considered by the tribunal in making the above decision because(a) it was sent after the conclusion of the hearing and(b) it did not comply with rule 92.