B Stoeva v London Tara Hotel Ltd T/a Copthorne Tara Hotel: 6004893/2024
REASONS
[1]The purpose of the preliminary hearing today was to deal with the respondent’s applications to strike out the claims on grounds that:1.1 They were brought out of time.1.2 In respect of the unfair dismissal claim, the claimant did not have at least 2 years’ continuous service1.3 If necessary, that such claims had been brought and withdrawn or settled previously.[2]There was an agreed trial bundle and the respondent provided a written skeleton argument.Facts
[3]On 1 July 2024, Ms Stoeva presented claim number 6004893/2004. She named the respondent as Copthorne Tara Hotel Kensington. The ACAS certificate issued by email on 1 July 2024 named Compton’s Tara Hotel Kensington as the prospective respondent. The respondent submitted a response in its correct legal name, ie London Tara Hotel Limited trading as the Copthorne Tara Hotel.[4]The claim form mentioned unfair dismissal and failure to pay notice pay. There was no claim for holiday pay. Unfair dismissal – qualifying service[5]The claim was in respect of a short period of employment in 2022. Ms Stoeva says the dates were 7 October 2022 – 10 December 2022. The respondent says the dates were 9 September 2022 – 28 September 2022. The respondent did not put into the trial bundle their documentary evidence of the dates of employment. For the purposes of today’s hearing, I therefore accepted the claimant’s dates.[6]Either way, Ms Stoeva was not continuously employed by the respondent for at least 2 years, which is required to claim ordinary unfair dismissal. She did not tell me of any special circumstances which would not require 2 years’ service. Ms Stoeva basically felt that her dismissal was very unfair and that she had been dismissed for being rude to a customer, when she had not been rude, and in fact the receptionist had raised her voice.[7]Under the law, the 2 year rule applies even if the dismissal was unfair. Ms Stoeva was not employed for 2 years. She cannot claim unfair dismissal. Her claim for unfair dismissal is therefore dismissed, Time-limits[8]The time-limits for bringing unfair dismissal and notice pay claims are 3 months less 1 day from the termination date.[9]If the respondent’s dates are right, Ms Stoeva needed to notify ACAS under the early conciliation scheme by 27 December 2022, ie 3 calendar months less 1 day. If Ms Stoeva’s dates are right, she needed to have notified ACAS by 9 March 2023. In fact, the ACAS certificate shows she did not notify ACAS until 25 June 2024. The time-limit for starting a tribunal claim is therefore not extended by the period of conciliation.[10]If Ms Stoeva was dismissed on 10 December 2022, the primary time-limit for bringing an unfair dismissal or notice pay claim was 9 March 2023. Ms Stoeva did not bring a claim until 1 July 2024. Her claim was nearly 16 months late and nearly 19 months after she had been dismissed.[11]Section 111(2) of the Employment Rights Act 1996 says that a tribunal shall not consider an unfair dismissal claim unless it is presented to the tribunal ‘(a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.’[12]I asked Ms Stoeva why she did not bring her claims within 3 months and why it took her so long to bring her claims. She did not provide a good reason. Her main reason was that she had been a victim of identity theft and fraud and that she had a lot of things to deal with and this administrative matter had been overlooked. I do not think that is a clear enough reason to explain such a long delay.[13]I also note that Ms Stoeva had brought a previous claim (2200849/2023) on 2 February 2023 and was able to make a COT 3 agreement on that claim on 26 April 2023. That also suggests it would have been reasonably practicable for her to notify ACAS and put in the present claim by 9 March 2023.[14]The notice pay claim is therefore dismissed because Ms Stoeva did not bring that claim in time.[15]I have already dismissed the unfair dismissal claim because Ms Stoeva did not have 2 years’ continuous service. I would also have dismissed it because it was not brought in time. COT 3 / res judicata[16]On 2 February 2023, Ms Stoeva brought tribunal claim 2200849/2023. The claim was for redundancy pay, notice pay and holiday pay and related to a period of employment by GNC from 1 April 2014 – 1 May 2016. The claimant named Copthorne Tara Hotel as the 3rd respondent by mistake. She accepted today that she was not employed by them in 2014 – 2016 and that she had made a mistake on the form.[17]There is a COT 3 settlement agreement for claim 2200849/2023 dated 26 April 2023 between Ms Stoeva and London Tara Hotel Limited trading as the Copthorne Tara Hotel. The latter is referred to as the ‘3rd respondent’.[18]This settlement agreement was made on a date after the period of employment in 2022 which is the subject of the present claim, but before the present claim was started.[19]In summary, the COT 3 says that the 3rd respondent would pay Ms Stoeva £750 in full and final settlement of claim 2200849/23 and any claims which Ms Stoeva may have against the 3rd respondent or any related person arising out of or in connection with her employment by the 3rd respondent or its termination. Also that Ms Stoeva would not issue any claims against the 3rd respondent in respect of her employment or its termination. There are a few exceptions which do not apply here.[20]The present claim is against the 3rd respondent ie London Tara Hotel Limited trading as the Copthorne Tara Hotel, and it arises out of her employment with them in 2022 and its termination. Ms Stoeva is therefore not allowed by the wording of the COT 3 to bring the claim.[21]Ms Stoeva says that she has been told by lawyers that the amount agreed in the COT 3 was very small and she should fight for more. As I explained to her, she has made an agreement and she cannot go back on it afterwards because she has changed her mind.[22]Therefore, if I had not already dismissed the claims because of inadequate service and missing time-limits as explained above, I would have struck them out for abuse of process under rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024 as being vexatious.