SUMMARY
PRACTICE AND PROCEDURE
Striking-out/dismissal
Appellate
jurisdiction/reasons/Burns-Barke
Restriction of proceedings order
The Claimant did not attend her
dismissal hearing. She presented her claim out of time and did not attend the
Pre-Hearing Review to determine the jurisdiction to hear the dismissal and
discrimination claims. The Employment Judge struck them out. The Claimant
raised 4 appeals, 4 fresh appeals and an application for a stay. She did not
attend the rule 3(10) where large bundles were prepared by the EAT. All
appeals dismissed as wholly without merit. Edem applied.
A copy of the Judgment sent to the
Registrar so she may if there is any fresh proceeding by the Appellant
determine whether the matter should be referred to the Attorney General
pursuant to Employment Tribunals Act 1996 section 33.
HIS HONOUR JUDGE McMULLEN
QC
1.
This case is about the striking out of a number of employment protection
and discrimination claims. I have read the extensive papers. I will refer to
the parties as the Claimant and the Respondent.
2.
This hearing was listed for 10.30. The Claimant has not returned the
form indicating whether she wished to attend, provide written representations
or take advantage of the services of ELAAS. At 10.50 there was no reply from
the Claimant, and the hearing therefore commenced.
Introduction
3.
It is an appeal by the Claimant in those proceedings against four
decisions of an Employment Tribunal sent on 29 June, 14 July and
21 July 2010, which I will call the interim decisions, and 13 September 2010,
the strike‑out. The Claimant has been represented by her son in earlier
proceedings, and the Respondent by a solicitor. She made a very substantial
number of complaints against her employer; the Respondent contended it
dismissed her without unfairness or discrimination, and there was no
discrimination in the course of the employment.
The issue
4.
The essential issue in the strike‑out was whether the claim had
been presented in time. Employment Judge Hall‑Smith, sitting
alone at a PHR, struck out the claims as they were not made within the three‑month
period and he saw no reason to extend under either the unfair dismissal or the
anti‑discrimination provisions, the two being slightly different. The
Claimant also appeals against the three interim decisions setting up the PHR.
The Claimant did not attend; the case went ahead without her live input. She appeals
against the three interim decisions and the strike‑out.
5.
In Haritaki v SEEDA [2008] IRLR 945 at
paragraphs 1‑13 I set out my approach to rule 3 hearings, which
is what this is. It should be read with this Judgment. That approach has been
approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240. In particular, the approach
in Evans followed the approach that I had taken in a case that
was upheld by the Court of Appeal, Edem v Ajilon UK Ltd and Anor
[2007] EWCA Civ 394, the gist of which is that where a case has been struck out
there is no utility in hearing appeals against interim decisions made prior to
that strike‑out decision.
6.
On the sift of the Notices of Appeal in this case a number of Judges
have exercised their powers under rule 3(7). Each concluded in chambers
that the case disclosed no reasonable grounds for bringing the appeal. Where
no point of law is found, section 21 of the Employment Tribunals Act 1996
deprives the EAT of jurisdiction to hear the case. The Claimant was given the
opportunity to amend the Notice of Appeal or to have the case heard before a
Judge under rules 3(8) or 3(10); she has done both in respect of
each of the four appeals.
7.
Each of the cases was again considered by a Judge and rejected, with
opinions given. The question for me in this rule 3(10) hearing is whether
there are any or no reasonable grounds in the appeals.
The legislation
8.
Wide powers of case management are given to Employment Tribunals,
including the power at a PHR by a Judge alone to strike out claims and to make
decisions as to jurisdiction, whether a claim was in time, for example.
Applications relating to fresh evidence and so on are all within the case
management powers under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
The facts
9.
The rudimentary description of the facts is that the Claimant appears to
have been employed by the Respondent as a care worker, it being involved in
that business. She was dismissed. She did not attend the disciplinary hearing
against her; the disciplinary action against her was upheld. She sought to
appeal; she was out of time.
10.
The hearing followed what was an earlier successful application by the
Claimant for pay unlawfully deducted during the period of her suspension. Here
Employment Judge Hyde on 21 January 2010, upheld her case
in part, and an award of £4,708.15 was made. Reference can be made to that
Judgment for a further description of the facts.
11.
Since my approach will be to deal with the strike‑out first, I can
do no better than to adopt the chronological sequence described by
Judge Hall‑Smith:
“5. By notice of Hearing dated 29 June 2010, the
parties were informed that a Pre‑Hearing Review would take place on
26 July 2010 at 2:00 pm to consider:
‘If the Tribunal has jurisdiction to consider the
Claimant’s claims having regard to the appropriate statutory time limit – to be
followed immediately by a Case Management Discussion, if appropriate.’
6. The Claimant had been in correspondence with the Tribunal
before the Hearing and had made an application for amendments to her Claim
Form.
7. By letter to the Claimant dated 21 July 2010, the
Tribunal wrote the following letter to the Claimant:
‘Employment
Judge Baron has directed me to write to you.
(1) Any applications for amendment will be considered at
the hearing on 26 July 2010.
(2) The Claimant is to send to the Respondent a copy of any
amendments she wished to make by the 23 July 2010.’
8. On 21 July the Claimant emailed the Tribunal requesting
a stay of the proceedings of her case ‘for decisions by EAT’.
9. By email to the Claimant dated 23 July 2010 from
the Tribunal, the Claimant was informed of the following:
‘I refer to your email dated 21 July 2010
requesting a stay of proceedings in the above case. I have been asked by
Employment Judge Baron to inform you that your request has been
refused.
The hearing will
proceed as listed at 2.00pm on Monday, 26 July 2010.’
10. On 26 July 2010 at 2.00pm, which was the time
listed for the Hearing of the Pre‑Hearing Review, the Claimant had
not attended the Tribunal. By 14:25 in the continued absence of the Claimant,
I decided to proceed with the Pre‑Hearing Review.
11. The Respondent was represented by its solicitor,
Miss C Gravett, who produced a small bundle of documents for the Pre‑Hearing Review.
In addition, a witness on behalf of the Respondent, namely
Keith Crowhurst, Registered Home Manager at the Oaks Care Home in Sidcup,
attended the hearing on behalf of the Respondent. In the absence of the Claimant,
I read Mr Crowhurst’s signed witness statement dated 23 July 2010.
[…]
14. I considered the Claimant’s Claim Form which very largely
complained about the Respondent’s failures to reply to her grievances. The
Claim Form referred to previous Tribunal proceedings and the Respondent’s
reaction to such proceedings. The final discriminatory matter relied upon by
the Claimant was the Response of the second named Respondent’s, which was filed
in December 2009 and which the Claimant alleged was important to her
evidence of the ‘ongoing malicious discrimination that I faced and forms part
of this Tribunal application’.”
12.
An issue arose as to whether the document was delivered to the right
house, and the Judge gave some credit for additional periods of time. The
problem was that the claim form was not submitted within three months of the
effective date of termination. The Judge addressed section 111(2) of the Employment Rights Act,
which provides as follows:
“(2) An Employment Tribunal shall not consider a complaint under
this section unless it is presented to the Tribunal—
(a) before the end of the period of 3
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 the
period of 3 months.”
13.
The Judge correctly directed himself as to what is regarded as an
exceptional jurisdiction to exercise discretion (see Bexley Community Centre v Robertson
[2003] IRLR 434) and came to these conclusions:
“22. In the circumstances of this case, even on the basis of the
information contained in the Claimant’s Claim Form, namely that the Claimant’s
employment ended on 14 December 2009, the Claim Form was two days out
of time having regard to the date of presentation on 15 March 2010.
The three‑month time limit would have expired at midnight on
13 March 2010.
23. However, having regard to the date of the dismissal letter,
namely 1 December 2009, which the Claimant maintained in her Claim
Form she had received on 14 December 2009, I considered that on the
balance of probabilities that the Claimant would have received the letter prior
to 14 December 2009.
24. The absence of the Claimant meant that I heard no evidence
from her relating to reasons why she had waited until 15 March 2010
before presenting her Claim Form to the Tribunal. Accordingly, there was no
material before me which could have provided grounds for the exercise of the Tribunal’s
jurisdiction to extend time, namely on grounds of reasonable practicability or
under the Tribunal’s just and equitable jurisdiction to extend time.
25. In my judgment, having regard to the effective date of the
termination of the Claimant’s employment and the matters complained of by the
Claimant, an Employment Tribunal has no jurisdiction to hear and determine the
Claimant’s claims against the Respondents, which are accordingly struck out.”
The appeals
14.
The Claimant appeals against that and seeks to adduce new evidence. In
my judgement, the application to adduce new evidence is hopeless. In any
event, following my Judgment in Korashi v Abertawe Bro Morgannwg University Local Health Board UKEAT/0424/09, the
Claimant should first put this matter to the Employment Tribunal, which she did
not. There is no focussed attack on the reason for the Judge refusing to
exercise discretion in respect of the discrimination claims and the Judge’s
findings as to reasonable practicability in respect of the unfair dismissal
claim. In the absence of any oral argument, additional to what I regard as an
unfocussed attack in the written materials, I can see no basis for upsetting
the Employment Tribunal’s Judgment. It has no reasonable prospect of success.
To that extent, therefore, I agree with the two opinions expressed in this
case, the first by Langstaff J, and, secondly, by Underhill P (as he
then was) under, respectively, rules 3(7) and 3(8).
15.
I then turn to the three interim appeals. These have had the benefit of
examination on each occasion by Burton J under rule 3(7) and then by
Underhill P under rule 3(8); thus, six opinions. The point about all
eight opinions now given by one‑time Presidents of this Tribunal is that
the Claimant did not listen to what was being said. The reason why each of
them found a defect in the original Notice of Appeal was not in any way
remedied by the submission of a fresh Notice of Appeal. To give one
illustration, for the strike‑out there were something like 40 contentions
made against the Judgment itself before Reasons were published. When they
were, the original 40 were rehearsed unaltered, as were another 30 or so. Each
of the three Presidents ahead of me have formed opinions that these extensive
grounds do not attack the central issue, which was the lateness of the lodging
of the claim form.
Conclusions
16.
I take the same approach as I took in Edem to these three interim
appeals. There is simply no point in dealing with appeals setting up a PHR
when the PHR has already been and gone and the claim struck out. But, just so
the Claimant does not feel short‑changed, for precisely the same reasons
as, respectively, Burton J and Underhill P, I form the view that there
is no reasonable prospect of success in any of the three interim appeals. In
addition, the Deputy Registrar has refused an application from the Claimant in
these proceedings as to a stay. In the circumstances, all four of these
appeals have no prospect of success and will be taken no further; the appeals
are effectively dismissed.
17.
I note now that the Claimant has launched four unsuccessful appeals by
eight Notices of Appeal. True it is that the first three were contained in a
single Notice of Appeal, but they attack different instruments made by the
Employment Tribunal and are constituted as three separate appeals. She has
also made an application to the Deputy Registrar that failed.
18.
Just so that one can understand the scale of the Claimant’s approach,
she did not attend disciplinary hearings in her case, and she did not attend
the PHR. She has made four appeals, each of which has been handled twice by
Presidents of this court, making eight judicial opinions, plus the Deputy
Registrar’s and now mine in the four appeals. All 13 of these follow the
opinion of Employment Judge Hall‑Smith that the case was out of
time, which is a simple finding of fact and exercise of discretion. This case
has taken up a good deal of the EAT’s time, and again the Claimant has not
appeared today to advance her cause in any way, the voluminous bundles being
prepared by court staff. It has no merit whatsoever.
19.
This is a case which ought to merit the attention of the Registrar when
she considers referring matters to the Attorney General for making a
restriction of proceedings order. I will not take that step, because, as I
understand it, there have been no further proceedings in the Employment
Tribunal against this employer following the strike‑out of the original
claim, and there would be no utility in launching the elaborate procedure set
out in section 33 of the Employment Tribunals Act 1996.
But a copy of this Judgment will be placed with the Registrar so that she may
consider, if any future appeal or application arises from Ms Uthman,
whether to refer her to the Attorney General.
