Employment Tribunals

Case Number: 3334196/2018 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr R Etheridge v Royal Mail Group Limited Heard at: Watford On: 17 September 2019 Before: Employment Judge Henry Appearances For the Claimant: In person For the Respondent: Ms N Anaman, Solicitor JUDGMENT ON AN APPLICATION TO SET ASIDE AN ORDER OF DISMISSAL 1. The dismissal of the claim for failure to comply with an order under Rule 38 is hereby set aside. REASONS 2. The matter comes before me on an application for relief from sanction on the claimant’s claim being dismissed on failure to comply with an Unless Order under Rule 38 of the Employment Tribunal Rules of Procedure. 3. The Order provided: “A On or before 8/4/2019 the claimant shall send to the respondent: 1. a written statement of the remedy he asked the tribunal to award; and 2. any evidence and documents supporting what he claims and how it is calculated, as already ordered on 21 November 2018. B At the same time, he shall write to the tribunal and confirm that he has sent the written remedy statement and evidence and documents to the respondent. Case Number: 3334196/2018 2 If the claimant does not comply with this order, or any part of it, his claim shall be dismissed without further order.” 4. The claimant is a litigant in person, albeit he has had assistance at various times from the Citizen’s Advice Bureau, and a neighbour who specialises in employment law. 5. By a claim form presented to the tribunal on 16 October 2018, the claimant presented a complaint for an unlawful deduction from wages in respect of one day’s pay. 6. By directions provided as part of a Notice of Hearing, sent to the parties on 21 November 2018, Case Management Orders were provided as follows: “The claimant shall, by no later than 4 weeks from the date of this letter, set out in writing to the respondent what remedy the tribunal is being asked to award. The claimant shall include any evidence and documentation supporting what he has claimed and how it is calculated. The claimant shall bring a copy of such evidence and documentation to the tribunal.” 7. On 7 January 2019, on the claimant having failed to provide the particulars so ordered, the respondent made an application for an Unless Order in terms that: “Unless the claimant provides the respondent with his Schedule of Loss with any evidence and supporting documents within 7 days of this order that his claim be struck out for his failure to comply with the order of 21 November 2018”. 8. On 26 January 2019, on the tribunal giving initial consideration to the claimant’s claim under Rule 26, wrote to the claimant enquiring whether he was presenting a claim for failure to allow time off to care for dependants, stating: “It is assumed that the claimant intends the claim to be one of failure to allow time off to care for dependants under sections 55-57 Employment Rights Act 1996. Is that correct?” 9. The claimant responded confirming that he was pursuing a complaint under s.57A of the Employment Rights Act 1996. The claimant informed the tribunal that he had sought the advice of his neighbour who specialised in employment law, who advised of the wording for his reply. 10. In addressing this claim with the claimant, the claimant is unaware of what such a claim involves and states that he is only claiming for the one day’s pay that was deducted from his salary and seeks nothing further. 11. On 18 March 2019, the tribunal issued the Unless Order above referred. 12. On 28 March 2019, the claimant sought to comply with the tribunal’s order stating: “The statement remedy I would like to put forward according to advice from my solicitor and citizens advice is to ask Royal Mail to consider early voluntary redundancy (E.V.R) for my 23 years’ service…” Case Number: 3334196/2018 3 13. The claimant then sets out the reason why he is seeking early voluntary redundancy. 14. The claimant furnished this correspondence to the tribunal which, on being informed that it was to have been furnished to the respondent, he then furnished a copy to the respondent on 9 April 2019, one day after the date stipulated in the Order 15. It is not in dispute that, the Information provided was not that sought by the Order, and accordingly, there has been a failure to comply, and that the dismissal of the claim in those circumstances was in accordance with procedure. 16. The claimant has argued before me that, he genuinely believed that the information furnished was that required by the tribunal, in that, that was the resolve that he required to his claim and that he had believed that in furnishing it to the tribunal, he had then done that which he had been required to do, stating that, on it being a genuine mistake he was willing to furnish any documents requested of him. 17. It has been submitted on behalf of the respondent that, on the claim form having been presented on 6 October 2018, there was then ample time for the claimant to seek and obtain legal advice to assist in the compliance with the tribunal’s order and the preparation of his claim, and that his failure so to do, giving rise to his misunderstanding and failing to comply with the order is no excuse, where the respondent had sought compliance with the tribunal orders from as far back as 7 January 2019, and which would have put the claimant on notice of what he was being asked to do, which was then further emphasised by the Unless Order, which again gave the claimant ample opportunity to seek the necessary advice. 18. It is further submitted on behalf of the respondent that, on the claimant having satisfactorily followed directions in engaging ACAS in early conciliation, and in presenting his complaint to the tribunal, this was clear evidence of the claimant’s ability to follow directions, for which the Witness Order being clear, there was then no scope for misunderstanding. It was further emphasised that the respondent will suffer prejudice should relief from sanction be granted, in that the respondent will now have to defend the claim which it would otherwise not have to defend, and that there has now been undue delay in the process, and that the respondent is still unaware of the value of the claimant’s claim, which claim the respondent further submits has little reasonable prospect of success. The law 19. The law relevant to the issue for my determination is provided for by Rule 38(2) of the Employment Tribunal Constitution of Rules and Procedure Regulations 2013, which provide: “(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the tribunal in writing, within 14 days of Case Number: 3334196/2018 4 the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so.” 20. I am assisted in my task by the authority in Thind v Salvesen Logistics [2010] UK EAT/04874/09/DA per Underhill P (as he then was) that: “14. The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the Unless Order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other parties; and whether a fair trial remains possible. The fact that an Unless Order has been made, which of course puts the party in question squarely on notice of the importance of complying with the Order and the consequences if he does not do so, will always be an important consideration… no one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.” 21. I am also assisted in the task by the dicta of Her Honour Judge Edie QC in Morgan Motor Company Ltd v Morgan UK EAT/0128/154/DM at paragraph 37 that: “Does there have to be some compelling explanation in order to obtain the relief from sanction? Does the Supreme Court’s judgment in Global Torch so prescribe? I do not read it as doing so in terms. It is one thing to say that the court will not have much sympathy who has failed to come up with a convincing explanation but yet another to say that this will inevitably mean that he or she will fail to be afforded relief from sanction. Can a court only be persuaded by “special factors”? I do not read Global Torch as inserting this as a requirement above and beyond the interest of justice. While enforcement of the sanction might be “almost inevitable” without some compelling explanation or special factor, that again is not the same as being inevitable…” Conclusion 22. The claimant appearing before me has come across as having made a genuine mistake holding the genuine belief that what he had furnished to the tribunal was what was required by the Unless Order. Indeed, it was only after I took the claimant through the Order identifying specifically what was being sought that the claimant then understood that, what he had presented was not in compliance; the claimant’s belief having been that the only failings he had made, in doing that which he had done, was the fact that he had furnished the order to the tribunal within the stipulated timeframe and not the respondent, believing that for compliance, he was to furnish the relevant information to the tribunal. He had not appreciated that the information he had furnished was not the required information. 23. I find the claimant to have been nothing otherwise than totally sincere in his account of his actions. Case Number: 3334196/2018 5 24. In my exercising the discretion and balancing the interests of justice, whilst the respondent’s submissions have much merit, I am not however persuaded that the interests of justice in this case require that the dismissal be upheld, in that the claimant’s claim is for, and solely for, an unlawful deduction from wage in respect of one day, 7 June. The claimant seeks no other award. In respect hereof, the information sought by the Order is information that at all material times has been within the respondent’s remit; being the deduction of one day’s pay, and the material facts thereto have also been fully particularised and fully appreciated by the respondent, as evidenced by their response to the claim. 25. I am satisfied that, the failure of the claimant to comply with the Order has not prejudiced the respondent, who at all times had the material information in their possession. 26. In stating this, I do however have some sympathy for the respondent in respect of the additional claim, that of “failure to allow time off to care for dependants”. However, as made clear before the tribunal, this is not a claim that the claimant pursues and indeed was not a claim that the claimant understood, which was led by the correspondence of the tribunal on point, such that were the claimant to have given full compliance with the Order, he would merely have submitted the loss for one day’s pay, which as stated, was information within the respondent’s possession. 27. This is not a case where there is any question of the claimant disregarding an order of the tribunal, but to the contrary, the claimant has sought to give compliance thereto, and that by his unfamiliarity with the law and process, was genuinely mistaken in his efforts to comply. 28. There is no question of the issue, being for one day’s pay, in circumstances as here have been fully pleaded, that the respondent would be prejudiced in defending the claim beyond the fact of their having to defend the claim. 29. In these circumstances, I find that it would be in the interest of justice that the dismissal be set aside. 30. I order that the dismissal be set aside, and the claim proceed to hearing. _____________________________ Employment Judge Henry Date: ………26/9/19 Sent to the parties on: ....31/10/19. ............................................................ For the Tribunal Office