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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Uthman v Speciality Care (EMI) Plc (t/a Craegmoor Healthcare) (Practice and Procedure : Striking-out or dismissal) [2012] UKEAT 1091_10_0903 (09 March 2012) URL: https://www.bailii.org/uk/cases/UKEAT/2012/1091_10_0903.html Cite as: [2012] UKEAT 1091_10_0903, [2012] UKEAT 1091_10_903 |
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Appeal Nos. UKEATPA/1091/10/JOJ
UKEATPA/1092/10/JOJ
UKEATPA/1093/10/JOJ
UKEATPA/1283/10/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
SPECIALITY CARE (EMI) PLC T/A CRAEGMOOR HEALTHCARE RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
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
Introduction
The issue
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.
The legislation
The facts
“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’.”
“(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
Conclusions