Mr Hussain v Newday Cards Ltd: 1803823/2020
| Judgment Date | 11 January 2022 |
| Citation | 1803823/2020 |
| Date | 11 January 2022 |
| Published date | 18 January 2022 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
Case No: 1803823/2020
10.7 Judgment with reasons – rule 62 March 2017
EMPLOYMENT TRIBUNALS
Claimant: Mr Hussain
Respondent: Newday Cards Limited
Heard at: Leeds (by video) On: 25 October 2021
Before: Employment Judge Knowles
Representation
Claimant: Dr M Ahmad, Counsel
Respondent: Ms I Ferber, Counsel
RESERVED JUDGMENT
The Judgment of the Employment Tribunal is that the Claimant’s claim is dismissed
under Rule 52 of the Employment Tribunal Rules of Procedure.
RESERVED REASONS
Issues
1. This matter has been listed for an open preliminary hearing by video to determine
the following issue:
“whether the Claimant, having entered into a COT3 via ACAS on 12 February 2021 and
consideration having been provided for and performed, the Tribunal should not now
proceed to issue notice of dismissal for the purposes of Rule 51 and 52 of the Employment
Tribunal Rules.”
2. The issue was set down at a previous closed preliminary hearing for case
management which took place on 4 May 2021 before Employment Judge Morgan QC.
3. I should note that the setting down of that issue, which was described as a “narrow
jurisdictional issue”, proceeded following discussion and representations which appear
incorrect based on the submissions I heard during the hearing.
4. There appears then to have been a perception that the validity of a COT3 agreement
concluded through ACAS could not be challenged in this jurisdiction owing to Patel v City
of Wolverhampton College [2020] UKEAT/0013/20/RN.
5. However, before me the today the parties have volunteered and agreed that t he
Case No: 1803823/2020
10.7 Judgment with reasons – rule 62 March 2017
validity of a COT3 can be considered by an employment tribunal (Cole v Elder’s Voice
UKEAT/0251/19/VP).
6. It is also clear from the submissions made to me during the hearing that the Claimant
is challenging both the validity of the COT3 agreement and the withdrawal of his claim for
the purposes of Rules 51 and 52.
7. The Claimant seeks that the COT3 and his withdrawal are held void so that his case
does not come to an end for the purposes of Rule 51 and so that no dismissal judgment
is made following that withdrawal under Rule 52.
8. In effect he wants this case to proceed to a full hearing (as opposed to reserving his
position on a new claim or bringing another claim in another jurisdiction) as if he had not
entered a COT3 agreement or subsequently written to the Employment Tribunal office a
letter withdrawing his claim.
9. The Respondent has submitted that this is not the application that has been made
and that the only issue before me is the “narrow jurisdictional point”.
10. I do accept that the narrow jurisdictional point set down as the issue for me today
was under Rule 52, namely that I consider making a dismissal Judgment.
11. I do note also that the issue appears to have been narrowed by the reference to
Patel in the previous hearing. But the parties appear to accept that that was erroneous.
12. The Respondent has given submissions on the validity of the COT3, both in writing
and verbally to me during the hearing.
13. I note that the Claimant had always wanted the tribunal to consider letting him carry
on with his case. His original email to the Employment Tribunal Office 16 February 2021
refers in plain language to him wanting to “continue with the claim” and “withdraw my
withdrawal”.
14. In plain language it appears to me that issue raised by the Claimant has always been
revival rather than the right to reissue or continue to litigate in another forum.
15. It appears to me that the Respondent has read the Claimant’s position in the light of
a misplaced understanding of the issues at the previous case management hearing and I
am grateful to the Respondent’s representative for dealing with the Claimant’s
representations in full, regardless of whether or not they were envisaged when this hearing
was listed, and regardless as to whether or not they could be considered to be within the
ambit of the original application.
16. I do not propose to set out an amendment to the issues to be determined by me. I
propose to deal with all the issues that have been brought before me by way of
submissions. I appreciate that the issue listed sits within Rule 52 and concerns dismissal
but that was based on incorrect assumptions as to the law. This case is unusual and in
my conclusion requires consideration of all of the issues raised by the parties in relation
to Rule 51 and 52. Clearly Rule 52 would not be engaged at all unless there has been a
valid withdrawal under Rule 51.
Evidence
17. This hearing was a fully remote hearing undertaken using HMCT’s Cloud Video
Platform.
18. Dr Ahmed appeared on behalf of the Claimant by direct access and asked me to
note that the Claimant is and remains a litigant in person.
Case No: 1803823/2020
10.7 Judgment with reasons – rule 62 March 2017
19. For part of the hearing the Claimant was unable to hear everyone else and was
advised to log out and try to reconnect. He was also given the helpline number for
technical issues. Counsel for the Claimant advised that the hearing should not be delayed
whilst the Claimant reconnected.
20. No oral evidence was given during the hearing. The hearing proceeded based upon
submissions on the papers produced to me.
21. Each party produced a bundle of documents. In brackets in these reasons I have
preceded each page number with “C” or “R” to denote the Claimant’s or Respondent’s
bundle respectively. In referring to page numbers in the Claimant’s bundle, I am referring
to the PDF page number as there is no numbering on the documents themselves other
than document numbers.
22. Each party produced, during the hearing, a written skeleton argument together with
copies of their key authorities.
23. The bundle of documents contains without prejudice communications and
confidential communications with ACAS. The parties have consented to me seeing those
documents and referred me to Cole which supports a contention that I should see them.
The consent provided by the parties for me to consider without prejudice communications
is limited to being for the purposes of this preliminary hearing only.
24. On 28 October 2021, during my deliberations after the hearing, the following letter
was sent by the Tribunal to both parties:
Employment Judge Knowles has requested that this letter be sent to each party
following the video hearing 25 October 2021. This letter should be forwarded by you
to your barrister who appeared at that hearing, i.e. to Dr Ahmad and Ms Ferber.
"It appears to me that to reach a judgment on the Claimant’s case (under Rule 52(b))
the question for me concerning capacity is whether or not there is good cause for
concern that the Claimant may lack litigation capacity (see Royal Bank of Scotland
PLC v AB UKEAT/0266/18/DA, which should be read as a whole, but particularly
paragraph 26).
If there is such concern, then the matter would require proper assessment followed
by a further hearing.
The parties have addressed me on t he Claimant’s capacity to enter the COT3
agreement. But I believe the question I should answer concerns litigation capacity
as a whole (see Dunhill (a protected party by her litigation friend Tasker)
(Respondent) v Burgin [2014] UKSC 18).
Finally, I consider that it is not possible to determine the question concerning “good
cause” without considering the information before me alongside the Mental Capacity
Act 2005, particularly Sections 2 and 3, which is generally regarded to have codified
the common law position.
It would not be appropriate for me to determine the case using these two authorities
and the 2005 Act without affording you the opportunity to make submissions upon
them.
Please note that I am not suggesting that these are the only matters that I should
attend to; I will also consider the parties representations as a whole. The above are
simply matters I consider I ought to attend to but received no submissions upon
them.
If you wish to make further submissions on the above matters please ensure that
To continue reading
Request your trial