Park Chinois Ltd v A Ozkara & Ors

An Employment Tribunal has a broad discretion to extend time where it is just and equitable, but the claimant bears the burden. The decision must rest on the evidence and the circumstances of the particular case. Serious discriminatory harassment, a short delay and an understandable decision not to sue while employment continued could justify an extension.

Reinstatement and re-engagement must be considered before compensation, but neither attracts a presumption. The decisive statutory questions include the employee’s wishes, practicability and contribution to dismissal. A tribunal may revisit a provisional assessment of practicability on later uncontradicted evidence where the parties agreed that the issue would be determined on the papers.

Two former restaurant managers brought claims including unfair dismissal, harassment and breach of contract against their former employer and a director. The Employment Tribunal extended time for certain harassment claims, upheld Mr Ozkara’s unfair dismissal claim, and later ordered his reinstatement with back pay.

Following written submissions and an affirmation from the director, considered by agreement on the papers, the Tribunal concluded that reinstatement and re-engagement were not practicable. It substituted a capped compensatory award and refused an additional award.

The employer appealed the liability and first remedies decisions. Mr Ozkara appealed the later remedies decision. The central issues concerned extension of time, case management of withdrawn contract claims, the practicability of reinstatement, and the fairness of relying on the later affirmation.

1. All three appeals were dismissed. The Tribunal made no error of law in extending time for the successful harassment complaints. It had decided the issue after hearing detailed evidence, rather than on assumptions at a preliminary hearing. It was entitled to regard the seriousness of the conduct, the short delay, and the circumstances making the delay understandable as relevant to whether an extension was just and equitable.
2. The challenge to the 25 per cent uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 failed. Although it would have been better to state expressly why the maximum uplift was selected, the Tribunal’s findings elsewhere made the reason apparent. The point was academic because the compensatory award was capped.
3. The Tribunal’s handling of the contract claims was legitimate case management. Determining the contractual terms was necessary to decide the other claims. Deferring the confused contract and deduction issues, allowing time for clarification, and subsequently declining under rule 52 to dismiss withdrawn contract claims did not amount to legal advice, partiality, or unfairness.
4. Reinstatement and re-engagement are remedies which a Tribunal must consider before compensation under section 112 of the Employment Rights Act 1996. They are “primary” only in that temporal sense. There is no presumption in their favour. The Tribunal correctly considered the statutory matters, especially practicability and contribution, and its original assessment of practicability on the evidence then available was not perverse.
5. The Tribunal could subsequently reconsider practicability. The parties had agreed to determination on the papers. Mr Ozkara had received the director’s affirmation, did not seek an oral hearing or cross-examination, and did not contradict the material account of the absence of continuing contact. The Tribunal could accept that evidence and find a rational loss of trust and confidence. Since the original role no longer existed and re-engagement in a comparable role was also impracticable, compensation rather than reinstatement or re-engagement was properly awarded.

• Employment Appeal Tribunal: all appeals from the Employment Tribunal’s liability judgment, Remedies (1) judgment, and Remedies (2) judgment were dismissed.
• London Central Employment Tribunal: upheld Mr Ozkara’s unfair dismissal claim; extended time for certain harassment complaints; initially ordered reinstatement and back pay; later found reinstatement and re-engagement impracticable and substituted capped compensation.