Mr P Swieca (the claimant’s husband) For the v Mr N Carr (solicitor) — 2018

The claim presented on 29 October 2017 was for Statutory Maternity Pay. The respondent disputed entitlement, HMRC had initially indicated that the claimant appeared to meet the qualifying conditions, and then on reconsideration concluded that Mrs Swieca was not entitled to SMP. The claimant said that decision was under appeal. The tribunal held that, applying Hair Division Ltd v Mrs Lisa MacMillan, the Employment Tribunal had no jurisdiction to determine eligibility for SMP, so the claim as currently constituted was doomed to fail and was dismissed.

At the hearing the claimant and her husband did not attend at 10.00am because they understood the hearing to be listed for 2.00pm. The tribunal accepted that the notice of the extension of hearing was not received by the claimant. The claimant then sought an adjournment so that she could prepare and apply to amend the claim.

The tribunal noted that the claimant had brought an agenda for case management referring to proposed complaints including no provision of employment particulars, unlawful non-payment of SMP, unlawful non-payment of antenatal care, unlawful non-payment of wages and annual leave, sex discrimination, and unfair dismissal on a pregnancy-related basis. It also noted that the proposed amendments were substantial, that the current claim form did not properly particularise them, and that the claimed SMP sum was £6,364.86 while the schedule of loss for the proposed wider claims totalled £169,100. Taking account of the nature and lateness of the proposed amendments, the time issues, the further directions that would be needed, and the respondent's additional expense, the tribunal refused the adjournment as not in the interests of justice.

The tribunal recorded that the current claim should be dismissed and that, if the claimant wished to pursue the new matters, she would need to issue a fresh claim and deal with any time limit issues in due course. It also said that res judicata would not arise in relation to those new matters because they were not contained within the current claim.