Mrs A Stoj v The Den Hereford Ltd: 1300128/2023
JUDGMENT
[1]The complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded. The respondent made an unauthorised deduction from the claimant’s contractual pay in respect of:a. contractual pay in respect of 15 hours worked during the period 11 June 2022 to 10 July 2022 in the sum of £225;b. contractual pay in respect of 48.5 hours worked during the period 11 July 2022 in the sum of £724.50;c. contractual pay in respect of 16.15 hours worked during the period 9 August 2022 and 19 September 2022 in the sum of £242.25;d. contractual pay in respect of 6 hours worked during the period 11 November 2022 to 11 December 2022 in the sum of £90;e. statutory sick pay in respect of the period 19 to 26 August 2022 in the sum of £99.35;f. statutory sick pay in respect of the period 1 to 31 October 2022 in the sum of £397.40; andg. statutory sick pay in respect of the period 11 November to 11 December 2022 in the sum of £99.35 Case No. 1300128/2023 2 The respondent therefore is ordered to pay to the claimant the gross sum of £1,877.85 deducted from pay.[2]The complaint of breach of contract in relation to notice pay is well-founded. The claimant was employed between 4 June 2018 (as per her contract of employment) until 9 January 2023, which amounts to 4 full years. The respondent is ordered to pay the claimant the sum of £960 as damages for breach of contract in respect of 4 weeks notice pay. This figure has been calculated using gross pay to reflect the likelihood that the claimant will be taxed upon it as Post Employment Notice Pay.[3]The complaint in respect of holiday pay is well-founded. The claimant took no paid holidays in the two years preceding the termination of her employment and is entitled to 5.6 weeks holiday pay for the years 2021 and 2022. The respondent was in breach of contract in failing to pay the claimant for such holidays accrued but untaken at the date employment terminated. The respondent therefore made an unauthorised deduction from the claimant's pay and is ordered to pay the claimant the gross sum of £2,688.[4]The total sum that the respondent must now pay to the claimant in respect of the above claims is £5,525.85. Employment Judge Flood 25 March 2024 Note Reasons for the judgment having been provided in summary above, full written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.REASONS
There is no reasonable prospect of the original decision being varied or revoked, because:[1]Rule 71 of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”) requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. Your application for a reconsideration was received on 30 April 2024 (one day outside that 14 days). However I have taken your covering e mail and explanation as a request for an extension of time and have decided that it is in the interests of justice, for the reconsideration application to be considered outside the 14 day time limit.[2]As you did not request a hearing, I have determined your application on the basis of your written representations only. I have decided to dismiss your application for the following reasons:.[3]The grounds for reconsideration are set out in rule 72 (1) of the ET Rules: “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. …”[4]The application for reconsideration appears to be made on the basis that the Tribunal did not calculate your length of service correctly when determining your breach of contract claim. You submit that you were continuously employed from 17 July 2017, not 4 June 2018 as stated in the Tribunal judgment. In support of this contention you submit a new Case No: 1300128/2023 document, which appears to be a photograph of a page from a contract of employment between the respondent and ‘Agata Bronsislawa’ which shows the date of employment as 17 July 2017.[5]The Tribunal hearing was your opportunity to give information, ask questions and raise issues, which you did. A request for reconsideration is not an opportunity for a party to seek to re-litigate matters; it does not entitle a party who is unhappy with or disagrees with the decision to re-open issues that were determined. A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can explain why the matter was not raised before. It a fundamental requirement of litigation that there be certainty and finality.[6]The document now submitted was not submitted at the final hearing of the claim. At that hearing, you had submitted a significant number of documents, not least two copies of a different contract of employment with the respondent. One of which stated a date of commencement of employment of 4 June 2018 and the other which stated a date of 16 June 2018. You gave no indication at the hearing that there was an earlier contract of employment and appeared to be relying on these as evidence of your start date. As such, despite some lack of clarity, the Tribunal made a finding of fact as to your start date based on the earlier of the two dates shown i.e. 4 June 2018.[7]Therefore having considered the matters raised, there is nothing in the application for reconsideration which indicates that it is in the interests of justice to re-open matters. You have had the opportunity to present all relevant evidence in your possession at the hearing which lasted several hours. The substance of the application is to challenge findings of fact that were made at a hearing. These findings were made on the basis of your evidence alone (as the respondent did not attend nor submit any evidence to challenge what was said). It is not now in the interests of the justice or the overriding objective or proportionate to re-open matters to consider additional documents now said to be relevant. No reason has been given as to why this new document was not produced earlier nor an explanation for the differences in start dates on the two documents (nor an explanation as to why this new document appears to bear a different name to the one submitted at hearing).[8]There is no clear reason given as to why it would be in the interests of justice to reconsider. I have therefore exercised my discretion to refuse the application for reconsideration as there is no reasonable prospect of the judgment being varied or revoked. Your application for a reconsideration is therefore rejected.