Miss S Hodgkinson v Woods Catering Staffordshire Ltd (in liquidation) and Mr N Wood: 1303148/2021
EMPLOYMENT TRIBUNALS
Case No 1303148/2021
Between
Miss S HodgkinsonClaimantWoods Catering Staffordshire Ltd (in liquidation) and Mr N WoodRespondent
Before
: Employment Judge FaulknerDate 30 August 2023
REASONS
[1]This Hearing was listed to determine the question of whether the Claimant was a disabled person within the meaning of the Equality Act 2010 (“the Act”). She was ably represented by her daughter. In the circumstances set out below, neither Respondent was in attendance or represented.[2]The Claimant’s Claim originally named the Second Respondent, Neil Wood, as the sole Respondent. The complaints, later identified by Employment Judge Wedderspoon (see below), were of failure to make reasonable adjustments, disability harassment (by Mr Wood) and failure to pay holiday pay. The Claim was served on Mr Wood accordingly.[3]A Response was filed on Mr Wood’s behalf by Peninsula, with an indication that the First Respondent Company was the correct Respondent to the Claim. By correspondence sent to the Tribunal on 22 December 2021, the Claimant asked that the Respondent be changed to the Company, so that at that point it became the sole Respondent to the Claim.[4]At a Case Management Hearing before EJ Wedderspoon on 11 March 2022, it was agreed that the Respondents to the Claim would be both the Company and Mr Wood. EJ Wedderspoon’s Case Management Summary is headed accordingly. In the remainder of this document, I will refer to the two Respondents as the First Respondent and Second Respondent respectively.[5]EJ Wedderspoon’s Case Management Summary and Orders, which included confirmation that there would be an Open Preliminary Hearing (“OPH”) on 4 July 2022 to determine the question of whether the Claimant was a disabled person, were sent to the Claimant and to Peninsula. It could reasonably be expected that Peninsula would inform both Respondents of what had transpired in the Hearing before EJ Wedderspoon. At around the same time, notice of the OPH was sent to the Claimant and Peninsula, but naming only the Claimant and the First Respondent as the parties to the case. All subsequent correspondence from the Tribunal has, in error, continued to refer only to the Claimant and the First Respondent in the same way. On 31 March 2022, the First Respondent entered into creditors voluntary liquidation.[6]By a Judgment dated 20 June 2022, Employment Judge Flood struck out the First Respondent’s Response, because it had not been actively pursued. On the following day, Peninsula came off the record, referring to the appointment of liquidators for the First Respondent and providing their contact details. In doing so, Peninsula evidently overlooked the fact that the Second Respondent was also a party to the proceedings. At around the same time, the First Respondent’s liquidators indicated that they did not intend to defend the Claim. On 24 June 2022, Employment Judge V Jones directed that all future communications should be sent to the liquidators.[7]The OPH on 4 July 2022 took place by video. Employment Judge Algazy decided that he was unable to proceed because of the state of the documentation and directed that a Notice of Hearing be sent to the parties for the OPH to take place on 3 August 2022, in person. That Notice of Hearing was sent to the First Respondent’s address, Case No: 1303148/2021 3 not to the liquidators; it was not sent to the Second Respondent, the Tribunal evidently overlooking his being a party to the Claim.[8]The upshot of all of the above is that the matter came before me to determine the question of whether the Claimant was a disabled person, with no expectation that the First Respondent would attend – though it remains entitled to receive decisions and notice of any hearings – but with the Second Respondent a live Respondent to the proceedings (because it is only the First Respondent which has had its Response struck out) and with no indication that he had been properly served with Notice of the Hearing.[9]The question of whether the Claimant was a disabled person is of course highly relevant to whether she is able to pursue complaints of failures to make reasonable adjustments. Pursuant to section 110 of the Act, if there was any such failure, it is possible that the Second Respondent may be liable for it. It is also highly likely that the question of whether the Claimant was a disabled person is relevant to whether she is able to pursue complaints of disability harassment, complaints which lie squarely against the Second Respondent as well as the First.[10]Although the Second Respondent could have attended the aborted OPH on 4 July 2022 (because as stated above it can be reasonably expected that Peninsula informed him about it) and did not do so, he was plainly entitled to notice of this Hearing and it is far from clear that he was sent it; in fact, he fairly plainly was not. Given what is stated at paragraph 9 above, he is entitled to be heard – should he wish to be – on the question of whether the Claimant was a disabled person, or at least to be made aware that this question is going to be determined.[11]For those reasons, I decided that I could not proceed to determine that issue today, that is without the Second Respondent being aware of the Hearing and being given an opportunity to attend it. A further Hearing has been fixed for this purpose, notice of which will be sent to all of the parties. Case Management Orders were made to ensure the parties are ready for that Hearing, and I also determined amendment applications by the Claimant in relation to further complaints against the First Respondent. Those matters are recorded separately.[12]It is much to be regretted that a hearing on this question has been adjourned for the second time. I make clear, as is evident from what is summarised above, that this adjournment was through no fault of the Claimant. _________________________ Employment Judge Faulkner Date: 4 August 2022 Case Number: 1303148/2021 EMPLOYMENT TRIBUNALS Claimant: Miss. S. Hodgkinson Respondent: Woods Catering Staffordshire Limited (in liquidation)(1) Mr. Neil Wood(2) Secretary of State(3)[1]By a letter dated 12th May 2023 the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because the respondent had not complied with the Order of the Tribunal dated 15th December 2023. The application to reinstate the second Respondent’s response is refused. The second Respondent has failed to comply with the Tribunal orders. The compliance with Tribunal Orders is mandatory and not optional. The noncompliance with the order for one further day is unacceptable and not in accordance with the overriding objective.[2]The respondent has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The response is therefore struck out.[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge. Employment Judge Wedderspoon 19th May 2023 Case Number: 1303148/2021 - 1 - EMPLOYMENT TRIBUNALS Claimant Respondent Miss Samantha Hodgkinson -v-(1) Woods Catering Staffordshire Limited(2) Neil Wood(3) The Secretary of State for Business, Energy & Industrial Strategy FINAL MERITS HEARING Heard: at the Employment Tribunal sitting in Birmingham On: 29 & 30 August 2023 Before: Employment Judge Perry, Mrs R Forrest & Mr P Davis Appearances For the Claimant: In person assisted by her daughter Miss A Hodgkinson For the Respondents: No appearance[1]The first and second respondents contravened part 5 of the Equality Act 2010. The claimant’s complaint that she was victimised and harassed on grounds of disability in breach of Part 5 Equality Act 2010 succeeds. Her complaint that the first and second respondent failed to make reasonable adjustments is dismissed. She is awarded the following :- Compensation from start of sickness absence to dismissal (18/03/2021 to 07/04/2022) 55 weeks at £329.27 per week £18,109.85 Less SSP paid in the period (18/03/2021 to 07/04/2022) -£2,775.80 Compensation from expiry of statutory notice to age 67(12/05/2022 to 13/06/2030) 422 * weeks at £329.27 per week £138,951.94 Sub Total £154,285.99 Interest on above at 8% from mid point (22/05/2022 to 30/08/2023) 465 days at £33.82 per day £15,724.49 Injury to feelings £21,500.00 Interest at 8% from date of discrimination (11/02/2021 to 30/08/2023) 930 days at £4.71per day £4,382.47 Total £195,892.95 Case Number: 1303148/2021 - 2 -[2]The first respondent failed to compensate the claimant in relation to the claimant’s entitlement to holiday leave that had accrued as at the termination of the claimant’s employment pursuant to the Working Time Regulations 1998 (SI 1998/1833). The first respondent is ordered to pay £2,135.70 (gross) to the claimant in respect of the accrued leave entitlement. 01/01/21 – 31/12/21 5.6 weeks at £305.10 per week £1,708.56 01/01/22 - 07/04/22 ¼ x 5.6 weeks at £305.10 per week £427.14 Total £2,135.70[3]The claimant was dismissed in breach of contract on 7 April 2022. The first respondent is ordered to pay total £2,161.95 (gross) to the claimant made up as follows:- pension payments shortfall 2020-2021 £515.60 5 weeks notice pay at £329.27 (£305.10 plus employer’s pension contributions of £24.17) per week £1,646.35 Total £2,161.95[4]The claimant was unfairly dismissed by the respondent on 7 April 2022 . Her complaint that she was unfairly dismissed is well founded. The first respondent is ordered to pay to the claimant the sum of £2,208.56 calculated as follows as compensation for unfair dismissal. Basic Award 7.5 weeks at £305.10 per week £2,288.25† Compensatory Award Loss of statutory rights £500.00 No further award is made as this duplicates the awards for discrimination and wrongful dismissal £0.00 Total £2,788.25†[5]The sums above shall be grossed-up to reflect the tax payable as follows:- Sub-total (paragraphs 1 - 4) £203,558.54† Tax £116,916.98† Total £320,475.52† All other complaints are dismissed.[7]The second respondent behaved unreasonably in the way proceedings were conducted and failed to comply with tribunal orders prior to his response being struck out. He is ordered to pay to the claimant her preparation time summarily assessed in the sum of £7,600.00.[8]By virtue of having made no applicable award the Employment Protection (Recoupment of Jobseekers Allowance & Income Support) Regulations 1996 do not apply.