Mr J Hunt v Premier Group Holdings (UK) Ltd T/a The Limes Country Lodge: 1304588/2017

EMPLOYMENT TRIBUNALS

Case No 1304588/2017

Between

Mr J HuntClaimant

Premier Group Holdings (UK) Ltd T/a The Limes Country LodgeRespondent

Before

Employment Judge Perry

In person for claimant

Mr P Keith (instructed by Counsel) for respondent

Date 2 July 2019

JUDGMENT

[1]The respondent was in breach of its duty to the claimant pursuant to section 1(1) and/or 4(1) of the Employment Rights Act 1996. The respondent is ordered to pay an additional 2 weeks’ pay in the sum of £978.00 to the claimant pursuant to Section 38 of the Employment Act 2002.

REASONS

(1) This claim has been the subject of two previous open preliminary hearings (with consequent case management orders made) the first on 28 September and 1 October 2018 and the second hearing on 12 November 2018.

(2) At the conclusion of my decision on 12 November 2018 I identified that there were only two remaining complaints that remained namely a claim for disability discrimination, as to which I ordered a deposit to be paid, and an award pursuant to s.38 Employment Act 2002 arising from the respondent’s failure to comply with its obligation to provide a statement of employment particulars.

(3) Further to the dismissal on withdrawal of the claimant’s disability discrimination complaints on 11 June 2019 the only remaining complaint is that pursuant to s.38.

(4) In the days before this hearing I directed the tribunal staff to write to the parties to identify if that issue could be resolved. Unfortunately, it could not be.

(5) At the outset today, the claimant raised a point concerning the deduction of monies to repay what the respondent argued was a “loan” and what the claimant believed was a “goodwill payment”.

(6) I indicated that the deductions from wages, holiday pay and breach of contract claims were determined within my earlier decisions and they have not been the subject of a reconsideration application or appeal. Nor did the claimant seek to put the tribunal on notice of that point in advance of today. My earlier decision is thus determinative of those matters.

(7) Given my findings previously as to the absence of a written contract and/or employment particulars s. 38 provides that will it ordinarily result in an award of 2 weeks’ pay unless the tribunal decides it is just and equitable to increase the award to 4 weeks’ pay or Case number: 1304588/17 - 2 - there are exceptional circumstances such that it is unjust and inequitable for an award to be made at all.

(8) I determined at the last hearing the claimant’s gross weekly pay was £589.16 per week. The respondent rightly points out that is subject to the s.227 Employment Rights Act 1996 cap, which in this case it is agreed is £489 per week.

(9) I also determined previously that both parties’ accounts as to the nature of the claimant’s status were implausible and I made my determinations based on the other evidence before me.

(10) The respondent accepts the claimant should be made an award of two weeks pay given the fault on both parts. The claimant does not. The principal reasons he argues are the distress and upset this has caused him, including the effect on his disbaility (although he provides no medical evidnece to support that), that he feels aggreived at the way he has been treated and that he has lost out financially.

(11) The later is at odds with my determinations as to the actuality and that he has been compensated on the basis of the contractual position that I found to be so. Further as he stated before me today had the terms not been agreeable to him at the outset he would not have accepted them, but that is just what he did. That being so and whilst that is not a reqirement of me exercising my discretion in his favour I find he has not shown that he has suffered a loss or been put to some other detriment as a result of the failure to provide the employment particulars such that would engage my discretion.

(12) Further and more significantly, I found both parties were at least in part culpable and implausible. Accordingly, those matters being so, I conclude it is not just and equitable to increase the award to four weeks pay but neither are the circumstances exceptional such that it would be unjust or inequitable for an award to be made at all. Accordingly, I award 2 weeks pay in the sum of £978. Signed by: Employment Judge Perry Signed on: 02 July 2018 Mr J Hunt -v- Premier Group Holdings (UK) Ltd trading as The Limes Country Lodge Hotel OPEN PRELIMINARY HEARING Heard at: Centre City Tower, Birmingham On: 28 September & 1 October 2018 Before: Employment Judge Perry (sitting alone) Appearances For the Claimant: in person For the Respondent: Mr P Keith (Counsel) JUDGMENT

[1]The claimant was an employee of the respondent from February 2016 until August 2017. Thereafter, the claimant’s terms of engagement were varied and he was a selfemployed contractor.

[2]The respondent concedes the claimant was a person with a disability within the meaning of s.6 Equality Act 2010 at the relevant time.

[3]One of my findings in relation to the status issue was that the claimant was paid a set sum each month prior to August 2017 incorporating all sums due for work done including commission. Accordingly, given the tribunal does not have jurisdiction to hear any claims for wages, breach of contract in relation to the period he was a selfemployed contractor and his monthly pay included any commission prior to that point it follows the claimant’s claim for commission is dismissed in its entirety.

[4]The date the variation referred to in (1) occurred along with the remaining preliminary issues namely, timing points, strike out, deposit and clarification of the claims pursued will be addressed at a further open preliminary hearing to be heard before me on 12 & 13 November 2018. I have issued a separate case management order in that regard. Employment Judge Perry 2 October 2018 - 1 - Case Number: 1304588/17 - 1 - EMPLOYMENT TRIBUNALS Claimant Respondent Mr J Hunt -v- Premier Group Holdings (UK) Ltd trading as The Limes Country Lodge Hotel OPEN PRELIMINARY HEARING Heard at: Centre City Tower, Birmingham On: 12 November 2018 Before: Employment Judge Perry (sitting alone) Appearances For the Claimant: in person For the Respondent: Mr P Keith (Counsel)

[1]The claimant did not have qualifying service to bring a claim of unfair dismissal. The tribunal does not have jurisdiction to hear that claim and it is dismissed.

[2]The claimant’s application to amend his claim is refused, the claimant having failed to provide the detail of the amendment previously stated to be required.

[3]The respondent’s application for strike out was not pursued.

[4]It is declared that the respondent has 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 respondent is ordered to pay £1,767.48 (gross) to the claimant in respect of the accrued leave entitlement.

[5]It is declared that the respondent has made an unlawful deduction from the claimant’s wages pursuant to Part II of the Employment Rights Act 1996. The respondent is ordered to pay £1,426.90 (gross) to the claimant in respect of the unlawful deduction.

[6]The claimant’s breach of contract claim having not been pursued is dismissed on withdrawal.

[7]The two remaining complaints are a complaint of disability discrimination pursuant to s.

[15]Equality Act 2010 and a s. 38 Employment Act 2002 award. Despite the parties seeking a make a determination on the s.38 complaint I consider that it would be in appropriate to consider the justice and equity of the circumstances as I am required to do pursuant to s.38 without having first considered the s. 15 Equality Act complaint. DEPOSIT ORDER 8. The claimant’s sole disability discrimination complaint has little reasonable prospects of success. The claimant is ordered to pay a deposit of £20.00 as a condition of continuing to advance that allegations by 4:00 pm on 3 December 2018. 9. In the event the claimant fails to pay the deposit by the date and time specified the specific allegations or arguments to which the deposit order relates are hereby struck out without further order. 10. The claimant indicated he may not wish to pursue his disability discrimination complaint. I reminded him that he is able to withdraw that complaint if he so wishes but Case Number: 1304588/17 - 2 - he should go away and think about that. The claimant and respondent have both previously intimated seeking costs or preparation time orders. The respondent has indicated it will be writing to the claimant in that regard. If the claimant is to withdraw the disability discrimination complaint, he is to indicate what (if anything) has been agreed in relation to costs/preparation time orders being pursued.

[1]The test for a deposit application is set out in rule 37 of the Employment Tribunals Rules of Procedure 2013 (the Rules/rule as the case may be):- “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.”

[2]For deposit applications the Tribunal does not have to assume that the facts may be established (as it would for strike out) and only make a finding that there is little reasonable prospect of success if the case is likely to be unsustainable in law; “If that had been the draughtsman's intention, the rule would surely have been differently formulated so as to render the intention clear’”. Thus, the Tribunal is entitled to consider in the context of the deposit issue legal and in the case of the latter whether the facts as asserted appeared to be credible or not 1.

[3]Thus, the test for a deposit order, little reasonable prospect of success, is “plainly not as rigorous as the test that the claim has no reasonable prospect of success” (the test for strike out) and “a tribunal has a greater leeway when considering whether or not to order a deposit than when considering a strike out”. Notwithstanding that when considering whether to make a deposit order the Tribunal “… must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response” 2.

[4]When assessing the amount of the deposit order one of the factors to be considered is that it should “[42] … make a claimant stop and think carefully before proceeding with an evidently weak case and only do so if, notwithstanding the Employment Tribunal’s assessment of its prospects, there is good reason to believe that the case may, nonetheless succeed.” 3 Whilst that is so a deposit order must not be imposed at so high a level that the Claimant could not practically comply with it that it would impede the claimant’s access to justice; if so that would not be a proportionate and effective Case Number: 1304588/17 - 3 - means of signalling to the Claimant the low prospects of success and warning about costs 4.

[5]The Claimant did not provide a schedule of his income, outgoings, assets and liabilities but told me he was in receipt of benefits and orally gave details of financial problems he states he faces. I reminded the parties of the principles I relay above. The claimant offered, and respondent agreed to accept a deposit of £20 if I was minded to exercise my discretion and to do so within 2 weeks. My Conclusions

[6]I have to consider if any specific allegation or argument has little reasonable prospects of success and thus if my discretion in r. 37(1) is engaged, if so I have to consider whether to take into account the Claimant’s means when deciding to exercise that discretion and if so with regards to the amount.

[7]Whilst the tribunal does not make findings at a deposit hearing, such hearings, as here, normally proceed by way of the tribunal hearing arguments only, the Tribunal is entitled (as I state above) to consider if the facts as asserted appear to be credible or not 5.

[8]Despite making a number of complaints in both his November grievance and in the subsequent detail he gave [300-301] Mr Hunt made no mention of this complaint. The only brief reference is a brief mention in the claim form.

[9]Further as to the respondent’s reason for the treatment in those other documents (the November grievance and [300-301]) the claimant repeatedly stated the reason he believed he was treated in the way he was, was as a punishment for his comments on social media. Again, it was only in his claim form that he refers briefly to this complaint.

[10]Those matters cast doubt on the claimant’s perception of his treatment at the time and the reason for it. The initial burden lies upon him to bring forward facts that he was treated unfavourably because of something arising from his disability and only if he does so does it fall to the respondent to show the reason for his treatment.

[11]Whilst disability and the amendment of his status are not in dispute in my judgment he will face a difficult task to do so in the light of those matters. Accordingly, in my judgment the s.15 Equality Act something arising from complaint has little reasonable prospects of success and r.37(1) is engaged.

[12]That being so I have considered whether to exercise my discretion and award a deposit. I have considered the claimants means, I accept he is in tight straights financially but in the light of my rationale above a deposit should be ordered to make him stop and think but that should not prevent him pursing the claim. Accordingly, I will set the deposit at £20 and as no time for payment is set by r.37 order that to be paid in 3 weeks and not the two offered by the claimant to allow time for that to be done. Employment Judge Perry 21 November 2018 Case Number: 1304588/17 - 4 - Note.