S Tattersall v Heart of England Co-operative Society: 1304894/2024
JUDGMENT
The claim is struck out.REASONS
[1]The Tribunal wrote to the claimant on 30 April 2026 warning her that the Tribunal was considering striking out the claim. This was because it appeared to the Tribunal, applying Rule 38 of the Employment Tribunal Procedure Rules 2024, that• the claim had no reasonable prospect of success;[2]The letter gave the claimant an opportunity to explain why the claim should not be struck out, or to request a hearing at which to do so. The claimant replied on 12 May 2026.[3]I am satisfied that the grounds for striking out the claim under Rule 38 apply, and that it would be in accordance with the overriding objective in Rule 3 to strike out the claim. This is because: As a result of the decision of Employment Judge Harding to refuse the claimant’s application to amend her claim sent to the parties on 11 November 2025, the only remaining complaints were those in relation to unpaid holiday pay. The respondent confirmed on 22 October 2025 that liability in respect of this complaint was conceded and then the sums due to the claimant. On 29 December 2025, the claimant was ordered to provide her submissions on which this claim should not be struck out. The claimant set out her position on this on 7 January 2026 essentially claiming that the delay in paying all holiday due to her was a breach of her employment contract and also complains of incorrect tax treatment of previous holiday pay. The claimant was sent a letter as directed by Employment Judge Smart on 16 April 2026 asking her to confirm whether all such sums due had been paid and whether she withdrew her claim. The claimant responded on 28 April 2026 essentially making the same points about delay in payment of holiday pay and the submission of incorrect information by the respondent to HMRC. In response to this on 30 April 2026, Senior Legal Officer Metcalf wrote to the claimant as follows: ‘The only remedy that the tribunal could award the claimant in these circumstances is any unpaid holiday pay and she has confirmed that this has been received, albeit in two tranches. Also, the Tribunal has no jurisdiction in relation to the incorrect reference made to HMRC. It follows that the Tribunal is now functus and the claimant should either withdraw her claim or the Tribunal may consider striking it out under r.38. The claimant is accordingly ordered to provide the exact legal basis for continuing with this matter by 14 May 2026.’ The claimant wrote on 12 May 2026 persisting with her complaint for breach of contract in relation to the delay in payment of holiday pay. Having considered all of the above, I have decided that the claimant’s claim should be struck out under rule 38 in that it has no reasonable prospects of succeeding, given that the only remedy available to the Tribunal i.e an award of the holiday pay that was said to be owing, has already been conceded by the respondent and paid in full. There is no extant claim to which an award of damages can be made. The Tribunal has no jurisdiction to award anything other than financial losses in relation to a claim for breach of contract and no such financial losses remain. It is not in the interests of justice, proportionate or in furtherance of the overriding objective to make any further determination of such matters when the full amount said to be owed has now been satisfied.[4]The claim is therefore struck out. Approved by: