Mr K Lee v Needham Laser Technologies Ltd: 1309283/2019
EMPLOYMENT TRIBUNALS
Case No 1309283/2019
Between
Mr K LeeClaimantNeedham Laser Technologies LtdRespondent
Before
Employment Judge L MensahOn the papers for claimantOn the papers for respondentDate 15 September 2022
JUDGMENT
Subject to an outstanding request for a Preparation Time Order, the liability elements of the claimant’s claims are dismissed upon withdrawal. The hearing date is vacated. The claimant should make a formal application for a preparation Time Order detailing precisely, what is claimed and why within fourteen days. The respondent will then have fourteen further days to respond. The costs matter will be listed for three hours before an employment judge on the first available date after 1st September 2020. EMPLOYMENT TRIBUNALS Claimant: Mr K Lee Respondent: Needham Laser Technologies Limited Heard at: Birmingham West On: 15 September 2022 Before: Judge L Mensah (paper) Representation Claimant: On the papers Respondent: On the papers FINAL JUDGMENT on APPLICATION FOR PREPARATION TIME ORDER The Tribunal orders are;[1]An extension of time is granted for the Respondent to file a Response to the application for a Preparation Time Order dated 28.05.2020, to the 13.12.2021 under Rule 5. The Respondent did file such a Response on the 13.12.2021.[2]The Claimant’s application for a Preparation Time Order dated 28.05.2020 is dismissed. Findings and Reasons[1]All references to Rules are references to the Employment Tribunals Rules of Procedure 2013. The Claimant has made an application for a Preparation Time Order, by application dated 28.05.2020. A Preparation time orders is a payment in respect of the preparation time of another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented, (Rule 75(2)). It is confined to time spent by the receiving party, including any employees or advisers, in working on the case, except for time spent at a final hearing (Rule 75(2)).[2]The parties were warned they must file any evidence they wish the Tribunal to consider by return on the 14.09.2022. I make this decision based upon the evidence presented. The history to this case is the known to the parties, but effectively is with regard to unpaid holiday pay. The Claimant complained the Respondent failed to pay her holiday pay when her employment terminated [20.09.2019] and during the period immediately following and post termination she suffered some financial loss with regard to a claim for Universal credit. The Claimant sets out her history,[3]The Claimant went through ACAS and the certificate shows the ACAS period ran from the 14.11.2019 through to the 14.12.2019. The Claimant lodged a claim for this outstanding holiday pay with the Tribunal on the 27.12.2019. The Respondent did not file a Response. At the hearing on the 22.05.2020 the Judge dismissed, upon withdrawal, the liability elements of the Claimant’s claim for holiday pay and the hearing was vacated. The basis for this is, as I understand it, because the Respondent agreed it owed the Claimant the outstanding sum of £317.82 and did make the payment to the Claimant on the 18.05.2020. Therefore, as of the date of the hearing there was no outstanding claim for holiday pay. This application was lodged on the 28.05.2020, so well within the 28 days required under the procedure Rules (Rule 77). The Claimant says as follows,[4]The Respondent say they were not copied into that application and had believed the matter was concluded. The Respondent wrote to the Tribunal in June 2020, after receipt of a notice for a hearing listed for the September 2020, asking why it had been listed. I can see the application filed with the Tribunal, but no evidence it was sent to the Respondent, by the Claimant. Despite various requests by the Respondent, and a long period of inactivity, the Tribunal did send a copy of the application to the Respondent on the 13.11.2021, as the Claimant appears, not to have done so. The Tribunal asked the Respond for their position by no later than the 13.12.2021. The Respondent therefore sought an extension to file a Response and did file a Response on the 13.12.2021.[5]I am satisfied on the evidence before me, the failure to file a Response to the application was caused by the failure of the Claimant to copy the Respondent into the application or send a copy thereafter. I therefore grant the extension to the Respondent to the 13.12.2021, if such a decision was not made, to give effect to the overriding objective and under my powers to extend time (Rule 5).[6]In the Response the Respondent says as follows,[7]The fundamental principle remains that costs are the exception rather than the rule, and that costs do not follow the event in Employment tribunals (see Gee v Shell UK Ltd [2002] EWCA Civ 1479, [2003] IRLR 82, at paragraphs 22, 35; Lodwick v Southwark London Borough Council [2004] EWCA Civ 306, [2004] ICR 884, at paragraphs 23–27; McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569, [2004] ICR 1398, at paragraphs 2; Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255, [2012] IRLR 78, at paragraph 7).[8]The potential grounds for making costs orders fall into two categories:(a) a party (or his representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success (SI 2013/1237 Schedule 1 r 76(1)).[9]I take into account the status of the litigant as a lay representative of the Respondent business, who I accept should not be judged by the professional standards of a legal advisor or other professional, see AQ Ltd v Holden [2012] IRLR 648, EAT, paragraphs 32. This does not mean the Respondent are immune from costs if found to have behaved “vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity” (paragraph 33 Holden).[10]The Claimant does not identify what ground is being pursued. I agree with the Respondent, they have not sought to challenge the fact they owed the Claimant the holiday pay in any Response and so it cannot be said to fall within (b) above. The reality is the Claimant complains they should have made the payment sooner and this would have meant time was not spent on preparing for the case. There is no evidence or suggestion the Respondent acted vexatiously, abusively or disruptively. Their response to the application explains the administrative errors regarding the failure to make the payment, their lack of understanding as to how to resolve the claim prior to the payment being made and their correspondence with the Tribunal. From the information I have seen the summary by the Respondent of their correspondence with the Tribunal is accurate.[11]The failure of the Respondent to make the payment prior to the claim being lodged, or put another way, that conduct, is not conduct envisaged within (a) above because it is not the conduct of a party in bringing or defending a claim, or continuing to pursue the claim or defence (see Davidson v John Calder (Publishers) Ltd and Calder Educational Trust Ltd [1985] IRLR 97, [1985] ICR 143, EAT). It may be relevant to what happened thereafter but it is not conduct that an award can be founded upon.[12]I accept the period from the January 2020 onwards was a difficult and exceptional time caused by the Covid Pandemic. It was the first time business had to address the impact of the spread of, a then much unknown virus, on their workforce and business and led to the national lockdown on the 23 March 2020. The claim was lodged on the 27 December 2019, and so just as the difficulties with this virus were beginning to emerge. The virus is not a complete explanation for any administrative oversight on the part of the Respondent, but it is a partial one for this first period from lodging the claim through to May 2020, when they sought to understand the next step. I have considered what the Respondent has said about his failure to make the payment after the proceedings were issued.[13]As explained in Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 40 'The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had'.[14]I am satisfied the Respondent had written to the Tribunal to try and ask for guidance as to how to resolve the claim on two separate occasions on the 06.05.2020 and the 13.05.2020 and after the Tribunal asked if they were willing to make the payment, the Respondent did make the payment. I am being asked to assess this matter on the documentary evidence filed. Neither side has filed any formal witness statements. Standing back and looking at the overall picture, I find the evidence does not show the Respondent acted unreasonably in the way they have conducted themselves during these proceedings. They acknowledge the administrative failings and I accept, absent any evidence to the contrary, they have no prior experience of handling Employment Tribunal claims. They were proactive contacting the Tribunal in May once the initial lockdown period had ended and at no stage post claim, did they seek to suggest they were not willing to make the payment. I can understand the Claimant’s sense of frustration from the lack of prompt payment but I take into account this was not an intentional default and the Respondent was seeking to resolve it.[15]On that basis, the application for a Preparation Time Order is dismissed.