John Sartain v Fiesta Flowers and Gifts Ltd: 1400518/2020
JUDGMENT
(1) The Claimant is entitled to a redundancy payment in the sum of £6,403.85.(2) It does not appear that the limitation period for his other claims has begun.REASONS
Introduction
[1]These are my reasons for the judgment set out above. I have arrived at these after hearing.[2]By a claim form presented to the tribunal on 23rd January 2020 the Claimant brought claims seeking a redundancy payment, notice pay and for unpaid holiday from his previous employers Fiesta Flowers.[3]The matter was listed for Preliminary hearing to determine whether those claims had been presented in time. The Claimant’s employment having ended on 31st May 2019 and ACAS conciliation taking place between 16th and 20th January 2020.[4]The matter came before me for that Preliminary Hearing. Mr. Sartain represented himself, the Respondent was not in attendance.[5]The hearing was held via Cloud Video Platform. I did not feel that my ability to assess the quality of the evidence was effected by this medium.[6]I heard evidence from Mr. Sartain that was given under an affirmation in which he told me:(a) he was 49 when he was dismissed having been employed by Fiesta Flowers limited for some 15 years. The details in his ET1 are correct: he earned £1,500 a month gross or £346.15 a week;(b) after the company became insolvent both he and his business partner Mr. D Kinsley made applications to the Secretary of State for payments out of the National Insurance Fund (“the Fund”) for a redundancy payment, statutory notice pay and for the accrued but untaken holiday pay;(c) he presented his application to the Secretary of State two days after Mr. Kinsley(d) Mr. Kinsley received his payments from the Secretary of State a couple of days before lockdown was introduced in March.(e) the Claimant is still awaiting payment or any communication from the Secretary of state regarding his claim.[7]Unfortunately, the Claimant was unable to assist me with what sort of insolvency the Respondent had been placed into, however it appears on the evidence I have heard that the Secretary of State is satisfied that the Respondent is undergoing an appropriate form of insolvency to require it to make payments from the Fund to Mr. Kinsley.[8]On the basis of what I have heard I consider that, in accordance with section 164 of the Employment Rights Act 1996, it is just and equitable for me to extend time for the presentation of a claim for a redundancy payment: there is clearly a redundancy situation that existed with the Respondent; the delay in presenting a claim is down to the failure of the Secretary of State to advance the Claimant’s claim. On the basis of the evidence I have, I calculate the redundancy payment to amount to £6,403.85.[9]As far as the other payments are concerned. Having made an application to the Secretary of state, time to present a claim does not start to run until the Secretary has communicated its decision to the claimant (s188(2) of the Employment Rights Act 1996), and at present this has not occurred.[10]I directed that the Claimant is, within 14 days, to provide to the Tribunal a brief document setting out(a) Type of insolvency the Respondent entered into;(b) Date it went into insolvency;(c) Date of application to Secretary of State and details of the application (e.g. any reference number received)(d) Details of business partners claim to sec of state (including any reference number).[11]The claim will then be served on the Secretary of State along with this further information document. RECONSIDERATION[1]By Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.[2]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.The Hearing
[3]By a claim form presented to the tribunal on 23rd January 2020 the Claimant brought claims seeking a redundancy payment, notice pay and for unpaid holiday from his previous employers Fiesta Flowers.[4]The matter was listed for Preliminary hearing to determine whether those claims had been presented in time. The Claimant’s employment having ended on 31st May 2019 and ACAS conciliation taking place between 16th and 20th January 2020.[5]This matter came before me on 28th August 2020. At that hearing the Claimant gave evidence and I issued a judgment on 2nd September 2020 on those matters I could determine, namely the entitlement of the Claimant to a redundancy payment. I repeat those findings of fact I set out in my judgment of 28th August 2020 here.[6]On those matters I could not determine I ordered the claimant provide further particulars including the details of the form of insolvency the Respondent had been placed into and the details of the application the claimant told me he had made to the Secretary of State.[7]By way of email dated 10th September 2020 the Claimant sought to answer those particulars. It transpired the Respondent had not, in fact, been placed into any form of insolvency and that no application to the Secretary of State had been made.[8]It, therefore appeared to me to be in the interests of justice that I reconsider the judgment as far as it related to the claims of notice pay and holiday and re-determine the issue of whether the claims for unpaid wages and holiday pay have been presented within the relevant time limits.[9]In accordance with rule 72(1) I sought the Claimant’s views as to whether the reconsideration could be conducted without a hearing. The Claimant replied by email.[10]Taking into account the matters raised in the Claimant’s email, the overriding objective to deal with matters proportionately, and the evidence I heard on 28th August 2020 I am satisfied that I can reconsider my judgment without the need for a further hearing.[11]I consider that my judgment of 2nd September 2020 should be varied.[12]On the basis of what I heard in evidence on 28th August 2020, I consider that it was reasonably practicable for the claimant to have presented his claims for Notice Pay and for accrued but untaken holiday entitlement to the tribunal within the relevant time limit for such claims, namely three-months less one day from the date his employment ended. Therefore, I consider the tribunal does not have jurisdiction to hear those claims.[13]For the avoidance of doubt this reconsideration does not affect my determination of the Claimant’s entitlement to a redundancy payment.