Employment Judge RichardsonPeter Ward (instructed by counsel) for claimantDate 24 September 2025
REASONS
[1]This is a Preliminary Hearing to decide the following matters as set out in paragraph 5 in the Case Management Order of 12 March 2024 (CMO): The purpose of the preliminary hearing is to decide the following matters5.1 Was the claimant an employee of hamble foods limited from 28 March 2022 until termination of his contract on 25 October 2022, following his entering into a partnership agreement with hamble foods limited?5.2 If the claimant was an employee at the point of termination of his employment, what was the claimants period of continuous employment? In particular the tribunal will consider any or all of the following questions5.2.1 Who was the claimant employed by between 5 November 2017 and 28 March 2022?5.2.2 Was any or all of the claimant’s employment between 5 November 2017 and 28 March 2022, continuous employment ?5.2.3 In particular, was the claimant subject to a TUPE transfer in or about May 2020 from PJ Eastleigh to Admas Services Limited, or in or about February 2021, from Admas Services LTD to Hamble Foods Ltd?5.2.4 Does the claimant have two years continuous service for the purposes of bringing an unfair dismissal claim5.2.5 If the claimant has two years continuous service and if the claimant is found to have been an employee at the point of termination of his contract the matter will need to be listed for a final hearing to determine the claimant’s unfair dismissal claim and the tribunal will consider what case management orders need to be made in respect of that hearing.[2]The first three Respondents were represented by Mr Turpin and, in the course of these Reasons will either be referred to collectively as the Respondents or, where necessary, as Hamble, MKD or Eastleigh.[3]The Fourth Respondent Admas Service Ltd was unrepresented today. The response form was filed on 22 May 2004 but after its name and address no further information was provided. It will be referred to as Admas in these Reasons. At the Case Management Preliminary Hearing on 12 March 2024, Mr Anshul Khattar, a director of Hamble and also a director and shareholder of Admas, said he represented all four respondents, as his solicitor was unable to attend the hearing because of ill health. However, he has changed advisors since that hearing and as he had sold Admas he should not have been representing them.[4]In listing the issues for the Preliminary Hearing one issue identified was whether the Claimant ceased to be an employee or worker on or about 28th March 2022 by reason of his entering into a partnership agreement to set up a new business – Papa Johns New Milton with Hamble. At the start of the hearing, Mr Turpin conceded that despite entering into such an agreement the Claimant remained an employee of Hamble. In this day and age, it is not uncommon to find someone having an interest in another business while also being employed elsewhere.[5]There was also a suggestion in the CMO that there may be some out of time jurisdiction points to consider but at the start of the preliminary hearing, it was agreed by both parties, after I raised the point, there was no time limit issue to determine on whether the Tribunal had jurisdiction on the basis the claim was out of time.[6]Finally, the Respondents also accepted the Claimant was an employee at all times but were arguing either there was a break in continuity of service or he did not transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
The Law
[7]The relevant law in relation to TUPE can be found at Regulation 3(1) (b): A relevant transfer 3.—(1) These Regulations apply to— (b)a service provision change, that is a situation in which— (i)activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”); (ii)activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or (iii)activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied. (2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. (2A) References in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out. (3) The conditions referred to in paragraph (1)(b) are that— (a)immediately before the service provision change— (i)there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii)the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b)the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use. (4) Subject to paragraph (1), these Regulations apply to— (a)public and private undertakings engaged in economic activities whether or not they are operating for gain; (b)a transfer or service provision change howsoever effected notwithstanding— (i)that the transfer of an undertaking, business or part of an undertaking or business is governed or effected by the law of a country or territory outside the United Kingdom or that the service provision change is governed or effected by the law of a country or territory outside Great Britain; (ii)that the employment of persons employed in the undertaking, business or part transferred or, in the case of a service provision change, persons employed in the organised grouping of employees, is governed by any such law; (c)a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom. (5) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a relevant transfer. (6) A relevant transfer— (a)may be effected by a series of two or more transactions; and (b)may take place whether or not any property is transferred to the transferee by the transferor. (7) Where, in consequence (whether directly or indirectly) of the transfer of an undertaking, business or part of an undertaking or business which was situated immediately before the transfer in the United Kingdom, a ship within the meaning of the Merchant Shipping Act 1995(1) registered in the United Kingdom ceases to be so registered, these Regulations shall not affect the right conferred by section 29 of that Act (right of seamen to be discharged when ship ceases to be registered in the United Kingdom) on a seaman employed in the ship.[8]Sections 218 and 231 of the Employment Rights Act 1996 (ERA) deal with associated employers: 218 Change of employer. (1)Subject to the provisions of this section, this Chapter relates only to employment by the one employer. (2)If a trade or business, or an undertaking (whether or not established by or under an Act), is transferred from one person to another— (a)the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and (b)the transfer does not break the continuity of the period of employment. [sub-sections 3 – 5 do not need to be set out] (6)If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer’s employment, is an associated employer of the first employer— (a)the employee’s period of employment at that time counts as a period of employment with the second employer, and (b)the change of employer does not break the continuity of the period of employment. 231Associated employers. For the purposes of this Act any two employers shall be treated as associated if— (a)one is a company of which the other (directly or indirectly) has control, or (b)both are companies of which a third person (directly or indirectly) has control; and “associated employer” shall be construed accordingly.[9]There is a statutory presumption of continuity of service under Section 210(5) of the ERA. The burden of rebuttal lies with the Respondents.[10]In the event I were to find the Claimant did not have continuity of service the claimant submits he is also a worker under the definition in Section 230 of the ERA. However, given the concession made by the Respondents at the start of the Preliminary Hearing that the Claimant was an employee I do not need to address this point.[11]I was provided with written skeleton arguments and heard oral submissions from both parties which refers to various cases and I note, in particular, the case of Autoclenz v Belcher [2011] ICR 1157.[12]For the Claimant I heard evidence from the Claimant and a former colleague of his Mr Ravinder Singh and for the three other Respondents Mr Anshul Khattar.[13]There was a large bundle of documents, which did not fully follow the directions in the CMO and was not always in chronological order. The main bundle is marked R1. Additional documents were produced on the day being some further Metro Bank debit advice slips marked R2 and an email from Eastleigh to the Claimant dated 21 May 2019 marked C1. Relevant Findings of Facts[14]Starting with the company structure of the Respondents. Papa Johns Pizza stores (takeaway pizzas) are run by franchisees. Eastleigh and Hamble are companies which run the Papa Johns Pizza stores in the areas identified in the company names, albeit Hamble now has a number of stores covering a wider southern base (see below).[15]It is understood that the stores in Eastleigh transferred to Hamble around March 2021 (the parties could not be more specific about the date) and that the then employees of Eastleigh also transferred under TUPE at the same time. Eastleigh had one director Mr Abid Hussain. Mr Khattar and Mr Hussain held shares through their companies MKD for Mr Hussain and JASS Holdings Ltd (JASS) for Mr Khattar. The shareholding was then fifty-one percent for MKD and forty-nine percent for JASS. Hamble was owned in equal shares by MKD and JASS, both Mr Hussain and Mr Khattar were directors of Hamble. Hamble was created as the number of stores they were running, increased from just Eastleigh to eight stores in the Southampton and Portsmouth areas. MKD had interest in other Papa Johns stores in other towns but JASS is not a shareholder in those businesses.[16]Admas was set up by Mr Khattar in April 2020, its business was to provide consultancy, marketing, web design sites and so on for small businesses running these sorts of franchises who either they did not have the resource in-house or did not wish to pay Papa Johns (the franchisor) for those central support services.[17]Admas appears to have broken even in the first year. Looking at the records from Companies House (p. 62 – 74) for 30 April 2021, the business in year two was poor and it made a loss and Mr Khattar sold the business in 2023. It appears to be dormant now and I have seen no accounts for Admas.[18]During his evidence Mr Khattar said that if one company got into financial difficulties, it might, for example, have trouble paying wages, then he and Mr Hussain agreed there might be a loan from one company to another. I did not see any documentation or record of this and Mr Khattar could not say how many times this happened, but Mr Khattar said it had happened on more than one occasion and possibly on a number of occasions.[19]The Claimant was already working in the Eastleigh store as its manager when it was acquired by Eastleigh in 2017 by MKD and JASS. He met both Mr Hussain and Mr Khattar at the time of the acquisition. The Claimant understood they had taken over the business and, while Mr Hussain was a director, the Claimant would be taking instructions from both Mr Khattar and Mr Hussain.[20]He left the business at the end of 2017 but re-joined in 2018 as area manager when the Fareham store was opened. He was issued with a contract of employment in September 2018. His duties were to visit stores, oversee their activities, assist in the stores as and when necessary. The tasks are perhaps best illustrated by the WhatsApp messages shown at p.176 – 198. They passed between the Claimant and both Mr Hussain and Mr Khattar. They include tasks such as staff rotas/uniforms/holidays, focusing on sales/performance, problems with equipment and ordering food.[21]Mr Khattar’s evidence is that in a Teams meeting during the COVID pandemic in April or May 2020, that the Claimant said he wanted to be working remotely. Eastleigh did not have any remote jobs and so the Claimant resigned. This is denied by the Claimant who says that Mr Hussain told him Eastleigh did not have sufficient money to pay for his wages and he would be paid by another company under Mr Hussain’s control. I have not heard any evidence from Mr Hussain to contradict the Claimant’s evidence and there is no paperwork to show the Claimant resigned or written confirmation, such as a new contract of employment, showing his employer had changed. Mr Khattar’s evidence is that Eastleigh’s operational style was informal so no documentation was completed. I prefer the claimant’s explanation of what he was told by Mr Hussain. I accept it is possible the P45 in relation to Eastleigh might have been seen by the claimant (page 233) but I also accept it is likely any change in the payment arrangements were for the reasons given by Mr Hussain ie a lack of cash at that time.[22]I was pointed to payslips issued in Admas’s name from 29 May 2020 (page 276) which covered the previous fortnight’s work, when it is said the claimant started working for Admas. A P45 was issued by Eastleigh (p.229 – 233) on 13 June 2020, with a termination date of 31 May 2020. That date was for the convenience of the accountant who dealt with the records for all the Respondents. It is only after the payroll run was completed that the P45 was issued. The Claimant says he does not recall receiving the P45 and insists he carried on doing the same role as he was doing for Eastleigh.[23]Further, the Claimant denies undertaking any consultancy services as Mr Khattar alleges. Mr Khattar does accept that he assigned the Claimant to MKD. Given Mr Khattar’s evidence about the intra company loans and the probability that there were cashflow issues 3 months into the pandemic, I accept the Claimant’s evidence that he was told by Mr Hussein that there were going to be different payments arrangements. If he did receive the P45, he was paid as before, he undertook his normal duties and the P45 was no more than confirmation of what he had been told by Mr Hussain that the company who would be paying his salary would be different as opposed to a change of employer.[24]While Mr Khattar no longer owns or has access to Admas files, if consultancy work had been undertaken for MKD, I would have expected to see MKD (as a party to these proceedings) produce documentation to support this contention, for example actual pieces of work done or an invoice to MKD, but none has been produced. Eastleigh or Hamble should have had the originals of these sort of documents. With respect to the Claimant, having heard him give evidence, I do not believe he has the skillset for being a consultant as outlined by Mr Khattar in his evidence.[25]I was shown many Whatsapp messages for the period of his alleged employment as a consultant at Admas (p.176 – 198). They are between the Claimant and Mr Hussain, where in one message the Claimant refers to Mr Hussain as “boss”, and also messages with Mr Khattar. Those messages are all of an operational or administrative nature and are entirely consistent with the role of an area or operations manager. Again, having heard the claimant’s evidence I can see this is a role the claimant is well suited to.[26]The Respondents suggest the cCaimant is a shrewd businessman. They point to the fact that he sought to enter into a partnership agreement with Mr Hussain and Mr Khattar over the opening of a new franchise store in New Milton. Despite some testing cross-examination from Mr Turpin, it was clear to me that the Claimant did not understand much more than the basics of a profit and loss account and even that had to be explained to him initially by Mr Khattar. The Claimant’s skillset was that of an area or operational manager.[27]Mr Khattar also challenged the Claimant’s credibility by suggesting the claimant misrepresented his financial position to obtain a mortgage. If that was right Mr Khattar and Mr Hussain appear to have knowingly participated in any misrepresentation as to the Claimant’s hours of work and pay.[28]Mr Khattar said in early 2019, while at Eastleigh the Claimant asked them to increase his hours so he could show a higher income and once that mortgage was obtained the Claimant asked to reduce his hours. Mr Khattar relies in part for this assertion on a payslip at page 259 which shows that the Claimant moved to his address in April or May 2019. The Claimant said he did not move until July 2019 and denies the allegation.[29]The Claimant drew attention to two contrasting payslips from Eastleigh at (p.175 and 259) for the same period and which show two different addresses for the Claimant. The email, which is now marked C1 and dated 21 May 2019, shows that the Claimant was still at his old address in May 2019. No explanation is provided by Mr Khattar for the two different payslips. I accept the evidence of the Claimant as to when he moved addresses. Differing payslips for the same time period and which Mr Khattar cannot explain goes to the credibility of his evidence.[30]During the relevant period of the Claimant’s alleged employment with Admas Mr Khattar told us there were three employees at Admas. Aside from the Claimant, Mr Khattar said his wife was an employee. She undertook some operational roles but was primarily a receptionist. The other employee was Zia Khan Mohammed and responsible for finding new contracts. However, the records show only one employee of the company. Mr Khattar could not explain the discrepancy. This was, regrettably, a feature of Mr Khattar’s evidence. Some information in the bundle came from others such as the accountant/bookkeeper and which he could not explain, or he could not recall why something he had signed off, such as Admas returns to Companies House, contained mistakes.[31]Mr Khattar says the Claimant resigned from Admas in early January 2021 and then applied for a job at Hamble as area manager through the site Hari.com. There was again no evidence produced of the resignation which the Claimant denies. The Respondents again point to the P45 from Admas at p.276 – 296. The Claimant denies seeing the P45 and there is no correspondence showing it was sent to him. Mr Khattar claims there were up to 50 candidates and between 2 – 10 were interviewed. There was no copy of the advert, record of applications or any other evidence of alleged interviews with other candidates. So far as the Claimant is concerned, he continued doing the same operational duties but for the expanding business in Hamble.[32]Mr Khattar also points to the Hamble payslips only starting in February 2021 and shows Hamble as the employer, those payslips can be found at p.163 – 170 and p. 313 – 323. Curiously, the payslips at p.163 – 168 described the department the Claimant is working for as Admas. Later it is described as senior management. Mr Khattar could not offer any explanation for the reason why Admas is shown on the payslip.[33]The Claimant continued in his employment with Hamble until October 2022 and there is a separate dispute about the partnership agreements which is not relevant to this Preliminary Hearing.[34]The paperwork the Respondents rely upon is unconvincing and the documentary evidence they did produce was on occasions contradicted by other paperwork on company headed documents. The Claimant produced some of those documents which contradicted other documents produced on behalf of the Respondents in R1. The Whatsapp messages corroborated the evidence given by the Claimant as to his continuing role. Mr Khattar has no explanation as to why the Hamble payslip refers to Admas and in fact that reference to Admas may reflect the reality of the situation. The Claimant’s role never changed but there were changes initially in who paid him and who was his employer.[35]There have been various attempts to challenge the credibility of the Claimant. However, I found his evidence relatively straight forward. His role was essentially that of an area or operations manager. He was not a consultant of Admas and indeed did not have the skill set to be so. Throughout the hearing Mr Khattar and the Respondents were unable to produce evidence of resignations, job adverts or interview notes and I heard no evidence from Mr Hussain. When looking at all the evidence and the evidence I heard from the Claimant and Mr Khattar, I prefer the Claimant’s evidence.[36]Those at the relevant facts.
Conclusions
[37]As Autoclenz makes clear, I am entitled to look at the reality of the position. The evidence suggests the Claimant continued to be employed by Eastleigh until his employment was transferred along with others to Hamble in February or March 2021. The Respondents, and specifically Hamble, admitted at the start of this hearing that there had been a transfer at that time between Eastleigh and Hamble. For cashflow reasons, the Claimant was paid by Admas which was a temporary arrangement to assist Eastleigh. Mr Khatter admitted that from time to time payments were made by another company to assist another company. I accept the Claimant’s evidence that Mr Hussain said as much to him. In effect Admas’ role was to provide payroll services. As I noted earlier, Hamble payslips (eg p.163) show Admas as a department of Hamble. All of which suggests to me it was no more than a vehicle to deal with a relatively short term cashflow problem during the pandemic when, understandably, Eastleigh would have found business conditions very challenging.[38]There was reference in the evidence to Eastleigh and Hamble being associated companies. It is unnecessary for me to decide whether under Section 231 of the ERA all the Respondents at the relevant time were associated companies, given my conclusion above and my findings below on the TUPE point. However, I have read the Employment Tribunal’s decision in Ravinder Singh v Hamble Foods Limited, case no 3312617/2022. Mr Singh was a witness in this case. In dealing with the various claims the Employment Judge had to address whether Eastleigh and Hamble were associated companies. He also heard from Mr Khattar and did not hear any evidence from Mr Hussain. Mr Singh’s credibility as a witness was challenged as was the Claimant’s here. That decision is of persuasive authority only, but I note the Employment Judge had similar reservations about Mr Khattar’s evidence and preferred the evidence of Mr Singh. On the facts of that case he found Eastleigh and Hamble were associated companies.[39]It is likely I would come to the same view as the Employment Judge in Singh that Eastleigh and Hamble are associated companies within the meaning of S231 of the ERA.[40]The position with Admas is more complicated. Mr Hussain was not a shareholder or director. On the other hand, the WhatsApp messages clearly demonstrate, at the very least, indirect control by Mr Hussain. The fact that Admas is referred to in the Hamble payslips, as a department of Hamble of which Mr Hussain is a fifty percent shareholder (through MKD), further confirms the strong links between the companies but, as I said above, I do not need to decide this issue given my other conclusions.[41]Turning to 5.2.3 of the matters to be decided as set out in the CMO, the relevant provision is Regulation 3 (1) (b), ie a service provision change. There is an argument that it might also satisfy Regulation 3 (1) (a) too but a service provision transfer, I believe, is the more appropriate provision. The service provision here is that of an area/operational manager.[42]If I am wrong that Admas was effectively performing the role of a payroll company, then Mr Hussain’s conversation with the Claimant was informing him that his role, or activities, were being transferred to Admas. As I have already said, it is clear from the WhatsApp messages he was allocated by Admas to, and was performing the same role for, Eastleigh; further he was receiving his instructions from the same people, ie Mr Hussain and Mr Khattar. Around February or March 2021 Eastleigh was transferred to Hamble whose business was expanding as trading conditions improved, possibly at the same time as Admas’ business was starting to struggle. It appears that at the time Eastleigh’s business was transferred to Hamble the decision was made to contract back in the role of area/operations manager that the Claimant was performing for Eastleigh. The role ultimately grew to more than just that of Eastleigh and encompassed new stores as Hamble expanded. Again the reference on the payslip from Admas to senior management could be said to indicate the change of provider of those services.[43]Reverting to the issues posed in the CMO when listing today’s Preliminary Hearing, the answer is that the Claimant does have two years continuous service at the time of the termination of his employment. I find that he was employed by Eastleigh when along with other employees, he was transferred to Hamble on or around February/March 2021; the Respondents accept there was a TUPE transfer at that time for those employed by Eastleigh. However, if I am wrong in finding that the Claimant continued to be employed by Eastleigh, then I find there was a transfer from Eastleigh to Admas and in turn from Admas to Hamble. Consequently, the claimant has two years continuous service and the only respondent for these proceedings should be Hamble.[44]Other Directions and Orders given during the course of this Preliminary Hearing have been sent separately to the parties.
The Law
[45]Whilst the respondent’s version of events is not inconceivable, the lack of any contemporaneous evidence up to 4 November 2022 and the terms of the email which were written on 4 November 2022, lead me to conclude, on the balance of probabilities, that the claimant did not resign or say that he was resigning but the respondent dismissed the claimant. The dismissal took effect from 10 November 2022.[46]I make the following findings in respect of the claim for holiday pay. On 30 June 2022 the claimant was paid £400. In his final payment the claimant was paid a further £600. In her closing submissions, Ms Veimou said that amounted to 2.5 weeks’ pay. On the basis of a take-home pay of £581, in fact it would be just over one week’s pay.[47]The claimant’s witness statement sets out, at paragraph 8, the number of days which he says he took as paid holiday. That was not challenged by the respondent. I accept, therefore, that he took no days as holiday after 1 January 2022. On 10 November 2022, the claimant was 223 days into the holiday year which equates to 61%. Thus he had accrued an entitlement to 3.5 weeks holiday pay. He was not paid that amount.[48]It is apparent that the claimant’s employer changed when the transfers of undertaking took place as described by EJ Richardson, the claimant was not provided with a statement of particulars as required under s4 Employment Rights Act 1996. Conclusions on Liability[49]The claimant did not resign, he was dismissed.[50]The next question is whether there was a potentially fair reason for the dismissal. The respondent says that the potentially fair reason was that the claimant had resigned. I have found that the claimant did not resign. The respondent has not, therefore, established any potentially fair reason for the dismissal.[51]The dismissal was, therefore, unfair.[52]The claimant’s claim for a bonus payment is well-founded in that he was entitled to a payment of £4000 in April 2022 which was not paid. I have considered whether it might be said that the claim in this respect is out of time. That is an argument which has not been run by the respondent and as set out above, at paragraph 23 of the Amended Particulars of Claim the claim is put alternatively as a breach of contract claim or as a deduction from wages claim. If brought as a breach of contract claim then time would run from the date of dismissal and, therefore, not be in issue. My provisional view is that the claimant will have to give credit for the £3500 which he was paid.[53]The claim for holiday pay is well-founded.[54]There was a breach of section 4 Employment Rights Act 1996. Reconsideration[55]After I had read out the above judgment and the parties had taken stock a number of matters were raised for my consideration. They were as follows:a. The respondent contended that my statement in paragraph 27 above that “it is not clear what the respondent’s position is as to whether there was a subsequent variation that the claimant’s pay would be reduced from £800 per week back to £400 per week. That point is not addressed in the witness statements of the respondent’s witnesses”, had overlooked the last two sentences of paragraph 13 of Mr Khattar’s witness statement where he states, about the claimant, “At no point have we made any cash payments to the Claimant. He did start working overtime and picking extra shifts, so he had a slight salary increase. That was not permanent, and he ended up returning to his normal hours and normal pay of £400/week”.b. The claimant applied to amend his position that he was not seeking to claim unauthorised deduction of wages apart from in respect of the bonus. He asserted that he sought, now, to claim unauthorised deduction of wages for the period between July 2022 and October 2022, based on the fact that the claimant had only been paid £400 per week rather than £800 per week.c. It was apparent from discussion about holiday pay that I had mis-read paragraph 46 above and instead of stating the claimant was entitled to 3.5 weeks holiday pay I had read 3.5 days holiday pay. It seems to me that it should have been obvious from the context in which that part of the judgment was given that I had misspoken, nevertheless I accept that I had misspoken.d. The claimant sought to extend the period for which future loss was claimed in the schedule of loss to 2 December 2024.[56]The parties did not address me on the jurisprudential basis for raising those matters but at least in relation to the first two, it seems to me that I should treat them as applications for reconsideration. Once my judgment had been delivered, it took effect, and therefore if it is to be changed, it must be changed by way of reconsideration.[57]The position is governed by rule 68 of the Employment Tribunal Procedure Rules 2024, which provides as follows.[68]A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again 58. In approaching the application for reconsideration I have considered the cases of of Flint v Eastern Electricity Board [1975] ICR 395 and Outasight VB v Brown [2015] ICR D11. The principles set out in those judgments are helpfully summarised in the more recent case of Ministry of Justice v Burton [2016] ICR 1128, where at paragraph 21 the Court of Appeal stated “An employment tribunal has a power to review a decision “where it is necessary in the interests of justice”: see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J pointed out in Newcastle upon Tyne City Council v Marsden [2010] ICR 743, para 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials [1994] ICR 384 Mummery J held that the failure of a party’s representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here” 59. In reaching my decision I had overlooked the relevant part of Mr Khattar’s evidence. That may, in part, be because it was not drawn to my attention either through cross-examination or in submissions, nevertheless it was an error on my part. That failure undermines the analysis set out above as to what the claimant’s entitlement to pay was at the end of his employment. That is significant because it affects the amount of compensation to which the claimant is entitled. Where a judgment has been made based on an obvious misunderstanding of the evidential position by the judge, it is clearly in the interests of justice to reconsider the decision. In this case the only way in which justice can be done is for the decision about how much the claimant was to be paid towards the end of his employment to be revoked and retaken. I do so now. 60. In the course of submissions about whether or not I should vary my judgment, Ms Veimou took issue with my statement in the judgment that “In June 2022 the pay slips changed to payment on a monthly basis and it is difficult to understand precisely how the sums being paid were calculated”. She says that it is clear if one looks at the pay slips, the claimant was being paid £400 per week. She says it is a simple matter of maths. I regret that I do not agree. For the month ending 31 May 2022 the claimant was paid £1600. For the month ending 31 July 2022 the claimant was paid £2000. I have been provided with no explanation, in the witness statements, as to the difference and there was no cross examination on them. Ms Veimou says that the difference is because five weeks wages have been included in the July 2022 payslip but only four weeks wages in the May 2022 payslip. That explanation is not immediately obvious, there are 31 days in both months. Of course, it may be that there is an internal accounting mechanism which explains it, but that would require evidence. I cannot simply rely upon the submissions of Ms Veimou. I, therefore, invited the parties to make submissions as to whether I should reopen the issue fully and allow further evidence to be called by both sides and further crossexamination to take place. Ms Veimou said that I should, Mr Ward said that I should not. 61. I must decide the matter in accordance with the overriding objective and I do not think that simply because I made an error in my analysis, the parties should be able to call further evidence on any particular point. The interests of justice favour finality in litigation. However, my refusal to allow the parties to call further evidence does not only work against the respondent. There is also a paucity of evidence from the claimant on this point. I must do the best I can on the evidence I have. Re-Taking the Decision on the Claimant’s Final Pay 62. The correct evidential position is as follows:a. The claimant’s position is set out in the schedule of loss. His witness statement does not address the variation of wages except to the extent of confirming the schedule of loss. The schedule states “On or about 16/01/2022 it was agreed… that the claimant would onwards be paid weekly at £800 gross, and he received £581 net for all weeks ending 23/1/22 to 27/3/22” (p211)b. When asked about the matter in cross-examination the claimant said that because his responsibility had increased the respondent agreed to increase his wages and the respondent kept to that until March 2022.c. As indicated above from April 2021 to January 2022 the claimant was being paid £400 per week. The claimant's oral evidence in this respect was that, during that period, the respondent was deducting money for a partnership which he had entered into.d. The partnership agreement in the bundle (p109) states that it is made on 30 September 2021.e. Mr Khattar in his witness statement stated “At no point have we made any cash payments to the Claimant. He did start working overtime and picking extra shifts, so he had a slight salary increase. That was not permanent, and he ended up returning to his normal hours and normal pay of £400/week”.f. Mr Khattar was not challenged on that version of events. 63. I am forced to the conclusion that neither party has fully set out the position in their witness statements. 64. The burden of proof is on the claimant in this respect, but there was also an obligation on the respondent to provide the claimant with a statement about his pay entitlement while he worked there. I have decided that I ought not to fall back on the burden of proof but do my best to make findings on the incomplete evidence that is before me. 65. The claimant’s evidence that his wages were reduced to £400 a week because of deductions being made in respect of the partnership agreement is inconsistent with the partnership agreement in the bundle. That is dated 30 September 2021 but the claimant was being paid £400 per week from April 2021. Further, if the claimant’s wages were increased to reflect his increased responsibilities, it is difficult to see why he did not complain in 2022 when his pay was reduced. In my judgement the claimant’s evidence in this respect lacks credibility. The overall picture is more consistent with somebody who is being paid £400 per week generally but had increased their pay for a brief period, because of temporary increased responsibilities as suggested by the respondent. The wage slips suggest that the return to £400pw was from May 2022 and I find accordingly. 66. On the balance of probabilities, I prefer the respondent’s version of events which is that the claimant’s normal pay, and his pay at the date of his dismissal was £400 per week. It was was increased on a temporary basis between January 2022 and Aoruk 2022. My initial judgment is varied to that extent. The Other Matters on Reconsideration 67. As I understood Mr Ward submissions, if that was my finding on the claimant’s final pay, his application to amend the claim in respect of deductions from wages and to extend the period of future loss, fall away and so I make no order in those respects. REMEDY JUDGMENT
The Law
[1]The claimant’s compensation is assessed as follows:a. a basic award of £1600;b. in respect of loss of statutory rights, £750;c. in respect of loss of remuneration following the claimant’s dismissal, £800;d. in respect of the failure by the respondent to comply with the ACAS code on Disciplinary and Grievance Procedures, the sum of £232.50;e. in respect of the failure by the respondent provide the claimant with a statement of changes to his employment terms, £800; 14.f. in respect of non-payment of his bonus due in April 2022, £500; andg. in respect of non-payment of holiday pay, £400[2]The respondent is ordered to the claimant pay the total sum £5082.50 as quantified above.