Ross Terrebonne v NM Telecom Ltd: 1401969/2018
JUDGMENT
[1]The response is struck out and judgment entered for the claimant in respect of all his claims, as set out in the case management order of 07 January 2019.[2]The case will be relisted for a remedy hearing.REASONS
[1]This hearing was to consider whether the respondent had met the terms of an order made on 26 April 2019 by Employment Judge Roper. It was an “unless” order in the following terms: “On the Tribunal’s own initiative and having considered any representations made by the parties, Employment Judge Roper ORDERS that – The respondent is ordered(i) to confirm to the claimant and to the tribunal whether it continues to dispute for the purposes of the claimant's public interest disclosure and race discrimination claims that Mrs Mohan was an employee or agent of the respondent at the relevant times; and(ii) that if it does dispute this, to provide the claimant with copies of Mrs Mohan’s Samsung login records between the dates of 1 November 2017 and 31 March 2018 Unless by 4:00pm on 7 May 2019 the respondent complies fully with this order then the respondent's response to the claimant's various claims will be struck out without further order, and judgment will then be entered for the claimant. The respondent will then be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge. The Judge’s reasons for making this Order are by reference to the Order in paragraph 2.1 of the Case Management Order dated 11 March 2019 in respect of which the respondent remains in default.”[2]Paragraph 2.1 of the order of 11 March 2019 was: “2.1 By the 25 March 2019 the Respondent shall(a) confirm to the Claimant and to the Tribunal its position regarding paragraph 2.1.1 of the Order dated 10 January 2019 and(b) if it continues to dispute for the purposes of the Claimant’s public interest disclosure / race discrimination claims that the Mrs Mohan was an employee or agent of the Respondent at the relevant times it shall also by 25 March 2019 provide to the Respondent (only) a copy of Mrs Mohan’s Samsung login / records for the period between 1 November 2017 and 31 March 2018.”[3]This refers to para 2.1.1 of the order of 10 January 2019, which was: “2.1 By the 11 February 2019 the Respondent shall provide the Claimant (and the Tribunal but only where indicated below) with the following :- 2.1.1 (to the Tribunal and the Claimant) whether it accepts that(a) Mrs Mohan was an employee or agent of the Respondent for the purposes of the Claimant’s public interest disclosure / race discrimination claims and if not why not(b) any disclosures by the Claimant were qualifying and protected public interest disclosures and if not, why not and(c) whether the Claimant made a protected act and if not, why not.”[4]The respondent maintained that Nidhi Mohan was not an agent or employee of the respondent at the relevant times. The respondent failed to comply with the second limb of the order. The managing director of the respondent resubmitted the email tendered by him previously referring to the Samsung account of his wife which did not give the login records, as required.[5]Mr Mohan’s evidence to me, given through a Hindi interpreter, was that his wife, Nidhi Mohan, to whom he is happily married, was no part of his business. She had her own business in Reading. Both his and her businesses were Samsung franchises, dealing with both warranty and non warranty repair work on Samsung phones. She was nothing to do with his business.[6]Mr Mohan speaks little English. He said that at the relevant times his wife had not started her business. She was on hand in Plymouth to help with communication. She was in effect his interpreter. Mr Terrebonne observed that Mr Mohan had previously not accepted that she had any involvement in his business. Mr Mohan said there was no reason for him to provide her log in details, as they related to her business not his. He accepted that both she and he had Samsung log in details.[7]Mr Mohan said that Samsung would not give him her details as they related to another business.[8]Asked whether he had made a such a request Mr Mohan said that he had not asked them.[9]I enquired why he had not asked her to provide the details to comply with the order. Taking what he said entirely at face value, plainly she could obtain such information without difficulty. Mr Mohan said that was related to her own business. She was busy in her business and he in his. He could ask but why should he ask how many log ins she had?[10]Asked if he might explain why it was that he had not asked his wife, as she could obtain them and then he could provide them, Mr Mohan changed his account and said that his wife was very annoyed at the whole thing: the public interest disclosure allegations were about her brother. She would have nothing to do with the matter. Mr Terrebonne explained that he was the manager to whom Mr Terrebonne reported. He (Mr Terrebonne) had raised the issue with Mr Mohan, through Mr Mohan’s wife, as that was how they communicated.[11]Mr Mohan then said that it was denied that any such disclosure had ever been made.[12]Mr Terrebonne had provided printouts of the chats in a WhatsApp group for the Plymouth shop where he had worked. They show Nidhi Mohan as an integral part of that working environment. Mr Mohan accepted that they were as they were said to be my Mr Terrebonne.[13]From this evidence I conclude that the respondent is simply seeking to evade the issue. First he had not asked his wife. Then Samsung would not provide those details. Then he accepted that he had not asked them. Then he did not see why he should ask his wife, who was busy with her own business. Then his wife was annoyed and would not help, and finally no such disclosure had ever been made. The email provided was from Simon Wood, who is a representive for Samsung in the Plymouth area. It was not sufficient before and was not compliant with the order made.[14]It is abundantly clear from the oral evidence of Madan Mohan that Nidhi Mohan was at the time fully involved in the running of the respondent’s shop in Plymouth where the claimant worked, and the denial of it by Mr Mohan is simply an attempt to use the technicality that she is said not to have been an employee as a ruse to evade the claim.[15]Accordingly, since the crystal clear terms of the unless order have not been complied with, in my judgment deliberately, the only appropriate course is to strike out the response and to enter judgment for the claimant. REMEDY JUDGMENT PURSUANT TO LIABILITY[1]The claimant is awarded, and the respondent is ordered to pay to the claimant, the sum of £1,250 in damages for breach of contract for notice as calculated in the Schedule below.[2]The claimant is awarded, and the respondent is ordered to pay to the claimant, a compensatory award for his unfair dismissal contrary to section 103A of the Employment Rights Act 1996 (“the Act”) in the sum of £16,965 as calculated in the Schedule below.[3]The compensatory award is uplifted by 10 per cent pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 to a total sum of £18,661.50 (£16,965 +£1,696.50).[4]The claimant is awarded, and the respondent is ordered to pay to the claimant, compensation for injury to feelings in the sum of £5,000 in respect of the pre- termination public interest disclosure detriments identified at paragraph 8.6 of the case management order dated 7 January 2019 (“the Order dated 7 January 2019”).[5]The claimant is awarded, and the respondent is ordered to pay to the claimant, compensation for injury to feelings in the sum of £5,000 in respect of the pre- termination harassment related to race (contrary to section 26 of the Equality Act 2010 (“the 2010 Act “)) identified at paragraph 9.1 of the Order dated 7 January 2019. The claimant is also awarded, and the respondent is ordered to pay to the claimant, interest in the sum of £683.48 (calculated as set out in the Schedule below) pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (“the Interest Regulations”) in respect of such award.[6]The claimant is awarded, and the respondent is ordered to pay to the claimant, compensation for injury to feelings in the sum of £8,500 in respect of the victimisation for doing a protected act (contrary to section 27 of the 2010 Act) as identified at paragraph 11 of the Order dated 7 January 2019 (including the pre- termination victimisation identified at paragraphs 11.2.1 – 11.2.4). The claimant is also awarded and the respondent is ordered to pay to him interest in the sum of £1,166.22 (calculated as set out in the Schedule below) pursuant to the Interest Regulations in respect of such award.[7]The claimant is awarded, and the respondent is ordered to pay to the claimant, a further sum of £2,500 by way of aggravated damages.[8]The claimant is therefore awarded and the respondent is ordered to pay to him the total sum of £42,761.20 (£1,250+£18,661.5+£5,000+£5,000+£683.48+ £8,500+£1.166.22 +£2,500).[9]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply in this case (“the Regulations”). For the purposes of the Regulations: -(a) the total monetary award is £42,761.20(b) the amount of the prescribed element is £16,965(c) the dates to which the prescribed element is attributable is from 7 March 2018 until 22 November 2019 and(d) the amount by which the monetary award exceeds the prescribed element is £25,796.20. THE SCHEDULE Notice pay - £312.50 net x 4 weeks = £1,250.[2]Compensatory Award(1) Loss of net earnings for 12 months from 7 March 2018 (52 x net weekly pay) = £16,250.(2) Loss of pension rights - £715 (subtotal £16,965).(3) Plus 10% per cent pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 = £18,661.50.[3]Interest on the award for injury to feelings in respect of the award of £5,000 at paragraph 5 above pursuant to the Interest Regulations – daily rate of interest (at 8 per cent per annum) = £1.09 x 627 day (5 March 2018 to 22 November 2019) = £683.48.[4]Interest on the award for injury to feelings in respect of the award of £8,500 at paragraph 6 above pursuant to the Interest Regulations. - daily rate of interest (at 8 per cent per annum) = £1.86 x 627 days (5 March 2018 to 22 November 2019) = £1,166.22. Employment Judge Goraj Dated 30 November 2019 Judgment sent to parties: 10 December 2019 As reasons for the Judgment were announced orally at the Hearing written reasons shall not be provided unless they are requested by a party within 14 days of the sending of this Judgment to the parties. Online publication of judgments and reasons The Employment Tribunal (ET) is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employmenttribunal-decisions The ET has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. 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