Mr E Batterbury v Anytime Fitness UK Ltd and Gym Factory Cosham Ltd: 1402186/2021
JUDGMENT
[1]The judgment of the tribunal is that the respondent not having entered a response to the claim :- i) The claimant’s claim for harassment contrary to s26 Equality Act 2010 related to the protected characteristic of sexual orientation is well founded and upheld. ii) The respondent is ordered to pay compensation for injury to feelings in the sum of £7,500; iii) The respondent is ordered to pay interest in the sum of £850. iv) Total £8,350.00 ---1--- Case Number: 1402186/2021[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD REMOTELY ON 9 August 2024 By CVP Video EMPLOYMENT JUDGE N J Roper Representation: For the Claimant: Did Not Attend For the Respondent: Mr N Sodha, Director[3]JUDGMENT ON APPLICATION TO RECONSIDER RULE 21 JUDGMENT The judgment of the tribunal is that the respondent’s application for reconsideration is allowed and the Judgment dated 15 January 2025 is hereby revoked.REASONS
[1]The respondent has sought a reconsideration of the judgment entered under Rule 21 dated 15 January 2024 which was sent to the parties on 22 February 2024 (“the Judgment”). The grounds are set out in its e-mail letter dated 28 February 2024. That letter was received at the tribunal office on 28 February 2024.[2]This has been a remote hearing on the papers which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform (CVP). A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2015 (“the Rules”). Under Rule 21(2) judgment can be issued where no response has been presented within the time limit in Rule 16, or a response has been rejected and no application for reconsideration is outstanding, or the respondent has stated that no part of the claim is contested.[4]Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[5]The lengthy procedural background to this case is as follows.[6]This claim was presented as long ago as 16 June 2021. The claimant was employed as a membership consultant at a gym in Cosham, Portsmouth for one week only from 10 May 2021 until 17 May 2021. His claim is limited to a claim of harassment under section 26 Equality Act 2010 which relates to the claimant’s sexual orientation. The claimant named as the respondent to his claim Anytime Fitness, and the proceedings were served on 1 July 2021 on the address which he had given, namely unit 10 Evolution, Wynyard Business Park, Wynyard. This address is in fact the registered office of the current respondent namely Gym Factory Cosham Ltd. No reply was received, and the claimant was requested to provide further details. He eventually confirmed on 7 September 2021 that his employer and the correct respondent to this claim was Anytime Fitness UK Limited. The proceedings were re-served on 20 October 2021 at the then registered office of this company, namely 11 Church Walk, Wellsbourne, Warwick CV35 9QT. No reply was received, and no appearance was entered.[7]Arrangements were made for the claimant to serve a schedule of loss and to attend a remedy hearing by video on 21 October 2022. He failed to attend, presumably for technical reasons, and Employment Judge Cadney wrote to the parties proposing to enter judgment for the claimant under Rule 21 in the amount claimed by the claimant, namely an award for £7,500 for injury to feelings and £850 interest, totalling £8,350. The claimant wrote on 31 October 2022 to agree to this proposal. Nothing was then actioned until 27 March 2023 when Employment Judge Cadney entered judgment under Rule 21 for that amount, which was sent to the parties on 14 April 2023.[8]The claimant then sought to enforce that judgment through the civil court procedure. A representative of Anytime Clubs UK Limited then wrote to the tribunal on 28 June and 4 July 2023 to the effect that the respondent Anytime Fitness UK Limited was a dormant company, and not affiliated to them, and that they should not be involved in any enforecement. Employment Judge Cadney responded on 20 July 2023 to the effect that they were a different legal entity, and the Employment Tribunal was unable to assist if for some reason they were wrongly being pursued for enforcement.[9]The claimant’s attempts to enforce the judgment remained frustrated and on 24 November 2023 he wrote to the Tribunal and applied to amend his claim to change the name of the respondent, and he said that he had been advised to do so by the High Court Enforcement team. The claimant asserted that he was employed by Gym Factory Cosham Limited, and that this company should be the correct respondent, even though his contract of employment suggested that his employer was Anytime Fitness UK Limited.[10]By letter dated 5 December 2023, which was sent to both Anytime Fitness UK Limited and Gym Factory Cosham Ltd, Employment Judge Cadney proposed amending his judgment under Rule 21 by changing the name of the respondent to Gym Factory Cosham Ltd unless any of the parties objected to this substitution of the respondent within 14 days. Mr Bende of Gym Factory Cosham Ltd did then object, by way of a letter in reply on 22 January 2024 to Bristol County Court. This did not reach the Employment Tribunal for some time. No other objections were received.[11]Employment Judge Cadney then issued an amended judgment under Rule 21 against the newly substituted respondent Gym Factory Cosham Ltd dated 15 January 2024, and that judgment was sent to the parties on 22 February 2024. This Judgment therefore superseded the first Judgment. This is the Judgment which is under reconsideration today.[12]A formal written application for reconsideration was then made by Gym Factory Cosham Ltd by letter dated 28 February 2024. It referred to the objection already raised by Mr Bende on 22 January 2024, which had been sent within the time limit suggested. The application conceded that the claimant was employed by Gym Factory Cosham Ltd which at the time was operating under a franchise and trading as Anytime Fitness in Cosham.[13]The upshot of all this is that Gym Factory Cosham Ltd was never formally named and served as a potential respondent to these proceedings. When asked whether it objected to being substituted as a respondent, it did so (albeit to Bristol County Court, which is in the same building as the SouthWest Employment Tribunal region). Judgment was entered against it despite this objection, and the application today is that the Judgment should be revoked so that Gym Factory Cosham Ltd (which the parties now agree was the claimant’s employer and the correct respondent to his claim) has the opportunity to defend the claim.[14]In addition, this respondent has a strong defence to the claimant’s claim. It asserts that the claimant worked for approximately four days between 10 May and 17 May 2021. On one of those days he claimed to have done an hour’s work at the respondent’s gym premises but this was disputed by the Club Manager Ms Kim Reedman who was there at the time. The respondent was able to prove by reference to its sophisticated security systems that the claimant was not present at the time which he alleged, and that his claim was dishonest. Following the termination of his employment he then raised allegations against Ms Reedman that she had made disparaging comments about him being gay. These comments are strongly denied by Ms Reedman, and the respondent says that it can prove that the claimant was dishonest.[15]In a subsequent development, and after its application to revoke the Judgment, this respondent actually paid the amount due under the Judgment when the bailiffs arrived to enforce it.[16]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[17]The grounds relied upon by the respondent are that is has never been formally served with these proceedings and it has been denied the opportunity of entering a response and to defend its position. It asserts that it has to be in the interests of justice to allow it to do so.[18]Under the previous Rules of Procedure (relating to the review of what were called Default Judgments) the EAT gave guidance on the factors which tribunals should take into account when deciding whether to review a default judgment in Moroak t/a Blake Envelopes v Cromie [2005] IRLR 535. The EAT held that the test that a tribunal should apply when considering the exercise of its discretion on a review of a default judgment is what is just and equitable. In doing so, the EAT referred to the principles outlined in Kwik Save Stores Ltd v Swain and others [1997] ICR 49.[19]In the Kwik Save decision, the EAT held that “… the process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice". The case established that an Employment Judge should always consider the following three factors. First, the explanation supporting an application for an extension of time. The more serious the delay, the more important it is that the Employment Judge is satisfied that the explanation is honest and satisfactory. Secondly, the merits of the defence. Justice will often favour an extension being granted where the defence is shown to have some merit. Thirdly, the balance of prejudice. If the employer's request for an extension of time was refused, would it suffer greater prejudice than the employee would if the request was granted?[20]This guidance in Kwik Save was approved by reference to the subsequent 2013 Rules in Office Equipment Systems Ltd v Hughes UKEAT 0183/16/ JOJ.[21]I have also considered the case of Pendragon Plc (trading as C D Bramall Bradford) v Copus [2005] ICR 1671 EAT which confirms that in conducting a reconsideration of a Rule 21 Judgment (formerly a review of a default judgment under the previous Rule 33) an Employment Judge has to take account of all relevant factors, including the explanation or lack of explanation for the delay and the merits of the defence, weighing and balancing the possible prejudice to each party, and to reach a conclusion that was objectively justified on the grounds of reason and justice.[22]Applying these principles in this case, in my judgment the balance of prejudice lies in allowing the respondent’s application for reconsideration. The parties agree that the respondent was the claimant’s former employer and is the correct respondent to this claim. The respondent has never been formally served with these proceedings, and it has not been provided with the opportunity to present a response. It has a strong defence to the claim. Although the claimant will lose the windfall of a judgment under Rule 21, this was entered after the claimant had given incorrect information as to his previous employers, and mistakenly paid by this respondent when faced with enforcement. I therefore revoke the Judgment because it is in the interests of justice do so.[23]For the avoidance of doubt the Judgment against this respondent is a nullity now that it has been revoked.[24]Further case management orders have now been made as recorded in a separate Case Management Order of today’s date.[1]By a letter dated the 13th August 2024, the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because it has not been actively pursued.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim is therefore struck out.