Mr P Atherton v Carlton Professional Ltd: 1403946/2018
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The Respondent has failed to pay the Claimant’s holiday entitlement and is ordered to pay him the sum of £2,513.62, the award having been increased by 4 weeks pay under s. 38 of the Employment Act 2002.[2]The hearing listed on 15 February 2019 is cancelled.REASONS
[1]The Respondent has applied for a reconsideration of the Judgment dated 2 January 2019 which was sent to the parties on 4 January 2019.[2]By a Claim Form dated 14 November 2018, the Claimant brought a claim of unpaid holiday pay and for compensation in relation to the Respondent’s alleged failure to provide written particulars of employment. In the absence of a Response, a Judgment was entered against the Respondent on 2 January 2019 in which compensation was assessed at £2,513.62, including a sum of 4 weeks’ pay under s. 38 of the Employment Act 2002.[3]By an email dated 10 January, the Respondent sought reconsideration of that judgement on the basis that he had been ill and out of the office since November. He indicated that he was taking steps to discover what, if any, liability the company owed the Claimant. In the meantime, the Tribunal encouraged the Respondent to file a Response and set out the reasons for its delay.[4]It was clear that there was a good deal of contact between the Claimant and Respondent and attempts were made to settle their dispute. Despite differences between them, Mr Woodhead, the Managing Director of the Respondent, informed the Tribunal that he was offering to make full Case No: 1403946/2018 settlement of the claim in relation to holiday entitlement nevertheless. Having received the Respondent’s draft Response, the Tribunal then indicated that the Judgment could be reconsidered for the reduced amount with the parties agreement or they could agree a settlement through ACAS. At the end of that email of 30 March, the parties were asked how they wish to proceed and they were told to notify the Tribunal by 8 April.[5]On 30 March, Mr Woodhead asked for the judgement to be reconsidered for the reduced amount (£1,774.32) and, on 4 April, the Respondent’s Accountant indicated that that sum had been paid. The Claimant did not reply to the Tribunal’s correspondence.[6]On the basis of the facts set out above, it is in the interests of justice to reconsider the Judgment as set out above.[1]The Claimant has applied for a reconsideration of the Judgment dated 11 April 2019 which was sent to the parties on 12 April 2019. The grounds are set out in his application of 15 April 2019.[2]The Judgment of 2 January 2019 was entered in default of the Respondent entering a response on time under rule 21. It reflected the Claimant’s claim for unpaid holiday pay and compensation for the alleged failure to provide written particulars of employment. A further 4 weeks’ pay was awarded under section 38 of the Employment Act 2002 in that respect, bringing the total to £2,513.62.[3]By an email dated 10 January 2019, the Respondent sought reconsideration of the original Judgment. The Tribunal encouraged Mr Woodhead, the Managing Director of the Respondent, to file a response and apply for an extension of time.[4]Following receipt of the draft Response, the Tribunal indicated that the Judgment could have been reconsidered for the amount offered by Mr Woodhead if it was accepted by the Claimant, being the full value of the claim for outstanding holiday pay or an ACAS settlement could have been achieved. Case No. 1403946/2018[5]Further emails were received from Mr Woodhead confirming his desire to follow the former course, but nothing was received from the Claimant. The assumption was therefore made that he was content for the course which had been proposed; for judgment to be reconsidered for the reduced amount of £1,774.32.[6]Somewhat belatedly, on 15 April, the Claimant wrote to the Tribunal requesting that the original Judgment be reinstated. He stated that the Respondent had misled him, ACAS and the Tribunal and that there had been no agreement reached between him and Mr Woodhead as the Judge had assumed (see the Tribunal’s letter of 30 March).[7]It now being clear that the Claimant has not been complicit in any proposed agreement to accept a lower sum that that initially awarded, the former position should be reinstated. The original Judgment of 2 January 2019 stands.[8]For the avoidance of doubt, the Respondent failed to provide a good reason why the original Judgment ought to have been reconsidered other than the matters set out above. Once he had made the initial application for reconsideration on 10 January 2019, he was advised to enter a draft response with a full explanation for the delay within 7 days (the Tribunal’s email of 20 February). He did not do so. Despite a reminder which was sent on 9 March, the draft Response was not sent until 18 March and it failed to deal with the failure to supply written terms of employment. The Respondent assumed that the increase under s. 38 had been some form of penalty for his ‘non-response’ despite the Tribunal having explained otherwise.