Mr S SmithClaimantRoyal Mail Group LtdRespondentDate 7 May 2025
JUDGMENT
[1]It is declared, pursuant to s. 24 of the Employment Rights Act, that the Claimant has suffered an unlawful deduction from his wages in respect of the payments that he received for holiday pay, by reference to the overtime which he had undertaken.[2]The Claimant is entitled to the sum of £492.14 in respect of those deductions.[3]The Final Hearing listed in this case on 9 May 2025 is cancelled. Approved by: JUDGMENT having been sent to the parties on 7 May 2025 and written reasons having been requested in accordance with rule 62 (3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By a claim dated the 9th of October 2023, the Claimant brought a claim in relation to unpaid holiday pay. Specifically, he alleged that the leave which he had taken had not been paid correctly to reflect the overtime which he had undertaken in the previous 12 months. The particular period of claim was the leave that he took between 31 July and 19 August 2023 and the original claim was in the sum of £173.73.[2]The claim had been case managed as part of a multiple; many thousands of similar claims had been brought against the Respondent on the same and/or a similar basis. Nearly all of them had settled and the unions and Respondent had agreed a basis upon which overtime would be used in the calculation of holiday pay payments going forward. The Claimant’s was one of a very few claims that were left one.[3]The issue in the multiple had been summarised as follows (from the Order and Summary of 2 June 2021; “As set out previously, the claimants in this multiple claim that the respondent’s method of calculating holiday pay does not meet the requirements of regulation 13 of the Working Time Regulations 1998 and article 7 of Directive 2003/88/EEC (the Working Time Directive). The claimants therefore maintain that there has been a series of unlawful deductions from their pay contrary to section 13 of the Employment Rights Act 1996. The underlying factual issues concern the overtime that the claimants work(ed) and whether it is regular. Employees of the respondent usually work in a relatively small number of specified roles (delivery workers, mail centre workers, drivers et cetera) and the different types of overtime worked is therefore well-known in most cases. Although there have been ongoing discussions, the CWU and the respondent have not yet reached an agreement as to what overtime is regular and what is not.”[4]On 6 October 2024, the Claimant applied to amend his claim in order to bring “further claims for unlawful deductions of wages” which he later clarified to have been in relation to 2 further periods of leave; 26 February to 2 March 2024 and 5 to 17 August 2024. The further sums lost were said to have amounted to a further £220.09. The Respondent then wrote to say that it did not object to the amendment relating to the later, August period of leave, but that it did object to the first as the application had been brought “approximately four months out of time” (its email of 20 November 2024). A Case Management Preliminary Hearing was convened to consider the amendment application, amongst other things.[5]At the start of the hearing on 24 January 2025, the Respondent consented to both parts of the Claimant’s amendment and the application was duly granted. Subject to final instructions, it appeared that the Respondent was also prepared to meet full value of the amended claim by way of a settlement offer (£383.30), but the Claimant was not prepared to accept it for the following reasons; he claimed that he had brought at least 4 identical claims to the Tribunal in the past in which he had sought to recover underpayments of his holiday pay for exactly the same reasons (alleged under calculations due to exclusion of certain overtime payments). Although each had been settled for the full amount, he had then allegedly suffered further underpayments when more holiday had been taken. He was fed up having to bring such claims (or applying to amend an existing claim) once he had taken annual leave. He claimed that, although he might have been paid in accordance with the Respondent’s agreement with the union (which was how the other litigants are now paid), he considered that the agreement was wrong in law to have excluded the overtime which he claimed ought to have been included in his calculation.[6]In paragraph 60 of the Case Summary which was produced as a result of that hearing I stated that it was “clearly undesirable for each such claim to be settled without admission of liability and a resolution which might bind the parties going forward; each claim was inconvenient for the Claimant to bring, costly for the Respondent to defend and settle and needlessly time consuming for the Tribunal. By having this matter concluded at a hearing, a declaration under s. 24 would be made which should serve to curtail future litigation. If it did not, costs/preparation time orders would be the Tribunal’s likely next recourse depending, of course, upon who was successful at that hearing.”.[7]After that hearing, the full value of the Claimant’s claim was clarified as having been £492.14 in an updated Schedule of Loss dated 30 March. Then, in an open e-mail of 8 April 2025, the Respondent admitted liability, conceded that it had made unlawful deductions from the Claimant’s wages in the sum claimed and that a declaration ought to have been made under s. 24.[8]Despite that admission and the contents of the Case Summary, the Claimant wanted to proceed to a hearing. In light of the Respondent’s e-mail, I considered that there was nothing further that a hearing could have achieved beyond the concessions that had been made on the basis of the claim that had been advanced and that the Claimant would have some insurance as to the Respondent’s conduct going forward in the form of the declaration that had been made. In further correspondence, he then sought to raise new matters which were not part of the claim and/or for which amendment applications were not made. Judgment was duly entered.[1]The Claimant has applied for a reconsideration of the Judgment dated 15 may 2025 which was sent to the parties on 23 May 2025. The grounds are set out in his application of 26 May 2025. Relevant principles[2]Under rule 69 of the Tribunal Procedure Rules 2024, an application for reconsideration 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 inside the relevant time limit.[3]The grounds for reconsideration are only those set out within rule 68, namely that it is necessary in the interests of justice to do so. That allows for a ‘broad discretion’ to be exercised (Outasight VB Ltd-v-Brown UKEAT/0253/14) and, although the list of factors that may be relevant will be fact sensitive in every case, it was clear form the decision in Outasight that finality in litigation is invariably going to be one such factor. That has been a thread which has been common to many of the authorities in this area, stretching back, perhaps, to Phillips J’s judgment in Flint-v-Eastern Electricity Board [1975] ICR 395. Most recently, in Phipps-v-Priory Education Services Ltd [2023] EWCA Civ 652, the Court of Appeal encouraged an approach to rule 70 which involved the weighing of the injustice that the parties would suffer if a reconsideration application was allowed or refused, but by also “giving weight to the public interest in the finality of litigation.” (paragraph 36). Discussion and conclusion[4]In his application, the Claimant appeared to suggest that elements of his claim had been overlooked. The matter arose in the following way.[5]The claim that was brought in October 2023 was clearly one relating to unpaid (or under paid) holiday pay. The basis of the claim was clarified and confirmed at the Case Management Preliminary Hearing which took place on 24 January 2025 and was set out in detail in the Case Summary. After that hearing, on 17 March, the Claimant applied to add another element to it in relation to another period of leave. That application was granted on 28 March.[6]Once the Claimant had provided an updated Schedule of Loss setting out his claim in full for all of the relevant periods of leave, the Respondent admitted liability for the full amount by an email dated 28 April and agreeing that a declaration could have been made under s. 24. In response, the Claimant then tried to argue that the concession was not sufficient. He wanted the following declarations to have been made (his email of 28 April); of unlawful deduction of wages, that the respondents holiday pay is unlawful, of repeated breaches, of wilful or negligent breach, of systematic non-compliance in-line with the WTR 1998, to implement the correct legal basis of holiday pay as described in law, of detriment and aggravated circumstances to the claimant, that the respondent is knowingly acting in an unlawful manner and that the Tribunal’s findings shall be publicly reported, that the conduct undermines good industrial practices and recommendations to reform holiday pay practises and for regulatory referral to HMRC.[7]The Judge considered that there was no jurisdiction and/or basis upon which the Tribunal could grant the further declarations or make the recommendations sought. Accordingly, on 30 April, he sent out a draft of the judgment which he proposed to enter “unless the Claimant can point to the jurisdiction that he thinks the Tribunal has to act further in the manner alleged in his letter, by 12 noon on 7 May 2025.”[8]In reply, in an email of 5 May, the Claimant repeated much of what had been said in his email of 28 April. Many and various reasons for further action were suggested, none of which appeared to have had any basis in law so as to have enabled the Tribunal to award more than the compensation and declaration proposed in the draft of 30 April. Nevertheless, amongst the email and as an entirely new matter, the Claimant raised the following matter; “Public Interest and Whistleblowing Jurisdiction (ERA s.43B et seq.) Though not originally pleaded, the Claimant submits that the disclosures made in writing to the Tribunal, including in correspondence, amount to protected disclosures. In Millbank Financial Services Ltd v Crawford [2014] UKEAT/0243/13, the EAT held that allegations made during tribunal litigation could constitute protected disclosures. The Claimant’s disclosures relate to: A criminal offence has been committed, is being committed or is likely to be committed, (ERA s.43B(1)(a)); A breach of legal obligation (s.43B(1)(b)); That a miscarriage of justice has occurred, is occurring or is likely to occur, (s.43B(1)(c)); Danger to the health or safety of others (s.43B(1)(d)) – where chronic underpayment results in fatigue; Deliberate concealment of information tending to show these matters (s.43B(1)(f)). These matters fall within the jurisdiction of the Tribunal and justify further exploration.”[9]No application to amend to add a claim under s.47B was made. A suggestion that a matter ‘justified exploration’ was not such an application. Even if it had been, there were further difficulties to overcome; the disclosures relied upon, although not dated or clearly set out, were alleged to have been made to the Tribunal itself and no detriments, let alone detriments which might have been in time, had been identified.[10]Accordingly, the Judgment was entered and, in the subsequent Reasons (paragraph 8), it was pointed out that, whilst the Claimant had “sought to raise new matters which were not part of the claim and/or for which amendment applications were not made”, the Tribunal could only act on the basis of the claim which had been clearly brought forward.[11]In the Claimant’s application for reconsideration, he raised the following claims/matters, which are now addressed in turn;(i) Sections 43B, 43C, and 47B ERA 1996 (Protected Disclosures and Public Interest Detriment); This has been dealt with above; no such claim was advanced in the original claim and/or by way of amendment;(ii) Section 24 ERA 1996 (Declaration power); A declaration was made as part of the Judgment (paragraph 1);(iii) Systemic and ongoing breaches of the Working Time Regulations 1998; The Tribunal could only deal with the claim before it but, should a further breach occur, the Claimant can place the January Case Summary, the Judgment and the Reasons before the next Tribunal and request that it exercise its powers in other ways if appropriate (costs and/or strike out);(iv) The need for regulatory referral and public interest considerations; No jurisdiction and/or power has been identified under which the Tribunal might act further in this respect.[12]Accordingly, the application for reconsideration pursuant to rule 70 (2) is refused because there is no reasonable prospect of the Judgment being varied or revoked.