Miss S Lisi v Wraggy’s Ltd: 1803352/2021
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent made unauthorised deductions from the claimant’s wages and is ordered to pay to the claimant the gross sum of £72.00[2]The respondent is ordered to pay to the claimant the gross sum of £8.69 in respect of accrued but untaken holiday entitlement as at the termination of her employment.[3]The claimant was at all material times a disabled person. Her complaints of disability related harassment and discrimination arising from disability in respect of her dismissal succeed. As compensation for unlawful discrimination, the respondent is ordered to pay to the claimant the sum of £1,080.00 plus interest of £33.23 in respect of lost earnings and the sum of £5,000.00 plus interest of £200.00 as compensation for injury to feelings.[4]The claimant’s complaints of unfair dismissal and sex discrimination are dismissed.REASONS
Whilst the reconsideration application was submitted outside the requisite time limit, it is just and equitable to extend time to allow for its consideration. There is, however, no reasonable prospect of the original decision being varied or revoked. The respondent has taken no steps to defend these proceedings. Notices of hearing were sent to its correct postal address. The only communication mistakenly addressed was one emailing the Judgment, but in circumstances where this was at the same time sent to the respondent’s address by post and indeed received by it. The respondent did not attend the listed hearing following which Judgment was issued, but, in any event, in the absence of it defending proceedings (and even applying for an extension of time to do so), would only have been allowed to participate to the extent permitted by the tribunal. The claimant’s claim was sent to the respondent at its 298 Meadowhead, Sheffield address. It was correctly addressed and indeed to the address of the respondent’s shop. A response was to be provided by 4 August 2021. At the same time as service, a preliminary hearing was listed to take place on 8 September 2021 - the notice of hearing was also sent to the respondent’s postal address. No response was received. On 6 September, the tribunal’s administrative staff received a call from a woman purporting to be from the respondent saying that the claimant’s tribunal claim had just been delivered by Royal Mail in a rather battered envelope. She said that she would have contested the claim if she had known about it earlier. She stated that she would ask for the respondent to be allowed to submit a response. Shortly thereafter the tribunal received an email from Sarah Newton referring to the conversation she just had of a member of staff and saying again that she had only just received the case papers that day in a poor state. She said that they had not had a chance to respond and also her partner was unable to participate in the planned call (a reference to the listed telephone preliminary hearing). She said she was a director of the respondent. An Employment Judge decided, on the basis of this correspondence, to postpone the preliminary hearing listed for 8 September. It was directed as follows: “The respondent should be aware any response to the claim was due by 4 August 2021 and is now out of time. Rule 18 of the Rules of Procedure state that any late response must be accompanied by an application for an extension of time, explaining why the response was not submitted in time.” This was sent to the correct email address of Ms Newton. The tribunal received no response from her or the respondent. In particular, there has never been any application for an extension of time to submit a response or provision of a draft response. On 20 September 2021 a notice of the rearranged telephone preliminary hearing for case management was sent to the parties. This was sent by post to the respondent’s 298 Meadowhead address. The preliminary hearing was listed to take place on 1 December at 11:30am. An amended notice of hearing was sent in a similar manner to the parties on 25 November re-timing the preliminary hearing for 2pm on 1 December. There was no attendance on behalf of the respondent at the hearing. After the hearing, Judgment was issued in the claimant’s favour in circumstances, again, where the claimant’s complaint remained undefended. This Employment Judge directed that the Judgment be sent to the respondent by post and also to Ms Newton by email. Judgment was sent to the parties on 14 December 2021. On 17 January 2021 Ms Newton telephoned the tribunal to say that she had had a Rule 21 Judgment made against her but did not know about the hearing in December. Having reviewed the file, it appears that the Judgment, when emailed to Ms Newton, was sent to the incorrect email address. This is, however, the only correspondence from the tribunal which has been so mis-addressed. Ms Newton emailed the tribunal on 17 January. Within this she stated that she had, after she made contact with the tribunal on 6 September 2021, received a reply from the tribunal informing her that she would receive a revised date. This must be a reference to the aforementioned email postponing the hearing but containing also the direction regarding how any late response to the claims ought to be submitted. She made no suggestion that she had attempted to submit a response on behalf of the respondent. She said that, after Christmas, they had received the Judgment - a reference clearly to the receipt of the Judgment posted to the respondent at the same address to which the earlier notices of hearing and indeed original claim had been posted. Ms Newton stated that they believed that “any objectivity in the interest of justice had been lost” and asked for the Judgment to be reconsidered. The respondent has made a further reconsideration application which adds nothing material to its email of 17 January.