Mrs S Hogson v South Elmsall Community Facilities Ltd: 1806473/2023
EMPLOYMENT TRIBUNALS
Case No 1806473/2023
Between
Mrs S HogsonClaimantSouth Elmsall Community Facilities Ltd Heard: in LeedsRespondent
Before
Employment Judge AyreMs L Taleb (instructed by counsel) for claimantNot represented for respondentDate 26 February 2024
JUDGMENT
[1]The claim for unfair dismissal is well founded. The claimant was unfairly dismissed by the respondent.[2]The claim for wrongful dismissal is well founded. The respondent breached the claimant’s contract of employment by dismissing her without notice or payment in lieu of notice.[3]The respondent is ordered to pay the sum of £17,918.57 to the claimant.
REASONS
Background
[1]On 6 October 2023 the claimant issued a claim in the Employment Tribunal following a period of early conciliation that started on 28 July 2023 and ended on 8 September 2023. The claim form includes claims of unfair dismissal and for notice pay.[2]By letter dated 6 November 2023 the claim was sent to the respondent at the following address: 122 Westfield Lane, Pontefract, West Yorkshire, WF9 2EF. The deadline for filing the response was 4 December 2023.[3]No response has been received to the claim. The Tribunal wrote again to the respondent on 8 January 2024 informing the respondent that in accordance with Rule 21 of the Employment Tribunal Rules of Procedure, because the respondent has not entered a response, the respondent may only participate in any hearing to the extent permitted by the Employment Judge who hears the case.[4]A search of Companies House reveals an entry for a company named South Elmsall Community Facilities Ltd, company number 08280942, with a registered office at 122 Westfield Lane, South Elmsall, Pontefract, West Yorkshire, WF9 2EF. The company appears to be active and the nature of the business is stated as being ‘combined facilities support activities’.
The hearing
[5]In preparation for today’s hearing the claimant had prepared a witness statement and a bundle of documents running to 155 pages. Within the bundle was a contract of employment for the claimant listing the claimant’s employer as South Elmsall Community Facilities Limited. The claimant had also produced a Schedule of Loss.
Findings of fact
[6]I heard evidence from the claimant and submissions from her representative.[7]The respondent did not attend the hearing, submit any evidence or play any part in the proceedings.
The issues
[8]The issues that fell to be determined at the hearing today were the following: Was the claimant unfairly dismissed by the respondent? Was the claimant wrongfully dismissed by the respondent? What sums, if any, should the respondent be ordered to pay to the claimant?[9]At the start of the hearing Ms Taleb indicated that the claimant was not pursuing any claim for pension loss.
Findings of fact
[10]The claimant was employed by the respondent as a Nursery Manager from 19 February 2018 until 2 May 2023 when she was dismissed with immediate effect. The claimant was not given notice or paid in lieu of notice.[11]On 8 March 2023 the claimant was suspended and told that she was the subject of an investigation into three separate allegations of wrongdoing. On 24 March 2023 the respondent wrote to the claimant inviting her to an investigation meeting on 4 April and advising her of her right to bring either a trade union representative or a work colleague to the meeting.[12]The claimant attended the investigation meeting on 4 April with a trade union representative and was asked about the three allegations. She had the opportunity to put her version of events to the respondent.[13]On 20 April 2023 the respondent wrote to the claimant inviting her to a disciplinary hearing on 2 May 2023. The claimant was warned in this letter that a potential outcome of the meeting may be her dismissal.[14]The disciplinary hearing took place on 2 May. The claimant attended and was accompanied by an officer from her trade union, Unison. The claimant provided an explanation for each of the allegations that was put to her. Notwithstanding that, the respondent decided to dismiss her with immediate effect. The respondent wrote to her informing her of her dismissal in writing.[15]The claimant was informed of her right of appeal and exercised that right. An appeal hearing took place on 7 June 2023, but the claimant’s appeal was not upheld.[16]The claimant was born on 16 April 1957. At the time of her dismissal she was 66 years old and had 5 complete years’ service. She was paid £420 a week gross and £344.60 a week net.[17]The claimant’s contract of employment contained the following clause headed “Notice of Termination of Employment”: “During probationary period Either party may terminate the contract of employment by giving 1 weeks’ notice. After completion of probationary period The length of notice which you are obliged to give to the Company to terminate your employment is four weeks in writing. The length of notice which you are entitled to receive from the Company to terminate your employment is four weeks in writing.”[18]Had she not been dismissed; the claimant had intended to work until her 67th birthday. Since her dismissal the claimant has not looked for alternative work, but has drawn her pension The Law Unfair dismissal : misconduct cases[19]In an unfair dismissal case, such as this one, where the respondent dismissed the claimant, the respondent must establish that the reason for the dismissal was one of the potentially fair reasons set out in section 98(1) or (2) of the Employment Rights Act 1996.[20]Section 98(1) provides that: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[21]The burden of establishing a fair reason for dismissal lies with the respondent. If it discharges that burden, the Tribunal will then go on to consider whether the dismissal was fair or unfair within the meaning of section 98(4) of the Employment Rights Act 1996.[22]Section 98(4) states as follows: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) Shall be determined in accordance with equity and the substantial merits of the case. “
The Law
[23]Where a Tribunal finds that a claimant has been unfairly dismissed, the respondent can be ordered to pay a basic award and a compensatory award to the claimant. Wrongful dismissal[24]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 gives Tribunals the power to hear claims for breach of a contract of employment or other contract connected with employment where the claim arises or is outstanding on the termination of the claimant’s employment.[25]In a wrongful dismissal claim, where the claimant was not given notice or paid for her notice period, the question is whether the claimant was in repudiatory breach of her contract of employment such that the employer was entitled to dismiss her without notice.[26]In a wrongful dismissal case questions of reasonableness do not arise, and the issue is whether the employee was guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract (Enable Care and Home Support Ltd v Pearson EAT 0366/09). Statutory minimum notice period[27]Section 86 of the Employment Rights Act 1996 sets out the rights of employees to minimum periods of notice. It provides as follows: “(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –(a) is not less than one week’s notice if his period of continuous employment is less than two years,(b) is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and(c) is not less than twelve weeks’ notice if his period of continuous employment is twelve years or more…. (3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to subsections (1) and (2); but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice…. (6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.” ACAS Uplift and Compensatory Award[28]Section 123 of the Employment Rights Act 1996 provides, in relation to compensatory awards for unfair dismissal, that: “(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer…. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales…” 1. In Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498 the EAT held that there are three questions that a Tribunal should consider when dealing with allegations of failure to mitigate, and that the burden of proof is on the employer in respect of each:a. What steps was it reasonable for the claimant to take to mitigate her loss?b. Did the claimant take reasonable steps to mitigate her loss? Andc. If the claimant had taken those steps, to what extent would she have mitigated her losses? 2. The starting point, when calculating the compensatory award, is that the Tribunal should assume that the claimant has taken all reasonable steps to mitigate. Mr Justice Langstaff, who was at the time President of the EAT, summarised a number of principles for Tribunals to apply when considering questions of mitigation, in the case of Cooper Contracting Ltd v Lindsey [2016] ICR D3. Those principles include the following: a. The burden of proving a failure to mitigate lies with the employer; b. If the employer does not adduce evidence that the claimant has failed to mitigate, the Tribunal is not obliged to look for such evidence or draw inferences; c. The employer must prove that the claimant has acted unreasonably. The claimant does not have to establish that she acted reasonably;d. Tribunals should not apply too demanding a standard on the claimant, and the claimant should not be ‘put on trial’ as if the losses were her fault;e. It is for the ‘wrongdoer’ to show that the claimant has acted unreasonably by failing to mitigate her losses. 3. Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that: “… (2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –(a) The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) The employer has failed to comply with that Code in relation to that matter, and(c) That failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%...” 4. A tribunal may only make an adjustment under section 207A if it makes an express finding that a failure to follow the Code was unreasonable (Kuehne and Nagel Ltd v Cosgrove EAT 0165/13). Not every breach of the Code or finding of unfair dismissal will warrant an adjustment. Similarly, a failure by an employer to follow its own disciplinary procedures will not necessarily mean that there has been a breach of the Code. 5. In Lawless v Print Plus EAT 0333/09 Mr Justice Underhill, who was at the time President of the Employment Appeal Tribunal, suggested (albeit in the context of the former statutory disciplinary and grievance procedures) that relevant circumstances to be taken into account by a Tribunal when deciding whether to exercise its discretion and make an uplift, should always include whether: a. The procedures were applied to some extent or were entirely ignored; b. The failure to comply was inadvertent or deliberate; and c. There were circumstances that mitigate the blameworthiness of the failure to comply. 6. The size and resources of the employer can also be a relevant factor. 7. More recently in the case of Slade and another v Biggs and others [2022] IRLR 216 the EAT laid down a four-stage test for Tribunals to follow when considering whether to make an uplift: a. Is the case such as to make it just and equitable to award an uplift? b. If so, what would be a just and equitable percentage uplift in all the circumstances? c. Does the uplift overlap with other general awards such as injury to feelings and, if so, what adjustment should be made to avoid double counting? d. Applying a final ‘sense check’, is the sum of money represented by the percentage uplift disproportionate in absolute terms and, if so, what further adjustment should be made? Conclusions[29]The respondent has not presented a response to the claim. It did not attend the hearing today, adduce any evidence, or send in any representations. It has played no part whatsoever in the Employment Tribunal proceedings.[30]The burden of proving a fair reason for dismissal lies with the respondent. It has not discharged that burden. Accordingly I find that the claimant was unfairly dismissed. I accept the claimant’s evidence that she provided an explanation for all of the allegations that were put to her.[31]I also find that the claimant was wrongfully dismissed. She did not commit gross misconduct or a fundamental breach of her contract of employment. Accordingly the respondent was in breach of contract when it dismissed her without notice of payment in lieu of notice. Although the claimant’s contract of employment provided for a notice period of four weeks, that period is less than the statutory minimum notice period set out in section 86 of the Employment Rights Act 1996. The statutory minimum notice period overrides the contract in these circumstances.[32]As the claimant had five complete years of service, she is entitled to five weeks’ notice under section 86. The damages for the respondent’s wrongful dismissal of the claimant therefore amount to 5 weeks at her net weekly pay of £344.60. This gives a total award for wrongful dismissal / notice pay of (5 x 344.60) £1,723.[33]The basic award to which the claimant is entitled, given her age (66) and her length of service (5 years) is 7.5 weeks’ gross pay, a total of £3,150 (7.5 x £420).[34]In relation to the compensatory award, I find that the appropriate amount for loss of statutory rights, given the claimant’s age, length of service and the fact that she only intended to work for another year, is £400.[35]I also award the claimant loss of earnings from 6 June 2023, the date upon which her notice period (for which she has been compensated by way of damages for wrongful dismissal) would have expired, to today. This is a total of 37 weeks and 6 days, which gives the following amounts: £344.60 (a week’s net pay) x 37 = £12,750.02; plus 6/7 x £344.60 = 295.37 Total loss of earnings (12,750.02 + 295.37) = £13,045.57[36]I have decided, on balance, not to make an award for future loss. The reasons for this are that the claimant chose, following her dismissal, to bring forward her retirement, and to draw her pensions, rather than to look for alternative work. I do not find that the claimant has failed to mitigate her losses, but I find that, in light of the fact that no deduction has been made from lost earnings either in respect of any possible failure to mitigate or in respect of the pension she has received, it would not be just and equitable to make any award in respect of future loss.[37]The total unfair dismissal compensatory award therefore is £13,445.57[38]I have considered whether to award an uplift in compensation for noncompliance with the ACAS Code. Ms Taleb submitted that the respondent had not complied with the ACAS code because one of the allegations put to the claimant related to an incident that had occurred in November 2022. I am not persuaded by her submission on this issue.[39]The ACAS Code, provides in summary, that: Disciplinary issues should be dealt with promptly and without unreasonable delay; Employers should act consistently; Employers should carry out necessary investigations to establish the facts of the case; Employers should inform employees of the basis of the problem and give them an opportunity to put their case before any decisions are made; Employers should allow employees to be accompanied at any formal disciplinary meeting; and Employers should allow an employee to appeal against any formal decision made.[40]I accept that this is a case to which the ACAS Code of Practice on Disciplinary & Grievance Procedures apply. It cannot be said however that there was any egregious breach of the Code. On the contrary, the respondent appears to have taken steps to comply with the Code. The respondent does appear to have acted promptly when all of the allegations came to light.[41]The claimant was informed of the allegations against her and had the opportunity to respond to them and put her version of events at an investigation meeting. She was informed in writing of the outcome of the disciplinary hearing and had the opportunity at appeal. She was allowed to be accompanied at meetings.[42]In these circumstances it would not, in my view, be just and equitable to award an uplift. This is a case in which the basic requirements of the ACAS Code were complied with.[43]The total award to the claimant is therefore as follows: Notice pay £1,723; plus Basic award £3,150; plus Compensatory Award – £13,445.57 Total = £17,918.57[44]The respondent is therefore ordered to pay the sum of £17,918.57 to the claimant. RECONSIDERATION JUDGMENT The respondent’s application for reconsideration of the Judgment sent to the parties on 11 March 2024 and the corrected Judgment sent to the parties on 28 March 2024 fails. The original judgments are confirmed.[1]At a hearing on 26 February 2024, which the respondent did not attend, the Tribunal found that the claims for unfair and wrongful dismissal were well founded and ordered the respondent to pay the sum of £17,918.57 to the claimant. A written judgment was sent to the parties on 11 March 2024, and a corrected judgment, in which the spelling of the claimant’s name was amended, was sent to the parties on 28 March 2024.[2]By letter dated 5 April 2024 the respondent wrote to the Tribunal asking that the Tribunal reconsider and set aside the judgment. The grounds for the application as set out in the letter are that:• The Tribunal has sent documents about the claim to a residential address rather than the respondent’s registered place of business;• Solicitors for the claimant did not make reasonable endeavours to notify the respondent that a claim had been made;• It would be in the interest of justice and in accordance with the overriding objective to set aside the judgment ;• The respondent did not have notice of the claim[3]On 12 April 2024 the claimant’s solicitors wrote to the Tribunal objecting to the application and asking that it be dismissed or a hearing listed to determine the application. The claimant’s objections to the application, as set out in the letter, were in summary that:• The respondent’s explanation for not engaging with or responding to this claim does not hold up to further scrutiny;• The claim was issued and served on the respondent’s registered address (as listed on Companies House);• The address in question is the published address for various organisations;• The claimant was told by an employee of the respondent that the respondent was aware of the judgment earlier than suggested by the respondent, and the respondent’s registered address was changed on that date;[4]Having considered the representations of both parties, I decided that this case should be listed for a hearing to consider the respondent’s application. The parties were informed that they may wish to adduce evidence at the hearing of the matters contained in the application.
The hearing
[5]Both parties attended the hearing and were represented. I heard evidence from Clare Baxter, the respondent’s company secretary, who had prepared a witness statement to which was exhibited an extract from the electoral register of Wakefield Metropolitan District Council. I also heard evidence from the claimant, who was given leave to give evidence without a witness statement, and submissions from both parties. Findings of fact[6]The respondent is a limited company that was incorporated on 5 November 2012. From the date it was incorporated, until 27 March 2024, its registered office was 122 Westfield Lane, South Elmsall, Pontefract, West Yorkshire, WF9 2EF. On 27 March 2024 its registered office changed to Westfield Centre, Westfield Lane, South Elmsall, Pontefract, West Yorkshire, WF9 2PU. The Westfield Centre is very close to 122 Westfield Lane.[7]The respondent was originally based at 122 Westfield Lane. In 2019 however following a housing development on Westfield Lane, 122 Westfield Lane became a residential property, and the respondent moved in to the Westfield Centre. It did not change its registered office however until March 2024, some five years later.[8]Clare Louise Baxter is the Company Secretary and has been the Company Secretary since the respondent was incorporated. She is also involved in the day to day running of the respondent. Ms Baxter’s home address is listed on the Companies House website. She lives next door to the claimant.[9]On 28 July 2023 the claimant began ACAS Early Conciliation. The Early Conciliation Certificate records the address of the prospective respondent as being 122 Westfield Lane, which was at the time the respondent’s registered office. The claimant was initially represented by a trade union representative from Unison, and subsequently by Thompsons solicitors.[10]The trade union representative began early conciliation on the claimant’s behalf and told the claimant that she had asked ACAS to contact the respondent by writing to Clare Baxter at her home address. The representative also told the claimant that ACAS had told her (the representative) that they had written to Clare Baxter and had not received any response.[11]Ms Baxter told the Tribunal that she had not received any communication from ACAS, and I accept her evidence on that point. The claimant did not take any steps personally to alert Ms Baxter to the claim because she believed her trade union and solicitors were dealing with the matter and was not aware until the hearing on 26 February that the respondent had not filed a response to the claim.[12]Prior to issuing this claim the claimant’s trade union representative told the respondent that the claimant was considering issuing proceedings in the Employment Tribunal. Specifically, the representative told Mr Tulley, the appeal hearer, during the appeal hearing.[13]After the appeal hearing but before the claim was issued, the trade union representative sent an email to Mr Tulley asking for contact details for the respondent. She stated that she was trying to find an email address and telephone number for the respondent but, having looked on Companies House and on the respondent’s corporate headed notepaper, was unable to find either. She also wrote that she was instructed to issue legal proceedings against the respondent on behalf of the claimant, and asked Mr Tulley to get in contact if the respondent had a preference as to which contact details they wanted to be used.[14]Mr Tulley did not respond to this email. When issuing the claim therefore, the claimant’s representative used the respondent’s registered office.[15]By letter dated 6 November 2023 the claim was served on the respondent at the address that was, at the time, the registered office: 122 Westfield Lane, Pontefract, West Yorkshire, WF9 2EF.[16]The deadline for filing the response was 4 December 2023. The respondent did not file a response. The Tribunal wrote again to the respondent on 8 January 2024 informing the respondent that in accordance with Rule 21 of the Employment Tribunal Rules of Procedure, because the respondent has not entered a response, the respondent may only participate in any hearing to the extent permitted by the Employment Judge who hears the case. That letter was also sent to the address which was the respondent’s registered office at the time.[17]The respondent did not attend the hearing on 26 February 2024. A search of Companies House that day revealed an entry for a company named South Elmsall Community Facilities Ltd, company number 08280942, with a registered office at 122 Westfield Lane, South Elmsall, Pontefract, West Yorkshire, WF9 2EF. The company appeared to be active and the nature of the business was stated as being ‘combined facilities support activities’.[18]In her evidence to the Tribunal Ms Baxter said that she had talked to the resident of 122 Westfield Lane, who had told her that correspondence from the Tribunal had gone to the address, and that she had returned the mail to the post office with a note stating, “not at this address”. There was no evidence on the Tribunal file however of the correspondence having been returned to the Tribunal, as would normally be the case where mail is returned to the post office.[19]Although the claimant’s representative had written to Mr Tulley indicating that the claimant was intending to issue proceedings, the respondent did not become aware of the actual proceedings until some time in March 2024 when they were contacted by Peninsula Business Services.[20]After being told by Peninsula that there was a judgment against the company, the respondent changed its registered office on 27 March 2024.[21]On 8 April 2024 Peninsula applied for reconsideration of the Judgment sent to the parties on 28 March 2024. Attached to the application for reconsideration were a short witness statement by Clare Baxter and an extract of the Wakefield Metropolitan District Council electoral register.[22]The respondent has not filed a response to the claim, nor applied for an extension of time to do so. There was no evidence before me today as to what the respondent’s potential response to the claim would be.
The Law
[23]Rule 70 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”) provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the original judgment may be confirmed, varied, or revoked.[24]Rule 71 of the Rules provides that applications for reconsideration shall be made either in the hearing itself or, in writing, within 14 days of the date on which the judgment is sent to the parties. The claimant’s application for reconsideration was made in time.[25]Rule 72 of the Rules contains the process that must be followed when an application for reconsideration is made. The first stage is for the Employment Judge to consider the application and decide whether there are reasonable prospects of the judgment being varied or revoked. If the Employment Judge considers that there are no reasonable prospects of the judgment being varied or revoked, then the application shall be refused.[26]If the application is not refused at the first stage, then Rule 72(2) provides that “the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.”[27]A judgment can only be reconsidered if it is in the interests of justice to do so.[28]When dealing with applications for reconsideration, the Employment Judge should take into account the following principles laid down by the higher courts:• There is an underlying public policy interest in the finality of litigation, and reconsiderations should therefore be the exception to the general rule that Employment Tribunal decisions should not be reopened and relitigated. Finality in litigation is central to the interests of justice (Ebury Partners Ltd v Acton Davis 2023 EAT 40);• The Tribunal must seek to give effect to the overriding objective of dealing with cases fairly and justly, which includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense; and• The interests of both parties should be taken into account when deciding whether it is in the interests of justice to reconsider the judgment. The Tribunal must weigh the injustice to the respondent of refusing the reconsideration against the injustice to the claimant if reconsideration is granted (Phipps v Priory Education Services Ltd [2023] EWCA Civ 652)[29]Under the Employment Tribunals Rules of Procedure 2004 (SI 2004/1861) (“the 2004 Rules”) which predated and were replaced by the current Rules, one of the grounds upon which a decision could be reviewed was that “a party did not receive notice of the proceedings leading to the decision” and another is that “the decision was made in the absence of a party”. In Outasight VB Ltd v Brown UKEAT/0253/14 the then Judge Eady QC, now President of the EAT, held that: “I start with the question of the ET’s approach; whether the different structure of the 2013 rules meant that it was entitled to depart from the approach laid down under the 2004 Rules (and previously). It is right that the Rules are now differently structured. In particular, the specified grounds for review, previously listed, have ben replaced by the simple provision that a reconsideration might take place in the interest of justice. I do not, however, see that as a significant departure. The same basic principles will apply. The specified categories under r34(3) of the 2004 rules could be seen as particular instances when the interest of justice would generally have required a review. If a party is not heard because the Notice of Hearing was not received, it is easy to see why it would be in the interests of justice to review the ET’s decision. That said, the specified ground would not give an automatic right. If the Notice of Hearing was not received because of some culpable default by the party concerned, it might well not provide a sound basis for a review; it would not be in the interests of justice to allow a case to be reopened on that basis.”[30]The focus of the Tribunal’s consideration should be on where the interests of justice lie, and whether the party seeking the reconsideration has had a fair opportunity to be heard.
Conclusions
Conclusions
[31]The respondent submits that it would be in the interests of justice for the judgment to be set aside because the respondent has not had notification of the claim and should have the opportunity to respond to the case.[32]Whilst I accept that, in principle, this could be grounds for setting aside the judgment, I have considered the comments in Outasight that if the Notice of Hearing is not received because of a culpable default by a party, that might not be grounds for reconsidering the judgment.[33]In the present case, the respondent finds itself in the position it does solely as a result of its own default. That default is significant. A company is required to ensure that correct records are maintained at Companies House. It did not do so. It moved out of 122 Westfield Lane in 2019 but did not change its registered office until approximately 5 years’ later. No explanation has been provided for this default, other than that it was an ‘oversight’.[34]The claimant’s representative took reasonable steps to try and find an email address and telephone number for the respondent, by putting Mr Tulley, the appeal hearer, on notice that a claim was to be issued and asking for contact details. Mr Tulley failed to respond. As a result the claimant’s representatives issued proceedings against the respondent at the registered office stated on Companies House. This was an entirely appropriate step to take. Legal proceedings against a limited company should normally be served on the company’s registered office, and in this case they were.[35]Ms Bibia submitted that the claimant could easily have provided a copy of the documents to Ms Baxter, her next door neighbour, once she became aware that no response had been received. I am not persuaded by this submission. The claimant did not become aware that no response had been received until the date of the hearing in February 2024 and she reasonably believed that her trade union representative and solicitors were dealing with the claim.[36]The fault in this case lies entirely with the respondent and its failure to change the registered office on Companies House and to respond to the email sent by Unison to Mr Tulley asking for contact details.[37]Despite having become aware of this claim in March 2024, and now being represented, the respondent still has not, as at the date of today’s hearing, given any indication as to what its potential defence of the claim would be. The respondent has not filed a response to the claim, nor has it applied for an extension of time to do so. As a result, there is no evidence before me today upon which I could form a view as to the potential merits of the response to the claim.[38]In contrast, on 26 February 2024, I was satisfied, on the evidence before me, that the claimant had been both unfairly and wrongfully dismissed. There is nothing before me today to suggest that my decision on the merits of the claim was incorrect. The claimant attended the hearing in February and had prepared for the hearing by producing a witness statement and a bundle of documents.[39]In considering where the interests of justice lie, I have to take account not just of the respondent’s interests, and the injustice to the respondent of refusing the application, but also of the claimant’s interests, and the injustice to the claimant of allowing the application.[40]The claimant and her representatives have acted entirely appropriately and reasonably in their conduct of the proceedings. If I were to allow the application and set aside the judgment that was reached on the evidence on 26 February, the claimant would be deprived of the benefit of that judgment, and the proceedings would, in effect, have to start again. It is likely that there would be a further final hearing, which would inevitably take place months after the original one, when memories will have faded even more. There is a strong public interest in the finality of litigation, and a public interest in ensuring that records at Companies House are accurate.[41]Whilst I recognise that refusing the application will deprive the respondent of the opportunity of responding to the claim, the respondent only has itself to blame for the current situation. If it had acted properly and updated the records at Companies House, and had Mr Tulley responded to Unison’s email, it would not be in the position that it is currently. It cannot be in the interests of justice to deprive the claimant of a judgment in her favour because of the serious default of the respondent.[42]For these reasons the application for reconsideration fails and the original judgment is confirmed.