Mr C Doocey and Others v Madbird & Co Ltd: 2201010/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 2201010/2021, 2201011/2021, 2201012/2021

Between

Mr C Doocey Miss L Driscoll Mr J CarterClaimant

Madbird & Co LtdRespondent

Before

Employment Judge Burns

Date 8 September 2021

JUDGMENT

[1]No response to the claims has been presented. Pursuant to Rule 21 of the Employment Tribunal Rules 2013, the claimants’ complaints of unlawful deduction from wages succeed.

[2]The following awards are made, payable by the respondent to the respective claimants whose names are set out below next to the awards:a. Chris Doocey: £7,255.04 (gross) (in respect of 104 days worked at the applicable rate under the National Minimum Wage Act 1998 (NMW);

b. Jordan Carter: £7,255.04 (gross) (in respect of 104 days worked at the applicable rate under the NMW; and

c. Lucy Driscoll: £4,341.40 (gross) (in respect of 81 days worked at the applicable rates under the NMW.

[3]The hearing set for 10 September 2021 is therefore vacated and will not take place.

[4]In issuing this judgment, I have taken into account the following. The tribunal served the claims in June 2021 but by email of 27 July 2021, Mr Ali Ayyad, a director of the respondent, stated that he had not received the claims and an earlier hearing listed for 6 August 2021 was accordingly postponed. EJ Burns ordered that the claims be re-served at the email address provided by Mr Ayyad and confirmed that the correct name of the respondent was Madbird & Co Ltd. The claims were duly re-served at that email address and a hearing listed for Case Nos: 2201010/2021 2201011/2021 2201012/2021 10 September 2021. However, no response to the claims was presented within the 28 day deadline for doing so nor has any been presented to this date. Therefore, as a determination of the claims can be made on the available material, the tribunal is obliged to make such a determination under Rule 21 of the Employment Tribunal Rules 2013.

REASONS

[1]By email presented to the tribunal on 13 September 2021, the respondent applied for reconsideration of the Rule 21 judgment sent to the parties on 9 September 2021.

[2]Under Rule 72(1) of the Employment Tribunal Rules of Procedure 2013, such an application is to be refused, without the need for a hearing, if an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked.

Background

[3]The three claimants presented claims to the tribunal for unlawful deduction from wages. The tribunal served the claims on the respondent by post on 8 June 2021, with the response due by 6 July 2021 and a final hearing was listed for 6 August 2021. No response was received.

[4]On 27 July 2021, the tribunal emailed Mr Doocey, seeking contact email addresses for the respondent, which he duly provided on the same day, including an email address for Mr Ali Ayyad, a director of the respondent (info@aliayad.uk / ali@madbird.co).

[5]On 27 July 2021, Mr Ayyad made an application by email to the tribunal to postpone the 6 August 2021 hearing (from a different email address (clemmunication@gmail.com) to the one provided by Mr Doocey). His application stated: “Dear Sir, Madam, May this email finds you in good health, I'm reaching out to you regarding the case number Case Number 2201010/2021 Case Number 2201011/2021 Case Number 2201012/2021 Hearing date: 06th of Aug 2021 I'm Ali Ayad, Director at Madbird & Co and I'm the Respondent. please can you help me postpone the hearing on the 6th of August 2021 for the following reasons: A Im in a critical health condition and im really sick (See Attachment) B Not Receiving Emails: From March 2021 till this day i didnt/never received any digital emails from the tribunal, I Don't have access to my company email "HYPERLINK "mailto:ali@madbird.co" ali@madbird.co" since the website of the company went down on march 2021 C Didnt Receive Posts Due to Address Change: I have moved places since June the 1st, and just today i have been contacted by an ex neighbor of mine saying that i have posts and when i sent for them only then i could see that there is a hearing on the 6th. So i just saw the paper notice today. To confirm please call Previous Landlord Contact number: xxxxxx. Can you kindly postpone the hearing just for a couple of weeks till I get better and have time to understand what's going on and what to do? Important: kindly update my email to this one so I'm able to receive any emails from the tribunal on time and also any video links to attend any hearing, because i might miss the hearing if when not receiving notification or emails or link invitations New Email: (HYPERLINK "mailto:Clemmunication@gmail.com" Clemmunication@gmail.com) Should you have any questions please ask, I'm truly sorry for any inconvenience, Looking forward to hearing from you, Sincerely Yours Ali”

[6]Mr Ayyad’s email indicated that he did receive via his neighbour the notice of hearing which had been posted to him, although it was silent on whether he had received the claim itself; however, he did not say that he had not received a claim or any details of a claim against him, which would be surprising if all he had received was a notice of hearing. I find therefore on the balance of probabilities that he did have a copy of the claim at the point when he wrote this email.

[7]The attached medical evidence simply indicated that Mr Ayyad had attended A&E on 14 July 2021.

[8]The application was considered by Employment Judge E Burns, who agreed to postpone the hearing and on 29 July 2021 wrote to the parties as follows (using the email address provided by Mr Ayyad (which email address has since then been used for correspondence from the tribunal to the respondent). “Dear Parties Employment Judge E Burns has considered the postponement request made Mr Ayad. She has decided to grant a short postponement for the following reasons. The claim is against Madbird & Co Limited. According to Companies House, Mr Ayard is the director of Madbird & Co Limited and has requested a postponement due to ill-health. He has not provided details of any medical condition, just confirmation that he was recently seen in A and E. At the current time, the tribunal has not received a response to the claim from the respondent. This means that the respondent is only able to participate in any hearing to the extent permitted by the judge. The explanation for this appears may be because Mr Ayard has moved house. In light of this it would not be in the interests of justice to proceed with the hearing on 6 August 2021. The hearing will be relisted for a date in around 4-6 weeks. The claim form is attached. If the respondent wishes to submit a defence to the claim, this will need to be on an ET3 form and accompanied by an application for an extension of time to present a response under rule 20 of the tribunal rules. If an application is made, it will be up to the judge hearing the case to decide whether or not to grant the extension of time. If no application is made, the hearing will proceed in any event and the respondent will only be able to attend with the judge’s permission. Any request for a further postponement from Mr Ayard should be accompanied by details of his medical condition and an explanation as to why this would mean he was unable to attend the hearing.”

[9]At the same time, a further final hearing was listed for 10 September 2021.

[10]The 28 day time limit for submitting the response was therefore 26 August 2021. No response was received from the respondent in that period nor any request for an extension of time for submitting the response.

[11]However, Mr Ayyad did send a response on form ET3 to the tribunal on 1 September 2021. The ET3 essentially stated that there was no employment relationship between the claimants and the respondent, that they were self-employed and to be remunerated on a commission only basis but that no commission had become due.

[12]Unfortunately, the ET3 was not put before a judge. Mr Ayyad had not copied it to the claimants either.

[13]The claimants prepared for the hearing and sent a bundle of documents to the tribunal and to Mr Ayyad. They stated in correspondence to the tribunal that they had had no co-operation from Mr Ayyad despite trying.

[14]With the 10 September 2021 hearing approaching, I asked our staff to check whether a response had been received and was told, erroneously, that no response had been received. I therefore on 8 September 2021 issued the Rule 21 judgment on liability and remedy, for the reasons set out in that judgment. It was sent to the parties on 9 September 2021.

[15]Mr Ayyad then asked for reconsideration of this judgment by email of 13 September 2021 and forwarded this application again on two further occasions over the next 7 days.

[16]In this email, Mr Ayyad stated that he had submitted an ET3 to the tribunal on 1 September 2021. He did not, however, present an application for an extension of time for presenting the ET3. He asked that the Rule 21 judgment be reconsidered but provided no reason for this other than that: “i sincerely ask if there is any possibility to reconsider the judgement just so i can present my case and defend the false-claims that were brought forth by the claimants”.

[17]On 20 September 2021, when Mr Ayyad’s emails were referred to me, I asked our staff to check again for an ET3 having been presented, specifically on 1 September 2021, and they confirmed this time that an ET3 had been presented on 1 September 2021.

[18]On 20 September 2021, the following email was sent to the parties on my instruction: “I refer to the email from Mr Ayyad of the respondent dated 13 September 2021. I have since asked our staff to conduct a further search and they have confirmed that Mr Ayyad did indeed submit an ET3 response on 1 September 2021. A copy of that is attached for the claimants’ benefit. This was not before me when I issued the Rule 21 judgment. Mr Ayyad did not, however, as directed by Employment Judge Burns on 29 July 2021, submit an application for an extension of time for submitting the ET3/response. If he wishes to do so, he should do so within 7 days of this email, copying in the claimants. The claimants would then have a further 7 days to submit any objection to that application to the tribunal. A judge would then decide whether to accept the application to extend time for the submission of the response/ET3 and consequently whether to revoke the Rule 21 judgment. If the respondent does not submit an application for extension of time, there will be no grounds for revoking the Rule 21 judgment. The parties are reminded that, whenever they write to the tribunal, they must copy in the other party as well.”

[19]In an email of 23 September 2021 to the tribunal (copied this time to the claimants), Mr Ayyad attached a “form N244 application notice” (of no relevance to the employment tribunal), although this contained neither an application for extension of time for submitting the ET3 nor further reasons why the Rule 21 judgment should be reconsidered.

[20]By email of 28 September 2021, the claimants attached submissions as to why they considered the Rule 21 judgment should not be considered. They make a wide variety of points, including skepticism about any health reason Mr Ayyad might have for not submitting the ET3 earlier and evidence that Mr Ayyad contacted Ms Driscoll on 22 August 2021 (some 3 days before the expiration of the time limit for submitting the ET3) to try and discuss the case.

[21]By email of 30 September 2021, Mr Ayyad submitted a further document setting out submissions in response to the claimants’ submissions of 28 September 2021. These focus entirely on the substantive merits of the case (as Mr Ayyad sees them) and provide no other reasons as to why the Rule 21 judgment ought to be reconsidered, beyond the obvious assertion that the effect of the Rule 21 judgment is that the respondent cannot now defend the case. They do not contain an application for an extension of time for submitting the ET3 or any explanation as to why it was submitted late. Paragraph 3 of these submissions states: “The respondent did NOT ask for a Judgement Reconsideration because of health issue, as the claimants are portraying. The respondent asked for a judgement reconsideration because it was default, and happened without the respondent being able to represent and defend his case, despite the fact that the respondent did send an ET3 10 days prior to judgement but wasn’t received by the tribunal which caused the judge to assume that the respondent is absent and his response is absence.”

The Law

[22]Rule 20 of the Employment Tribunal Rules 2013 covers extensions of time for presenting the response and is as follows: Applications for extension of time for presenting response 20.—(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application. (2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed. (3) An Employment Judge may determine the application without a hearing. (4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.

[23]Rule 21 is as follows: Effect of non-presentation or rejection of response, or case not contested 21.—(1) Where on the expiry of the time limit in rule 16 no response has been presented, or any response received has been rejected and no application for a reconsideration is outstanding, or where the respondent has stated that no part of the claim is contested, paragraphs (2) and (3) shall apply. (2) An Employment Judge shall decide whether on the available material (which may include further information which the parties are required by a Judge to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly. Otherwise, a hearing shall be fixed before a Judge alone... (3) The respondent shall be entitled to notice of any hearings and decisions of the Tribunal but, unless and until an extension of time is granted, shall only be entitled to participate in any hearing to the extent permitted by the Judge.

[24]Rule 20 interacts with Rule 21 as, in the last sentence it provides that “If the decision is to allow an extension, any judgment under Rule 21 shall be set aside.” Analysis

[25]The Rule 21 judgment was issued, in accordance with Rule 21(2), because “no response to the claims was presented within the 28 day deadline for doing so nor has any been presented to this date”. Whilst it was not correct that no response had been presented “to date”, as the respondent had, unknown to me, submitted the response on 1 September 2021, it remains the case that no response was presented within the expiry of the time limit (the 28 day deadline, which expired on 26 August 2021), so the provisions of Rule 21 were nonetheless triggered. As no response had been submitted within the time limit, I was obliged under Rule 21(2) to issue a Rule 21 judgment if a determination could be properly made of the claims (which it could).

[26]The claims have been served on this respondent twice, once on 8 June 2021 by post and once on 29 July 2021 to Mr Ayyad’s own email address. It has therefore, unusually, had two bites at the cherry in terms of opportunities to submit a response on time. On the first occasion, Mr Ayyad suggested health issues and that he had moved house and therefore not received his post promptly as reasons to postpone the hearing listed for 6 August 2021 and, on the basis of that, EJ Burns postponed the hearing and also gave him a further opportunity to submit the response, one which he did not take until 1 September 2021.

[27]However, at no stage in relation to that further opportunity (or at all) has the respondent presented an application for an extension of time for presenting the response, despite EJ Burns specifically asking it to do so in her email of 29 July 2021 and my specifically asking it to do so in my email of 20 September 2021. Nor has the respondent even hinted at any reasons why it could not have submitted the response in time. Health was hardly likely to be a reason; in his own words on 30 September 2021 Mr Ayyad stated “The respondent did NOT ask for a Judgement Reconsideration because of health issue, as the claimants are portraying”. No other reasons are given.

[28]As there is no application for an extension of time before me and not even a reason given as to why the response could not have been submitted within the time limit, I cannot and do not grant an extension of time under Rule 20.

[29]Furthermore, on the evidence before me, Mr Ayyad was clearly trying to discuss the case with Ms Driscoll well within the deadline for submitting the response, which is indicative that there was nothing to stop him from submitting the response within the time limit. As noted, this respondent has also, unusually, been given two opportunities to submit the response before a Rule 21 judgment was made and still failed to do so within the time limit. These reasons would have counted powerfully against an extension of time being allowed had there been an application for one before me.

[30]Therefore, as no extension of time for presenting the response is granted, there is no ground under Rule 20(4) to set aside the Rule 21 judgment and accordingly I do not do so.

Conclusion

[31]For these reasons, there is no reasonable prospect of the original decision being varied or revoked.

[32]The application for reconsideration is therefore refused. 5 October 2021