Mr H T di Gara Yousseff v Stronghold Global Finance (UK) Ltd: 2202046/2024 and 2202047/2024
JUDGMENT
[1]Judgment for the claimant under rule 21 in default of response to the claim. The application to extend time to file a response is refused.[2]The respondent is ordered to pay the claimant £98,548.15, of which £13,244.15 is holiday pay outstanding on termination and the balance unlawful deductions by failing to pay salary after August 2023.REASONS
[1]Mr Turki has presented two claims to the employment tribunal for unpaid wages and holiday pay. On 23 February he made a claim for wages not paid for the months of September, October, November, December 2023 and January 2024, naming the sum due as £18,000. Also on 23 February 2024 he made a claim for January 2024 (again) in the sum of £13,304 and holiday pay outstanding on termination in the sum of £11,695.45. Rule 50 Application[2]The claimant wrote to the tribunal shortly before the hearing asking for anonymity so as to protect his privacy. In this hearing I explored his concern. He explained that he is looking for a job and that employers may search the online register, discover that he has made a claim, and decide not to employ him.[3]Rule 50 of the employment tribunal rules of procedure provides: 50.—(1) A Tribunal may at any stage of the proceedings, or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act. (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Such orders may include—(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;[4]The principle of open justice is an old one and is seen as constitutionally important, firstly in ensuring that judges are held to account for their decisions, secondly that the public is able to understand why claims succeed or fail and more generally how justice is done. This is important to maintain public confidence in the administration of justice. Courts and tribunals restrict public access to hearings and decisions only where strictly necessary. The Convention right to privacy is qualified and must be balanced against the public importance of open justice.[5]Tribunals understand that some employers search the public register to check whether potential employees have a history and may cause trouble by bringing unnecessary tribunal claims. In this case I doubt that any individual or employer would hold him a troublemaker for claiming for unpaid wages when his employer has failed to pay him for so long and even after he has started proceedings. They will understand that he bears no fault and has had no alternative.[6]I do not consider that the potential stigma of having a judgment in his name on the public register outweighs the important principle of open justice and I do not order anonymity. Procedural History[7]The tribunal sent these claims to the respondent at two addresses, the old and new registered offices, on 24 April 2024. They were listed for a final hearing on 11 July 2024.[8]The respondent did not responded to the claim. The tribunal wrote to Mr Tohib-Doyin-Iyiola by email on 30 May asking if a response had been filed and warning that a judgment in default might be issued.[9]On 14 June 2024 Employment Judge E Burns wrote to the parties proposing that the eight claims brought against this respondent by three former employees, two of which were listed for reconsideration today of a default judgement dated 10 May, should be heard together, also on 5th July. All the claimants replied consenting. The respondent preferred to keep the original hearing dates, but on the 19th June I directed that all claims should be heard together because that would save time and costs and further the overriding objective. This claim was only brought forward by a few days.[10]Om 2 July Croner, on behalf of the Respondent, made an application to extend time for the response on the basis that due to the change in registered office on 16th April they had not received the papers until notified by the email of 30th May. A draft response was attached.[11]The draft response asserted an abuse of process by making duplicate claims. It is admitted that the claimant was employed from January 2023 to January 2024. He had resigned from the board on 23rd October 2024. He was said to be an unsatisfactory employee responsible for the company's poor financial position. The document admits that the claimant is “owed an amount in unpaid wages”, without stating any figures, and denies that he is owed holiday pay, again without detail.[12]Rule 20 of the Employment Tribunal Rules of Procedure 2013 provides: 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) The Tribunal 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.[13]Rule 21 of the Employment Tribunal Rules of Procedure 2013 provides: 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) The Tribunal shall decide whether on the available material (which may include further information which the parties are required by the Tribunal 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 Tribunal shall issue a judgment accordingly. Otherwise, a hearing shall be fixed. Where the Tribunal has directed that a preliminary issue requires to be determined at a hearing, a judgment may be issued by the Tribunal under this rule after that issue has been determined without a further hearing. (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.[14]I considered whether the application to extend time should be allowed.[15]The application to extend time outlines the change of address as the difficulty explaining why the claim did not come to the companies attention. The registered office address changed on 16th April 2024. However, i can see from the tribunal file that it was served at both the old and the new address. The company was already aware that claims by two other employees had been served at the old registered office, and one, Mr Hachicha, had already obtained judgement in default in February 2024, which the respondent has paid. It is therefore hard to understand why they did not check the post for correspondence from courts and tribunals, or make arrangements for post to be forwarded to any other address where it would come to their attention. It is also hard to understand why when notified of the claim on 30th May, and aware of the threat of a default judgement, the application to extend was only sent on 2nd of July. The original hearing date was 11th July. It is hard to remove the suspicion that the respondent is not anxious to accept service of proceedings.[16]I next consider the content of the draft response. The fact of employment is admitted. Whether the claimant was a satisfactory employee is not relevant to a claim for unlawful deductions from wages. It is admitted that he is owed wages, which suggests that judgement should be entered for a sum to be assessed. The response to the holiday pay claim is a bald denial which is hard to square with the correspondence sent to the tribunal by the claimant between him, Mr Iyiola who is the respondent’s CEO, and the accountant, from which it is clear that Mr Iyiola had approved the calculation of holiday pay owing. I concluded that it was not in the interests of justice to extend time. The respondent could have provided more documents and a calculation today, and an explanation why the holiday pay claim is disputed. Today there are relevant documents provided by the claimant and shared with the respondent who is present and has been able to give instructions in adjournments. It is better to assess remedy today. The respondent is present and represented. If I allowed the extension I doubt the outcome would be different. In the absence of further evidence from the respondent the evidence of the accountants’ payslips he has approved will be preferred.[17]I went on to make enquiries as to the amount owed.[18]It was said by the respondent that filing two claims was an abuse of process. I first asked Mr Turki why he had filed two claims on the same day, and why if he was owed for September to December 2024 inclusive as he claimed, he had only identified £18,000 as owing. His companion Mr Hachicha, who is the third claimant in these debt claims against the respondent, explained his understanding that a claim in the employment tribunal for breach of contract to pay salary must be limited to £25,000. Mr Turki was paid £18,000 gross per month. The intention was therefore to limit the first claim to £18,000, and to claim for part of January and for the holiday pay capped at £25,000 for both. None of this is apparent on the claim forms. It is not stated that the claim is brought in contract.[19]Workers (a term which includes employees) who are owed money by their employers can claim in the employment tribunal under section 23 of the Employment Rights Act 1996 for unlawful deductions from wages. The time for doing so is 3 months from the last date of any series of deductions. There is no limit on the amount claimed. Employees can also make claims in contract under the Extension of Jurisdiction Order 1998 as an alternative to making a claim in the county court, but subject to an overall cap of £25,000, and only within three months of termination of the contract. Workers may also make claims for holiday pay outstanding on termination under regulation 30 of the Working Time Regulations 1998.[20]Mr Turki and Mr Hachicha are litigants in person, and although Mr Hachicha may have done some online research and has some command of legal terms he was unaware that workers can make claims for unlawful deductions.[21]Having heard this explanation I allow an amendment of claim (if it is necessary) to bring the claims for unlawful deductions from wages for the months September 2023 to 3 January 2024 inclusive under section 23 of the 1996 Act, for the notice period (one month) in January in contract, and the claim for holiday pay under regulation 30. The facts are plain from the claim forms, this is only labelling (or relabelling) those facts. The respondent is well aware of the amounts he has not been paid. I note too that other employees have not been paid since August 2023; one of these has provided a reference as to Mr Turki's ability, while stating that he himself had left the company still owed two months pay, but has not brought a claim.[22]There is no dispute by the respondent that Mr Turki was last paid in August 2023 and that he was dismissed in January 2024, nor that his gross wage was £18,000 per month. Initially the respondent’s representative said today that Mr Turki had resigned in October 2024, not been dismissed in January 2024, despite the draft response. However, having read the resignation letter, it is plainly a resignation from the board, not from his employment, that he continued in employment, and the emails between the claimant, the accountant and respondent show a dismissal effective 24th January 2024.[23]I have seen payslips for Mr Turki’s pay in December and January. They include holiday. The emails between the claimant, the accountant and Mr Iyiola the CEO, show that Mr Iyiola approved the payments and told the claimant he expected to pay staff in mid-February. That unkept promise must have been the prompt to file the claims on 23 February.[24]Although pay slips have been produced, there is no indication from either side that payment has been made.[25]The December payslip includes public holidays at various amounts included in the monthly £18,000. The January payslip shows outstanding holiday of £12,461.54, “regular hours” of £13,304 and new year’s day at £782.61. These are gross amounts.[26]Accordingly I award £85,304 in deductions from wages, that is the last 4 months of 2023 at £18,000 per month and £13,304 in January 2024. The December money includes the holiday pay included in the December pay slip. A further £13,244.15 is awarded for holiday pay outstanding on termination.[27]These amounts are awarded gross. That is because there is nothing to show whether deductions that would otherwise have been made for pension were paid to the pension provider, or that the statutory deductions for tax and National Insurance were paid to HMRC. It is not clear how any PAYE deduction could be made in the current year when employment ceased in the previous tax year.[28]The claimant is liable to tax on the money when he receives it and it is for him to declare the money for tax - online before the end of January 2025, or, if on paper, before the end of October 2024. If the respondent is able to pay tax deductions to HMRC in the current year then evidence that payment has actually been made on the claimant’s tax account with HMRC for this liability will go to discharge that part of the judgment debt.