Mr Seungbeom Roh v Grandline Studio Ltd: 2204627/2018
JUDGMENT
It is hereby ordered that the Respondent do pay to the Claimant:a. within 14 days the sum of £6,600 representing the interim figure for the net pay that the Respondent owes the Claimant for the months of January to March 2018, a total of three months for which the gross pay at £35,000 per annum is £8,750, the Respondent being entitled to be given credit for £2,107 paid to Smith Stone Walters, UK Immigration Practice, upon providing to the Claimant’s solicitors proof that such sum was paid to that firm in satisfaction of its quotation number 2659 and dated 26 April 2017; andb. within 28 days the balance that is due on the proper net figure for those three months (i.e. gross pay less income tax and national insurance) as certified in writing by the Respondent’s accountants, Metric Accountants Ltd of 32 Tavistock Street, Covent Garden, London WC2E 7PB. Page 1 of 3 Case Number: 2204627.2018REASONS
[1]The Claimant was not paid for the months of January to March 2018.[2]The contract of employment provided for a salary of £35,000 per annum payable monthly in arrears.[3]Pay slips for the months had been produced but no money had been paid in respect of those months. The gross figure that appeared on the pay slips varied and was in all cases lower than the sum of £2,916.67 being the annual salary divided by 12. The discrepancy was claimed by Mr Niazi, a director of the company, to be caused by the application of a company policy spelling out that the claimant was only paid on the days and hours actually worked. However, that policy was not explicitly referred to in the contract of employment and, in any event, had been not been disclosed in accordance with the direction of Employment Judge Elliot sent to the parties on 6 September 2018. Neither had a copy of the policy been brought to the hearing.[4]For the month of March, Mr Niazi argued that, on 2 March 2018, the Claimant had given notice of termination as at 16 March 2018. However, on the pleadings, the Respondent had accepted that the dates of the employment as given by the Claimant in his ET1 were correct and the date upon which the Claimant had indicated that the employment ended. This was backed up by the letter which the Claimant’s solicitors sent to the Respondent on 12 March 2018 in which they said: First, we would like to confirm that you and our client agreed to terminate the employment agreement by the end of March 2018.[5]In response, the Respondent’s solicitor replied on 20 March 2018 indicating that the Claimant’s resignation – that sent at 2357 hours on Friday 2 March 2018 and asserted not to have been received until Monday 5 March 2018 – “is not accepted in its current format.” This refusal to accept the Claimant’s resignation appears to me to confound the point advanced by Mr Niazi – that the Claimant had given notice of termination as at 16 March 2018. The letter goes on to argue that the Claimant was required to give 3 months’ notice, an assertion based on the proposition that a Schedule entitled Restrictive Covenants apparently appended to the Contract of Employment asserted that for a “key employee” – one who had “senior managerial, executive or senior technical status within the company” – was required to give three months’ notice. Nothing turns on this argument, one advanced by Mr Niazi at the hearing, because there is no counter-claim. I take the view that the acceptance by the Respondent in its ET3 that the Claimant’s last day of employment was 31 March 2018 can be relied upon.[6]It was also argued by Mr Niazi that the Claimant was entitled to less than a full month’s salary for March 2018 because he had fallen sick on 6 March 2018 and did not return to work for the remainder of his employment. There was a policy relating to sickness, argued Mr Niazi, that precluded the Claimant being Case Number: 2204627.2018 paid sick pay. That policy, like that relating to the policy specifying that the Claimant should only be paid for the hours he worked, as opposed to a monthly salary, was to be found in the Respondent’s office. It had neither been disclosed nor brought to the Tribunal hearing. In the circumstances, I was not prepared to accept Mr Niazi’s broad assertion that this unexamined policy, one referred to in the contract of employment, was worded in such a manner as to deny the Claimant full pay for the first several weeks of a period of sickness and half pay for the next several weeks of such a period, those being the type of provision ordinarily to be found in the terms relating to sick pay in contracts of employment.[7]In the absence of the Respondent’s sickness policy and bearing in mind the directions given by Employment Judge Elliot on 6 September 2018, I infer that the sickness policy most likely contained such provisions as I have described with the period of full pay over the initial period of absence through sickness being for at least a period of four weeks.[8]The Claimant accepted that the contract provided for him to repay “any and all fees associated to Visa sponsorship and other related costs paid by” the Respondent in the event that he left the company, as he did, before his two year Tier 2 Visa expired. The Respondent had been invoiced by Smith Stone Walters, UK Immigration Practice, for the sum of £2,107 plus VAT. Mr Roberts for the Claimant accepted that such sum was to be credited to the Respondent provided the Respondent showed that such sum was indeed paid as the invoice suggested.[9]This point caused me to specify that the Respondent should receive credit in discharging my order for the salary to be paid to the Claimant provided it provided proof that it had paid £2,107 plus VAT to Smith Stone Walters.[10]The final issue was that, of course, the Claimant was only claiming his net wages. Mr Niazi accepted that Metric Accountants Ltd of 32 Tavistock Street, Covent Garden, London WC2E 7PB handled the Respondent’s payroll. I therefore provided that the net salary for the three months for which the Claimant had not been paid should now be paid in two stages, first an interim amount of £6,600 (credit to be given for £2,017) to be paid within 14 days and the final amount to be paid with a further 14 days in line with such amount as Metric Accountants Ltd certified would be in line with a gross figure of £8,750 for the three months’ work reduced by the correct incidence of income tax and national insurance contribution. Case Number: 2204627/2018 THE EMPLOYMENT TRIBUNALS BETWEEN Mr Seungbeom Roh Claimant AND Grandline Studio Ltd Respondent[11]However, in the EAT case of Outasight VB Limited v Mr L Brown x Appeal No. UKEAT/0253/14/LA, HH Judge Eady QC commented on the new test in the following manner: 28. The test for reconsideration under the 2013 Rules is thus straightforwardly whether such reconsideration is in the interests of justice. This can be contrasted with the rather more complex system laid down by the provisions of Rules 34 to 36 of the 2004 ET Rules, which governed the review of Judgments and other decisions; in particular, Rule 34(3): “Subject to paragraph (4), decisions may be reviewed on the following grounds only —(a) the decision was wrongly made as a result of an administrative error;(b) a party did not receive notice of the proceedings leading to the decision;(c) the decision was made in the absence of a party;(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or(e) the interests of justice require such a review.” 29. I note in passing that the ET refers to this provision as Rule 34(4) . That seems to be a simple error of transcription and I cannot see that anything turns on that mistake. 30. Rule 34(3)(d) of the 2004 Rules, “New evidence”, reflected the well-known principles for the admission of new evidence on appeal in civil litigation set down by the Court of Appeal in Ladd v Marshall. Under the 2013 Rules, instead of the five possible grounds for holding a review, there is only one ground on which a Judgment can be reconsidered: the interests of justice. That said, as can be observed, Rule 34(3)(e) also allowed for the interests of justice to stand as a ground for a review. There would not seem to be any immediately obvious reason why cases decided on that basis — the interests of justice — under the old Rules would not still be relevant to cases under the new. Moreover, although there were formally specific grounds in the previous roles as well as the more general interests of justice ground, I cannot see why one of the former, specifically identified grounds, should not form the basis of an application for a reconsideration of a Judgment in the interests of justice. That is indeed what happened in respect of some of the new evidence cases under Rule 34(3)(d) (or its predecessors) to which I have been referred in argument; see, for example, Flint v Eastern Electricity Board [1975] ICR 395 QBD and General Council of British Shipping v Deria [1985] ICR 198 EAT. 31. Under the previous Rules, the “interests of justice” ground was described as “a residual category of case designed to confer a wide discretion on [Employment] Tribunals”, Flint per Phillips J at page 401. It was seen as possibly allowing evidence to be adduced in circumstances where the requirements of paragraph (d) of Rule 34(3) were not strictly met, where there might be some special additional circumstance or mitigating factor. 32. As for what the interests of justice might be, in Flint Phillips J stated as follows: “… First of all, they are the interests of the employee. Plainly from his point of view it is highly desirable that the evidence should be given, because it follows, from what I have already said, that there is at least some, perhaps good, chance that if it is given his case will succeed. One also has to consider the interests of the employers, because it is in their interests that once a hearing which has been fairly conducted is complete, that should be the end of the matter. Although this is a case where one's sympathy is with the employee, because it is his claim for a redundancy payment and the employers have more money than he has, it has to be remembered that the same principles have to be applied either way because one day a case may arise the other way round. So, plainly, their interests have to be considered. But over and above all that, the interests of the general public have to be considered too. It seems to me that it is very much in the interests of the general public that proceedings of this kind should be as final as possible; that is should only be in unusual cases that the employee, the applicant before the tribunal, is able to have a second bite at the cherry. It certainly seems to me, hard though it may seem in the instant case, that it would not be right that he should be allowed to have a second bite at the cherry in cases which are perfectly simple, perfectly straightforward, where the issues are perfectly clear and where the information that he now seeks leave at a further hearing to put before the tribunal has been in his possession and in his mind the whole time. It really seems to me to be a classic case where it is undesirable that there should be a review.” (page 404E — 405A) 33. The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[12]Guided by these principles, I take the view that nothing that has been advanced by the Respondent goes anywhere close to persuading me that the evidence it wishes me to review and thus reconsider my judgment was evidence which could not, with reasonable diligence, have been known of or foreseen at the time of the Hearing. The sickness policy was known about and mentioned at the Hearing as was the contractual provision requiring the Claimant to repay “any and all fees associated to Visa sponsorship and other related costs paid by” the Respondent in the event that he left the company, as he did, before his two year Tier 2 Visa expired.[13]I echo the words of HH Judge Eady QC in paragraph 33 of her judgment quoted above.[14]I refuse the application for reconsideration.