Ms Ilkay Cetin v Mr Steve Griffiths and Mrs Melanie Griffiths: 2204788/2018
EMPLOYMENT TRIBUNALS
Case No 2204788/2018
Between
Ms Ilkay CetinClaimantMr Steve Griffiths and Mrs Melanie GriffithsRespondent
Before
Employment Judge WalkerDate 17 October 2019
JUDGMENT
The judgement of the Tribunal is that the Respondents must pay to the Claimant the sum of £296.90 gross, less only any sum by way of tax and Employee’s national insurance on this sum which is properly due and is deducted and paid to HMRC in relation to this award. Evidence of any deduction and payment to HMRC must be provided to the Claimant to demonstrate compliance with this judgment.
REASONS
[1]The claim is this case was brought by Ms Ilkay Cetin who was a nanny for the Respondents who are parents of two small children at the relevant time. Mr Cetin brought the proceedings and the essence of her claim which was identified at the Case Management Preliminary Hearing was that she believed she had been underpaid wages because the Respondent had failed to pay the national minimum wage. Ms Cetin may have made other assertions in her ET1 but this is the only claim that was pursued after the Preliminary Hearing.
Issues
[2]The issue before me therefore on 28 November 2018 was whether Regulation 57 of the National Minimum Wage Regulations 2015 applied. This is called the Family Exception. Regulation 57(1) provides that work does not include any work done by the worker in relation to an employer’s family household if the requirements of paragraph 2 or 3 or met. Paragraph 2 is not applicable. Paragraph 3 provides that the requirements are all of the following:(a) The worker resides in the family home of the workers employer. It is undisputed that that was the case.(b) The worker is not the member of that family but is treated as such, in particular as regards to the provision of living accommodation and meals and the sharing of tasks and leisure activities.(c) The worker is neither liable to any deduction or to make any payment to the employer or any other person as respects the provision of the living accommodation or meals. This was not an issue.(d) If the work had been done by a member of the employer’s family it would not be treated as work or performed under the worker’s contract because the requirements in paragraph two have been met.[3]The requirements in paragraph 2 are all of the following: (ignoring the reference to the member being a member of the employer’s family) that the worker resides in the family home of the employer and shares in the tasks and activities of the family.[4]The issue before me therefore was whether the Claimant was treated at a member of the Respondents family, particularly as regards the provision of living accommodation and meals and the sharing of tasks and leisure activities.[5]The Respondents contention was that, by virtue of this provision, the need to meet the national minimum wage regulations was not engaged and therefore the Claimant’s claim should fail.
Background
[6]When the claim was before me on 28 November, the Claimant gave me a long letter which understood raised various concerns. I explained to her that I had only had about two and a half hours to determine the claim and in that time, I could either address her letter, in which case, I did not think it would be possible to hear the case that day and I would adjourn it to a future date, or she could elect not to pursue the letter and I would start the hearing. She chose to do the latter and so I made no enquiry about whether the letter had been given to the Respondents and I did not place it on the file. Counsel for the Respondents did not ask for a copy or indicate that he did not have it.[7]In practice the claim was not concluded on 28 November 2018 and had to be adjourned to 10 January 2019. Before the hearing on 10 January 2019, I learned that the Respondents were concerned about this letter, although their Counsel had not expressed any concern at the hearing on 28 November 2018. Therefore, on 10 January 2019 before I gave the judgment, I asked the new Counsel for the Respondents whether he wished to address the Claimant’s letter and I explained that I had not read it properly but had located it amongst the bundle of documents.[8]Counsel did not regard that as a matter of concern at all but I asked him to take instructions as his clients were not present. He took some time and took a copy of the letter but he was unable to contact his clients. Eventually we resumed the hearing on the basis that Counsel confirmed he was entirely satisfied that the course of action I had adopted was proper and satisfactory. It was only after the Respondents’ Counsel assured me he was content for me to reach my judgment without any further representations or procedure that I then went ahead.
Evidence
[9]The evidence I heard was from the Claimant herself and also from Mr Griffiths who was one of the two Respondents. I had a bundle of documents and some additional documents were provided. Among the evidence, there were extensive copies of WhatsApp messages. Shortly after the Claimant started work the Respondents created a family group to communicate with the Claimant using WhatsApp, and those messages appear in the bundle.
Facts
[10]The Claimant was employed as a nanny by the Respondent who located her through a website called childcare.co.uk. The Claimant was engaged to provide live in care to the Respondents’ two small children.[11]The Claimant started work earlier than originally intended. I was told by the parties that the Claimant had wanted to start early since she was living with relatives while looking for a position, but on looking through the WhatsApp messages and the correspondence it appears that there was also some discussion that it suited the Respondents.[12]At that time the Respondents were renovating and extending their home and had fairly extensive building work underway. That impacted on the living accommodation quite significantly so that the room which would have been occupied by the Claimant was unavailable. Initially the Claimant used a guest room. She then moved to an en-suite room as soon as soon as that building work allowed but it was some time after she had started work.[13]The Claimant’s duties were to work twelve hours per day from 7:30am to 7:30pm Monday to Friday. The primary responsibility she had was to care for the two children. This was largely done while the two parents were at work, although one day a week I understand Mrs Griffiths was not at work.[14]There was a contractual document which was dated 4 December 2017. The Claimant complained that this was not the original version. She said that she was provided with a document but the one that she eventually signed had some provisions changed and she believed a different one had been substituted for the original one. I am not in any position to determine whether that was in fact the case but I have had a careful look at the provisions of the contract which the Claimant signed. It contained numerous relatively detailed provisions addressing how the Claimant should behave and what she could and could not do.[15]Examples are as follows:7.1 No visitors should be allowed in the house without prior consent from the employer.7.2 The employee shall not enter in to any private areas of the house without any due reason. For instance, the employee is not to enter any bedrooms other than the children’s and his [sic] own.7.3 The employee is expected to report any and all breakage.7.4 The employer expects the employee to show due consideration for the costs of running a household, treating the household as s/he would his/her own. Due consideration to the household costs include for instance: - Switching lights off when no one is using a room/corridor Running washing machines and dishwasher near or at full capacity Showing appropriate “fridge management” including awareness of “Use by Dates” to avoid wherever possible throwing food away Hanging clothes to dry rather than defaulting to dryer Where the employer shows repeated and excessive lack of consideration to household costs, the employer reserves the right to deduct an appropriate amount from wages as compensation. No such deduction will take place without several verbal conversation and a written notice.”[16]The contract also provided at clause 7.6, “Live-in accommodation is provided by the employer for the sole purpose of allowing the employee to perform his/her duties to look after the children. It does not form part of the employee’s remuneration and would cease if the employee was no longer able or required to perform his/her duties. -e.g.: long term sickness, maternity leave, pay in lieu of notice.”[17]Additional provisions include at 7.7 a provision that the employer would not enter the employee’s bedroom without due reason and would give notice whenever possible before entering and shall give due consideration to the employee’s right to privacy outside working hours. But it also provided at 7.8, that access to the room would be provided to the employer as necessary (e.g.: for maintenance and repair). It also provided at 7.9, that the room shall be kept clean and at 7.10, that any damage to the room or content e.g. bedlinen, TV, furniture etc.) must be reported to the employer, and at 7.11, that the room should be returned in the same condition as taken.[18]The contract included at 7.15 that requests for guests will be considered under the following conditions. They would only be considered past the probation period. The probation period in this contract was the first twelve weeks of the employment. It also provided that it is expected that requests for guests would be occasional, no guests would be allowed without prior consent from the employer including when the employer is away for an extended period of time, no guests of the employee should be allowed to stay in the house when the employee is not present (other than running a very quick errand). The employee had to be accountable for guests at all times and ensure that they abide to the same standards as the employee regarding safety, smoking, household costs, confidentiality, privacy and any medical or other conditions making them unsuitable to be in close contact with children including infectious diseases, mental health issues and criminal records. The communal areas of the house were not be used to entertain guests of the employee and the employee was never to organise parties and large gatherings at the house.[19]Additionally, there were provisions for technology which included provision at 19.7 “we have security cameras in communal rooms and the children’s room. The cameras are a “live feed”, we do not record the information. However, it is possible to record the information - should we decide to do so, the employee will be informed in writing.”[20]There were a number of schedules to the contract. Schedule one was headed “Duties and responsibilities” and listed, at some length, daily responsibilities, weekly responsibilities, ad hoc responsibilities and also listed some light household work defined as emptying and loading the dishwasher, emptying the bins, hanging household clothes to dry, putting groceries away, buying the odd food item or anything else required for the household, children, (e.g. nappies) from local shops. In addition, it provided that where the children were not under the employees care but the employee was working or otherwise had time, the employee was expected to undertake the following and it listed deep cleaning of pram, play pen, toys, children’s bedroom, car seats, high chair etc, sorting out clothes and toys no longer appropriate for the children’s age group, repairing and mending broken toys, books, clothes etc and cooking and freezing meals for the children.[21]There was a provision about holidays when the employer might be away but the employee was not. The contract listed additional duties for such a period so the employee could be asked to clean the fridge and windows, water plants and undertake some research, book appointments and events, drop off unwanted toys and clothes to charity, plan specifically events such as birthdays, school holidays, Halloween and so forth and prepare for the family return including food and shopping.[22]There were then detailed provisions around the responsibilities for food preparation and the diet of the children, when they should eat and what they should eat, food hygiene and also provisions about one of the children who had severe food allergies.[23]The contract also had another schedule on duties and responsibilities for medication and a section on household etiquette which provided that while it did not form part of the contract it was guidelines to ensure that we live happily together. That listed a series of things such as when finishing items from the larder or other goods please either replace with petty cash or inform us that it needs replacing, use wooden, plastic utensils when using the household pots and pans. If you have been offered something by us e.g. chocolate or a glass or wine it does not mean you can help yourself at will to that item. If in doubt ask. If you require an item which does not belong in your room e.g. land line phone, hoover etc return it promptly and if you need to keep it for some time please mention it so that the employer does not have to look for it.[24]There was an express prohibition of borrowing anything of a personal nature such as clothing, handbag, luggage, toiletries etc without asking the employer.[25]It made it clear that the Claimant would be sharing everyday crockery which she might use and take to her room, but if she chose to use more expensive and usually fragile crockery she was told that she would be expected to pay for any breakage.[26]It was noted that the Claimant had no obligation to tell the Respondent her whereabouts but they would appreciate if she could tell them when she would not be sleeping at home or coming home late so that they did not worry about her and could secure the house and alarm.[27]It then made it clear that she was not authorised to give instructions to the other employees such as the cleaner or contractors, she was not to open any sealed unopened item that was not part of the usual general weekly shop and she may not help herself to home cooked food unless either offered or she had first enquired whether she may and they requested that coffee, tea and any other beverages which stain are drank in the kitchen to avoid staining carpets, sofas etc. Finally, there was provision about disciplinary and grievance procedures.[28]The Respondent used a payroll agency to assist with their tax payments and payroll for the Claimant. On 14 December 2017 Mr Griffiths signed a statement headed “my nanny lives in my main family home as part of my family”. Parts of that document in the bundle are thoroughly illegible due to poor copying, particularly the introduction which details the criteria for that statement and so it is of no assistance to me whatsoever. Moreover, it is a document which was not provided to the Claimant and she had no knowledge about it, so she could not have commented and certainly did not agree to it[29]Nowhere in the document provided to the Claimant was it indicated that she was to be treated as part of the family.[30]In terms of her leisure time, I was told that outside her normal working hours, the Claimant would go for a walk in the evenings, and she would talk to Mrs Griffiths after her working hours. I note that the Claimant said she did so reluctantly, and the Claimant indicated in her evidence that she had no choice but to stay on chatting with Mrs Griffiths, if Mrs Griffiths talked to her. I do not find that plausible nor credible. It is always possible to say politely that you need to leave after your working hours and I therefore do not accept the Claimant’s suggestion that she did not wish to talk to Mrs Griffiths on those occasions.[31]The Respondents did invite the Claimant to go on holiday with them once to Marrakesh but it is not clear if that had anything to do with the Claimant being part of the family. Rather it seems they wanted her to continue to assist with the children through that holiday. The Respondents did not invite her to participate in other trips they took. I understand from the Claimant, and it was not challenged, that there were also family trips at Christmas to France, to a cousin at New Year, to Barcelona, Devon, Wales and Paris to the Marathon and a family tradition that they would watch the France Wales Six Nations together. Perhaps not surprisingly, the Claimant was not asked to join the family at Christmas or at New Year because she had only just started work and there was very little time for the Respondents to arrange for that, but there were other occasions when there were family events to which she clearly was not invited.[32]The Respondents do not have a television which they watch together in their living area. Instead they had a television in their bedroom and the Claimant was not expected to enter that room or share in any times when they were watching television in that room.[33]The Respondent did go out with the children mainly at weekends and did visit family as I have noted on occasions and also it is clear that Mrs Griffiths mother visited them. As I noted the Claimant was not invited to family trips to visit other family. She was around when Mrs Griffiths’ mother visited on occasions because that was during her working hours.[34]In summary, there is no evidence that the Respondents included the Claimant in their leisure activities outside her working hours. I acknowledge that position is somewhat complicated because the Claimant chose on occasions to go to her room or to go to another relative at weekends. However, there is in the bundle, a statement from the following au pair who replaced the Claimant who overlapped with her slightly. That individual did not attend to give evidence and there was no opportunity to test her statement, but she said she was included in trips to the museum and other towns. There was no suggestion that the Claimant was ever invited to do such things.[35]In terms of meals, the Claimant ate with the children or in her room. The food was very largely provided by the Respondent in terms of raw ingredients which the Claimant was able to cook for herself. When she ate was her own choice and where she did so was also her own choice. I note that on occasions she cooked for the family. The Claimant followed a strict diet of a sort. I understand that she was not a meat eater and that her chosen food was slightly different to that which the family might eat, although on occasions when she did make a meal for them they clearly enjoyed it and there is amongst the WhatsApp messages a discussion trail showing they confirmed that they had enjoyed something she had made very much and she provided the recipe for it and the cooking instructions.[36]My attention was drawn to several WhatsApp messages. Many of the communications are about the children and their food, sometimes about shopping and deliveries.[37]There was additional evidence about the keys to the house. The Claimant complained she did not have any and was told that these were special and could not be replicated. The Respondent appeared to think she had her own keys but some of the WhatsApp indicate that at certain times the Claimant was making requests to be let in and I note on one occasion when that was responded to, she said she was already in because the builder had let her in. The next au pair’s statement said that they both had keys. I was not able to test that evidence but it is my view that the Claimant did not always have her own individual key. The evidence shows that she did have to share keys with the Respondents for some time. That made her no different from the parents who also were sharing the same key but nevertheless it clearly made life a bit awkward.[38]As regards meals, both Respondents worked long hours hence the need for the Claimant to work from 7:30am to 7:30pm. The children’s food was regularly prepared by the Claimant. Mr and Mrs Griffiths usually ate together at a later time once they returned from work. The Claimant was, as I have noted, free to make her own food and choose when she ate but there was no suggestion at all that either Mr or Mrs Griffiths encouraged the Claimant to eat with them.[39]In terms of household chores, there was a cleaner so that the household chores were largely done by her although it is clear that there was an expectation that the Claimant would do light cleaning which is reflected by the contract. The Claimant devoted her week day time to the children and she describes being reluctant to spend her free time with the family for fear of being drawn in to caring for the children outside her working hours.[40]It was clear that by the stage of this Hearing the position had become acrimonious and some evidence that was put before me amounted to criticism of the Respondents. I have ignored all irrelevant matters. The case law makes it clear that there are specific issues which need evaluation for the statutory test and those matters go to the extent to which the Claimant was treated as part of the family. That is the focus of my analysis of the evidence. Further, it is not clear that the situation was so bad when the Claimant worked for the Respondents. When the Claimant left she professed in the WhatsApp messages that she missed the children. On 11 May 2018, Mrs Griffiths wrote “we have really enjoyed having you in our household and will miss you”. Therefore, it is clear that there was, much of the time, a relatively friendly relationship. Certainly, the relationship which was created for the benefit of the children was one in which the children would feel that they were in a happy home.[41]The Claimant complained that she was called “noo noo”, not by her choice but by the Respondents. That was apparently a term for a sort of nana or nanny. In the WhatsApp that is what she was described as, rather than her own name. I cannot particularly draw any inference from that. I understand that the Respondents were trying to create a degree of continuity and chose to use that name to try to make the children less conscious of individual changes of nanny.[42]Having gone through all the facts carefully I heard the parties’ submissions and I considered the law. Submissions The Respondents submissions[43]The Respondents effectively reminded me of the case law and specifically drew my attention to the case of Nambalat v Taher and Udin v Chamsi-Pasha [2012] EWCA Civ 1249. which is a Court of Appeal case when two cases were heard together to consider the impact of the requirements of the relevant regulations. That case predated the current National Minimum Wage Regulations but nevertheless it appears that the regulation in question was absolutely identical and therefore the case is highly relevant.[44]I also had my attention drawn to the facts. The Respondents’ submission was that the Claimant formed part of their household and she shared accommodation, shared activities, was invited on holiday, had food provided and was very much part of the family. The Claimant’s submissions[45]The Claimant submitted that she was not part of the family, did not share in their leisure activities.
The Law
[46]I have referred to regulation 57 of National Minimum Wage Regulations 2015 above and I will not repeat it again.[47]However, s.28 of the National Minimum Wage Regulations 1998 is relevant.28.1 where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the National Minimum Wage it shall be presumed that the individual qualifies or as the case may be qualified and at that time unless the contrary is established.28.2 it shall be presumed that the worker was remunerated at less than the National Minimum Wage unless the contrary is established.[48]The case of Nambalat v Taher as I will refer to it was highly relevant. There are large parts of that case which are of relevance and I have read it in some particular detail. It concludes as follows: “In each case, it is for the Employment Tribunal to assess, having regard in particular to the factors stated in (a)(ii), whether the worker is treated as a member of the family. The Tribunal must keep in mind that it is for the employer to establish that the conditions in regulation 2(2) are satisfied and that onerous duties may be inconsistent with treatment as a member of the family. Tribunals will need to be astute when assessing whether an exemption designed for the mutual benefit of employer and worker is, or is not, being used as a device for obtaining cheap domestic labour.[49]The test requires an overall approach to family membership, accommodation being only one of several relevant factors: “the test is whether, in the provision and allocation of accommodation, the worker was treated as a member of the family and not whether a particular standard of accommodation was provided.” “what matters is whether the work is done in a context in which the worker is treated as a member of the family. The way in which household tasks are shared is, as the regulation recognises, an important indicator of whether the worker is treated as a member of the family. The way in which accommodation is allocated, meals taken and leisure activities are organised are other indicators. It is for the Tribunal to decide whether, on the evidence, it is established that the worker is being treated as a member of the family and not as a domestic servant.” Conclusions46. As I have noted, the important thing I had to consider was whether the Claimant was treated as a member of the family and I had to take particular regard of the provision of accommodation, meals and the sharing of tasks and leisure activities.47. In terms of the accommodation it was clear that the Claimant had use of the guest room initially and later an ensuite room.48. The Claimant had food provided for her meals, I accept that she sometimes brought her own food and she indicated that she became concerned about the problems with buying food and that she began to buy her own, but largely it seemed that the Respondents provided the ingredients that she required and she could eat what she wanted. There is no evidence she was expected to eat with the adults, or was asked to join them. She either ate alone or with the children. She was eating different foods to the others, but for her personal reasons. 49. The Claimant’s tasks were very largely to take responsibility for childcare all day in the week but outside that there was no evidence that she was expected to do more household tasks than the rest of the family did. One of the WhatsApp refers to the cleaner complaining about the dishwasher but it seems that Mrs Griffiths’ reply indicates that was not a core activity which the Claimant did alone and she did not particularly complain about that. The Claimant did say she did not do laundry because Mrs Griffiths had a complex system of laundry and she did not touch that.
Conclusions
[50]There was very little evidence of sharing of leisure activities apart from the one holiday to Marrakesh which I have noted, and it is far from clear that was because the Claimant was part of the family, rather because her presence would provide continued care for the children.[51]Overall in terms of being treated as part of the family the employment contract suggests otherwise. It is clear that the Claimant was living in the Respondents’ home and looking after their children and everyone wanted the children to feel happy and comfortable with those arrangements. It is also clear that some parts of the employment contract and the detailed schedules were an effort to provide clear instructions to the Claimant which she could follow, which would mean that she understood the way in which the household tended to operate. However, the contract goes well beyond that, so that while the Claimant’s role was hoped to be one where she could be loving and affectionate with the children as well as caring for them, which indeed she clearly was, and from the children’s perspective she was expected to be part of the family environment, the Claimant was given long and detailed lists of instructions and restrictions on her behaviour which are not consistent with being as treated as part of the family.[52]One example is the fact that not only was there a requirement that the lights should not be left on, but the Respondent reserved the right to deduct money from the Claimant’s earnings if she did and that strikes a note which is not consistent with the way in which you would treat part of your family, even if you do not want them to operate in that manner. Another example is the contractual reference to the use of security cameras. That is not something one would ever do to a family member, other than to protect a vulnerable person. In this case it was clearly a provision to allow the Respondents, if they wished, to check on the Claimant.[53]I balance that against the fact that it is also clear that the relationship was one where Mrs Griffiths talked to the Claimant quite openly about various personal views. I note that the Claimant complains Mrs Griffiths did not disclose her pregnancy to her and that caused her some distress, but it is nevertheless clear that Mrs Griffiths did talk to the Claimant in an open and personal manner.[54]There was a lack of family style social integration between the Claimant and the Respondents, but I note that this was possibly because the Claimant did not see that as her role and because she herself also wanted some privacy. That combined with her dietary choices and the families view that TV was not a family activity so there was no TV in a communal room, meant that this was a difficult case.[55]However, my overall conclusion is that the Claimant was not treated as part of the family. Importantly, the burden of proof falls on the Respondent to prove that the Claimant was treated as part of the family. It is my firm conclusion that the Respondent has failed to do this. The Claimant might not have engaged in family life on every occasion she could have done, but the Respondent set out stringent and detailed procedures expecting the Claimant to behave in certain ways which go beyond that which one might reasonably do to a family member, even so far as having the option, whether or not used in practice, of having security cameras in place.[56]As the burden falls on the Respondent to prove that the Claimant was treated as the family, I have concluded that this case is one where they have failed to tip the burden of proof to satisfy me. Accordingly, I am required to treat the National Minimum Wage as applicable in this case.
Award
[57]Having delivered the judgement we then went on to consider the amount of the award which followed from the judgement. I was referred to the provisions of the National Minimum Wage Regulations 2015, and in particular at Regulation 16, which provide that where the Claimant is provided with accommodation, the national minimum wage is reduced by the amount of £6.40 per day and that this sum must be taken into account in reaching a final calculation.[58]After a discussion with the Claimant and the Respondents’ counsel, I proposed that the amount I understood to be due according to the Respondent’s schedules was £296.90 gross. The Claimant found the deduction of the allowance for accommodation difficult to accept, but this is the law. The figures were agreed by the Respondents’ counsel.[59]Accordingly, I awarded the Claimant the sum of £296.90.
Conclusions
[60]In my judgment I relied on the Respondents having failed to satisfy the burden of proof. The Respondents were required to satisfy the tribunal that the relationship was, to paraphrase the judgment in Namabalat, one for the mutual benefit of the employer and worker rather than being used as a device for obtaining cheap domestic labour. However, to determine that point, it is essential that the tribunal have regard in particular to the factors in Regulation 57(3). That took up some time.[61]My firm conclusion was that the Respondent had failed to satisfy me and the burden of proof fell on the Respondent, so their argument failed. I have given consideration was to whether that judgment was expressed so strongly as to indicate that the Respondents’ case never had any reasonable prospect of success. I did identify significant factors which suggested the relationship was not one within the legislative exemption. It is certainly the case that merely because the Claimant was a live-in nanny and shares in leisure activities wit them, it does not follow that the National Minimum wage does not apply to her. That appears to be the essence of the Respondents’ defence argument as described in the letter sent to the Claimant’s FRU rep. Moreover there was no particular evidence that the Claimant shared in any leisure activities.[62]In short, the claim only became clearly defined as a national minimum wage claim on 29 October when the Claimant sent her schedule of loss to the Respondents and the Respondents were never asked by the Tribunal to serve a defence to that claim as such. The Respondents explained their position in a letter to the Claimant’s representative about two weeks prior to the full merits hearing. The Claimant gained some brief warning of the Respondents’ argument on that point, which was not entirely vacuous, but in this case not the reality. Overall given the initial confusion over the claim, the fact that it evolved somewhat late on both sides, and the fact that in order to determine it, the Tribunal had to listen to a significant amount of evidence, I am not persuaded that the either party can be said to have acted unreasonably to the extent that I should consider whether they should bear any costs.[63]The letter which I have referred to above is the letter which the Claimant also complains about the in terms of the threat of legal costs. The Respondents’ solicitors letter to the Claimant’s FRU rep incorrectly said that the exemption applied “where a nanny is a “live-in” nanny (whereby they live as part of the family and share in leisure activities with them). That overstates the position. As Nambalat records in relation to accommodation, what matters is whether in the provision and allocation of accommodation the worker was treated as a member of the family and not whether a particular standard of accommodation was provided. Likewise, it follows that the involvement in leisure activities must have the quality of sharing as a member of the family. The essence of the exemption is to allow those families who do have a genuine relationship with another individual who lives with them and carries out some household work for them to be exempt from the national minimum wage. It does not exempt all live-in nannies who merely happen to share in some leisure activities.[64]That letter did threaten legal costs and, had it been sent to the Claimant directly when she did not have legal representation, might have been unreasonable, since it incorrectly explained the legislation. However, as the Claimant had a legal representative at the time, I do not find that threat unreasonable.[65]The inclusion of certain information in the bundle by the Respondent may well have been irrelevant and unreasonable but I have not been in a position to investigate or consider it in detail and I am not in a position to make any findings on it.[66]The question of the timetable is a matter which ultimately remains in the Tribunal’s control and clearly, when the case management directions were given, the Tribunal believed that the matter should be straight forward and the parties should have been able to deal with such orders relatively promptly. The parties are encouraged to pursue the overriding objective to cooperate with each other and short extensions are routinely agreed, as long as they do not impact on the overall hearing date. It is not unreasonable conduct.[67]The Claimant’s complaint about the Respondents application to strike out certain of her emails is not a basis for unreasonable conduct. It is clear from having dealt with this case, that as I have noted, emotions were running high. The Claimant did write lengthy emails containing a great deal of information on occasions that were largely irrelevant. It would not be unusual for the Respondents’ solicitors to endeavour to focus the matter on those issues which were going to be considered by the Tribunal. The Tribunal itself has a role which involves managing cases and requiring the parties to focus on the issues.[68]The Claimant defended the Respondents’ accusations against her. The Claimant referred to the Respondents’ argument about the nature of her claim changing. She regarded her claim as always one for underpayment. There is no doubt that the original claim was amended in some respects, but the Tribunal has always treated this as a claim for an unlawful deduction of wages.[69]The Claimant’s comments on the postponed hearing plus the change of argument to one of the family exemption appear to be that the Respondents also took up considerable time in terms of sending detailed correspondence (largely after the judgment) which was unnecessary. She refers in particular to the letter about the receipts. That was sent by way of an application for a reconsideration in relation to the accommodation offset. There was an indication the Respondents thought they might be able to set off these sums but the only matter which engaged the Tribunal was the reconsideration application, which the Respondents were entitled to make and which the Tribunal decided would have to be addressed at a hearing so that evidence could be taken. At that point it was withdrawn.[70]In relation to the Second Respondent’s name, the Tribunal have pursued the claim on the basis of the names used in the ET1.[71]In relation to the Claimant’s complaint about the Respondents’ complaints made about the judges and judiciary, there is a process for making applications to review judicial conduct. The fact that parties avail themselves of this cannot be said to be unreasonable behaviour. It would be contrary to the entire judicial system to have any form of discouragement to these processes, which are designed to uphold the high judicial standards of which we are proud.[72]In relation to the comments about the Respondents’ solicitors, none of these matters are matters in which I have sufficient information to be able to asses them as either reasonable or unreasonable. It is clearly the case that both parties found this claim emotional. Both parties failed to focus on the key points which were relevant to the issues.[73]Finally, the Claimant refers to the payment of the outstanding monies due under the claim. This is not a matter which is relevant to this claim for costs. This claim for costs was made in relation to the claim up to and including the hearing. I note that he Claimant seems to think it should encompass any costs up to and including the hearing of the costs application hearing, but matters of enforcement are not within the usual ambit of this tribunal. However, I have expressed to both parties the fact that I would expect both parties to work together to pay the outstanding amounts as swiftly as possible, given this is the national minimum wage at stake. Respondents’ application for a costs order[74]In relation to the Respondents’ claim, the Respondents argue that the Claimant’s original claim had no reasonable prospect of success. However, as the McPherson case makes clear, Claimants should not be penalised where they recognise that some aspects of their claim are unlikely to be successful as this would deter people from doing so and therefore I do not regard this as a basis for any award of costs.[75]The question of when the Claimant first raised her claim is not of any particular significance. The Respondent said she raised it too late, while the Claimant says that she raised it at an earlier stage. I have not heard evidence or made any finding about it and I cannot see that it has any basis for a costs order for unreasonable conduct.[76]The changing nature of the Claimant’s case is also not a matter which merits a cost award. The Claimant was a litigant in person and she did what is not at all unusual which was to express her problems in the whole rather than clearly limiting them to the claims which the Tribunal can address. It is noteworthy that the Claimant had very little warning of the argument the Respondents raised in relation to the family exemption given their letter was sent to her FRU representative on 13 November when the hearing was listed for 28 November, i.e. only two weeks later. She had no knowledge of the detail of the legislation, nor was she aware of the assurance which had been given by the Respondents to their payroll agency about her being a member of their family. To the extent that was included in the bundle, it was not clear that the Claimant would have understood it nor could she clearly have read it since the copy provided was so badly blurred and illegible.[77]In all the circumstances both parties have suffered to some extent by the changing nature of the claim and the issues which the Tribunal had to determine. In the circumstances I do not think this is the basis for any determination of unreasonable conduct or any consideration of an award of costs.[78]The Respondent also argues about irrelevant, unfounded allegations in the Claimant’s detailed and lengthy emails. Employment Judge Welch did, as they note, tell the Claimant that she should only comment on relevant issues. When the Claimant failed to do so, the Respondent says cost were incurred in having to deal with the emails which had no bearing on the case and appeared to be written simply to cause distress and upset. First there is no evidence that the emails were written with that alleged purpose. The Claimant was for the most part, a litigant in person. She was clearly very distressed herself by the situation. Like many litigants in person, she appears to have addressed her wider concerns about the entirety of her employment rather than focus on the technical issues which the Tribunal had to consider, but this is always difficult for litigants in person. It would be rare for it to be a basis for an award for costs. Further, there were other steps which the Respondents could have taken, such as asking the Tribunal for a case management hearing at which the Tribunal could have explained the situation to the Claimant again and even made appropriate orders, or simply asking the Tribunal at the full merits hearing to ignore the irrelevant correspondence on file. The Tribunal is well used to defining the issues and save where communications go to the credibility of a party, irrelevant communications will be ignored by the Tribunal.[79]In relation to the argument that the Claimant was at fault with regard to the lack of translations of Turkish documents, the Claimant disputes this. As the Respondent is well aware, the Tribunal was unlikely to be able to read them and would not have done so without translations available to the Respondents. The Claimant was a litigant in person and it is difficult to see how her conduct in this regard could be more than due to her lack of legal know how as opposed to unreasonable.[80]For the avoidance of doubt, I have considered each and every matter raised by each of the parties, and have, where they were significant, set out my conclusions on the individual assertions in this decision. I have also considered them all in the round in terms of determining the full position.[81]In conclusion, I find that the actions of the Second Respondent in applying for references, which was a ruse to obtain information about the Claimant for the purposes of this litigation, apparently in the hope of discrediting the Claimant, was unreasonable. That action merits an order for costs.[82]Other than that, I am not prepared to make any order for costs in relation to this claim. As I noted, what is clear is that there was considerable emotion since this claim arose out of a relationship which, while not a family relationship, was certainly a relationship of close proximity. The breakdown of that relationship, after the employment ended, which led to the claim appears to have caused both parties more than the usual levels of distress associated with Tribunal claims.[83]Reviewing the matter, I consider the unreasonable conduct on the part of the Respondents is such that some award of cost should be made. I do not consider they should pay all the costs, but rather a limited sum calculated to represent the time spent by the Claimant in consequence of the unreasonable conduct.[84]The Respondents accept that they are a professional couple and relatively affluent. They accepted they could meet an award of costs. They agreed it was unnecessary to take detailed evidence on their ability to pay.[85]In all the circumstances my conclusion is that the Respondent should pay the Claimant £507 representing 13 hours of preparation time which I asses to be the reasonable costs flowing from the Claimant having to deal with the reference information which the Respondents put in the bundle and which they had obtained improperly. I have reached this number of hours by scrutinising the Claimant’s schedule of costs. I have reduced some of the time as not being proportionate, but I calculate that the reasonable and proportionate amount of time which would have been spent on steps such as locating the reference information amongst the Respondent’s disclosure, enquiries made to the former employers to establish the position and research into the legal position as well as her efforts to object to it, would have totalled 13 hours.[86]I do not include in that any time for the Claimant’s communication with the Information Commissioner, as that is a wholly separate process and not within my purview.
Conclusions
Conclusions
[1]There is no reasonable prospect of the original decision being varied or revoked.[2]The Claimant’s application dated 1 November 2019 has only recently been sent to me. I do not know what caused the delay although the Tribunal did suffer from technical system problems for a while and then we have had the coronavirus pandemic. Nevertheless, I apologise for the delay in addressing her application.[3]The Claimant sets out the following as the basis of her application:(1) that there are factual errors or omission in the judgement, and that it does not describe her claim fully;(2) that the Respondents are nor correctly named; and(3) she refers to some privileged evidence which she says is new.[4]The Claimant also questions the dates on the Costs Judgement. The parties’ costs applications were first made in written submissions and then orally at a hearing on 8 August 2019. On that date in August 2019, after having heard the argument, it was clear there would be insufficient time to reach a conclusion, so I “reserved the judgment”, which means that I did not give an immediate judgment in front of the parties. The reference to 3 October is to the date when I sat “in chambers” (that is to say, I worked alone) in order to review all the arguments and reach a judgment.[5]I refer in these reasons to the applications for costs. The Claimant’s application was in fact for a preparation time order, but I refer to it as an application for costs because it falls under the same set of rules as a costs application.[6]None of the matters which appear to be what the Claimant regards as “factual mistakes, lack of accurate description of her claim or omissions” are such I consider that an error could have been made which could result in the judgment on costs being varied or revoked. Mostly the Claimant has identified omissions. It was never the purpose of the costs judgment to detail every single matter, but rather to explain the arguments and how the judgement was reached. Having read the Claimant’s application, I do not consider that there have been any misleading conclusions.[7]The Respondents were named throughout the proceedings up to and including the liability hearing in line with the Claimant’s ET1. The Respondents participated fully in the proceedings. The Claimant only made an application for the names to be amended after the liability judgment and it does not appear that she requires this due to any difficulty in obtaining the monies awarded to her.[8]The Claimant refers to papers which she says were disclosed by the Respondents but which they now say are confidential which should not have been in the bundle. She says she did not read those papers prior to the hearing and they were not referred to as far as I am aware.[9]I set out below my response to various paragraphs in the Claimant’s application which I consider require a response or an explanation. None of the Claimant’s assertions lead me to consider the original decision might be varied or revoked. In so far as I have not provided a detailed response to every matter raised by the Claimant, this is because a number of the matters identified by the Claimant in her detailed comments are matters which are not valid reconsideration points. Those include the following.9.1 Complaints that the position was more detailed than the judgment records. A reconsideration application is not a process for a detailed critique of a judgement, line by line. It provides a process for a party to raise matters where that party believes such matters indicate the judgment is based on errors or there are circumstances such that it is in the interests of justice for the Tribunal to revoke or vary its judgement. A judgment of this nature cannot be a complete account of every single detail that was raised by the parties in their written and oral submissions. The Judgment ran to over 14 pages and 86 paragraphs. I have explained in the Judgment where I sought to summarise the position and what matters I took into account. The purpose of it is that there is a clear explanation of how and why the judgment was reached and what was taken into account.9.2 Arguments about the original liability judgment. The process for reconsideration entitles the Claimant to seek reconsideration in relation to this judgment on costs, not the liability judgment. I therefore cannot consider her comments about the liability judgment.9.3 Repetition of assertions that were made in written submissions and/or at the hearing. Those points have been made and taken into account.[10]The Claimant makes various assertions in relation to paragraph 2 and the subparagraphs to that paragraph. As noted at the beginning of that paragraph, this was an effort to list the categories of argument, which I noted that the Claimant had made. It was not a detailed explanation of those points.[11]The Claimant says she also complained about two additional matters. She refers to long emails written by the Respondents after the liability judgment was sent to the parties. She did make that argument. However I explained in the hearing that it was my view that the costs application related to costs incurred up to and including the judgment and not afterwards. I did not consider costs arising after the judgment on liability.[12]The Claimant also refers to arguments about her national minimum wage claim more generally. The only issue before me, and therefore the only matters which I addressed, were matters relevant to the cross applications for costs.[13]The Claimant refers to the section of the judgment which is headed “Background”. She complains that she was asked to give witness evidence about her financial position. The Respondents applied for a costs order against her. Rule 84 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 provides that in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay. The Claimant was asked to give evidence about her financial position, as that is the normal process in order that I could have regard to that position, in deciding the Respondent’s application that she pay their costs. Had I decided that it was appropriate, applying the rules, that the Claimant should pay the Respondents some or all of their costs, her financial situation would have been a factor which I would have expected to take into account in deciding how much to award. The Respondents were also asked to give evidence on their financial position, but their representative said I should assume they were financially able to pay any costs order that might be made.[14]The Claimant also refers to a question about the possibility of an adjournment at the outset. As the Claimant notes, she declined the opportunity to ask for an adjournment when it was offered, but was given some time to read the new documents.[15]The Claimant makes a series of comments on the paragraphs 36 to 53 which summarise the Respondents’ submissions. She suggests that some of the paragraphs read “as if a fact”. As noted in paragraph 24, the purpose of the ensuing paragraphs was to set out the main submissions briefly. All the Claimant’s complaints about this relate to matters under the heading “Respondents’ Submissions” which was intended to make clear that these are submissions made by the Respondents. They were not accepted as facts. The section in the judgment that is headed “Conclusions” explains the conclusions I reached.[16]In relation to the paragraphs of the Judgment under the heading ”Conclusions”, the Claimant argues a number of points. In relation to paragraph 55, in which I address the Claimant’s argument that the Respondent had been deceptive, the Claimant says she was not able to pursue the totality of her claims. This appears to refer to the liability question, which is not the matter in issue at this stage. In relation to the costs’ application, I understood the Claimant’s argument that the Respondent had been deceptive was a basis for her assertion that their conduct was unreasonable, which is a test for whether costs should be awarded. This paragraph explains that in the course of the liability hearing, I focussed on the question of whether the Claimant fell within the exemption in the National Minimum Wages legislation. I did not ask for detailed evidence from the Respondents, nor make any findings on the assertions made by the Claimant about deception, as it was not necessary in order to determine the issues which I did have to decide. The Claimant’s assertions that the Respondents had been deceptive were contested by the Respondents. As this paragraph notes, I could not base a costs award on serious assertions which I had not determined, and I remain of that view.[17]Paragraphs 58 to 62 set out my conclusion on one point, which is whether the Respondents’ defence had no reasonable prospect of success. The Claimant’s arguments do not address this as such; rather she addresses the extent to which her claim was clear from the outset. This is commentary on the Judgement and not a point for reconsideration. It remains my view that the claim was always treated by the tribunal as a wage claim but that it did become clearer over time. At the hearing I was asked to determine whether the National Minimum Wage Act was inapplicable by reason of Regulation 57(3) of the National Minimum Wage Regulations 2015, which was a matter only drawn to the Claimant’s attention approximately two weeks prior to the Hearing.[18]The Claimant refers to pressure that she alleges The Respondents’ representatives put on her representative at a particular point in time and advice she received from her advisers. In most cases a tribunal will not look into the relationship between a party and their representative. Legal professional privilege prevents that. It is normal practice for legally qualified representatives to talk to each other about the merits of a case and its preparation. There is no complaint from the FRU representative or the Claimant’s solicitors themselves.[19]In relation to paragraph 73, which addresses points the Claimant made about the judgment monies being outstanding, the Claimant refers to a discussion at the hearing when the Respondents’ representative said the Respondents wanted the Claimant’s bank details in order to check they were paying the judgment monies to the correct account and they Claimant refused to provide these details. The Claimant correctly notes that I could not see why payment had to be made through her bank and it was my view that the Claimant was not obliged to provide her bank account details. I could not understand why the Respondents did not simply send the Claimant a cheque. I did urge them to pay the Claimant quickly and I did suggest that if the parties could not sort the matter out between them, they could apply to the Tribunal again if we might be able to assist in reaching a solution in which the Claimant received the sum adjudged due. My objective was not to “warn” the Claimant. I did stress my hope that the parties would co-operate to ensure the payment was made to the Claimant quickly. I do not consider this is any basis for reconsideration.[20]The Claimant also says that at the end of the hearing, which is a reference to the liability hearing, she said she wanted to apply for costs but says I tried to dissuade her. I did dissuade her from making an immediate application at that time. I did not think she understood the basis upon which costs are awarded, nor was she prepared for any application at that point. I explained that Rule 76 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 provides that before costs are awarded a tribunal must decide that a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or any claim or response had no reasonable prospect of success. I pointed out that the rationale for the judgment which I had just delivered orally was such that she would have difficulty in the argument that this was a matter where the response had no reasonable prospect of success. Additionally, at that point in time, immediately after the liability judgement had been delivered, the Claimant did not have any schedule of the time she had spent. The Claimant had the opportunity to apply for costs after she got the written liability judgement, which she did. I gave her a significant period of time to provide all the details necessary for a costs application, including her schedule of time spent.[21]The Claimant argues that she wanted her claim to include more matters than were considered and she refers to discrimination and constructive dismissal. As I have noted, this is a reconsideration application in relation to the Cost Judgment. Insofar as the Claimant is explaining why she disputes the Respondent’s argument that that they should have costs awarded in their favour because of what they described as lengthy and unfounded allegations made by the Claimant, their argument was rejected and therefore I do not need to reconsider this. The explanation in paragraph 78 addressed that argument made by the Respondents and the fact that they referred me to Employment Judge Welch’s order. This paragraph sets out why I rejected their argument.[22]The Claimant complains about Paragraph 82 of the judgment, which is a general paragraph, which merely sought to recognise the fact that this has been a difficult situation for all parties. It did not raise a new matter.[23]In relation to the additional matters that the Claimant seeks to raise, she refers to her efforts to amend the claim, which were made after the claim had been heard. The Claimant refers to her application made in June 2019. The first hearing took place in November 2018 and the judgment was given orally on 10 January 2019. There is no process for amendment at that stage.[24]The Claimant also refers to notes made by the Respondents’ solicitors, which have come into her possession as new evidence. The Tribunal does not normally consider notes made by a party’s solicitor as they are protected by privilege. While it is possible for the relevant legal professional privilege to be lost, I would not consider any such notes unless I were absolutely certain that such privilege no longer applies and that could require argument from both sides. I do not have the files of papers lodged for the costs hearing to hand as, due to the coronavirus pandemic, I am working remotely. I have no recollection of seeing any notes from the Respondents’ lawyers.[26]Finally the Claimant asks the Tribunal to revoke a decision not to order the Respondents to provide photographic identification documents pursuant to her request made in July 2019. The claim had been determined by then, apart from the question of costs. The Respondents had participated in the hearing and I can see no basis to order them to provide photographic identification. While the Tribunal has wide case management powers, this application was made when the substantive claim had been determined and the only matter outstanding was the question of costs. The Respondents had been identified in the proceedings in line with the ET1 and have participated fully in the proceedings.[1]On 1 November 2019, the Respondents made a request for reconsideration in respect of the Reserved Judgement on Costs sent to the parties on 18 October 2019.[2]The Tribunal did not draw my attention to that request until a few days ago. I am not sure of the reason for that, except to say there have been technical system problems for some time and more recently the coronavirus situation, but nevertheless, I apologise for the delay in addressing this request.[3]I consider there is no reasonable prospect of the original Judgment being varied or revoked and therefore the application is refused.[4]There are three elements to the Respondents’ Request for Reconsideration. First, there is an application for reconsideration of the costs award made against the Respondents. Second there is an application for reconsideration of the failure to award costs sought by the Respondents against the Claimant. Thirdly there appear to be some general and non-specific points.
Background
[5]Both parties applied for costs. I refer to the Claimant’s application for a preparation time order as an application for costs as it falls under the same set of rules. Initially the Claimant applied for costs. The Respondents responded indicating that if the Claimant sought costs, they would too. The Claimant’s application was deficient and the Respondents’ application was conditional. After various letters from both parties on costs, I required both parties to make written submissions and provide costs schedules if they wished to make costs applications, which they did. The costs applications were too complex to be addressed on paper and a hearing was fixed for 8 August 2019. All parties were therefore aware of the substance of the arguments to be made by the other side, by the time of the Costs Hearing.[6]The only award made after consideration of all the arguments was a preparation time order in favour of the Claimant for 13 hours preparation time. Request for reconsideration of the Award against the Respondents.[7]This arose out of the Claimant’s assertion that the Second Respondent sought references from former employers after the Claimant’s employment had ended in order to obtain information, which was used as part of the proceedings. As noted in the judgment, this was not disputed at the hearing by the Respondents’ representatives. The facts that the Respondents now seek to put forward to explain the position were facts that were clearly known to them at the time. As noted, there had been various letters and written submissions so both parties were aware of the nature of the arguments to be made by the other side. The matter was discussed fully and I tested the Respondents’ representatives’ argument. Ultimately the judgment sets out the conclusions reached. It is not in the interests of justice as the Respondents are seeking to reopen the matter to allow evidence to be submitted about the background to the reference information, which could have been given at the time. Request for reconsideration of refusal of Respondents’ application for costs.[8]The second aspect of the reconsideration request is that the Respondents are arguing that their application for costs should have been granted, at least on some points. They point out various irrelevant allegations made by the Claimant, which were ignored. This matter was identified in costs judgement in the summary of the Respondents’ assertions at 3.4. The argument made by the Respondents was summarised as the Claimant making various allegations against the Respondents, which were both unpleasant, irrelevant and additionally unfounded. In submissions the Respondents argued that the Claimant had sent numerous lengthy emails containing abusive and inappropriate comments about the Respondents that bore no relation to her tax demand or unlawful deduction arguments. In paragraph 78 of the Costs judgment I set out at some length the options open to the Respondent and while I acknowledged that the Claimant addressed her wider concerns about her employment, rather than focussing on the issues which the Tribunal had to consider, I regarded it as difficult for a litigant in person. I also noted that both parties’ emotions were at a high level throughout and all parties were highly critical of the other side. This matter was fully considered and it is not in the interests of justice to reconsider it as there is no reasonable prospect of the judgement being varied or revoked.[9]A second point is that the Schedule of Loss, which I believe is a reference to the Schedule of Costs, was not challenged during the hearing. The Respondents’ representative had the opportunity to make all representations they sought. The Schedule of Costs was not accepted without question. Rather, I only awarded a limited number of hours that I considered genuinely reflected the time that would have been spent on the references. A preparation time order is made based on the number of hours assessed by the Judge. The total is then calculated at a fixed hourly rate set by a statutory instrument. There was no element of penalty. The hours awarded were significantly less than argued for by the Claimant. Again, there is no reasonable prospect of the judgement being varied or revoked.[10]A third point is that the judgment referred to the Respondents as a professional couple. The Second Respondent argues this is not a proper description of her status. The reference was included for one reason only, which was that the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 envisage the paying party being given an opportunity to explain their financial position so that their ability to pay can be taken into account. The Respondents representative said there was no need to do this, because they had the means to pay, and I considered it necessary to record the explanation for not taking evidence from the Respondents about their means. There is no dispute that the First Respondent is a professional man and the judgment refers to them as a professional couple. The paragraph simply addresses the reason for not exploring the Respondents’ means. Non-Specific complaints[11]The Respondents complain that the Costs Judgment makes no reference to the “Lost Letter”. This was not relevant to the Costs Application. The Tribunal have explained that the Claimant submitted a written application at the outset of the first hearing, which addressed liability. This was done in full view of the Respondents and their representatives. The Claimant was told that if she wanted to pursue what, on a brief glance, appeared to be a lengthy application it would be necessary to postpone the substantive application. She chose to withdraw it. Thereafter the hearing progressed to deal with the claim. The “Lost Letter” is a reference to the Claimant’s withdrawn application. It was not requested by the Respondents representative during that hearing. It was not offered to them as it became wholly irrelevant. It was not placed on the file as it was not considered and had been withdrawn. When later questions were raised by the Respondents themselves in writing with the Tribunal, it was located by the Judge with the bundle and the Respondents representatives were given time to take instructions in order that they could make representations prior to the Judgment being given, in order to ensure all necessary matters were considered. The Respondents’ representatives could not get through to their clients and after a relatively lengthy period, they confirmed that as legal representatives they had no issue at all with what had been done.[12]This was not referred to in the Costs Judgement as it was not relevant to the costs application. The “Lost Letter” was not read by the Judge beyond ascertaining what it was and it did not result in the Respondents incurring any costs at the hearing. Additional Information in email of 3 March 2020[13]The Respondents sent a follow up email on 3 March 2020, enquiring about the progress of the Reconsideration Request. That email also seeks to make new submissions arising from what is described as newly published information. The email sets out details of the current position and developments which are background to their new submissions. The Respondents then submit that the Judgment erred on a point of law. The Judgment in question appears to be the original Judgment on liability, which the Respondents now say did not address the question of illegality.[14]The Respondents now say the references were there to show that the employment had been entered into on the basis of misrepresentations. This argument was not made by the Respondents’ representatives, nor was it made in various Requests for Reconsideration made after that Judgement. Their focus was to say that there was a legal exception to the requirement to pay minimum wage, for friends and family, which applied to the Claimant and thus she could not claim minimum wage. The Tribunal had to determine whether that exception was applicable. It is not in the interests of justice to open the matter to an entirely new argument at this very late stage. To the extent that this was a Request for Reconsideration of the initial Liability Judgement, that Request for Reconsideration is out of time and is in any event refused.[15]To the extent that the matter is included in order to argue that it was not unreasonable for the Respondents to have sought the information and to explain why it was in the bundle, and thus to argue that the costs awarded in relation to the references should be reconsidered, it is not necessary to consider it as it is out of time.[16]However, I have considered it as an expansion of the Reconsideration Request already made. It is clear that the majority of the details were known to the Respondents prior to the Costs hearing. As set out above, there was opportunity to address the matter on the basis of the facts known to the Respondents at the Costs hearing on 8 August 2019. Most of the information set out is not new. In the circumstances, I see no reason to vary the conclusion reached and detailed above, which is to refuse the Reconsideration Request.