Mr J Juniper v Stripe 21 Ltd and others: 2300252/2019
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimant’s complaint of unfair dismissal succeeds.[2]The claimant’s complaint of wrongful dismissal succeeds.[3]The claimant’s complaint of age discrimination succeeds.[4]The claimant’s complaint of victimisation succeeds.[5]The claimant’s complaint of detriments on grounds of protected disclosure succeeds.[6]The claimant’s complaint of unauthorised deductions from wages succeeds.[7]The Preliminary Hearing listed at 10am on 15 August 2019 is converted to a Remedy Hearing with a time estimate of three hours. The remedy to which the claimant is entitled will be determined at that hearing. Employment Judge Ferguson ____________________________ Date: 14 May 2019 Case Numbers: 2300252/2019 (CVP) 1 of 4 EMPLOYMENT TRIBUNALS Claimant: Mr John Juniper Respondents:(1) Stripe 21 Ltd (in voluntary liquidation)(2) Stripe 21 Group Ltd(3) Mr Stephen P North(4) ISDNTOVOIP Ltd (formerly Stripe 21 VN Ltd; in voluntary liquidation) Heard at: Croydon Employment Tribunal On: 11 November 2020 Before: Employment Judge Michell (sitting alone) Appearances For the claimant: In person For the first respondent: Mr Stephen North (company director, with consent of the liquidator) For the second respondent: Ms Patricia Hall (consultant) For the third respondent: In person For the fourth respondent: No appearance or representation[1]The appropriate respondent for the purposes of each of the claimant’s claims (which he confirmed to be limited to unfair dismissal, wrongful dismissal, unlawful deduction of wages, and direct age discrimination as per para 2(b) below) is the first respondent.[2]By consent:a. The claims against the third and fourth respondents are dismissed on their withdrawal.b. The judgment of 14 May 2019 is varied to the extent that the first respondent is allowed to defend the claim of age discrimination (which Case Numbers: 2300252/2019 (CVP) 2 of 4 relates solely to a comment allegedly made to the claimant in August 2018).[3]The claim against the second respondent is dismissed as having no reasonable prospect of success.[4]The complaints of unfair and wrongful dismissal against the first respondent are well founded. The claimant is awarded the following sums:a. The sum of £500 for the loss of statutory rights.b. A basic award of £5,245.481.c. A compensatory award of £3,574.46, being 5 weeks’ of net loss earnings and car allowance between 1 October 2018 and 2 November 2018 (£2,728.62), and 5% of 31 weeks’ net loss of earnings and car allowance between 5 February 2020 and 14 September 2020.[5]The claimant has failed to prove any loss in relation to his unlawful deductions claim.[6]The age discrimination claim is not well founded, and is dismissed.REASONS
Written reasons for this decision will not be provided unless asked for by either party by a written request made within 14 days of the sending of this written record of the decision. Regulation 5 statement[1]No separate award is made for wrongful dismissal, as the claimant’s 1 month notice period overlaps with the first 5 week period of his compensatory award for unfair dismissal. Case Numbers: 2300252/2019 (CVP) 3 of 4 The first respondent is hereby advised of its duties under Regulation 6 of SI 1996/2349 to give certain information to the Secretary of State within the time specified in Regulation 6(2)&(3). The respondent is referred to the terms of Regulations 7 & 8 below, which in so far as may be material provide as follows:[7]Postponement of awards(1) This Regulation shall have effect for the purpose of postponing relevant awards in order to enable the Secretary of State to initiate recoupment under Regulation 8 below.(2) Accordingly— (a) so much of the monetary award as consists of the prescribed element; (b) payment of any remuneration to which an employee would otherwise be entitled under a protective award, shall be treated as stayed … as respects the relevant employee until— (i) the Secretary of State has served a recoupment notice on the employer; or (ii) the Secretary of State has notified the employer in writing that he does not intend to serve a recoupment notice…[8]Recoupment of benefit(1) Recoupment shall be initiated by the Secretary of State serving on the employer a recoupment notice claiming by way of total or partial recoupment of jobseeker's allowance [, income-related employment and support allowance] [universal credit] or income support the appropriate amount, computed, as the case may require, under paragraph (2) or (3) below.(2) In the case of monetary awards the appropriate amount shall be whichever is the less of the following two sums— (a) the amount of the prescribed element (less any tax or social security contributions which fall to be deducted therefrom by the employer); or (b) [(i)] the amount paid by way of or paid as on account of jobseeker's allowance, [incomerelated employment and support allowance] or income support to the employee for any period which coincides with any part of the period to which the prescribed element is attributable [or (ii) in the case of an employee entitled to an award of universal credit for any period (“the UC period”) which coincides with any part of the period to which the prescribed element is attributable, any amount paid by way of or on account of universal credit for the UC period that would not have been paid if the person's earned income for that period was the same as immediately before the period to which the prescribed element is attributable.]… (4) A recoupment notice shall be served on the employer by post or otherwise and copies shall likewise be sent to the employee and, if requested, to the Secretary of the Tribunals. (5) The Secretary of State shall serve a recoupment notice on the employer, or notify the employer that he does not intend to serve such a notice, within the period applicable, as the case may require, under paragraph (6) or (7) below, or as soon as practicable thereafter. (6) In the case of a monetary award the period shall be— Case Numbers: 2300252/2019 (CVP) 4 of 4 (a) in any case in which the tribunal at the hearing announces to the parties the effect of its decision as described in Regulation 4(4) above, the period ending 21 days after the conclusion of the hearing or the period ending 9 days after the decision has been sent to the parties, whichever is the later; or (b) in any other case, the period ending 21 days after the decision has been sent to the parties… (8) A recoupment notice served on an employer shall operate as an instruction to the employer to pay, by way of deduction out of the sum due under the award, the recoupable amount to the Secretary of State and it shall be the duty of the employer to comply with the notice. The employer's duty under this paragraph shall not affect his obligation to pay any balance that may be due to the employee under the relevant award. (9) The duty imposed on the employer by service of the recoupment notice shall not be discharged by payment of the recoupable amount to the employee during the postponement period or thereafter if a recoupment notice is served on the employer during the said period. (10) Payment by the employer to the Secretary of State under this Regulation shall be a complete discharge in favour of the employer as against the employee in respect of any sum so paid but without prejudice to any rights of the employee under Regulation 10 below. (11) The recoupable amount shall be recoverable by the Secretary of State from the employer as a debt. [(12)] For the purposes of paragraphs (2)(b)(ii) and (3)(b)(ii), 'earned income' has the meaning given in regulation 52 of the Universal Credit Regulations 2013.] Case Numbers: 2300252/2019 (CVP) 1 of 7 EMPLOYMENT TRIBUNALS Claimant: Mr John Juniper Respondents: (1) Stripe 21 Ltd (in voluntary liquidation) (2) Stripe 21 Group Ltd(3) Mr Stephen P North(4) ISDNTOVOIP Ltd (formerly Stripe 21 VN Ltd; in voluntary liquidation) Heard at: Croydon Employment Tribunal On: 11 November 2020 Before: Employment Judge Michell (sitting alone) Appearances For the claimant: In person For the first respondent: Mr Stephen North (company director, with consent of the liquidator) For the second respondent: Ms Patricia Hall (consultant) For the third respondent: In person For the fourth respondent: No appearance or representation[1]I gave oral judgment in this case on 11 November. Following promulgation of my written judgment, I have received a request from the claimant for written reasons within the 14 day period for which r.62(3) of Sch. 1 to the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (“the ET Regs”) provides.Background
[2]The claimant worked as a field engineer from 26.11.07 until his summary dismissal for alleged misconduct on 28.9.18 (“EDT”). His claim was presented to the tribunal on 21.1.19. It was initially brought only against Stripe 21 Ltd (“R1”). On 11.6.19, judgment was entered against R1 under r.21 of Sch. 1 to the ET Case Numbers: 2300252/2019 (CVP) 2 of 7 Regs. On 18.9.19, Stripe 21 Group Ltd (“R2”) and Mr North (“R3”) were added as parties. On 8.6.20, EJ Simon Cheetham QC made various directions for a hearing to determine whether R1 or R4 was the claimant’s employer at the EDT. He also added ISDNTOVOIP Ltd (“R4”) as a respondent. He observed (in my view, correctly) that “there is no apparent basis upon which either [R2 or R3] could have been the claimant’s employer”, and that the real candidates were R1 or R4. On that occasion, and before me, the claimant did not seek to assert to the contrary.[3]EJ Cheetham QC observed that it was unlikely R1 or R4 had the assets to satisfy any judgment. (I do not understand that gloomy picture to have changed since 8.6.20.) He also made clear that, notwithstanding the r.21 judgment, R1 could participate in relation to the hearing to determine the identity of the claimant’s employer at the material time, as well as regards remedy if appropriate. 11.11.20 Hearing & Issues[4]The 11.11.20 hearing was remote, by CVP. The parties did not object to that course being taken. A face to face hearing was not held because it was not practicable and the issues could be determined in a remote hearing.[5]I heard evidence from the claimant and from R3 (for himself and with the permission of the liquidator on behalf of R1). I heard oral argument from the claimant, from R3 (for himself and on behalf of R1), and from Ms Hall on behalf of R2. I was referred in evidence and during submissions to a bundle of about 200 pages.[6]The claimant confirmed that he only pursued a claim in relation to ‘ordinary’ unfair dismissal, wrongful dismissal, unlawful deduction of wages, and direct age discrimination. He clarified his age discrimination claim was solely in relation to a comment made to him in August 2018. He agreed that it was appropriate to vary the 11.6.19 judgment so as to allow R1 to defend (just) the age discrimination claim. He argued his employer at all material times had been R1 rather than R4. Case Numbers: 2300252/2019 (CVP) 3 of 7 Factual findings and conclusions R2[7]Having heard submissions from the claimant and Ms Hall, I found that there was no reasonable basis to continue a claim against R2, and I dismissed it for that reason. This was because R2 was not incorporated as an entity until post-EDT. (The claimant was concerned that, for “remedy purposes”, he might lose something if the claim against R2 was dismissed. Hence he did not voluntarily withdraw that claim. However, I did not consider the mere fact R2 might have been better able to satisfy a judgment than R1 or R4 – both of which were in voluntary liquidation- of itself gave any reasonable basis for the claim against R2 to continue.) Identity of employer[8]It was common ground that the claimant had been employed from 26.1.07 by TSI Group Ltd, and that he had transferred to R4 -of which R3 was the owner, and which itself owed R1- by operation of the TUPE Regulations 2006 in February 2015. In February 2017, a winding up petition was presented against R4, which was and remained in financial difficulties. The contentious issue was whether or not the claimant had transferred to R1 (of which R3 was also a director) at about that time.[9]Having heard from the claimant, R3 and Ms Hall, I determined that R1 was the claimant’s employer at the appropriate time. This was because:a. I accepted the claimant’s evidence that in or around February 2017: i. some or all of R4’s staff (including the claimant) were told they were immediately transferring to R1, who would be their employer; and ii. customers of R4 were sent letters explaining that their business had transferred to R1, and that R1 would deal with matters going forward. (The claimant had sought disclosure of those letters from R1/the liquidator, without substantive response.)b. The limited number of claimant’s payslips which were in the bundle (relating to his last few months of employment in 2018) were in the name of R1. I accepted the claimant’s oral evidence that from about February or March 2017, R1 paid his wage, and issued him with wages slips showing Case Numbers: 2300252/2019 (CVP) 4 of 7 as much. (R1, R3 and R4 did not produce any paperwork to contradict this evidence. R3 was also unable to explain why R1 rather than R4 issued the wages slips and ‘paid the bills’. R3 said this was an ‘HR matter’.)c. Letters concerning the 2018 disciplinary and grievance process in relation to the claimant were sent on R1’s headed note paper, rather than on R4’s note paper, despite the fact that R4 had its own stationary.d. The claimant’s P45 states that R1 was his employer. (This, and the previous evidence I have set out above, was not definitive of the issue. But it was a material part of the whole picture.)[10]After I had made my findings as to the identity of the appropriate employer, the claimant agreed that his claims against R3 and R4 could be dismissed upon his withdrawal of them. I therefore dismissed them. Age discrimination claim[11]I heard evidence about the alleged discriminatory comment. The claimant explained that during the disciplinary process leading to his dismissal, on 16.8.18 he had been questioned about his allegedly slow performance in actioning a works ticket “a couple of months before”. The claimant complained that R1 had been more lenient to a younger employee (“GL”) in 2018 in relation to the same kind of issue. (The claimant was 42 years old at the time, whereas GL was 22 years old. According to the documents generated during the grievance process, the claimant was in third youngest of the approximately 8 members of staff.) The claimant had asked why this was so. He alleged he was told in answer that GL “is a young and junior member of staff”.[12]R3 explained (and I accepted) there had been a few previous occasions when the claimant had been asked to ‘buck up’ his performance. Moreover, R3 said (and I accepted) that GL was “a new recruit still on probation”, whereas the claimant had over 11 years’ experience. GL was in a much more junior role, and was much less well paid, than the claimant. I therefore accepted R3’s evidence that “it was reasonable to expect a higher level of performance” from the claimant and that expectation levels in relation to GL were understandably lower, because he was at the start of his career. I accepted that different levels of expectation Case Numbers: 2300252/2019 (CVP) 5 of 7 based on those factors was the context in which any such remark was made, and that this (rather than the claimant’s/GL’s age per se) the reason for any such comment I found the remark -and picking the claimant up on his allegedly slow performance- did not amount to less favourable treatment on grounds of age.[13]In any event, the claim was presented to the tribunal on 21.1.19 following completion of the Early Conciliation process for which ‘Day A’ was 23.11.8 and ‘Day B’ was 23.12.18. The age discrimination was therefore out of time -in the light of s.123(1)(a) of the Equality Act 2019 and because more than 3 months passed between 16.8.18 and Day A. The claimant did not advance any reason as to why it was just and equitable to extend time in his case. The tribunal therefore did not in fact have jurisdiction to consider the age discrimination claim. For that reason alone, the claim had to fail. Unlawful deductions claim[14]The claimant asserted at he had not been paid for being put on the ‘out of hours’ (“OOH”) rota. He said he ought to have been paid £175pcm from 28.9.16 for this.[15]However, I accepted R3’s evidence to the effect that:a. the claimant was already paid for overtime;b. the increase in salary the claimant received when he transferred to R4 was on the basis that he would be available from time to time to do the OOH rota;c. the claimant agreed to take OOH calls because it gave him “first refusal on any resulting overtime”;d. the amount of time the claimant was needed to carry out OOH calls was minimal, and “there was no tangible additional workload” on which to base any ‘on call’ payment; ande. no additional on call payment was “requested, discussed or agreed” with the claimant. Thus I rejected the claimant’s unlawful deductions claim. Unfair/wrongful dismissal claim Case Numbers: 2300252/2019 (CVP) 6 of 7[16]Judgment having already been entered, I needed to determine remedy in respect of the unfair and wrongful dismissal claims As to this:a. The claimant was out of work from the EDT until 2.11.18 (5 weeks), when he found (at least) equally well-paid work on a temporary basis. He was then out of work from 5.2.20 until 14.9.20, when he again found (at least) equally well-paid work under a 12 month temporary contract.b. R3 told me and I accepted as follows: i. R1’s business had shrunk very significantly in the last few years. Its turnover had halved from 2015, when it had 15 staff. By 2017, it had about 12 staff. In 2018, it lost much of its client base to the same competitor. Thus during 2018, staff numbers dropped to less than 10, and by 2019 to about 6. By the time of the hearing, R1 had only 3 full time staff. ii. The need for the systems in which the claimant was an expert had “reduced dramatically”, as a result of clients ‘virtualising’ in the Cloud. As a result, R1 no longer had any virtual systems, their last customer having cancelled in December 2019. iii. The above matters had a significant impact on whether or not, but for his dismissal, the claimant would by 2020 have been in any event still employed by R1. The chances were “5%, at best”.[17]Applying these facts, and a broad brush approach I awarded the claimant his ‘full’ losses (salary and car allowance) for the initial 5 week period. As that period overlapped with the 1 month’s ‘lost’ notice period, I did not make a separate award in respect of the wrongful dismissal claim. I then awarded the claimant a further 5% of such ‘full’ losses for the period 5.2.20 to 14.9.20. I considered that any claim for loss beyond that latter date would be too speculative to be appropriate.[18]The claimant was also entitled to and was awarded the appropriate basic award and compensation for loss of statutory rights. Case Numbers: 2300252/2019 (CVP) 7 of 7 Employment Judge Michell 2 December 2020 Case Number: 2300252/2019 (CVP) 1 of 5 EMPLOYMENT TRIBUNALS Claimant: Mr John Juniper Respondents:(1) Stripe 21 Ltd (in voluntary liquidation)(2) Stripe 21 Group Ltd(3) Mr Stephen P North(4) ISDNTOVOIP Ltd (formerly Stripe 21 VN Ltd; in voluntary liquidation) CONSIDERATION OF APPLICATION FOR RECONSIDERATION OF JUDGMENTIntroduction
[1]I gave an oral decision in this case at a CVP hearing on 11 November 2020. Following promulgation of my written judgment, the claimant made a request for written reasons, which were duly given. (Below, I use the same abbreviations as in those written reasons.) By a letter dated 15 December 2020, the claimant applies for reconsideration of my judgment, pursuant to r.70 of Sch. 1 to the ET Regs. Unfair and wrongful dismissal/unlawful deductions[2]I do not consider there is a reasonable prospect of the original decision being varied or revoked in relation to the above claims.[3]I make the following observations in response to points the claimant makes in his 15 December letter:a. Strike out of respondents: The claimant asserts that I should have made a strike out order because of non-compliance by the respondents with tribunal orders. However: Case Number: 2300252/2019 (CVP) 2 of 5 i. The claimant did not apply for a strike out order at the hearing. Nor did he ask for additional time e.g. to digest R3’s (3 page) 10 November 2020 witness statement. ii. The claimant did not suggest that paperwork which could have made a material difference had not been disclosed. (I was provided with a sizeable bundle.) iii. R3 ought to have provided a witness statement sooner, and/or applied for directions, in accordance with previous tribunal orders1. But the evidence which R3 gave in his statement was consistent with and contained in R3’s grounds of resistance. iv. The claimant suggests R2’s defence ought to have been struck out for failure to exchange witness statements on 31 October 2019. But “New Evidence Doc 1” shows R2’s representative offering on Friday 30 October 2020 to exchange statements on 4 November (which offer the claimant declined). So, I do not think that “New Evidence Doc 1” -even if the claimant had showed it to me at the hearing- would have made a material difference.b. “Equal liability” of R2: The claimant appears to suggest that “New Evidence Doc 2” was not made available to me to “make an informed decision” on R2’s “equal liability” with R1 as his employer.c. If the claimant thought I ought to have seen that document (dated 12 June 2019), he could have taken me to it at the 11 November 2020 hearing.d. “New Evidence Doc 2” is an application to join R2 and R3 to the claim. Those respondents were both duly joined by the tribunal, on 18 September 2019. I do not see how it alters my finding as to the identity of the claimant’s employer (with which finding the claimant appears to agree in his 15 December letter).e. Similarly, the claimant has not explained how “New Evidence Doc 3” (dated 4 September 2020) could not have been submitted by him at the November 2020 hearing. 1 The claimant suggests in his 15.12.20 letter that at the hearing on “8th May 2020” [sic- should be. 8.6.20], EJ Cheetham QC said R3 “would not be participating in the Remedy”. In fact, albeit the judge at that hearing did not anticipate that R2 or R3 would participate (because it seemed clear to him that neither R2 or R3 could be C’s employer), he stated it was “not clear yet” whether or not R1 or R4 would participate. He made directions, should they choose to do so. R3, with the agreement of the liquidator, gave evidence on behalf of R1. Case Number: 2300252/2019 (CVP) 3 of 5f. I do not in any event consider “New Evidence Doc 3” would have made a difference: i. The document shows R3 held shares in R2- which was not disputed by R3. ii. The claimant did not advance any proper basis for asserting (and did not assert before me or Employment Judge Cheetham QC) that R2 was his employer, jointly with R1 or otherwise. iii. On the paperwork that I saw, any such argument would have been doomed to fail -amongst other things, because R2 was incorporated some time after the EDT.g. The mere fact R2 might have been better able to satisfy a judgment than R1 or R4 – both of which were in voluntary liquidation- did not give a sound basis for the claim against R2 to continue.h. Unlawful deductions: As for the unlawful deductions claim, I do not think there is any realistic prospect of my original decision being varied, given my factual findings as set out at paragraph 15 of my written reasons. (‘Evidence Doc 5’ is an email from Mr Hynes which postdates the 11 November 2020 hearing.)i. ACAS uplift: As regards the claimant’s submissions regarding an ACAS uplift for alleged refusal to allow witnesses for his (pre-dismissal) grievance, this (and ‘New Evidence Doc 6’) is something which could have been raised by him at the 11 November hearing. It was not. In any event, as I did not make any award in relation to the unlawful deductions claim the point is academic- there was no pre-dismissal compensation to ‘uplift’. Age discrimination[4]As regards the age discrimination claim against R1, I propose to reconsider my decision on the substantive merits, on the basis that the substantive merits ought to have been a matter for determination by a full tribunal (rather than a judge sitting alone), if the tribunal had jurisdiction to hear the claim.[5]I am therefore minded to revoke my decision on the substantive merits of the age discrimination claim, and order for there to be 3 hour open preliminary hearing (“OPH”) before a judge sitting alone to decide whether or not the age Case Number: 2300252/2019 (CVP) 4 of 5 discrimination claim should be struck out on the basis that it is out of time. (If it is not out of time, any further directions for a hearing on the merits can be made at the OPH.)[6]I have, of course, already made findings on whether or not the claim is out of time. See paragraph 13 of my written reasons. But in fairness to the claimant, and because he did not have advance notice that the issue would be decided at the 11 November 2020 hearing, I think it may be appropriate for him to have further opportunity to address the tribunal at the OPH on whether or not there should be a ‘just and equitable’ extension of time in his case, as well as the question of whether or not the claim is in fact in time for the reasons set out in his 15 December 2020 letter. (I think it may also be appropriate for another judge to deal with the OPH, if one is listed.) So, I am also minded to revoke my factual findings at paragraph 13 of my written reasons. Next steps[7]Pursuant to r.72(1) of Sch. 1 to the ET Regs, within 14 days of the date this document is sent to them by the tribunal, the claimant and R1 are therefore to:a. respond in writing to my provisional views on the revocation of paragraph 6 of my 11 November 2020 judgment and paragraphs 11-13 of my written reasons, and the listing of the OPH as per paragraphs 5 & 6 above;b. indicate whether they consider that the decision as to the revocation of paragraph 6 of my 11 November 2020 judgment and paragraphs 11-13 of my written reasons and the listing of the OPH can be determined on the papers and without a hearing.[8]If I consider that my decision can be made without a hearing, the parties will be given a reasonable opportunity to make further written representations, in accordance with r.72(2) of Sch. 1 to the ET Regs.