Mr Z Bhatti v Nimesh Yadev and others : 2302655/2018
JUDGMENT
[1]The Claimant is entitled to be paid by the Respondent jointly and severally the sum of £1,338.93 in respect of unlawful deduction of wages.[2]The Claimant was unfairly dismissed by the Respondents by a reason of his assertion of a statutory right.[3]He is not entitled to a basic award.[4]He is entitled to a compensatory award of 4 weeks’ pay calculated on the basis of 70 hours per week at the national minimum wage rate of £7.83 that is £2.192.40.[5]This is awarded gross because there is no evidence that the Claimant would be paying tax on any of these sums.[6]This is not an award to which the recoupment regulations apply because the Claimant has told me that he did not received any state benefits during the period in question. Case No. 2302655/2018[7]The Claimant did not receive in accordance with s.1 of the Employment Rights Act 1996 a statement of initial particulars of employment after one month in employment. I am therefore required to consider an award under s.38 of the Employment Act 2002. I consider the award should be in the sum of 4 weeks’ pay that is £2,192.40 following the default which I consider is serious on the part of the Respondent.[8]The Total to be paid by the Respondent to the Claimant is £5723.73 Regional Employment Judge Hildebrand Date 28 December 2018 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 2302655.2018 Judgment – Application for Reconsideration EMPLOYMENT TRIBUNALS Claimant: Mr Bhatti Respondent: Nimesh Yadev Office First Limited Hoya Investments Ltd Employment Judge HildebrandREASONS
[1]The Respondent Mr Yadev applied for reconsideration of the Judgment given at a hearing on 21 December 2018 signed on 28 December 2108 and sent to the parties on Case No: 2302655.2018 Judgment – Application for Reconsideration 11 February 2019.[2]It appears that Mr Yadev wrote to the Tribunal initially on 27 February 2019 although I have not been provided with a copy of that email as received. The Tribunal responded on 30 May 2019 making clear that the application appeared to be outside the 14 day time for application for reconsideration found in Rule 71. The Respondent was asked to explain if he was seeking reconsideration and also to explain why he failed to attend the hearing.[3]The Respondent replied on 31 May 2019. He said he had received the Judgment on “week commencing 25 February.” He said the address it had been sent to was no longer accessible. The correspondence was referred to me on 13 August 2019.[4]On 31 May 2019 the Respondent said he could only respond once he had reviewed the paperwork. He also explained that an inputting error had led to him missing the hearing and this could only be put down to human error. He did not share who made the error or how it had happened and he did not explain when it had come to light.[5]The Respondent on 27 February gave the grounds of his application. He disputed the Claimant’s employment status, the hours he worked, and his entitlement to an award under Section 38 of the Employment Act 2002. He also disputed the identity of his employer.[6]The Respondent has therefore applied for reconsideration outside the 14 day time limit stipulated in the Rules. He has not put forward any compelling reason for his non attendance at the hearing or his failure to enquire when he became aware of the failure to attend. He appears to have waited to react until the time the Judgment was sent to him. His explanation of the delay in applying for reconsideration lacks the corroborating material one would normally expect, namely why the address, presumably provided to the tribunal when the Response was filed, had been inaccessible and how the judgment had eventually reached him.[7]I do not consider there are grounds for extending the time for application for reconsideration in this case. The picture provided is unclear. The correspondence from the tribunal clearly sets out the provisions regarding reconsideration and appeal and applying for written reasons. The mail of 27 February 2019 was not clearly an application for reconsideration. The application was out of time and no coherent explanation has been provided for the delay in reacting to the judgment. Case No: 2302655.2018 Judgment – Application for Reconsideration[8]For completeness I should deal with the argument that the obligation to provide a written statement of employment particulars did not have effect until the employment had continued for 8 weeks. Section 1 (2) of the Employment Rights Act 1996 (“ERA”) requires the statement to be given not later than two months after the beginning of the employment. Section 2(6) provides that the statement shall be given even if the employment ends before the end of the period of 2 months. Section 198 disapplies Sections 1-7 if the employment continues for less than one month.[9]The Respondent is therefore incorrect in his assertion that the Claimant was not entitled to particulars until he had been employed for two months. The particulars should have been supplied even though the employment had ended. There is nothing in the application for consideration that presents a compelling reason for time to be extended.[10]For these reasons I do not extend time to allow the application for reconsideration to be accepted. Employment Judge Hildebrand Date 21 August 2019 Note Written reasons will not be provided unless a written request is presented by either party within 14 days of the sending of this written record of the decision. Public Public accessaccess toto employmentemployment tribunaltribunal decisionsdecisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.