Mr W Tsang v Mighty Rhino Ltd and Spoon Basildon Ltd: 2303495/2017
EMPLOYMENT TRIBUNALS
Case No 2303495/2017
Between
Mr W TsangClaimantMighty Rhino Ltd and Spoon Basildon LtdRespondent
Before
Employment Judge PritchardIn person for claimantDate 4 April 2022
JUDGMENT
[1]As at 2 August 2017 the Claimant was employed by the Second Respondent.[2]The First Respondent is dismissed from these proceedings. Henceforth Spoon Basildon will be the only Respondent to these proceedings.[3]The date of commencement of the Claimant’s continuous employment by the Second Respondent was 9 March 2015.
REASONS
[1]This case was listed for a preliminary hearing to determine: 1.1. Whether as at 2 August 2017 the Claimant was employed by the First Respondent or the Second Respondent; 1.2. The date of commencement of continuous employment by that employer for purposes of sections 210 to 219 of the Employment Rights Act 1996. Case No: 2303495/2017 History of the proceedings[2]These proceedings have a long and unfortunate history.[3]Following ACAS Early Conciliation, the Claimant presented his claim to the Tribunal on 29 November 2017. He claimed unfair dismissal, redundancy payment, unpaid wages, notice pay, and holiday pay. He named Mighty Rhino Limited, now the First Respondent in these proceedings, as the Respondent to
the claim.
[4]By emails dated 5 February 2018 and 9 February 2018, the Respondent’s solicitors informed the Tribunal that the Claimant had issued proceedings against the wrong defendant. They enclosed wage slips to show that from January 2017 the Claimant had been paid by Spoon Basildon Limited, now the Second Respondent in these proceedings, and maintained that the Claimant had been employed by that company.[5]Because the Respondent had not presented an ET3 response within the applicable time limit, Employment Judge Baron issued liability judgment for the Claimant under Rule 21 in respect of all his claims.[6]The Respondent’s solicitors promptly made an application for reconsideration of that judgment and presented an ET3 in which it resisted the claims. The Claimant objected to the judgment being revoked and a therefore a hearing took place on 14 May 2018 to consider the application. The outcome was that the judgment was revoked, the Respondent’s ET3 accepted, and Spoon Basildon Limited added as Second Respondent.[7]The Second Respondent presented its ET3 in which it resisted the claims on 4 July 2018.[8]Correspondence between the Tribunal and the parties failed to resolve the dispute between them as to the correct identity of the employer and on 1 November 2018