Mr M Gordon v Sutton and Cheam Ltd: 2304715/2021
JUDGMENT
[1]Judgment of the Tribunal Having heard from the Claimant and in the absence of the Respondent (see below), I find:[1]That the Respondent made unlawful deductions from the wages properly due to the Claimant.[2]That the claims for holiday and notice pay are also made out and therefore succeed.[3]The Respondent shall pay to the claimant the sum of £2,338.64 (gross) after making lawful deductions for income tax and employees national insurance and accounting to HMRC for those and employers national insurance. 2. The Respondent did not attend the hearing and the Director, on the being contacted by our Clerk, informed the Tribunal that he was jogging and believed that the hearing was taking place tomorrow. The notice of hearing was issued on 14 December 2021 to both parties and clearly states that the hearing was listed, by video, on 17 August 2022 at 10:00. I was satisfied that the Respondent had proper and sufficient notice of the hearing and that it was in the interests of justice to proceed. 3. In reaching my decision to proceed, I considered the overriding objective and the interests of justice and I was satisfied that both would be met by proceeding in these circumstances. I also had the benefit of seeing an email from the Respondent - sent at 08:18 on 16 August 2022 to the Tribunal and not copied to the Claimant. In that email, the Respondent asked for connection details for the hearing, explained that the business had been sold in May 2022 and that he wanted to attend to “...sort out exactly how much we owe Mr gordon as I've tried to sort out through acas with no success”. (sic)[4]Details of the Tribunal decision• The Claimant was paid a monthly salary of £2,833.00 (x12 = £33,996)• This amounts to a weekly sum of £653.77 (33996/52)• This breaks down to a daily amount of £130.75[5]The Claimant sought payment for the following amounts: 12 days work (12x130.75 = £1,569.00) 6 days holiday (6x130.75 = £784.50) 1 week notice pay (5x130.75 = £653.75) 1 week for being out of work (5x130.75 = £653.75) A total of £3,661.00 2304715-2021 Mr Michael Gordon -v- Sutton and Cheam Limited: 17-08-2022 Judgment Page 1 of 2[6]The Claimant is entitled to be paid for 12 days salary, 6 days of unpaid holiday and 1 week notice. He had insufficient service to bring a claim for unfair dismissal and so cannot properly claim for pay in the week whilst he was out of work following his dismissal. Deducting that amount from the total above, we reach a final gross sum of £3,007.25.[7]The Respondent had paid to the Claimant the sum of £668.61. This amount appeared to have been calculated by taking the amount of £1,268.56 (being the net amount on his final payslip) and deducting from it the value of two invoices which the Respondent said the Claimant had to pay (invoice 83545 for £500 dated 28/7/21 and invoice 82691 for £99.65 dated 13/4/21).[8]In the absence of an express contractual provision, legal order, statutory requirement or the express written consent of the Claimant, the Respondent had no lawful basis to make the deduction of £599.65 (the total of the two invoices) and should not have done so.[9]Taking account of the gross amount properly due to the Claimant (£3,007.25) and deducting from it the £668.61 which the Respondent paid to the Claimant by cheque in October 2021, the balance of £2,338.64 remains and that is the amount which the Respondent is ordered to pay forthwith. Judge M Aspinall on Wednesday, 17th August 2022 2304715-2021 Mr Michael Gordon -v- Sutton and Cheam Limited: 17-08-2022 Judgment Page 2 of 2 Reference number(s) 2304715-2021 EMPLOYMENT TRIBUNALS London South Employment Tribunal on 17th August 2022 Claimant Between Respondent Mr Michael Gordon & Sutton and Cheam Limited Before Appearances Judge M Aspinall (Sitting as an Employment Judge) Mr M Gordon (in person) via telephone No appearance by the Respondent APPLICATION FOR RECONSIDERATION Judgment[1]By an email received at the Tribunal office at 10:55 on 7 October 2022, the Respondent reported that they wished to appeal the decision that I made on 17 August 2022. That email was not copied to the Claimant.[2]The judgment in question (from 17 August 2022) was sent, via email, to the parties at 16:05 on 26 August 2022. There is no record of it being returned as undeliverable or any other error in delivery.[3]Gary Worsfold, for the Respondent, notes in his email of 7 October 2022 that he has “...told you on numerous occasions I cannot access this email account regularly, please use… I wish to appeal to the judgement…”.[4]Given that this email was sent to the Employment Tribunal, I am treating it as an application for me to reconsider my decision of 17 August 2022.[5]Rule 70 of The Employment Tribunals Rules of Procedure 2013 (as amended) provides that "A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again."[6]Rule 71 of the same rules provides "Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties ... and shall set out why reconsideration of the original decision is necessary.” (my emphasis added).[7]In this case, the decision was sent to the parties on 26 August 2022. It was 42 days later, on 7 October, that the Respondent belatedly wrote to the Tribunal.[8]Even allowing that the Respondent does not often access the email account, as they stated in their email, they can and did access that email account. This is self-evident from the fact that they have received the decision and responded to the email to which it was attached. 2304715-2021 Mr Michael Gordon -v- Sutton and Cheam Limited: 17-08-2022 Reconsideration Page 1 of 2[9]I note that on 17 August 2022, the Respondent’s Director (Mr Worsfold) was contacted by my Clerk and gave a reason why he had not attended the hearing before me (see paragraphs 2 and 3 of my 17 August judgment). It was open to him to ask for a short delay on that day to allow him to attend and he chose not to do so.[10]In his application for reconsideration, the Respondent has offered no material upon which any reasonable Tribunal would be likely to reconsider an earlier decision. Indeed, the email from Mr Worsfold contains a bare assertion regarding his opinions of the Claimant and the claims. That is not evidence or material which would be pertinent or was not previously available. It is the Respondent’s opinion and no more than that.[11]I have also looked at whether the Respondent advances any reasonable excuse for applying to the Tribunal - for reconsideration - so late. Any such application needed to be made by 9 September 2022 (14 days after the judgment was successfully sent to the parties by email).[12]Apart from the single line that they do not access the email account used frequently and had provided an alternative, I can see no reason that has been provided for such a lengthy delay. As I have recorded above, although the Respondent does not often access the email account, they do access it. Even if I were to accept that the infrequent access to the email account was a good reason for delay (which I do not; given the lack of any delivery failure or automatic reply - the Tribunal was entitled to consider the judgment to be properly served) the Respondent has applied 28 days beyond the time limit.[13]My decision The Respondent has sought a reconsideration 28 days out of time and has provided insufficient reason why they could not have made such an application in time. In any event, even if the application was in time, I am not satisfied that the application made demonstrates any good reason, and provides no admissible evidence or material, which would lead to a reconsideration of the underlying judgment. I also take note that the Respondent failed to copy his application (email) to the Claimant in breach of the requirements of Rule 71. It follows that I refuse the application and confirm my judgment of 17 August 2022. Judge M Aspinall on Thursday, 20th October 2022 2304715-2021 Mr Michael Gordon -v- Sutton and Cheam Limited: 17-08-2022 Reconsideration Page 2 of 2