Mr P Gitttins v Exoair LLP: 2401701/2017
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent has made unauthorised deductions from the claimant's wages and is ordered to pay the claimant the sum of £11,332.00 subject to usual statutory deductions in respect of outstanding drawings for the months of August, October, November and December 2016.[2]The respondent has breached the claimant’s contract with regard to the payment of expenses for the months of November and December 2016 and shall pay to the claimant the sum £1,291.96 in respect of those expenses.[3]The respondent is ordered to pay costs to the claimant under rule 75(1)(b) in the sum of £160 in respect of the issue fee paid by the claimant in these proceedings.[4]The hearing listed on 31 May 2017 is cancelled.REASONS
[1]Owing to particularly inclement weather and potentially hazardous travelling conditions, the parties were given the opportunity to make written submissions rather than having to attend a hearing today. The claimants chose to attend and the respondent made written submissions. In those circumstances the hearing was postponed until those submissions were received and read. When the hearing commenced the claimants were asked to simply state whether they consented to the application for revocation of the judgments; neither did. No further oral submissions were invited from the claimants and none was made.[2]My decision to confirm the judgments is based upon my reading of the tribunal’s case file, the respondent’s written application and submissions, and the interests of justice.[3]I noted the following from the file:3.1 The claimant’s claims were presented to the tribunal on 24th March 2017.3.2 Notice of claim was sent to the respondent at 8 Gladepoint, Gleamingwood Drive, Lordsword, Kent ME58RZ on 30th March 2017. The respondent was informed that if it wished to defend the claims its response “must be received at the Tribunal office by 27/04/17. If a response is not received by that date and no extension of time has been applied for and given, or if the respondent indicates that it does not contest any part of the claim, a judgment may be issued…”3.3 On 21st April 2017 the respondent sent an email to the tribunal, but not apparently to the claimants, arguing that the claims ought to have been considered in the county court and that the tribunal was the wrong forum.3.4 On 25th April 2017 the tribunal emailed the respondent explaining that any application had to be coped to the claimants so that they could object, otherwise it could not be considered. The respondent was reminded “that a response to the claims using form ET3 or an application to extend the time is due by 27th April 2017”.3.5 On 26th April 2017 the Regional Employment Judge directed that an email be sent to the respondent, and it was, explaining that the tribunal had taken it upon itself to send the respondent’s earlier submission of 21st April to the claimants “but in the meantime, if you wish to contest the claims, you must return your completed form to the tribunal by the due date, 27 April 2017, failing which judgment may be entered in default of response”.3.6 In response to the email at 3.5 above and on the 26th April 2017 the respondent said that it could not afford legal representation needed so as not to “prejudice our ongoing action” and applied for an adjournment of the listed final hearing.3.7 In response to the respondent’s email at paragraph 3.6 above the tribunal emailed the respondent on 8th May 2017 noting it and informing the respondent “that if you wish to defend the claims you must enter the Response. Since the time for submitting the Response has now expired you must make an application to accept the Response out of time together with your Response to the claims.”3.8 In the absence of any application for an extension of time and Response to the claims, I entered judgments in favour of the claimants on 10th May 2017 (the judgments). The judgments were sent to the parties on 16th May 2017.3.9 On 22nd May 2017 the respondent presented a Response to the tribunal. The respondent did not apply for an extension of time for such presentation to that date. The matter was referred to an Employment Judge.3.10 On 24th May 2017 the tribunal wrote to the respondent explaining the direction of a judge that the Response was substantially out of time and that an application for extension was necessary “providing cogent reasons as to why the tribunal ought to exercise its power to make an order extending time and regularising the Response”. The Response was rejected because it was late and “it was not accompanied by and did not include an application to extend time”.3.11 In response to receiving the judgments the respondent wrote to the tribunal on 24th May 2017 asking for written reasons for the judgments and requesting reconsideration. The reason for the application was stated as: “…the judgement (sic) has been unfairly made, as initial document were (sic) sent to the wrong address limiting our response time, and responses issued were returned out of hand”.3.12 The tribunal confirmed in writing to the respondent that the reason for the judgments was that it had failed to respond to the claims in time. The matter was listed for reconsideration in the light of the reasons stated by the respondent (at paragraph 3.11 above).3.13 On examination of the file papers I noted that the Notice of Claim was sent to the address that the respondent subsequently entered at paragraph 2.3 of the ET3 Response received on 22nd May 2017 (see paragraph 3.9 above). Furthermore I could not find any Responses from the respondent prior to that date and there was no evidence on the file that any Response, or even “response” (if by that the respondent meant email correspondence), was “returned out of hand”.[4]I noted the following from the respondent’s written submissions received today:4.1 It contests the claims on the basis that the claimant “are very evidently self-employed and this dispute is a contractual one”.4.2 The respondent says that the relevant contract is contained in two documents, a “Deed of Adherence and a Service Level Agreement”, copies of which were appended. Neither copy document, however, bears the signatures of the parties.4.3 Mr Cole was said to have retained property belonging to the respondent.4.4 Mr Gittins was allegedly “working independently” and had not returned property to the respondent.4.5 In its submissions the respondent failed to address the reasons advanced for the application for reconsideration set out at paragraph 3.11 above, namely that documents were initially misdirected by the tribunal and responses were returned “out of hand”. The respondent clearly sought to re-open the case and to argue on the merits of the claims despite having not followed due procedure prior to the judgments.[5]The law: the applicable rules are contained in the ETs (Constitution & Rules of Procedure) Regulations 2013 and will be referred to as the Rules or by reference to particular such Rules:5.1 Rule 15 requires that a copy of any claim is sent to a respondent to that claim with a notice including information on how to submit a response, the time limit for doing so and what will happen if a response is not received within that time limit.5.2 Rule 16 requires that a respondent to a claim responds using the prescribed form within 28 days of the said Notice.5.3 Rule 17 provides that a tribunal shall reject a claim that is not on the prescribed form or does not contain certain information.5.4 Rule 18 provides that a tribunal shall reject a late response unless there is an appropriate application for extension of time for its submission.5.5 Rule 20 covers applications for extension of time for presenting a response.5.6 Rule 19 provides for reconsiderations of such rejections. On reconsideration a tribunal may decide that the original rejection was correct, incorrect, or that any defect since then has been corrected; it may accept a response in these circumstances; it may confirm, revoke or vary a judgment that has been made.5.7 Rule 21 provides for the effect of non-presentation or rejection of a response. In such circumstances, including late presentation, judgment may be entered.5.8 Rule 2 states the overriding objective of the tribunal as being to deal with cases fairly and justly. It sets out the factors to be considered in giving effect to this objective. The interests of justice are paramount.[6]It is evident from the above that:6.1 The tribunal complied with its obligations under the Rules.6.2 That the respondent has failed to follow the Rules, the advice and notifications given to it by the tribunal.6.3 That the Notice of Claim was sent to the respondent’s correct correspondence address and the claims came to its timely attention.6.4 The respondent did not formally respond before 22nd May 2017 and no earlier Responses, or any subsequent ones, in the prescribed form were “returned out of hand”.6.5 The tribunal answered correspondence appropriately, each time advising the respondent of what was required within the Rules. No responses, by way of correspondence, received from the respondent were “returned out of hand”.6.6 The Rules set out an applicable procedure with duties and obligations; it is in the interests of justice that parties and the tribunal follow due process. This allows for certainty and for the tribunal’s overriding objective to be achieved.6.7 Neither of the claimants, nor the tribunal, have done anything prejudicial to due process and the overriding objective. The respondent had every proper and fair opportunity to defend the claims in good time and to avail of the protection of the applicable law. It did not do so. It would be unfair to allow the respondent to re-open the case in these circumstances. Its conduct, in failing to follow due process, ought to not unfairly prejudice the claimants’ positions in all of the circumstances.6.8 Judgment was properly entered and the interests of justice require that the judgments are confirmed.[7]Having announced the judgment and explained it by reference to the above the hearing was concluded without the claimants making any submission on the respondent’s application. The respondent was not prejudiced by its non-attendance and the attendance of the claimants.