Mr G Hatton v NWMS Facilities Services Ltd: 2401708/2020
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent has made unauthorised deductions from the claimant's wages as follows: 1-15 November 2019: £1083.35 due; £810.76 paid, shortfall £272.59 1-15 November 2019: unpaid overtime £325.00 16 November-15 December 2019: £2166.67 due, £1695.16 paid, shortfall £471.51 16 November-15 December 2019: unpaid overtime £375.00 16 December – 16 January 2020: £2166.67 due, £1842.76 paid, shortfall £323.91 Out of hours jobs unpaid £210.00 Shortfall and non-payments total £1978.01 The claimant also gives credit for the final payment of £841.60 of which £610.000 was a tax rebate, ie gives credit for £231.60 net, making total deductions of £1746.41. Accordingly, the respondent is ordered to pay the claimant the gross sum of £1746.41[2]The claimant was dismissed in breach of contract in respect of notice and the respondent is ordered to pay damages to the claimant in the gross sum of £500.00.[3]The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay the claimant the gross sum of £639.16. Damages for breach of contract have been assessed on the basis of the claimant’s gross pay for the notice period. Once the respondent pays that amount to the claimant, HMRC is likely to require the claimant to pay tax and national insurance on it as Post-Employment Notice Pay.REASONS
[1]In the absence of any response to the claim, my predecessor Regional Employment Judge Parkin’s judgment in favour of the claimant under rule 21 was promulgated on 2 June 2020.[2]On 17 June the respondent provided a copy of a “Notice of Appeal” dated 2 June 2020 seeking to have the judgment set aside as the company had not been trading during the pandemic and had not received notice of any hearing date. This was treated as an application for reconsideration.[3]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[4]The address given by the claimant on the claim form in March 2020 was out of date. The company had changed its registered office in August 2019. That is not a criticism of the claimant. The name of the company had also changed in January 2020 and has been amended in this judgment.[5]On 3 August the Tribunal invited the claimant to make any objections to the proposal to revoke the judgment. No objections have been received.[6]As the Tribunal has used the wrong address for correspondence it is not in the interests of justice for the judgment to stand. It is revoked. The parties will be notified of the date for the final hearing. Case No: 2401708/2020 _____________________________ Regional Employment Judge Franey 8 September 2020[1]This is the final hearing of the claimant’s claim presented by form ET1 on 4 March 2020.[2]The claim contains complaints of:(1) unauthorised deductions from wages contrary to section 13 of the Employment Rights Act 1996;(2) non-payment of accrued holiday pay entitlement contrary to the Working Time Regulations 1998; and(3) non-payment of notice pay in breach of contract of employment.[3]The claimant was employed by the respondent company as a maintenance worker between 1 October 2019 and 16 January 2020. Case Number: 2401708/2020 (V) 2 of 5[4]The sums that the claimant claims are owed to him are set out in an attachment to the ET1 form and cross-referenced from section 8.2 of that form. At no stage has the respondent disputed those sums as being due or as calculated.[5]When the Tribunal originally served the claim upon the respondent company it did not appear to defend the claim by presenting a timely response on form ET3. Accordingly, on 27 May 2020, the then Regional Employment Judge (Judge Jonathan Parkin) promulgated a summary judgment under rule 21 of the Employment Tribunal Rules of Procedure 2013, for the sums claimed, as he was entitled to do. That judgment was sent to the parties on 2 June 2020.[6]That appeared to prompt a reaction from the respondent company. On 17 June 2020 the respondent company sought to have the rule 21 judgment set aside. It asserted that it had not been trading during the Covid-19 pandemic and that it had not received notice of the claim or a hearing.[7]The present