Miss C Byron v Michael Holden and others: 2401919/2019

EMPLOYMENT TRIBUNALS

Case No 2401919/2019

Between

Miss C ByronClaimant

Michael Holden and othersRespondent

Before

Employment Judge Horne

Date 22 June 2020

JUDGMENT

In late October or early November 2018, the claimant’s employment transferred from Parkway Marketing Limited to Old Hall Consultancy Limited under regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006. 3 December 2019 Employment Judge Horne SENT TO THE PARTIES ON Case No. 2401919/2019 2 31 December 2019 FOR THE TRIBUNAL OFFICE Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request within 14 days of the date on which the judgment is sent to the parties. If written reasons are provided, they will be entered into the public register of judgments which is visible to internet searches. Case No. 2401919/2019 1 EMPLOYMENT TRIBUNALS Claimant: Miss C Byron Respondents: Old Hall Consultancy Limited

[1]The response of Old Hall Consultancy Limited, so far as it concerns the complaint of unlawful deduction from holiday pay, is struck out on the ground that it has no reasonable prospect of success.

[2]Old Hall Consultancy Limited made an unlawful deduction from the claimant’s holiday pay and is ordered to pay the claimant the sum of £1,170.00 subject to such deductions as it is required to make for tax and national insurance.

[3]The remainder of the claim against Old Hall Consultancy Limited will be considered at a hearing.

REASONS

[1]By a judgment sent to the parties on 31 December 2019, the tribunal declared that in late October or early November 2018, the claimant’s employment had transferred from Parkway Marketing Limited to Old Hall Consultancy Limited under regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2000.

[2]On 31 December 2019 a notice was sent to the parties proposing to issue a judgment in the above terms.

[3]The notice explained the reasons for the proposed judgment as follows: “a. A director of Old Hall Consultancy Limited, whilst representing Parkway Marketing Limited, confirmed at a preliminary hearing on 30 July 2019 that the claimant’s employer owed her 18 days’ holiday pay at £65 per day; Case No. 2401919/2019 2

b. Another director of Old Hall Consultancy Limited, whilst representing himself, confirmed the same thing at the same preliminary hearing; and

c. The tribunal has found that the claimant’s employment transferred to Old Hall Consultancy Limited, which means that this company was her employer at the time of termination of her employment.”

[4]Old Hall Consultancy Limited was given an opportunity to make representations in writing as to why a judgment should not be issued in these terms. The company was also given the opportunity to ask for the matter to be determined at a hearing. The deadline for representations or for a request for a hearing was 14 January 2019.

[5]No representations or request were received by the tribunal by 14 January 2019.

[6]On 23 January 2020, Mr Holden, e-mailed the tribunal on behalf of Old Hall Consultancy Limited. The e-mail did not dispute the claimant’s entitlement to holiday pay from her employer. It made representations to the effect that Old Hall Consultancy Limited had never employed the claimant. This assertion could not stand in the light of the judgment sent to the parties on 31 December 2019. Mr Holden did not ask for that judgment to be reconsidered. In any event, the e-mail was received after the 14-day deadline for reconsideration applications and did not explain why it was necessary in the interests of justice for the judgment to be reconsidered. The e-mail did not request that the claim for holiday pay be determined at a hearing.

[7]In those circumstances, Old Hall Consultancy Limited has not put forward any arguable grounds for resisting the claim for holiday pay. To the extent that the company’s ET3 response purports to resist that part of the claim, that part of the response is struck out. 11 February 2020 Employment Judge Horne SENT TO THE PARTIES ON 25 February 2020 FOR THE TRIBUNAL OFFICE Case No. 2401919/2019 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2401919/2019 Name of case: Miss C Byron v Michael Holden DDE Law Old Hall Consultancy Limited The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 25 February 2020 "the calculation day" is: 26 February 2020 "the stipulated rate of interest" is: 8% For the Employment Tribunal Office Case No. 2401919/2019 1 EMPLOYMENT TRIBUNALS Claimant: Miss C Byron Respondents: 1. Michael Holden 2. … 3. DDE Law 4. Old Hall Consultancy Limited HELD AT: Liverpool ON: 6 March 2020 BEFORE: Employment Judge Horne MEMBERS: Ms F Crane Mrs J Fletcher REPRESENTATION: Claimant: Respondents: In person 1. Mr White, solicitor 2. … 3. Not represented (attendance not required) 4. Mr White, solicitor

[1]The claimant was unfairly dismissed by Old Hall Consultancy Limited within the meaning of section 98 of the Employment Rights Act 1996.

[2]Old Hall Consultancy Limited is ordered to pay the claimant a basic award of £654.00 and a compensatory award of £697.00.

[3]The claimant is entitled to a statutory redundancy payment from Old Hall Consultancy Limited in the sum of £654.00.

[4]This award is in addition to the award of holiday pay in the judgment sent to the parties on 25 February 2020. Case No. 2401919/2019 2

[5]Any sums paid to the claimant in respect of the statutory redundancy payment may be set off by Old Hall Consultancy Limited against liability to pay the basic award for unfair dismissal.

[6]The claimant was not unfairly dismissed within the meaning of section 99 of that Act or regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

[7]Old Hall Consultancy Limited did not discriminate against the claimant because of maternity.

[8]The claim against Mr Holden is struck out on the ground that it is not actively pursued.

[9]The tribunal being satisfied that the claimant did not receive any relevant benefits during the period to which the prescribed element relates, regulation 7(3) to 7(7) of the Employment Protection (Recoupment of Benefits) Regulations 1996 does not apply. 6 March 2020 Employment Judge Horne SENT TO THE PARTIES ON 10 March 2020 FOR THE TRIBUNAL OFFICE Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request within 14 days of the date on which the judgment is sent to the parties. If written reasons are provided, they will be entered into the public register of judgments which is visible to internet searches. Case No. 2401919/2019 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2401919/2019 Name of case: Miss C Byron v 1. Old Hall Consultancy Limited The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 10 March 2020 "the calculation day" is: 11 March 2020 "the stipulated rate of interest" is: 8% MR S ARTINGSTALL For the Employment Tribunal Office Case No. 2401919/2019 4 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE 1. This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim. 2. The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”. 3. The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged. 4. “Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet). 5. Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal. 6. ‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2401919/2019 Code P 1 EMPLOYMENT TRIBUNALS Claimant: Miss C Byron Respondent: 1. … 2. … 3. DDE Law 4. …

Introduction

[11]At today’s hearing, the claimant said that [paragraph (13) of the previous order] had been based on a misunderstanding. She said that she has no claim against DDE Law Limited and had never told the tribunal that she had one. She confirmed that DDE Law was just a client of Parkway Marketing Limited and, later, Old Hall Consultancy Limited. She does not believe that her employment, or Ms Maden’s employment, ever transferred to DDE Law. She does not think that DDE Law would be liable to her in any other way.

[12]Mr Hughes applied for DDE Law Limited to be removed as a respondent. He also applied for “wasted costs”, although he was unable to say against whom the order should be made. The paying party can only be identified, he said, once an “investigation” has been carried out into how paragraph (13) came to be written as it was. He told me he accepted the claimant’s explanation that she had never claimed to have been employed by DDE Law. But, he said, if that explanation was correct, it would mean that the wasted costs order should be paid by the tribunal itself for having misunderstood the claimant’s case. He agreed to provide details of the legal provision under which such an order would be made.

[13]It was agreed that DDE Law would remain a respondent solely for the purpose of pursuing its costs application if, indeed, it is pursued. 8. I ordered that the file be returned to EJ Buzzard, so that he could confirm whether or not the claimant had asserted on 30 July 2019 that DDE Law had been her employer. I also ordered DDE Law to inform the tribunal in writing of the statutory provision under which DDE Law made its costs application. 9. On 16 January 2020, at the direction of EJ Buzzard, the tribunal wrote to the parties as follows: “…Judge Buzzard has directed me to confirm that his notes from the hearing are consistent with the case management summary sent to the parties on 5 August 2019. The notes are in summary form and less detailed than the case management summary, which records indicate was dictated the same day, immediately after the preliminary hearing concluded. Judge [Buzzard] has no specific further recollection of the discussion…” 10. Mr Hughes replied to the tribunal’s letter on 27 January 2020. He wrote: “Unfortunately the [letter does] not make it clear whether as the Claimant alleges it was on the Employment Judge[‘]s advices that my clients were added to [these] proceedings or whether some other cause encouraged this action on the Claimant[‘]s behalf. In the circumstances this matter should be re listed with the Claimant attending in order that it can be determined on whose instruction my clients [were] added to this proceedings. Until that is determined it is impossible to submit the basis upon which my client[‘]s claim for costs is made i.e. whether against the Tribunal or the Claimant.” Case No. 2401919/2019 Code P 4 11. By letter dated 28 February 2020, the tribunal notified the parties that there would be a hearing on 2 April 2020 to determine the costs application. Paragraph 4 of the letter stated: “If DDE Law pursue their application for an order for costs against the tribunal, DDE Law must identify the legal provision under which such an order is sought. That information must be delivered to the tribunal in writing not less than 7 days before the hearing.” 12. In accordance with a separate direction, DDE Law submitted a schedule of costs totalling £1,235. 13. Unfortunately the hearing on 2 April 2020 could not proceed. The COVID-19 pandemic saw to that. Mr Hughes was informed by telephone on 30 March 2020. He was asked whether or not DDE Law would agree to the costs application being determined without a hearing on the basis of written submissions. He wrote to the tribunal the same day. His letter helpfully expressed DDE Law’s consent to a paper determination. It also indicated that DDE Law would not pursue any application for costs against the claimant. The only matter still to be determined was DDE Law’s application for an order that the tribunal should pay its costs. This position was confirmed by the tribunal in a letter dated 1 April 2020. The letter gave DDE Law until 8 April 2020 to make its written representations.

[14]No written representations have been received by the tribunal from DDE Law or from any other party.

Relevant law

[15]The tribunal’s power to make costs orders and wasted costs orders derives from the Employment Tribunals Act 1996. Section 13(1) provides: “(1) Employment tribunal procedure regulations may include provision— (a)for the award of costs or expenses; (b)for the award of any allowances payable under section 5(2)(c) or (3).

[16]Section 5(2)(c) is not relevant. Section 5(3) provides: “(3) The Secretary of State may pay to any other persons such allowances as he may with the consent of the Treasury determine for the purposes of, or in connection with, their attendance at employment tribunals.”

[17]Rule 75(1) of the Employment Tribunal Rules of Procedure 2013 begins: “A costs order is an order that a party (“the paying party”) make a payment to...” followed by a list of potential recipients.

[18]Rule 80(1) begins: “A Tribunal may make a wasted costs order against a representative…”

[19]A “representative” is defined in rule 80(2) as “a party's legal or other representative or any employee of such representative…”

[20]Rule 2 sets out the tribunal’s overriding objective. It is to deal with cases fairly and justly. Case No. 2401919/2019 Code P 5

[21]By rule 34, “The Tribunal may on its own initiative, or on the application of a party …, add any person as a party…, if it appears that there are issues between that person and any of the existing parties falling within the jurisdiction of the Tribunal which it is in the interests of justice to have determined in the proceedings…”

[22]I am not aware of any provision in the Rules of Procedure which enables the tribunal to make an order requiring the Secretary of State to pay any allowances described in section 5(3) of the Employment Tribunals Act 1996. No jurisdiction

[23]There is nothing in the Employment Tribunals Act 1996 or the Employment Tribunal Rules of Procedure 2013 that gives the tribunal any power to make an order requiring itself to pay costs to a party. Discretion

[24]Even if the tribunal had a discretionary power to make the order sought by DDE Law, I would decline to exercise my discretion in this case. It appears that EJ Buzzard ordered DDE Law to be joined as a respondent because he considered it possible that DDE Law may have been the claimant’s employer. It was reasonable to consider that possibility given the facts presented to him by the claimant at the preliminary hearing. The claimant was selfrepresented. The identity of the claimant’s employer was unclear. In deciding whether or not to join DDE Law as a respondent, EJ Buzzard had to balance two risks. On the one hand, he had to take into account the potential risk that there might have been no transfer to DDE Law, and that DDE Law might incur costs in responding to a claim that was not well-founded against them. On the other hand, he had to bear in mind that if it turned out that there was a transfer to DDE Law, the claimant’s claim might fail on the technical ground that she had not joined her employer as a respondent.

[25]There is nothing to indicate that the claimant positively asked for DDE Law to be joined as a respondent, but nor is there anything to suggest that she in any way sought to discourage EJ Buzzard from taking that step. Whether DDE Law were joined at the request of the claimant, or on EJ Buzzard’s own initiative, the judge was acting squarely within his powers under rule 34 in a manner consistent with the overriding objective. I see no reason why the tribunal should be ordered to pay DDE Law’s costs. 22 June 2020