Mr G Pennington v M Clayton Transport Ltd and Pegasus Couriers Scotland Ltd: 2408389/2021

EMPLOYMENT TRIBUNALS

Case No 2408389/2021

Between

Mr G PenningtonClaimant

1. M Clayton Transport Limited 2. Pegasus Couriers Scotland LimitedRespondent

Before

Employment Judge Ainscough

Date 27 September 2022

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21

[1]The first respondent has made an unauthorised deduction from the claimant's wages contrary to section 13 of the Employment Rights Act 1996 and is ordered to pay the claimant the gross sum of £2,413.33.

[2]The first and second respondents have failed to consult in accordance Regulation 13 of Transfer of Undertakings (Protection of Employment) Regulations 2006 and are jointly and severally liable to pay the claimant the gross sum of £6564.99.

[3]The second respondent has made an unauthorised deduction from the claimant's wages contrary to section 13 of the Employment Rights Act 1996 and is ordered to pay the claimant the gross sum of £156.00.

[4]The hearing listed on 8 December 2021 is cancelled. Employment Judge Ainscough Date: 2 November 2021

[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: 2408389/2021 11.12 Judgment on reconsideration – no hearing - rules 70 and 73 EMPLOYMENT TRIBUNALS Claimant: Mr G Pennington Respondent: (1) M Clayton Transport Limited (2) Pegasus Couriers Scotland Limited UPON APPLICATION of the second respondent made by letter dated 18 November 2021 to reconsider the judgment dated 2 November 2021 under rule 71 of the Employment Tribunals Rules of Procedure 2013, and without a hearing,

[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.

[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.

[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.

[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.

[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.

[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.

[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.

[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.

[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No: 2408389/2021 EMPLOYMENT TRIBUNALS Claimant: Mr G Pennington Respondents: 1.M Clayton Transport Limited 2. Pegasus Couriers Scotland Limited RECONSIDERATION JUDGMENT The second respondent’s application dated 3 October 2022 for reconsideration of the judgment sent to the parties on 30 September 2022, is refused.

REASONS

[1]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).

[2]The Court of Appeal in Ministry of Justice v Burton

[2016] EWCA Civ 714

has emphasised the importance of finality, which militates against the discretion being exercised too readily.

[3]A previous rule 21 Judgment issued against the second respondent, was reconsidered and revoked (as it applied to the second respondent) after the second respondent stated that the claim form had never been received.

[4]The claim was re-served on the second respondent using the registered office address for the second respondent as recorded on companies house. The notice of claim was sent on 9 May 2022 and that gave the second respondent until 6 June 2022 to respond.

[5]No response was received.

[6]On 20 July 2022 a letter was sent to the second respondent using the registered office address for the second respondent as recorded on companies house informing it that no response had been received and a Judgment may now be issued. Case No: 2408389/2021

[7]An email was received sent on behalf of the second respondent on 23 September 2022 in which it was confirmed that it was now in receipt of all correspondence. It did not provide a completed response form and therefore was not in a form which could be accepted in accordance with the Employment Tribunal rules of procedure (rules 16(1) and 17(1)(a)). It also contained no application for an extension of time for such a response to be submitted. Such an application, in any event, must be accompanied by a draft response form (rule 20(1)).

[8]Judgment was issued, no response having been submitted and there being no valid application for an extension of time outstanding.

[9]The claimant now applies in an email of 3 October 2022, for the Judgment issued to be reconsidered. No draft response form has been submitted with that application. That email does contain an application for an extension of time to be granted, but that application could not have been considered in any event as a draft response form has not been submitted.

[10]The application for reconsideration has been made, in summary, due to the lack of correspondence and because the second respondent says that the application for an extension of time was justified.

[11]The correspondence has been sent to the second respondent using the address of its registered office. The second respondent did not submit a response within the time required and therefore it was appropriate for a rule 21 Judgment to be issued. In any event, by 23 September 2022, the second respondent confirmed that it was in receipt of all correspondence. The second respondent did not, and still has not, complied with the requirements if it wished to make an application for an extension of time. It did not and has not provided a draft response on the form as required.

[12]There is accordingly no reasonable prospect of the original decision being revoked. It is not in the interests of justice for the Judgment to be revoked. The application is refused.