Mrs M Casey and Others v Manchester Hall Ltd (In Liquidation): 2414920/2021 and Others

EMPLOYMENT TRIBUNALS

Case No 2414920/2021, 2414921/2021, 2414922/2022

Between

Mrs M Casey and OthersClaimant

Manchester Hall Ltd (In Liquidation)Respondent

Before

Employment Judge Anderson

Date 12 September 2022

JUDGMENT

[1]Mrs Casey, Mr Taylor and Mrs Wood were unfairly dismissed by the Respondent.

[2]No additional sums are awarded, the Claimant’s having already received redundancy payments and notice pay.

[3]The complaints of age discrimination are dismissed. CASE NUMBER: 2414920/2021, 2414921/2021 & 2414922/2022 Employment Judge Anderson 12th September 2022

[1]Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

[2]Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. CASE NUMBER: 2414920/2021, 2414921/2021 & 2414922/2022 EMPLOYMENT TRIBUNALS First Claimant: Second Claimant: Third Claimant: Mrs M Casey Mr D Taylor Mrs M Wood Respondent: Manchester Hall Limited (In Liquidation)

REASONS

[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment given orally on the 12th September 2022 upholding the claims of unfair dismissal and dismissing the claims of age discrimination. The application may have been made prior to the formal promulgation of the Judgment in writing, but I consider that it nonetheless amounted to an application as the phrase ‘reconsideration’ was used. That application is contained in an email dated 13th September 2022.

The Law

[2]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).

[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. CASE NUMBER: 2414920/2021, 2414921/2021 & 2414922/2022

[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[5]Similarly in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[6]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. The Application

[7]The application appears to seek to identify a different Respondent to the named Respondent in the proceedings. At the hearing, the Claimant’s position, which was undoubtedly correct was that they were employed by Manchester Hall Limited.

[8]The fact that Mr Cliff was not correctly named as a Respondent was dealt with at an earlier stage in the case management of the proceedings. There was no ACAS Early Conciliation certificate against Mr Cliff. There was no appeal or other challenge to the earlier decision that Manchester Hall Limited was the party that had been named on the ET 1.

[9]In terms of Zorba Limited, this Respondent has not been named as a party in proceedings. It is too late to seek to name a new Respondent after the Judgment has been given. Parties are required to undertake the necessary research when commencing litigation.

[10]Alternatively, if this application is to be treated as an application to adduce fresh evidence, that too is rejected. An important element of the fresh evidence test is whether with reasonable diligence, the evidence was available to the parties prior to the hearing. There is nothing contained within the application that CASE NUMBER: 2414920/2021, 2414921/2021 & 2414922/2022 was not available with reasonable diligence to the parties prior to the hearing.

Conclusion

[11]Having considered all the points made by the claimants I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused. Employment Judge Anderson DATE 15th September 2022

Introduction

[12]Therefore, the identity of the Respondent was a point that had been determined prior to the hearing. In any event, it was evidently correct that the CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 4 Claimants had been employed by Manchester Hall Limited. Finally, the only ACAS Certificates related to Manchester Hall Limited.

[13]Having noted that this point may not have been understood by the Claimants in subsequent correspondence, I took time at the outset of the hearing to identify that the case proceeded against one Respondent only, Manchester Hall Limited.

[14]The second point was the fact that the company was in voluntary liquidation. As it was voluntary liquidation, this did not prevent the proceedings from taking place. However, this could make enforcing any award more difficult. It was not for the Tribunal to give legal advice on this point.

[15]Thirdly, we then discussed the procedure that would be followed and how it would be necessary to establish the basic facts through witness and documentary evidence.

[16]Each witness in turn took the affirmation and confirmed as true the contents of their witness statement. I asked each witness a number of questions in an attempt to establish the basic facts of this matter.

[17]During the hearing, a significant point arose as the evidence of Mr Taylor was concluding. In answering one of my questions, he made passing reference to CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 5 receiving money from the government. Upon further questioning, it became apparent that an application had been made to the insolvency service for redundancy payments, notice pay and accrued holiday pay and that these sums had been received by all three Claimants. Yet, claims for these sums were in each of the Claimants respective schedules of loss. In addition, Mr Taylor was the third witness to be heard. I had already gone through with Mrs Casey and Mrs Wood their losses in the period following the dismissal and these sums had not been mentioned to me at all and I was therefore likely to be in a position whereby I was awarding compensatory awards to the Claimants to the point of voluntary liquidation without being told of the double recovery.

[18]I deal further with the point in my findings of fact below.

Findings of Fact

[19]I made the following findings of fact on the balance of probabilities.

[20]Finally, in relation to credibility, it is necessary for me to record that I have had no reasonable explanation from any of the Claimants as to why I was not informed during evidence that payments of redundancy payments, notice and accrued holiday pay had been received from the Insolvency Service.

[21]Given that this was a Rule 21 hearing, credibility would not normally be a significant point. However, this incident did place some doubt in my mind as to CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 6 the extent that I could rely on something stated to me where it could not otherwise be corroborated.

[22]Mrs Casey commenced employment in September 2000. She describes her role as that of Freemasons Coordinator. Mr Taylor and Mrs Wood also had similar lengthy periods of service with the Respondent. In the case of Mr Taylor, he was employed as a handyman.

[23]Each of the Claimants had written terms and conditions.

[24]The Claimants were each placed on furlough in March 2020. They were initially to be made redundant from the 21st October 2020, but this was then extended along with the furlough scheme. They remained on furlough until they received emails dismissing them on 31st August 2021.

[25]The Claimants suggest that during lockdown, communication with the company was limited.

[26]I find that each of the Claimant’s were employees and that they were dismissed. The reason for dismissal was redundancy.

[27]Each Claimant was paid until the 31st August 2021. This was the effective date of termination.

[28]There were less than 20 redundancies. This was not a collective redundancy. CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 7

[29]On the 7th October 2021, liquidators were appointed.

[30]The Claimants alleged that other people were still employed by the Respondent as of the hearing date. I explained that this was not possible as the Company was in voluntary liquidation. I said it was possible that people could be working at the same location, but that it would not be for the same Respondent as has been named in these proceedings. The Claimants did not have the necessary details or specifics to enable me to make basic findings of fact on this point.

The Law

[31]The right not to be unfairly dismissed is contained within s.94 Employment Rights Act 1996.

[32]Where an employee has more than two years continuous service, s.98(2) requires that any dismissal is for one of the listed potentially fair reasons. Redundancy is a potentially fair reason.

[33]The requirement to act reasonably is contained within s.98(4) Employment Rights Act 1996. In redundancy cases, case law has developed requiring that the employer act reasonably in:a. Selecting the employee for redundancy

b. Reasonably consulting with the employee CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 8

c. Reasonably considering suitable alternative work

d. Following a fair procedure.

[34]Compensation for unfair dismissal is awarded on a just and equitable basis in accordance with s.123 Employment Rights Act 1996.

[35]Age is a protected characteristic in the Equality Act 2010.

[36]Direct discrimination is provided for in s.13(1) Equality Act 2010, which states: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

[37]The burden of proof provisions in the Equality Act 2010 are provided for in s.136(2) which requires that: “if there are facts from which the court could decide, in the absence of any other explanation, that a person(A) contravened the provision concerned, he court must hold that the contravention occurred.”

[38]s.136(3) provides “But subsection (2) does not apply if A shows that A did not contravene the provision.”

[39]In the leading case of Madarassy v Nomura International PLC

[2007] IRLR 246

the Court of Appeal held that mere disparate treatment was not sufficient CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 9 ‘without more’ as sufficient proof of prima facie discrimination. In other cases, Tribunals have been asked to look at ‘the reason why’ the treatment occurred as a way of discerning whether the act is discriminatory. Conclusions Age Discrimination

Conclusions

[40]I find that none of the Claimant’s have proven facts before me that could lead me to conclude on the balance of probabilities that there had been less favourable treatment based on age.

[41]In the case of Mr Taylor during his oral evidence, it was apparent that he was not actively pursuing a claim of age discrimination. When I asked him if he was pursuing a complaint, he said “not really, no.”

[42]I find that what was before me was no more than a bare assertion of age discrimination. During the course of the evidence, I asked each Claimant to explain why this was age discrimination, but they were not able to do so beyond Mrs Casey and Mrs Wood repeating the assertion that they were dismissed because of their age and their view that Mr Ritche (the manager) had not treated them fairly. Mrs Casey said that they were capable of doing their jobs and that there was no reason to sack them.

[43]There was some suggestion that comments were made, but I did not consider that these were in isolation sufficient upon which to decide the whole CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 10 redundancy exercise amounted to direct age discrimination. More was needed and I was simply unable to ascertain credible facts.

[44]In so finding, I recognise that this was a Rule 21 hearing, but it is still necessary for there to be some evidence of discrimination in order to so find.

[45]The Claimant’s did not establish on the balance of probabilities a named comparator with ‘no material difference’. Nor did the Claimants prove the dates of the alleged acts of discrimination.

[46]If I were to apply a hypothetical comparator, there is no evidential basis as to why that comparator would have been treated differently to the Claimants. Unfair Dismissal

[47]I find that the reason for the dismissal of the Claimants was redundancy. This is a potentially fair reason for the purposes of s.98(2) Employment Rights Act 1996.

[48]The Respondent did not follow a fair process in dismissing the Claimants.

[49]There was very little by way of procedure. Whilst I am not completely clear that I have been provided with all of the relevant documents, I have found that there was no genuine consultation with any of the Claimants, no discussion as CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 11 to what the issues were and the ways in which redundancy could be avoided. There does not appear to have been any selection process.

[50]In these circumstances, the dismissal was unfair for the purposes of s.98(4) Employment Rights Act 1996. Remedy for Unfair Dismissal

[51]There is no basic award. The Claimants have received statutory redundancy payments. S.122(4) Employment Rights Act 1996 prevents the award of a basic award where a redundancy payment has been made.

[52]This was a redundancy and the Respondent is in involuntary liquidation. There is no basis for a remedy of reinstatement or re-engagement.

[53]The date of the appointment of liquidators was the 7th October 2021. Each of the Claimants notice periods (12 weeks), for which they have been fully compensated via the Insolvency Service exceeds the period between the Effective Date of Termination and the date of voluntary liquidation. Therefore, the Claimants have not had any financial loss between the effective date of termination and the date in which the company went into voluntary liquidation.

[54]It is not possible for the Claimants to have been employed by this Respondent at a point past the voluntary liquidation. CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 12

[55]There is no other named Respondent in the proceedings as a company who should be liable. There is no pleaded claim that there was a TUPE transfer between the named Respondent and another company. I would also note that the Claimants have received redundancy payments and notice pay. I can only deal with the pleaded case before me, nor can I descend into giving legal advice to the parties before me.

[56]In short, there is no proper basis either in fact or law upon which I am entitled to award compensation to these Claimants beyond the date of the voluntary liquidation of the Respondent.

[57]I do not make any award in respect of loss of statutory rights. If a fair procedure had been followed then the Claimants would have been fairly dismissed by reason of redundancy in any event by the voluntary liquidation of the Respondent. The statutory rights accrued would have therefore been lawfully lost in any event.

[58]I recognise that the lack of compensation will disappoint these Claimants, but it may be some comfort to acknowledge that if there was any compensation it would likely have been enforceable only as an unsecured creditor against the insolvent company and therefore it may make no practical difference. CASE NUMBERS:2414920/2021 2414921/2021 2414922/2021 13