Mr J O’Connor v U & I Care Ltd: 2414947/2019
JUDGMENT
[1]On the application of the respondent made by email dated 27 February 2020 to reconsider and revoke the judgment dated 25 February 2020 under rule 71 of the Employment Tribunals Rules of Procedure 2013, the application is refused.[2]Of its own volition and as initially proposed in the letter from the Tribunal of 16 March 2020, the Tribunal has reconsidered and varied the judgment dated 25 February 2020 under rule 73 of the Employment Tribunals Rules of Procedure 2013, so that the judgment is varied as follows: the words “the gross sum of £585.00 and” are to be deleted from the Judgment.[3]On the application of the claimant for a preparation time order under rules 76- 79 of the Employment Tribunal Rules of Procedure, the Tribunal orders that the respondent shall pay the claimant by way of a preparation time order £234.00.REASONS
[1]On 25 February 2020 a Judgment was made by Employment Judge Sherratt under rule 21 in relation to the claimant’s claim for unlawful deductions from wages, as a response had not been received (or at least not identified as received) by the Employment Tribunal.[2]That Judgment recorded that the respondent had made two unauthorised deductions from the claimant’s wages: £585; and £248.16 in respect of pension contributions. Both sums were referred to by the claimant in his claim form. However, the first of these sums was stated to be “Personal work reclaiming this sum”. For the second sum, the claimant asserted that he had informed the respondent that he wished to opt out (of pension auto-enrolment).[3]Accordingly, the claimant’s claim was for £248.16 which he alleged had been unlawfully deducted from his wages, as the amount had been paid to a pension provider when he had verbally informed the respondent that he wished to opt out from auto-enrolment and therefore the sum should have been paid to him directly.[4]On 27 February 2020 the respondent applied for reconsideration, providing an email which it contended had been sent to the Tribunal on 9 January 2020 which attached a grounds of response. The response form attached asserted that the contract signed by the claimant entitled the respondent to deduct pension contributions, relying upon a standard auto-enrolment provision. The response did not address at all the claimant’s assertion that he had informed the respondent that he wished to opt out of auto-enrolment. That is, the response did not address the primary issue in the claim at all and certainly did not deny that the claimant had opted out.[5]On 16 March 2020 a letter was sent to the parties informing them that on initial consideration Employment Judge Sherratt was of the opinion that the application for reconsideration should proceed. Whilst the letter contained five points, in summary it covered three issues, namely:(1) The respondent’s submission that a response had been sent in time;(2) The fact that the £585.00 was a claim in respect of preparation time and should not have been included in a Judgment recording it as unpaid wages; and(3) Questions being asked about the “opt out” of auto-enrolment.[6]In response to the Tribunal’s letter, the claimant sent an email of 16 March 2020 and reiterated that he believed he had validly opted out and therefore should have been paid the amount directly.[7]By a letter of 7 April 2020, the parties were informed that a reconsideration hearing would be listed and that, due to the retirement of Employment Judge Sherratt, Regional Employment Judge Parkin directed that the hearing should be heard by another Judge sitting alone.[8]On 18 August 2020 the parties were informed of the date of the reconsideration hearing and were told that at the reconsideration hearing the Judgment could be confirmed, varied or revoked, and if it was revoked the re-hearing of the case would follow immediately. The parties were told to attend ready to call any evidence required. Any written submissions needed to be provided not less than 7 days before the hearing.[9]On 18 November 2020 the parties were given notice that the hearing had been converted to be conducted by CVP video technology. That document included information about the need to submit any documents upon which a party wished to rely by no later than 5 working days before the hearing.[10]The Tribunal has seen emails from the claimant in which documents were requested from the respondent, including pay slips and recordings of telephone conversations (including the call when the claimant says he requested to opt out). As the Tribunal understands the position, the respondent has not provided the documents sought, or at least has not provided the recording or responded to the request.[11]The respondent provided no documents or information to the Tribunal in advance of the hearing. No bundle was prepared and no submissions were provided. Postponement Application[12]At 9.04am on the morning of the hearing, the respondent’s Managing Director emailed the Tribunal requesting that the hearing be postponed. The email was not copied to the claimant. The email made general reference to staff needing to isolate, COVID-19 and staff shortages during the current unprecedented time. The email said: “Taking this into consideration we was [sic] unable to submit the required defence evidence for this case and because of this a true reflection cannot be decided if the hearing was to go ahead today.”[13]The claimant did not agree to the postponement application. At the hearing the claimant also confirmed that the respondent had not been in contact with him either to provide documentation or to discuss the proposed postponement request[14]At the start of the hearing the Tribunal considered the respondent’s postponement application, the respondent having been informed in advance of the hearing that the hearing would be going ahead. The respondent did not attend.[15]Applications made within seven days of the date on which a case is listed for hearing are subject to a different part of the rules to those made at an earlier date. It is entirely possible that a postponement request made at least seven days before the hearing may have been granted. However, as the request was made as late as it was, Rule 30A(2) applies. Under rule 30A(2), where consent is not given, the only basis upon which the Tribunal can grant postponement is where (under subsection (c)) “there are exceptional circumstances”.[16]The Tribunal took into account the Presidential Guidance on seeking a postponement of a hearing, a document which is widely available. That makes clear that any such application should be copied to the other party and the other party should be informed that they are able to object, something which had not happened in this case. It says that the party making the application should wherever possible try to discuss the proposal with the other parties. That had not happened in this case. The guidance also provides examples of what is considered to be exceptional.[17]The Tribunal considered the overriding objective. The Tribunal particularly took into account the need to avoid delay so far as possible, to save expense, and to deal with cases in a way which is proportionate to the complexity and importance of the issues – this being a claim for an unlawful deduction of wages of £234.[18]The Tribunal acknowledges that the current COVID-19 pandemic is, generally speaking, an exceptional circumstance. It also acknowledges the particular impact the pandemic has upon the care sector. However, the pandemic has now been actively ongoing for over eight months and Manchester (and the surrounding area) has been under high level pandemic-related restrictions for almost all of that time. The email provided by the respondent contained no specific identification of any particular current circumstances which are exceptional nor (most importantly) any which required the hearing to be postponed at 9.04am on the morning it was due to take place.[19]The Tribunal considered the application to postpone under Rule 30A(2)(c), but decided that the reasons provided do not explain why a postponement should be granted in respect of an application made less than an hour before the hearing was due to commence. The fact that the respondent had not prepared for the case or submitted any documentation, which appeared to be the particular ground upon which postponement was sought, was something of which the respondent would have been aware well in advance of the hearing and does not provide the type of exceptional circumstances for which a postponement should appropriately be granted so late. The Tribunal also noted the respondent’s non-compliance with the factors outlined in the Presidential Guidance.[20]Taking account of the fact that this case has been ongoing for some time, that the hearing was being conducted by CVP remote technology and therefore would have required limited time from an employee of the respondent to attend (and indeed submissions and documents could have been provided without attending), and the factors outlined above, the Tribunal concluded that it was not in the accordance with the overriding objective for the hearing to be postponed. Application for reconsideration and the Judgment to be revoked[21]At the reconsideration hearing, the claimant attended and reiterated his case that he had validly opted out of auto-enrolment and therefore the sum of £248.16 should have been paid to him and there had been an unlawful deduction from wages where that had not occurred.[22]The respondent did not attend the hearing, nor did the respondent provide any submissions in writing, any documents or any statements outlining the respondent’s case.[23]The claimant made a further application to amend his claim to include a further £2,250 which he said the respondent had informed HMRC it had paid him, which he had not in fact received. It was explained to the claimant that if the Judgment was confirmed or varied, he would not be able to amend his claim. If it was revoked, he would be able to make an application to amend his claim. The process to be followed and the factors that would be taken into account in such an application, were briefly outlined. As a result, the claimant maintained his contention that the Judgment should not be revoked.[24]In the light of the fact that the hearing had been listed to both consider the reconsideration application and, if required, to go on and determine the issues in the claim, the Tribunal decided that it was not in the interests of justice to revoke the Judgment as the unlawful deduction from wages finding made by Employment Judge Sherratt in respect of the £248.16 remained a valid Judgment. In the light of the claimant’s contentions and the respondent’s non-attendance at the hearing, that element of the Judgment remained correct and it was not in the interests of justice for the Judgment as a whole to be revoked. Reconsideration and variation[25]The Tribunal identified (having confirmed this with the claimant) that the claim for £585 had not been a claim pursued as one that the respondent had unlawfully deducted this sum from the claimant’s wages, and therefore that aspect of the Judgment made on 25 February 2020 needed to be varied. The Judgment for that amount should not have been made as a finding of unlawful deduction from wages, as such an unlawful deduction was neither contended nor had occurred.[26]Accordingly, the Tribunal determined that the Judgment made on 25 February 2020 should be varied as is outlined above. However, the Judgment originally recorded for the sum of £248.16 would not be revoked and remained a valid Judgment which had been entered on 25 February 2020. Preparation Time Order Application[27]Following the reconsideration decision, the claimant stated that he wished to pursue the application for a preparation time order recorded in his claim form. The application for a preparation time order had been recorded in the claim form which the claimant had submitted (indeed this application had led to the error in the Judgment which had been varied). The Tribunal was satisfied that the respondent was fully aware of the claimant's application for a preparation time order as it was contained in the claim form (to which the respondent had responded).[28]The claim form stated that the claimant sought 15 hours at the rate of £39, being £585. The claimant confirmed in the hearing that he sought such an order in accordance with rule 76 on the basis that the respondent had acted vexatiously, disruptively and otherwise unreasonably, both in the way in which the proceedings had been conducted and because the response had no reasonable prospect of success.[29]The Tribunal found that in the absence of any response to, or evidence whatsoever which addressed, the claimant's contention that he had opted out of auto-enrolment, the response had no reasonable prospect of success.[30]The Tribunal also found that the respondent’s defence of the claim, where no genuine defence to the claim pursued existed (that is that the claimant had opted out), was unreasonable.[31]The Tribunal took into account the fact that an award of costs in the Tribunal is very much the exception and not the rule. However, on the basis of the findings recorded at paragraphs 29 and 30, concluded that a preparation time order should be made in this case.[32]In exploring the time spent with the claimant, the Tribunal confirmed that it would not make such an award to the claimant for any time spent in the following ways: addressing with the respondent their failure to pay, prior to initially drafting the claim; any time spent addressing matters with ACAS in an attempt to resolve matters without the need for proceedings; or any time spent by the claimant in responding to the application to reconsider, as the potential need for reconsideration did not arise from unreasonable conduct of the respondent. As a result, the claimant identified that he had spent six hours in preparing the claim and pursuing the claim prior to Judgment being issued. The Tribunal considered that time to be a reasonable and proportionate amount of time spent on such steps and, accordingly, made an order that the claimant be paid for his preparation time for those six hours at £39 an hour. Subsequent Email[33]The Judgment was delivered verbally at the hearing. As the respondent did not attend, the Tribunal has provided these written reasons with the Judgment.[34]Following the hearing, a further email was provided to the Employment Judge, which had been sent by the respondent at 9.55am again requesting a postponement. That asks for the decision not to postpone the hearing to be reconsidered (albeit at the time the email was sent the Tribunal had not in fact finally determined the application, as that was done at the hearing). Nothing in the content of that email would in any event have changed the decision made. The application was not validly made as it was not copied to the claimant (or at least does not show that it has been) and therefore did not comply with Rule 71. In any event, the application is refused as there is no reasonable prospect of the decision being varied or revoked.[35]Amongst other things, the email states that: “As I have previously stated, I am unable to attend due to matters that require my urgent attention today out in our service”. No such statement had been made in the previous email, which had not addressed the respondent’s Managing Director’s own availability at all. The Tribunal does not find anything in this subsequent email which explains why the respondent was only applying for a postponement at 9.05am on the morning of the hearing, when the hearing had been listed since 18 August 2020. The email concludes by saying that if it was not possible to postpone, the respondent’s Managing Director would forward on her statement herself. The opportunity to provide statements and documents was one which existed prior to the hearing, not after it had been heard.