Miss E Skentelbery v Fresh Perspective Resourcing Ltd: 2415116/2021
EMPLOYMENT TRIBUNALS
Case No 2415116/2021
Between
Miss E SkentelberyClaimantFresh Perspective Resourcing LtdRespondent
Before
Employment Judge WheatHR Representative - Ms. Rachel Saunders for respondentDate 14 November 2022
JUDGMENT
The judgment of the Tribunal is that:• The claimant’s claim that the respondent made unlawful deductions from wages in relation to her final salary payment in the sum of £1269.23,9 including 2 days accrued untaken holiday entitlement) was dismissed upon withdrawal on 4 October 2022• The claimant’s claim that the respondent made an unlawful deduction from wages in relation to payment in lieu of an ‘early finish entitlement’ in the sum of £50.77 was dismissed upon withdrawal on 4 October 2022• The claimant’s claim that the respondent made an unlawful deduction from wages in relation to a claim for mileage in the sum of £38.00 was dismissed upon withdrawal on 4 October 2022• The claimant’s claim that the respondent made an unlawful deduction from wages in relation to 3 days holiday pay (‘The Ibiza trip’) in the sum of £253.85 is not well founded and is dismissed• The claimant’s claim that the respondent made an unlawful deduction from wages in relation to commission earned during the claimant’s notice period in the sum of £438.75 is not well founded and is dismissed. In relation to an application for a Preparation Time Order (pursuant to Rules 75(2) and 76(1) of The Employment Tribunal Rules of Procedure 2013) made by the claimant and an application for a Preparation Time Order made on behalf of the respondent: No awards were made for Preparation Time Orders against either the claimant or the respondent, or their representatives. JUDGMENT The judgment of the Tribunal is that:[1]The claimant’s claim that the respondent made unlawful deductions from wages in relation to her final salary payment in the sum of £1269.23, including two days accrued untaken holiday entitlement) was dismissed upon withdrawal on 4 October 2022.[2]The claimant’s claim that the respondent made an unlawful deduction from wages in relation to payment in lieu of an ‘early finish entitlement’ in the sum of £50.77 was dismissed upon withdrawal on 4 October 2022.[3]The claimant’s claim that the respondent made an unlawful deduction from wages in relation to a claim for mileage in the sum of £38.00 was dismissed upon withdrawal on 4 October 2022.[4]The claimant’s claim that the respondent made an unlawful deduction from wages in relation to 3 days holiday pay (‘The Ibiza trip’) in the sum of £253.85 is not well founded and is dismissed.[5]The claimant’s claim that the respondent made an unlawful deduction from wages in relation to commission earned during the claimant’s notice period in the sum of £438.75 is not well founded and is dismissed.[6]In relation to an application for a Preparation Time Order (pursuant to Rules 75(2) and 76(1) of The Employment Tribunal Rules of Procedure 2013) made by the claimant and an application for a Preparation Time Order made on behalf of the respondent: No awards were made for Preparation Time Orders against either the claimant or the respondent, or their representatives.
REASONS
[1]The respondent company is a recruitment consultancy based in Chorley. The claimant was employed by it as a Recruitment Brand Ambassador between 16 October 2017 and 19 November 2021.The dispute in this claim originally arose after the claimant resigned her employment giving 4 weeks' notice, on 4 October 2021, as she was required to do. The respondent asked her to extend her notice to 6 weeks, which she agreed to. During the notice period the respondent placed her on garden leave as a result of moving to new premises and the claimant taking a period of annual leave during the notice period. This was to avoid relocating the claimant to the new premises for what would have amounted to a short period of time. The respondent then asked the claimant to give up to it her access to and contents of a LinkedIn account in her name, but which the respondent says it arranged and paid for. Its position was that it was contractually entitled to do so. That matter was discussed between the parties, but it was not resolved, and the respondent then withheld final payments. Claims and Issues[2]The claims before the Tribunal arose in relation to the withholding of:(1) a final salary payment;(2) two days accrued holiday pay;(3) the monetary equivalent of an entitlement to late starts and early finishes;(4) a mileage payment;(5) three further days holiday entitlement previously used on a trip abroad paid for by the respondent; and(6) two disputed commission payments.[3]These matters were discussed at a Case Management hearing on 6 June 2022, but it was not until the final hearing on 4 October 2022 that the claims were clarified. As set out above, some parts of the claim were dismissed upon withdrawal on 4 October 2022. The remaining parts of the claim to be determined were as follows:(1) Whether or not commission payments in relation to two new business accounts – Online Mortgage Advisers (OMA) and Black Box Security Alarms Systems Ltd (BBS) – in the agreed total amount of £438.75 were payable to the claimant and had been withheld by the respondent.(2) Whether or not 3 days holiday pay in relation to 3 days holiday entitlement used by the claimant for a trip abroad to a yoga retreat in Ibiza with her colleagues and directors, paid for by the respondent – in the agreed amount of £253.85 was payable to the claimant and was withheld by the respondent.(3) With regard to the commission payments, the claimant said these were payable to her in accordance with the commission policy, as she had introduced the new businesses and the final sales in relation to both businesses ‘landed’ whilst she was still within her notice period.(4) The respondent, whilst acknowledging that commission payments properly due are part of notice pay, said that the commissions for these two new businesses were not payable, as they did not meet the criteria in the commission policy. In relation to OMA, the respondent agreed the initial contact was made by the claimant, but nothing further, and the sale landed for a different role, with the managing director, Laura Leyland completing the documents on 4 and 5 November 2021 whilst the claimant was on garden leave.(5) In relation to BBS, again the respondent accepted that the claimant made the initial introduction, in relation to a sales role. The respondent argued that it was Laura Leyland who continued contact and provided support for the company in relation to an engineer role, with the claimant having no involvement. She was still working for the company but she had nothing to do with the sale for the engineering role, and therefore no commission was payable.(6) In relation to the 3 days holiday pay, the claimant said that she was not informed that she had to sacrifice 3 days holiday and work whilst on the trip abroad. She stated that she did not raise the matter before, during or after the trip as there was a culture of not challenging management decisions and she did not know it was unlawful to ask employees to work on days taken as holiday until she had left her employment. She also argued that had she continued to work for the respondent, she would have asked or expected to use the 3 holiday days again.(7) The respondent said that the trip was arranged and paid for by the company as a thank you for their employees’ hard work during the Covid19 pandemic. The claimant had accepted the terms of the trip, which were notified to her well in advance of the trip taking place. The trip was not mandatory. The claimant could have chosen to work in the office instead. The claimant did not raise she was unhappy, before, during or after the trip, nor when resigning, or during her notice period. The respondent further stated that the claimant did not state at any time that she expected to use the 3 days holidays again. Procedure, documents and evidence heard[4]On 4 October 2022, after clarifying the remaining disputed parts of the claimant’s claim, the Tribunal heard oral evidence from the claimant and her witness Veronica Finney, a former employee of the respondent. For the respondent, the Tribunal heard oral evidence from Laura Leyland, a co-director of the respondent business and from Victoria Taylor, an employee of the respondent.[5]The Tribunal had regard to the bundles of evidence before it, although only those documents drawn to the Tribunal’s attention by the parties were referred to, as the parties were unable to agree on one joint bundle. The Tribunal allowed the claimant to produce a supplementary bundle, after directing that all documentation subject to legal privilege be removed from it.[6]The Tribunal had regard to the closing submissions made, which were heard on 17 October 2022, the reconvened date. The claimant produced two cases on the 17 October 2022, for the Tribunal to consider: Ville De Nivelles v Matzak ECLI : EU: 2018 :82; a preliminary ruling regarding working time regulations for firefighters on stand by and required to respond within 8 minutes, which the claimant said was in relation to the claim that 3 days holiday pay was payable to her and had been withheld. Kent Management Services Ltd v Butterfield [1990] UKEAT 407 90 1112, was cited as relevant to the Tribunal’s consideration of whether commission was payable and had been withheld.[7]The Tribunal allowed time for the respondent’s representative to read the cases and to make closing submissions upon their relevance. Fact Findings Commission[8]The respondent’s policy entitled - ‘Sales Policy Commission and Early Finishes’ set out the percentage of commission payable in different circumstances and when that commission was payable. In the circumstances of this case, the following applied: ‘New client – sourced (brand spanking new sourced from any channel) o 5%’ The starred section underneath that, sets out the circumstances in which commission will be paid and when: ‘** Commission is paid on pay day the following month after the sales is made/invoice is sent and only if the client has paid.’ (Emphasis added)[9]The claimant made initial contact with both new businesses; OMA and BBS.[10]During her notice period, the claimant was moved from a ‘front-line’ sales position by the respondent, as she was leaving the business.[11]The claimant was placed on garden leave after 27 October 2021, as the respondent was moving premises and had she continued to work her notice, it would have meant relocating the claimant for what amounted to a short period of time just prior to her leaving the business.[12]The claimant took no issue with being placed on garden leave after 27 October 2021, during her notice period.[13]The claimant did not make the sale in relation to OMA, the sale was completed by Laura Leyland, co-director, whilst the claimant was on garden leave.[14]The claimant did not make the sale in relation to BBS, the sale was completed by Laura Leyland, for a different role, (engineering) whilst the claimant was still working her notice period.[15]There was at least one occasion in the business where a sale was made by another employee than the one making the initial contact with a new business, and the other employee was paid commission.[16]There was at least one occasion in the business where an employee was paid commission for a sale where they had made initial contact with a new business, but had not made the sale. The Tribunal accepted the evidence of Laura Leyland that this was to incentivise the employee and allow them to develop their role within the business. 3 days holiday pay - ‘The Ibiza trip’[17]The respondent booked and paid for a trip to a yoga retreat in Ibiza for employees (including the claimant) as a thank you for their hard work, dedication and commitment during the Covid 19 pandemic.(1) Attendance on the trip was voluntary.(2) Some employees chose not to attend.(3) The trip was originally to take place in summer 2020 (Sat 29 Aug to Weds 2 September)(4) The trip was postponed due to ongoing Covid 19 restrictions.(5) The trip eventually took place in September 2021, from Monday 6 to Sat 11 September 2021, those being the available dates.(6) Due to the re-arranged trip falling over 5 business days, employees were asked to contribute 3 days of annual leave if they chose to attend.[18]There was a dispute as to when the employees attending the trip were consulted as to the use of 3 days of annual leave entitlement. The claimant said they were informed at short notice 2-3 weeks before the trip. The respondent said there was a discussion months before, and all staff attending agreed to take the 3 days leave. The Tribunal preferred the evidence of Laura Leyland and Victoria Taylor (employee of respondent) to that of the claimant and her witness Veronica Finney. Victoria Taylor joined the business in early 2021. Her evidence was she that knew of the trip from the start of her employment, and, certainly by March of 2021, knew that 3 days leave would be taken by those choosing to go on the trip, which the Tribunal found to be compelling evidence. In the Tribunal’s view, it was unlikely that the respondent would not address, with the participants, the issue of the re-arranged trip falling over 5 business days, until as late as 2-3 weeks before departure.[19]There was an expectation that, as the trip was over 5 business days, and an inexperienced member of staff would be running the office in the UK, employees would keep an eye on emails and make sure nothing critical was missed.[20]This expectation was clearly communicated to those attending the trip, including the claimant, and no objections were raised by her.[21]The itinerary for the yoga retreat, which was detailed, was circulated to participants in August 2021.[22]The claimant did not raise the issue of using 3 days holiday entitlement either before, during or after the trip.[23]There was a dispute as to how often and for how long meetings took place whilst at the yoga retreat. The Tribunal preferred the evidence of the respondent, that there was one initial meeting, over that of the claimant, who said there were regular, two-hour meetings. Having taken account of the yoga retreat itinerary, which was very structured, it was unlikely that a daily meeting of two hours could have been accommodated. The evidence of Veronica Finney (an ex-employee of the respondent) was not credible on this point, and she had difficulty in explaining when the daily meetings were ‘fitted into’ the schedule.[24]The claimant sent 11 emails in 5 days, not all of which were related to business activity. The emails supported the respondent’s account of the trip. Two emails were in the form of a ‘blog’ or ‘post’ and purported to indicate the claimant viewed the trip positively.[25]The claimant did not raise with the respondent at any time after the trip that she expected to be able to use the 3 leave days again.
The Law
[26]The right not to suffer an unauthorised deduction is contained in section 13(1) of the Employment Rights Act 1996: “An employer shall not make a deduction from wages of a worker employed by him unless —(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[27]Section 27(1) provides that “wages” means “any sums payable to the worker in connection with his employment” and then sets out a non-exhaustive list of what is included. Both commission and holiday pay fall within the definition of wages.[28]In relation to the claims for commission and 3 days holiday pay, the Tribunal must determine whether the commission and holiday pay were payable to the claimant and were withheld.[29]The Tribunal considered the case law it had been referred to by the claimant, as set out above. Conclusions Commission
Conclusions
[30]The Tribunal had regard to the first paragraph of the policy governing commission payments headed ‘Commission’. It sets out the Commission percentages payable in different circumstances: ‘New client – sourced (brand spanking new sourced from any channel) 5%’ The starred section underneath that, explains the circumstances in which commission will be paid and when: ‘** Commission is paid on pay day the following month after the sales is made/invoice is sent and only if the client has paid.’ (Emphasis added)[31]Although the Tribunal found that the claimant made initial contact with the two businesses, who were ‘new’ to the respondent, it did not find that the sale was made by her for either of the two new businesses.[32]With regard to BBS, the sale was made when the claimant was working her notice period and had been taken off front line sales.[33]With regard to OMA, the sale was made when the claimant was on garden leave. The notice period the claimant was required to work was agreed between the parties and the claimant did not object to being placed on garden leave.[34]In both cases the sale was made by Laura Leyland, who took over the contact with the businesses, and landed the sales for different roles than the roles initially sourced by the claimant.[35]The respondent exercised a level of discretion in the awarding of commission to current employees, beyond that which was stated in the policy. For example, Laura Leyland confirmed that on occasion, commission had been paid to an employee who made initial contact but did not go on to make the sale. This was to incentivize the employee and develop their role within the business. There was no evidence before the Tribunal that suggested employees who were leaving the business would be paid commission on sales which they didn’t make. There was precedent within the business for employees to make initial contact, with a sale being actually made by another employee, and it was the person making the sale who received the commission, in line with the policy.[36]In relation to the claim for commission, The Tribunal did not consider that the case of Kent Management Services Ltd v Butterfield [1990] UKEAT 407 90 1112 was relevant to its consideration of whether commission was payable to the claimant under the terms of the relevant policy, as that case concerned a dispute as to whether discretionary commission was payable under the specific terms of a non-contractual arrangement.[37]The Tribunal therefore concluded that the commission in relation to OMA and BBS was not payable to the claimant. The claimant’s claim that there was an unauthorised deduction from wages in relation to commission is not well founded and is dismissed. 3 days holiday pay- ‘The Ibiza Trip’[38]The Tribunal found that the claimant attended the yoga retreat, paid for by the respondent, voluntarily, and that she had adequate notice of the requirements to use 3 days holiday entitlement and to keep an eye on emails to ensure nothing business critical was missed. It found that the claimant was aware an inexperienced member of staff would be in the office on her own during the trip, which was taking place over 5 business days.[39]At no point during her employment with the respondent did the claimant raise as an issue either the taking of her holidays or the level of business-related tasks she was required to undertake whilst on the yoga retreat. She did not raise the expectation, upon her return, that she should be able to take the three days leave again.[40]The Tribunal did not find the preliminary ruling in the case of Ville De Nivelles v Matzak to be relevant to its specific considerations regarding the arrangement for the voluntary use of leave days for an employer- organised trip abroad to a yoga retreat. That case was about working time, in relation to firefighters on stand-by, with the duty to respond to calls from their employer within 8 minutes, very significantly restricting the opportunities for other activities, rather than an agreement to us some annual leave on a trip organised and paid for by the employer.[41]The Tribunal concluded in all the circumstances that the claimant was not entitled to payment for the 3 days leave used, having voluntarily agreed to use the 3 leave days in the knowledge of what would be expected of her on the trip.[42]The claimant’s claim that there was an unauthorised deduction for 3 days holiday pay is not well founded and is dismissed. Costs/Preparation Time Orders
Introduction
[43]At the conclusion of the hearing dealing with the outstanding claims, on the 17 October 2022, both the claimant and respondent made applications to the Tribunal in relation to the behaviour of the other party/their representative. It was clarified, before hearing submissions, that the claimant was pursuing a Preparation Time Order in the sum of £840.00, (in relation to the part of the claim for withholding of final salary only) and not pursuing a previous written application for costs. The Respondent made an application for a Preparation Time Order in the sum of £1638.00.[44]In relation to the claimant's application, the Tribunal considered the claimant’s document, received 1 August 2022, in relation to preparation time, the statement of Mr Andrew Warner and the statement of the claimant at paragraphs 21 to 26.[45]In relation to the respondent’s application, the Tribunal had regard to the respondent's written application for costs and the schedule. In addition, the respondent provided a bundle, which contained correspondence in relation to offers made by the respondent to settle the claim.[46]The Tribunal also heard and had regard to the submissions and responses from the claimant and respondent on the issue of awarding preparation time orders.
The Law
[47]Rule 75(2) provides: ‘A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.’[48]The circumstances in which a preparation time order may be made are set out in Rule 76: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that — (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success..........[49]The procedure by which the application should be considered is set out in rule 77 and the amount which the Tribunal may award is governed by rule 78. In summary rule 78 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000, or alternatively to order the paying party to pay the whole or specified part of the costs with the amount to be determined following a detailed assessment.[50]Rule 84 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.”[51]It follows from these rules that the Tribunal must go through a three-stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs/preparation time has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.[52]The case law on the awarding of costs/preparation time orders (and their predecessors in the 2004 Rules of Procedure) include confirmation that the award of costs/preparation time orders is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82. 8.[53]Whilst acknowledging that the claimant was, for part of the proceedings, represented by a lay person with some knowledge of civil procedure, and the respondent was represented by a HR professional, the Tribunal had regard to the general principle that it is appropriate for those not legally represented to be judged less harshly in terms of their conduct than those represented by a legally qualified representative.[54]The Tribunal also had regard to the case of Kopel v Safeway Stores plc 2003 IRLR 753, EAT, in which the EAT held that the rule in ‘Calderbank’ (a civil case stating that a claimant will bear the costs incurred by the respondent from the date on which an offer was rejected) has no place in employment tribunal jurisdiction. In Kopel, a tribunals decision to award costs of £5,000 against the claimant had been influenced by the fact that she had earlier rejected a settlement offer made ‘without prejudice save as to costs’ (known as a ‘Calderbank offer’) during the proceedings. On appeal, the EAT clarified that a tribunal claimant will not necessarily be liable for costs where he or she rejects a Calderbank offer and is eventually awarded less than that offer, or even nothing at all. However, a claimant's refusal of such an offer was a factor that a tribunal could take into account in deciding whether to award costs.
Conclusion
[55]The Tribunal first considered whether the grounds for making an award had arisen in these proceedings. In determining this, the Tribunal reminded itself that any award for costs/preparation time was the exception not the rule.[56]It had regard to the fact that neither party was legally represented, and although it could be said that there were varying levels of professional expertise on both sides, the Tribunal concluded that neither party or their representatives ought to be held to the same standard that might be applied to experienced legally qualified representatives. It was a higher bar to reach to conclude that, for example, making points which were not objective or directly relevant, seeming to misunderstand the written intentions of the other party and finding themselves incapable of reaching a settlement, amounted to acting vexatiously, abusively, disruptively or otherwise unreasonably.[57]The Tribunal took account of the conduct of the parties and their representatives during the proceedings. It concluded that at times there was a level of acrimony which led to upset on both sides. It did not take account of issues arising outside of the proceedings, for example a police investigation or postings on social media.[58]The Tribunal considered the rejections of offers of settlement by the claimant as a factor that should be taken into account when deciding whether costs should be awarded against the claimant as a result. The highest offer made was £2200.00, an amount higher than the total amount claimed for. The rejection of the settlement ultimately led to all claims being brought before the Tribunal, which were then defended by the respondent.[59]However, in the particular circumstances of this case, the Tribunal concluded that neither party or representative had acted in a way which, in the Tribunal's view, met the high bar to concluding that their actions were vexatious, abusive, disruptive or otherwise unreasonable. When taking into account all the factors set out above, the Tribunal concluded that no claim or response was without reasonable prospect of success.[60]Therefore, the power to make any award as set out in Rule 76 has not arisen.[61]The Tribunal is not required to move to the next stage of consideration.[62]No orders for preparation time are made against either party or their representatives.
Conclusion
[1]The claimant’s application to reconsider the ‘commission’ element of the original claim was refused under rule 72 of the Rules.[2]The claimant’s application to reconsider the application for a Preparation Time Order was granted, the original decision is confirmed, and no order is made.[3]The respondent’s application for a Preparation Time Order arising out of the claimant’s reconsideration application is refused.
Conclusion
[1]The claimant’s claims were heard at a final hearing on 4 and 17 October[2]At the conclusion of the final hearing, both parties made an application for a Preparation Time Order. The Tribunal did not make any awards.[3]At the claimant’s lay representative’s request, judgment was accompanied by written reasons (dated 14 November 2022). Commission[4]By email dated 1 December 2022, the claimant’s lay representative requested reconsideration of the ‘commission’ element of the original claim, which was dismissed at the final hearing on 17 October 2022.[5]In relation to the application to reconsider the ‘commission’ element, I was satisfied that there was no real prospect of the original decision being varied or revoked and refused the application under rule 72 of the Rules. This was on the basis that the application sought to revisit the evidence heard, upon which findings of fact were properly reached. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation and a reconsideration should not be used to attempt ‘another bite at the cherry’ (as set out in the case of Liddington v 2Gether NHS Foundation Trust EAT/0002/16). It was not in the interests of justice to allow the application. Claimant’s original Preparation Time Order application[6]In the same email from her lay representative, the claimant also requested reconsideration of the decision not to award ‘costs’ (in fact, a Preparation Time Order) at the conclusion of the final hearing on 17 October 2022.[7]The claimant’s representative did not send a copy of the application to reconsider to the respondent or their representative, as is required in rule 71.[8]The parties were informed by letter dated 22 December 2022 that I proposed to deal with the application to reconsider the decision on the ‘costs’ element on the papers without a hearing in accordance with rule 72(2). Parties were directed to make written representations no later than 19 January 2023.[9]The parties were also informed that it was my provisional view that the grounds for making an award had arisen under rule 76(1)b)), therefore, the focus for reconsideration was likely to be on the second and third ‘Haydar’ stages. (As set out at paragraph 51 of the Judgment and Reasons dated 14 November 2022)[10]The respondent’s representative submitted written representations at 23.59 on 19 January 2023.[11]The claimant’s representative submitted documentation on 20 January 2023, at 08.15, which included an undated statement from the claimant entitled ‘Costs Claim Statement’. He later resubmitted the part of the email dated 1 December 2022 which related to the application to reconsider the ‘costs’ element.[12]The respondent’s representative submitted further representations via emails on 23 January 2023, including a document entitled ‘Costs Counter Claim’ in which an application for ‘costs’ (a Preparation Time Order) arising from the claimant’s application for reconsideration was made.[13]This was an application made on behalf of the claimant by her lay representative to reconsider the decision not to award a Preparation Time Order, in relation to the part of her original claim that concerned an alleged unlawful deduction of wages in the form of a final salary payment of £1269.23. This part of her claim was dismissed upon withdrawal at the final hearing on 4 October 2022, the amount having been paid by the respondent after a preliminary case management hearing which took place on 6 June[14]In summary, the application is for reconsideration of the Tribunal’s conclusion that ‘no claim or response was without reasonable prospect of success’, which led to no award being made. The application is brought on the basis that rule 76(1)b was triggered (i.e., that the response had no reasonable prospect of success) by the ‘preliminary findings’ detailed in a Case Management Order dated 6 June 2022 in which Employment Judge Doyle recorded: ‘The respondent accepts that it has no legal basis for withholding wages, commission or holiday pay (so far as properly payable) as a negotiation position regarding the LinkedIn account dispute.’[15]In addition, the application for reconsideration states that the respondent ‘had professional representation who confirmed there was no lawful right to withhold the claimant’s wages.’[16]Although the application refers to rule 76(1)a being triggered, I have taken this to be a typographical error and that it should have referred to rule 76(1)b, given that it clearly states there is no challenge to the findings relating to the conduct of the parties.[17]The respondent’s HR representative has submitted written responses on behalf of the respondent. In summary, the first written response, sent 19 January 2023, asserts that the claimant’s application is unclear as to how it aligns with the quoted paragraph 59 of the Judgment; that no orders or findings were made at the preliminary hearing on 6 June 2022. The response rejects the contention that a professional representative confirmed the respondent had no lawful right to withhold wages. The response also highlights that the reconsideration application was not sent to the respondent or their representative in accordance with rule 71, and it doesn’t set out why it would be in the interests of justice to reconsider the decision. A further response dated 23 January 2023 pointed out that the claimant had made their further written submissions out of time, which, it stated, was grossly unfair, not in line with the overriding objective and not in the interests of justice. In addition, that no claim was ever made for the ‘withholding of wages’ and no evidence was heard on that issue. Evidence and Documents Considered[18]I had regard to the written applications of the claimant and respondent, and the written submissions of the parties with accompanying documentation.[19]I referred back to the Judgment and Reasons dated 14 November 2022.[20]I had regard to the parties’ original submissions and documentation on the issue of Preparation Time Orders.[21]No evidence was heard as the matter was dealt with on the papers.
The Law
[22]Rule 2 sets out the overriding objective: to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.[23]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.[24]Rules 70 to 73 govern the principles, application and process for reconsideration. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[25]On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again (rule 70).[26]Rule 72 provides that the notice to parties may set out the Judge’s preliminary view on the application.[27]The rules in relation to Preparation Time Orders are set out at rules 74 to 79.[28]The procedure and considerations relevant to this application are dealt with at paragraphs 47 to 54 of the Judgment and Reasons dated 14 November[29]It follows from the Rules that the Tribunal must go through a three-stage procedure (see paragraph 25 of Haydar v Pennine Acute NHS Trust UKEAT 0141/17/BA). The first stage is to decide whether the power to award costs/preparation time has arisen, whether by way of unreasonable conduct or otherwise under rule 76; if so, the second stage is to decide whether to make an award, and if so the third stage is to decide how much to award. Ability to pay may be taken into account at the second and/or third stage.[30]The case law on the awarding of costs/preparation time orders (and their predecessors in the 2004 Rules of Procedure) includes confirmation that the award of costs/preparation time orders is the exception rather than the rule in Employment Tribunal proceedings; that was acknowledged in Gee v Shell UK Limited [2003] IRLR 82. 8.[31]I again had regard to the case of Kopel v Safeway Stores plc 2003 IRLR 753 EAT, that a claimant's refusal of an offer of settlement was a factor that a tribunal could take into account in deciding whether to award costs. Conclusion Application for Reconsideration
Conclusion
[32]I considered the first preliminary point raised by the respondent in their written submissions, namely that the claimant did not send a copy of their application for reconsideration to the respondent in accordance with the Rules. Bearing in mind the overriding objective set out above, with emphasis on dealing with cases in a proportionate way and avoiding delay, I considered that the respondent has had adequate time, once notified by the Tribunal of the application, to provide written submissions, and has indeed done so.[33]The second preliminary point made by the respondent concerns the claimant providing their written submissions out of time, on 20 January 2023, at 08.15am, when the Tribunal had set the deadline as 19 January 2023. The Tribunal did not direct that one party must make their submissions before the other. I note the respondent’s own submissions were sent at 23.59 on 19 January 2023, which, whilst in accordance with rule 4, meant that there was only an 8-hour difference in the submissions from both parties being received. In addition, both parties have sent in further submissions and documentation beyond the date fixed by the Tribunal. In these circumstances, I do not find that the respondent had been placed at any material disadvantage or that to proceed would not be in the interests of justice.[34]I am satisfied that it is in the interests of justice to reconsider my decision regarding an award, to the claimant, of a Preparation Time Order. I have already notified the parties, in writing, in accordance with rule 72, of my provisional view as follows: ‘The parties should note that it is my provisional view that the grounds for making an award on this point have arisen (under Rule 76(1)b)), therefore, the focus for reconsideration is likely to be on the second and third ‘Haydar’ stages, as set out in para 51 of my decision.”[35]I maintain that view. The original decision did not properly consider the factors which were pertinent to rule 76(1) b. The claimant’s original application for a Preparation Time Order was limited to the part of the original claim for an unauthorised deduction from wages of the claimant’s final salary payment and further limited to the date of the preliminary hearing, as the agreed final salary payment amount was subsequently paid by the respondent to the claimant. The original claim was properly detailed in the claimant’s ET1.[36]I agree with the respondent that Employment Judge Doyle did not make any findings, orders or directions regarding that final salary payment at the preliminary hearing on 6 June 2022. However, he recorded the discussion which took place between himself and the parties and said: ‘...the Tribunal has no jurisdiction to resolve the dispute about the LinkedIn account (which may be a dispute about the property rights in its contents).’ ‘The respondent accepts that it has no legal basis for withholding wages, commission or holiday pay (so far as properly payable) as a negotiation position regarding the LinkedIn account dispute.’[37]In the written representations for this application, the respondent submitted that ‘it was never in dispute that the claimant was owed the withheld wages, but there was a breach of contract dispute ongoing.’[38]After the discussion at the preliminary hearing, the agreed amount of final salary payment was made to the claimant by the respondent.[39]I agree with Employment Judge Doyle’s analysis and find that I did not take proper account of the circumstances in considering whether to make an award on the basis that the response had no reasonable prospect of success. The grounds in rule 76(1)b had arisen is this case, the response to the claim for the final salary payment had no reasonable prospect of success. My original finding that the grounds under rule 76(1)b did not arise, was incorrect.[40]Having determined that the grounds under rule 76(1)b have arisen for the making of an award, (the first stage) I must next consider whether to exercise my discretion under rule 76 (the second stage).[41]I bore in mind the principle that an award is the exception rather than the rule in employment tribunal proceedings.[42]I took into account the number of offers made by the respondent to settle the case between 12 and 30 May 2021 before the claim was presented (see paragraph 58 of my Judgment and Reasons), as referenced in the respondent’s written submissions dated 23 January 2023: ‘The Respondent tried on many occasions to offer settlement, and amounts that went way beyond what would have been awarded if she had won – it was her choice not to accept settlement and proceed to a full hearing and take the risks associated with the process.’[43]I concluded that it would not be proportionate, appropriate, or fair to award the claimant a Preparation Time Order when the respondent’s repeated offers to settle in amounts up to £2200.00, prior to the claim being presented would have covered the totality of the claimant’s claims, including her final salary payment, which amounted to £1269.23.[44]Therefore, the original decision not to award a Preparation Time Order is confirmed. Respondent’s Preparation Time Order application[45]There is also a counter ‘costs’ application in the sum of £205.00 (an application for a Preparation Time Order), made on behalf of the respondent by their HR representative. The ‘costs’ application is made on the basis that the grounds for making such an award have arisen under rule 76(1)a; that the claimant’s/claimant’s representative's behaviour in applying for the reconsideration of the original decision on ‘costs’ is vexatious, abusive, and unreasonable and a continuation of the way they have behaved throughout the proceedings. Also, that rule 76(1)b is engaged, in that the reconsideration application has no reasonable prospect of success because the part of the claim to which it refers was withdrawn by the Claimant in ‘June/July’.[46]It would appear the application has been made on an anticipatory basis, in advance of the judgment on reconsideration being sent to the parties, which is a requirement of rule 77. It arises from the claimant’s application for reconsideration and was received by the Tribunal on 23 January 2023 by email. The claimant’s representative was also copied into the email.[47]Neither the claimant nor her representative have submitted written representations regarding the request to award a Preparation Time Order by the respondent.[48]With the overriding objective in mind, particularly in seeking to avoid further delay, and to deal with the issues in a proportionate way, I have considered the respondent’s application for the award of a Preparation Time Order, despite it being made prior to judgment being sent and in the absence of any representations from the claimant.[49]I have found, as set out above, that it was in the interests of justice to reconsider the application to award a Preparation Time Order made by the claimant in the original proceedings, and further, I determined that the grounds under rule 76(1)b arose for the making of such an award. I did not then go on to exercise my discretion to make an award after taking into account the full circumstances and history of the case.[50]Given my findings on the claimant’s application for reconsideration, I do not find that the claimant or their representative’s behaviour in applying for a reconsideration fell into the category of behaviour that was vexatious, abusive or unreasonable. Equally, having found that grounds arose for the making of an award for a Preparation Time Order, it could not be said that it was an application that had no reasonable prospect of success.[51]As the grounds for the making of an award in favour of the respondent have therefore not arisen under rule 76(1) a or b, I was not required to move to the next stage of the procedure.[52]I do not make an award in favour of the respondent for a Preparation Time Order.