[1]By a letter dated 5 June 2021 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim should not be struck out because it has not been actively pursued.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim is therefore struck out.[3]The hearing fixed for 16 June 2021 will not take place. Employment Judge Leach 11 June 2021[1]The judgment of 11 June 2021, sent to the parties on 14 June 2021, is reconsidered and is revoked.[2]The claimant's claim of breach of contract will proceed to a final hearing to be heard with an estimated length of hearing of three hours on 7 January 2022 at Manchester Employment Tribunal, Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA commencing at 10.00am.[3]The Tribunal makes the following Case Management Orders for the purposes of the claim, varying the Orders sent to the parties on 7 April 2021, to provide (save where there has already been compliance) :(a) Step 1 – by 18 October 2021.(b) Step 2 - by 25 October2021.(c) Step 3 – by 1 November 2021.(d) Step 4 - by 22 November 2021. Case No. 2415673/2020 Code P 2[4]The issues to be determined are set out in para. 14 below. If either party disagrees that they are indeed the Issues, or are incomplete, they are to notify the Tribunal in writing within 14 days, stating why they are inaccurate or incomplete.[1]The Tribunal convened to hear the claimant’s application for reconsideration of the judgment issued by the Tribunal on 11 June 2021 and sent to the parties on 14 June 2021, whereby the claim was struck out. This followed receipt of information from the respondent that the claimant had not complied with the case management orders sent to the parties on 7 April 2021.[2]The Tribunal accordingly issues a strike out warning to the claimant on 5 June 2021, on the grounds that the claim was not being actively pursued. The claimant was required to respond by 8 June 2021, but did not do so. On 11 June 2021 , therefore, the Tribunal struck out his claim.[3]The claimant made application for reconsideration of this judgment by email on 14 June 2021. The Tribunal had notified by email of 11 June 2021 that the hearing had been cancelled, and he sent into the Tribunal further emails on 13, 14 June 2021 , 25 June , 1 July and 8 July 2021. He attached to these emails various documents showing the IT and telephone service issues he had experienced.[4]The basis upon which the claimant sought reconsideration was that he had been the victim of a cyberattack, which had affected his internet devices, mobile phone, and even his landline number. He had not been able to communicate for several months. He regained service around 13 June 2021, at the same time, of course, as the Tribunal had struck out his claim.[5]The claimant had not copied the respondent into this email communication with the Tribunal, so on 23 July 2021 the Tribunal wrote to the respondent advising it of the application, and the claimant’s emails.[6]No reply was received from the respondent, and the application has therefore been considered by the Employment Judge without a hearing (on the papers, hence the Code P in the heading), then parties being advised of this date.[7]Reconsideration is governed by rule 70, which provides that a Tribunal can reconsider any judgment it makes if it is in the interests of justice to do so. Application must be made within 7 days, and the claimant clearly did so.[8]As the claimant had provided an explanation for his failure to adhere to the previous case management orders, and clearly intends to pursue this claim, the Employment Judge considers it would indeed be in the interests of justice that he be allowed to do so. The respondent has not advanced any counter argument as to why it would not be.[9]The Employment Judge accordingly does reconsider the judgment, and revokes it. The claim will proceed, and a new hearing date has been obtained . The Case No. 2415673/2020 Code P 3 case management orders have been revised with fresh timetable, which must now be adhered to.
The Issues
[10]Taking the opportunity, however, to consider the claim, and to try to identify the issues, the Employment Judge notes that the sole claim is breach of contract, which arises from the claimant successfully applying for employment with the respondent , which was due to commence on 30 March 2020.[11]It is unclear what actually happened on , or shortly after 30 March 2020. The claimant appears to consider that the contract started, but his start date was delayed by the respondent, and was then terminated on 8 June 2020, when the respondent informed the recruitment agency that it was no longer taking on new employees, and was making redundancies. The claimant is taking this as the date of the termination of his contract . He then went to ACAS early conciliation on 18 August 2020, obtaining a certificate on 16 September 2020. He presented his claim on 10 October 2020.[12]The response disputes the claimant’s account. The respondent contends that the claimant was unavailable to start on 30 March 2020, and that it was he who rendered the contract “null and void”, as he never started working for the respondent.[13]The claimant , whilst he makes only a breach of contract claim, also seeks payment of wages which the respondent “should have” been paying him since 30 March 2020. He seeks notice pay, which he has put at 4 weeks. He may care to consider the fact that , absent any express contractual entitlement to more, his statutory entitlement (if the right to notice is proven) would be one week.[14]A further potential issue seems to be that if the respondent did breach the claimant’s contract of employment, but it was earlier than 8 June 2020, (in fact any time before 15 May 2020 , being three months before the claimant first contacted ACAS) any such claim would be out of time.[15]A number of issues therefore arise. a) Was there ever a completed contract of employment ? b) If so, what were its terms as to when the claimant would start work? c) If so, what were its terms as to whether the claimant would be entitled to be paid before he actually started work ? d) Was the claimant ready willing and able to start work on 30 March 2020? e) If so, why did the claimant not start work? f) What was the claimant’s contractual status from 30 March 2020 to 8 June 2020? g) Is the claimant entitled to be paid for that period? Case No. 2415673/2020 Code P 4 h) Did the respondent terminate the contract of employment on 8 June 2020? i) Did the respondent terminate the contract of employment before 8 June 2020 and if so, did it do so any earlier than 18 May 2020, so that the claimant’s claim was presented out of time? If so, was it not reasonably practicable for the claimant to have presented the claim in time? j) To what notice was the claimant entitled, and what, if any, notice pay is he entitled to? 15. It is hoped that this will assist the parties and the Tribunal to determine the claim(s) at the next hearing, or to seek a resolution through ACAS, if this is possible. Employment Judge Holmes Dated : 4 October 2020
Findings of Fact
[16]The claimant and respondent agreed that there had been no communication between them at all during the month of May.[17]The claimant gave oral evidence that he had no idea that the indefinite start date had been cancelled until he received the email form the recruitment agent on the 8 June 2020. The claimant then emailed the respondent to get further confirmation on the 12 June. No reply was received until August.[18]The respondent gave oral evidence that he had not expressly told the claimant that the start date was no longer on hold, he hadn’t told the claimant that there was to be no start date, because the respondent was in fact making employees redundant at that time.[19]The claimant gave oral evidence that he had not chased the respondent for the wages he believed was due because “he was treading on eggshells”.[20]The respondent gave evidence to the Tribunal that the recruitment agent normally sends in an invoice as soon as the employee he has put forward has commenced employment. The invoice had been sent to the respondent but had been rejected on the basis that employment had not actually commenced and this was accepted by the agent.[21]The respondent stated that the claimant had never been through the day one induction process. Day one on site at the respondent’s offices induction process involved: meeting the rest of the team, being put on payroll, learning what the protocols were, reading the data protection policies etc. He also advised that all employees signed their contract and commenced employment on the first day that they arrive on site. Case No.2415673/2020 4[22]The notice pay as per the claimant’s contract of employment is stated to be one week.[23]The claimant’s claim was presented to the Tribunal on 10 October 2020. The claimant notified ACAS under the Early Conciliation Procedure on 18 August 2020 and the ACAS Early Conciliation Certificate was issued on 16 September 2020. Relevant Law Breach of contract for notice pay
Relevant Law
[24]An employer will be in breach of contract if they terminate an employee’s contract without the contractual notice to which the employee is entitled, unless the employee has committed a fundamental breach of contract which would entitle the employer to dismiss without notice.[25]The principles by which a contractual term should be interpreted were set out by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 as follows: “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.[26]That approach was restated by the Supreme Court in Wood v Capita Insurance Services Ltd [2017] UKSC 24 in paragraphs 10-13 of the judgment of Lord Hodge.[27]Terms can be implied into a contract by statute, by common law (such as the implied obligation of trust and confidence) or because the term implied is one which the parties must have intended even though it was not expressed. There are various tests for such an implied term, including the “officious bystander” test and the test of business efficacy, but they are all means to establishing what the contract, read as a whole against the relevant background, would reasonably be understood to mean: Lord Hoffmann in Attorney General v Belize Telecom Ltd and Anr [2009] 1 WLR 1988, at paragraphs 21-27. Case No.2415673/2020 5[28]A claim for breach of contract must be presented within three months beginning with the effective date of termination (subject to any extension because of the effect of early conciliation) unless it was not reasonably practicable to do so, in which case it must be submitted within what the Tribunal considers a reasonable period thereafter.[29]The aim of damages for breach of contract is to put the claimant in the position they would have been in had the contract been performed in accordance with its terms. Damages for breach of contract are, therefore, calculated on a net basis, but may need to be grossed up to take account of any tax and national insurance that may be payable on the damages. Damages relating to notice pay are subject to tax and national insurance.
Conclusions
[30]In deciding the issues, the Tribunal has not set out all the evidence heard at the hearing on 21 January but has selected those details which are most important to the decisions. Just because something is not mentioned does not mean the Tribunal did not consider it.[31]Considering all the evidence heard the Tribunal concludes that although there was a contract of employment, no start date had ever been agreed for the employment under that contract to begin. It had been indefinitely postponed by agreement between the parties.[32]Looking specifically at the issues:(1) Was there ever a completed contract of employment? - yes it was clear to the Tribunal that an offer had been made and accepted and a contract had been sent to the claimant by the respondent via email 15 February 2020 and this was in place from 30 March to 8 June 2020.(2) If so, what were its terms as to when the claimant would start work? – the Tribunal found via various emails this had been changed from 23 March to 30 March and then postponed indefinitely due to lockdown which commenced on 23 March 2020.This had agreed between the parties in these emails. The respondent had tried to see if the claimant could be put on the furlough scheme, but this wasn’t possible. The Tribunal concludes that the intention of both parties was there was going to be start date at some indefinite time in the future.(3) If so, what were its terms as to whether the claimant would be entitled to be paid before he actually started work? - the Tribunal could find no evidence as to what the claimant should be paid before he actually started work.(4) Was the claimant ready willing and able to start work on 30 March 2020? - the Tribunal finds that the claimant was ready to start work on the 30 March but an email from the respondent on 24 March advised the claimant that it was not possible for the claimant to start on the 30 March. Case No.2415673/2020 6(5) If so, why did the claimant not start work? - the Tribunal found that the claimant could not start work because of covid, the claimant’s work could not be done from home and there was no agreed start date so he couldn’t be considered a working employee.(6) What was the claimant’s contractual status from 30 March 2020 to 8 June 2020? - The Tribunal finds that employment had not commenced for the following reasons: the respondent had rejected the invoice from the recruitment agent on basis that employment had not commenced, this has been accepted by the agent, the claimant had not been put through the induction process ie meeting the rest of the team, being put on payroll, learning what the protocols were, reading the data protection policies etc. The respondent also advised that all employees signed their contract and commenced employment on the first day that they arrived on site. The contractual status of the claimant was in limbo as no start date had been agreed.(7) Is the claimant entitled to be paid for that period? - the Tribunal finds on the evidence no, because no start date had been agreed. Although the claimant was available, he didn’t attend the offices, he didn’t work from home, the contract was to provide services to the respondent in return for a salary, but the start date was not agreed and in fact the start date had been postponed indefinitely.(8) Did the respondent terminate the contract of employment on 8 June 2020? - the first the claimant knew the start date was cancelled was on 8 June 2020 from the recruitment agent and the Tribunal finds that the respondent had never communicated this to the claimant. The respondent says he was busy making other employees redundant at that time.(9) Did the respondent terminate the contract of employment before 8 June 2020 and if so, did it do so any earlier than 18 May 2020, so that the claimant’s claim was presented out of time. If so, was it not reasonably practicable for the claimant to have presented the claim in time? - the Tribunal took the view that this does not need to be considered as all the evidence presented indicated that the cancellation of the start date of the contract was only made known to the claimant on the 8 June 2020 and therefore the claimant’s claim was presented in time.(10) To what notice was the claimant entitled, and what, if any, notice pay is he entitled to? - The evidence presented to the Tribunal as per the contract of employment states the applicable notice pay would be one week. However, as employment had not yet commenced, because the parties had varied the start date of that contract from 23 March 2020 to the 30 March 2020, and then indefinitely, the Tribunal finds that there can therefore be no wages due to the claimant, because he had not started employment. No services had been provided by the claimant because performance had been delayed by both parties. Further the claimant has no loss because he had not yet commended employment, as no date for that had been agreed, and the employee is not generally entitled to any benefits before, he starts work. Case No.2415673/2020 7[33]The Tribunal is of the view that even if the respondent had given the claimant a week’s notice of termination, the contract of employment would still have ended before any right to be paid had arisen. Therefore, no financial loss was suffered. _____________________________ Employment Judge Dennehy Date 11 March 2022
Conclusions
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing his claims.
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.[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: Case No: 2415673/20 “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 majority of the points raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour.[8]That broad principle disposes of almost all the points made by the claimant. However, there are some points he makes which should be addressed specifically.[9]The claimant states that he never agreed to postpone the start date. The contract of employment stated the start date was 23 March 2020, however the email dated: 18 February 2020 the claimant asked for the start date to be postponed to 30 March 2020. Prior to the 30 March 2020 there were numerous emails exchanged between the parties regarding the start date.[10]On 24 March 2020 to Ian Dixon the claimant asks” Does that mean I wont be an employee of ICSkills until we agree a new start date?” to which the respondent replied “…we would need to agree a new start date. It would not be possible for you to start owing to the present circumstances.” The nationwide covid lockdown began on 23 March 2020.[11]On 17 April the claimant asks in an email to Ian Dixon ”Are we still watching the lockdown news closely to arrange a new start date? “These emails together with the oral evidence given by the claimant during the hearing demonstrate that the claimant was aware that no agreement had been reached regarding a start date ie they had agreed to postponement of the start date for the claimant to commence employment as an employee of the respondent.[12]No evidence was presented to the Tribunal that showed the claimant did not agree to the postponement or that he was not aware that he was not an employee and had not started employment because no start date had been Case No: 2415673/20 agreed. The emails and oral evidence presented to the Tribunal showed that the claimant was aware that no agreement had been reached regarding his start date.[13]Regarding the breach of contract claim, as the claimant’s contract of employment never had an agreed start date, because it had been postponed, any claim for breach of contract fails as no right to be paid had arisen.
Conclusion
[14]Having considered all the points made by the claimant 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 Dennehy DATE 25 March 2022