Ms M Lockey v Mr Jake Dodd T/a Alex Edward Salon: 2501100/2018

EMPLOYMENT TRIBUNALS

Case No 2501100/2018

Venue NORTH SHIELDS

Hearing 13th AUGUST 2018

Between

Ms M LockeyClaimant

Mr Jake Dodd T/a Alex Edward SalonRespondent

Before

Employment Judge Garnon

Date 23 January 2019

REASONS

[1]The claim was served on 1st June 2018 upon the last known business address of the respondent . A response was due by 29th June 2018 but none was received. I am required by rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material whether a determination can be made and , if so, obliged to issue a judgment which may determine liability only or liability and remedy.

[2]I have in the claim form sufficient information to enable me to find the claims proved on a balance of probability, and to find the claimant can show an exception to the need to have two years continuous employment to claim unfair dismissal, but not enough to determine the sums to be awarded . I also have enough to decide an increase under s 38 of the 2002 Act is merited because the claimant was not given a statement of terms and conditions of employment.

[3]The law of unfair dismissal is in Part 10 of the Employment Rights Act 1996 (the Act ) and relating to deduction of wages in Part 2. The common law provides a contract of employment may be brought to an end by reasonable notice. Dismissal without such Case Number 2501100/18 2 notice is termed ”wrongful”. Damages for wrongful dismissal are the pay due to the employee during the notice period (see Addis v The Gramophone Company). TM Garnon Employment Judge Date signed 5th July 2018 Case Number 2501100/18 1 EMPLOYMENT TRIBUNALS Claimant Respondent Ms Megan Lockey Mr Jake Dodd t/a Alex Edward Salon

[1]On the claim of unfair dismissal I award compensation of £309.15 payable by the respondent to the claimant. The Recoupment Regulations do not apply.

[2]On the claim of wrongful dismissal I award damages of £200 payable by the respondent to the claimant.

[3]On the claim of unlawful deduction of wages I order the respondent to repay to the claimant £928.83.

[4]I make no award under s 38 of the Employment Act 2002.

[1]The claim was served on 1 June 2018. A response was due by 29 June. None was received. On 5 July I signed a judgment on liability only under rule 21 of the Employment Tribunal Rules of Procedure 2013 ( the Rules) which was posted to the parties on 19 July when they were given notice of the date of this remedy hearing.

[2]At all material times the claimant was 19 years old and paid the national minimum wage of £5.90 per hour for 37 hours work per week. This gave her a gross weeks pay £218.30. She was employed from 1 December 2016 until she was dismissed without notice on 26 April 2018. Whilst employees with less than two years continuous service do not normally have the right to claim unfair dismissal the reason for dismissal in this case was plainly that she was asserting a statutory right to be paid her wages. Section 108(3) of the Employment Rights Act 1996 ( the Act ) exempts her from the requirement for two years service .

[3]My reasons for not issuing a judgment on remedy as well as liability on 5 July were that I needed the claimant to confirm(a) her net pay

(b) whether she had been given a standard statement of terms and conditions of employment and

(c) whether she had Case Number 2501100/18 2 received benefits in the period between dismissal and securing a new job on 8 May at a better rate of pay.

[4]This hearing was due to commence at 11.30 . On 9th August the parties were informed by post of the change of start time from the originally listed one of 9.45. The claimant did not attend. Rule 47 provides in those circumstances I may dismiss the claim or proceed with the hearing in the absence of a party but before doing so consider all information available to me and make any enquiries that may be practicable about the reason for that party’s non-attendance. At my direction a member of tribunal staff placed a telephone call to the claimant’s mobile phone at approximately 11:50 pm. It went straight to voicemail.

[5]Nothing at all was heard from the respondent until, at approximately 10.30 this morning, he telephoned the tribunal saying he had a sick note, could not attend and wanted a postponement. He was informed by the clerk he had to apply in writing and because he had not entered a response he would only be entitled to be heard on remedy . He said he intended to apply for reconsideration of the judgment on liability. He emailed the tribunal 11:24 attaching a scanned sicknote saying he is not fit for work due to depression and alcohol problems. The doctor assessed his condition on 26 July but backdated the sick note to 22 June for a period of eight weeks expiring on 16 August .First this does not convince me the claimant was unable to attend the tribunal today because being unfit for work and being unable to attend a tribunal are entirely different matters. Second, it fails to explain why he has not contacted the tribunal in any way until this morning . None of the tribunal’s communications to the respondent have been returned by Royal Mail.

[6]The Rules include70. A Tribunal may, .. . on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. ..

71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal.. (2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. Case Number 2501100/18 3

[7]Rule 20 provides that if an application is being made for extension of time in which to file a response after the time limit for doing so has expired a draft of that response must be provided with the written application.

[8]The respondent’s email does not ask for reconsideration. Any application for one would be well out of time. The only ground for a reconsideration is whether one is necessary in the interests of justice. That means justice to both sides and to other litigants. Neither party has attended today and has given no good reason. The prejudice to other litigants would be that tribunal time which could be spent dealing with their cases is being needlessly expended dealing with a case in which the respondent has no sensible argument for not contacting the tribunal until today and the claimant no sensible argument for not attending. The Rules make provision for determinations without a hearing. Everyone is still entitled to a hearing if they follow the rules to avail themselves of that right. Tribunals send to every respondent very detailed explanations of what they must do, when they must do it and the consequences of not complying. This respondent has ignored the claim, a procedure followed which resulted in a judgment. To allow a respondent, who has not taken advantage of the opportunity to defend on liability to do so after a Rule 21 judgment would make a mockery of the system. Under the 2004 rules, DH Travel -v-Foster decided even where what was called a “default judgment” on liability was made , a respondent still had the right to be heard at the remedies hearing. The application of this under the 2013 rules has just been confirmed by the Court of Appeal in Office Equipment Systems Ltd -v- Hughes

[9]I do not think it would be just to dismiss the claim . Rather I shall deal with it in both arties absence and make awards which are the absolute minimum to which the claimant would be entitled.

[10]The common law provides a contract of employment may be brought to an end by reasonable notice. Dismissal without such notice is termed ”wrongful”. Damages for wrongful dismissal are the net pay due during the notice period (see Addis v The Gramophone Company) In this case the statutory minimum period is one week In the absence of the claimant I can do no more than estimate the deductions for tax and national insurance from he gross pay. My best estimate is that her net weekly pay would be £200.

[11]The law relating to unlawful deduction of wages in s13 of the Act which includes : “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions) the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.” The claim form sets out the claimant was not paid for 20 hours worked in March(£118 ) or anything for the month of April. Because April was not a completed month and I do not know which hours she worked, the best I can do is to divide her week’s pay by 7to get a day’s pay and multiply by the 26 days she worked That produces £ 810.83 which is slightly less than she has asked for. . Case Number 2501100/18 4

[12]There are two elements to compensation for unfair dismissal. The basic award is an arithmetic calculation set out in s 122 which having regard to the claimant’s age and length of service is half a week’s gross pay ( £ 109.15) . The compensatory award is explained in s 123 which as far as relevant says: (1) .., the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. I cannot make the enquiries I needed to make in order to quantify a compensatory award other than that for loss of statutory rights upon which I award less than the customary sum ( £350 ) due to the fact she had short service and was on low pay. The compensation for unfair dismissal is limited to the basic award and that element as the only compensatory award. ___________________________________ TM GARNON EMPLOYMENT JUDGE SIGNED BY EMPLOYMENT JUDGE ON 13th AUGUST 2018 Case Number 2501100/18 1 THE EMPLOYMENT TRIBUNALS Claimant Respondent Ms M Lockey Mr Jake Dodd t/a Alex Edward Salon

[1]The claim was served on 1st June 2018 on the business address of the respondent . A response was due by 29th June 2018 but none was received. I was required by rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material whether a determination could be made and , if so, obliged to issue a judgment which could have determined liability only or liability and remedy.

[2]I had in the claim form sufficient to enable me to find the claims proved on a balance of probability, and to find the claimant could show an exception to the need to have two years continuous employment to claim unfair dismissal that being she was dismissed for asserting her statutory right to be paid wages . I had some information on remedy but not enough. A remedy hearing was listed for 13 August to commence at 11:30 am.

[3]At 10:30 am the respondent telephoned the tribunal saying he had a sick note, could not attend and wanted a postponement. He was informed he had to make an application in writing. He said he intended to apply for a reconsideration of the judgment on liability. Case Number 2501100/18 2

[4]At 11:24 he emailed the tribunal attaching a scanned GP’s sick note which did not cover the period during which he could have been expected to respond to the claim. Not a week goes by when I or one of my colleagues do not have to deal with respondents who fail to submit a response in time but when they receive a judgment under rule 21 suddenly contact tribunal with some explanation for not having done so. The claimant did not attend the hearing either . I refused to postpone and gave judgment on remedy for the minimum amounts to which I could see from the limited information provided she would be entitled. I gave full written reasons for both judgments which I need not repeat.

[5]Explanations by respondents for not responding in time vary from obviously good to arguable to obviously bad. This had all the hallmarks of the last. The respondent submitted an application for reconsideration and a draft response. Under Rule 71 an application for reconsideration has to be made within 14 days of the date upon which the reasoned judgment was sent to the parties. The first contact from the respondent was well after the liability judgment, but I accepted the time should be extended for the same reason as I gave for not rejecting under Rule 72 (1).

[6]Under rule 72(1) I had to consider this application on a preliminary basis without a hearing. The respondent put forward one argument only to excuse his failure to respond to the claim being his ill health which had caused him not to attend the workplace so he did not know of the claim until he returned two months later. In the reasons for my judgment of 13 August, I said the sick note he had sent to the Tribunal was dated as effective from 22 June to 16 August which did not explain why he had not contacted the Tribunal until 13 August. The documents he sent subsequently revealed for the first time a sick note covering 25 May to 21 June, so one sent in earlier was a continuation of ill health, not the start of it. An Order was sent to the claimant seeking her views on the application to be provided by 17 September 2018. Also both parties were to inform the Tribunal by 25 September 2018 whether they believed the reconsideration application should be determined at, or without, a Hearing. Both requested a hearing.

[7]The tribunal has been sent by both parties documents and argument on the merits of the claim. The draft response indicated the respondent wishes to make an employers contract claim. I caused a letter to be sent to the parties on 27 September saying the only issue I was to decide today was whether the judgments I had issued should be revoked.

[8]Mr Dodd said due to his illness he had not attended the workplace from 25 May for at least two months. The claimant was accompanied by her mother. Both of them said Mr Dodd was at the workplace in June and they, together with a host of witnesses they could produce, had seen him there. They said this was simply another delaying tactic. Mr Dodd responded he could produce a host of witnesses to say was not there. None of these witnesses, apart from the claimant’s mother, was present today.

[9]The only ground for a reconsideration is whether one is necessary in the interests of justice. Since Parliament first introduced the procedure for issuing a judgment without a hearing where a respondent failed to put in a response , it has worked very well in many cases . However I am convinced Parliament never intended that where there was real Case Number 2501100/18 3 doubt as to whether the proceedings had come to the respondent’s attention, the judgment issued in default of response should be allowed to stand. The basic principle of justice is that everybody is entitled to a hearing.

[10]I cannot say I am absolutely convinced by Mr Dodd’s argument but there is a basis on which I could find he did not know about these proceedings. That basis consists of two medical practitioner sick notes. I cannot ignore them. It is not in the interests of justice to prevent a party who potentially has a reasonable excuse for not presenting a response within time to do so late . I therefore have decided to revoke the judgements, accept the draft response and set this case down for hearing. ------------------------------------------------ TM Garnon Employment Judge Date signed 8 November 2018 Case Numbers: 2501100/2018 & 2503401/2018 1 THE EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Ms Megan Lockey AND Mr Jake Dodd T/A Alex Edward

[1]The name of the respondent is amended to Mr Jake Dodd T/A Alex Edward.

[2]The claim of automatic unfair dismissal advanced pursuant to section 104 of the Employment Rights Act 1996 (“the 1996 Act”) is not well-founded and is dismissed.

[3]The claim of breach of contract – wrongful dismissal advanced by the claimant relying on the provisions of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”) is not well-founded and is dismissed.

[4]The claim for a declaration of unauthorised deduction from wages advanced by the claimant relying on the provisions of Part II of the 1996 Act is well-founded and the respondent is ordered to pay to the claimant forthwith the sum of £766.90 in respect of unpaid wages.

[5]The contractual counterclaim advanced by the respondent relying on the provisions of the 1994 Order is not well-founded and is dismissed. Case Numbers: 2501100/2018 & 2503401/2018 2

[6]No other claims were advanced to the Tribunal by either party. EMPLOYMENT JUDGE A M BUCHANAN