Ms EJ Russell v Francis W Construction Ltd: 2502229/2019
EMPLOYMENT TRIBUNALS
Case No 2502229/2019
Between
Ms EJ RussellClaimantFrancis W Construction LtdRespondent
Before
Employment Judge Russell FDate 23 June 2020
REASONS
[1]The claim was presented on 3 July and served on 10 July 2019 by being sent to an address which I have checked today corresponds precisely with the address of the respondent’s registered office as revealed by a Companies House search. The claimant commenced Early Conciliation (EC ) on 8 May and ACAS issued the EC certificate on 20 June which suggests ACAS contacted the respondent who engaged in conciliation for longer than the usual four week period . A claim may be validly served on a limited company either at its registered office. I am convinced the claim has been validly served on the respondent.[2]A response was due by 7 August 2018 but none was received. An Employment Judge is required by rule 21 of the Employment Tribunals Rules of Procedure 2013 (the Rules) 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.[3]I have in the claim form sufficient information to enable me to find the above claims proved on a balance of probability but not a claim for which the claimant has “ticked the box” in part 8 of the form for a redundancy payment . I do not have enough to determine the sums to be awarded. The claimant has sent in a schedule of loss and I have noted it contains certain requests, such as a judgment against the directors personally and other companies they control, which cannot be awarded. I believe a remedy hearing is needed 4.As for the applicable law ,the common law provides a contract of employment may be brought to an end by reasonable notice unless the respondent can prove gross misconduct. Dismissal Case Number 2502229/2019 without such notice is termed ”wrongful” and damages are the pay the claimant would have received during the notice period less any sums received in mitigation of loss.[5]The Working Time Regulations 1998 say in Regulation 14 that where a worker's employment is terminated during the course of a leave year, and, on the date on which the termination takes effect, the proportion she has taken of the leave to which she is entitled in the leave year differs from the proportion of the leave year which has expired, her employer shall make a payment in lieu of untaken leave[6]The law of unfair dismissal is in Part X of the Employment Rights Act 1996 (the Act). Compensation for unfair dismissal comprises two elements. The first, called a basic award, is an arithmetic calculation based on the claimant’s date of birth and length of service. The second element is the compensatory award calculated in accordance with s 126 of the Act . TM Garnon[8]On 19 September the claimant objected to the application giving detail of why some of the respondent’s arguments simply defied documentary evidence she produced. On 20 September I considered the application on a preliminary basis under rule 72. I could not say it had no reasonable prospect of success without hearing argument to excuse failure to respond to the claim. In reconsideration applications arguments are regularly put that crucial documents have not been received. I always in such cases direct myself to be wary of cynicism. I have heard many fanciful “lost in the post” arguments but some genuine ones. However, in those cases and this one the more letters from the Tribunal and from one party to another are sent, the less chance there is of genuine oversight.[9]Rule 2 of the Rules provides: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, in so far as practicable –(a) ensuring the parties are on an equal footing(b) dealing with a case in ways which are in proportionate to the complexity or 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(e) saving expense A Tribunal or Employment Judge shall seek to give the effect to the overriding objective in interpreting, or exercising any power given to it by the 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[10]My reason for emboldening the word “ cases” is that it is not only this case which Employment Judges have to manage and Tribunal staff have to deal with The overriding objective is a concept created when the Civil Procedure Rules were reformed under the direction of Lord Woolf in the early 1990s. His Lordship emphasised in a number of cases, notably , Beachley Properties v Edgar, that the concept of ensuring just handling of cases was not confined to the case in question. The proper administration of justice was not to be disrupted by parties’ failure to comply with orders or other forms of unreasonable behaviour. Similar points were made by the Court of Appeal in Arbuthnot Latham Bank v Trafalgar Holdings and Adoco Limited v Jemal.[11]Article 6 of the European Convention on Human Rights provides everyone is entitled to a fair hearing within a reasonable time. That right must be afforded without discrimination on any ground including disability. In Riley v The Crown Prosecution Service 2013 IRLR 966 the Court of Appeal emphasised that is an entitlement of both parties. It is also an entitlement of other litigants that they should not be compelled to wait for justice more than a reasonable time.[12]Kwik Save-v-Swain and Pendragon plc-v-Copus are commonly cited authorities which concern delay in responding, as Mummery P said in Kwik Save, “ as the result of a genuine misunderstanding or an accidental oversight “. A Tribunal should be “ more willing to allow the late lodging of a response “ if there had been a genuine mistake. These cases were under earlier and different versions of Employment Tribunal Rules.[13]The 2013 Rules were intended to be a modernised system, designed to do justice between the parties but requiring the respondent to the claim to put forward its defence in a prescribed way at a prescribed time. The system also made far greater provision for determinations without a hearing. Everyone is still entitled to a fair hearing if they follow the Rules to avail themselves of that right. Employment Tribunals send to every respondent very detailed explanations of what they must do , when they must do it and the consequences of not complying.[14]In my view the history of the claimant’s attempts to appeal and engage in EC combined with the number of communication sent by her and the Tribunal to the respondent which were ignored tend to suggest this respondent ignored the claim hoping it would fade away. I fully accept Mr Ward is dyslexic and Mr Howard was ill , though he attended the workplace for short times. I cannot accept any solicitors would have told Mr Ward he need do nothing before the hearing date. Mr Ward must have been expecting a claim after EC and took no reasonable steps to have documents read to him. A procedure followed which resulted in a judgment and only then did the respondent act . It would cause the claimant the Tribunal and other litigants delay and expense to revoke the judgment and start afresh. To allow a respondent in these circumstances , who has been given but not taken advantage of the opportunity to defend, to do so after a Rule 21 judgment would make a mockery of the system. I therefore confirm the original judgment in its entirety.[15]Following a Rule 21 judgment on liability only, a respondent who has not put in a response is entitled to be heard on remedy. Mr Goldup said he appreciated this was not an opportunity to run a liability defence in disguise TM Garnon CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the amended Judgement sent to the parties on 25 February 2020, is corrected by amending the title of the Respondent to Francis W Construction Ltd. Employment Judge Martin 23 June 2020 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. THE EMPLOYMENT TRIBUNALS Claimant: Miss EJ Russell Respondent: Francis W Construction Limited Heard at: Teesside Justice CentreOn: Tuesday 14th January 2020 Before: Employment Judge Martin Members: Representation: Claimant: In Person Respondent: Mr Cameron (Employment Consultant)[1]The claimant’s complaint of breach of contract (notice pay) is well-founded. The respondent is ordered to pay the claimant the sum of £699.02.[2]The claimant’s claim for breach of the Working Time Regulations (Holiday Pay) is well-founded. The respondent is ordered to pay the claimant the sum of £91.28.[3]The claimant is awarded compensation for unfair dismissal as follows:- Basic award 2x 1.5 x £456.40£1,369.20 Compensatory award Immediate loss £349.51 5th March – 13th March 13th March – 1st October £1,001.31 (30.5 weeks difference in earnings from wages received to what would have been earnings with the respondent at the rate of £32.83 per week 1st October – 14th January 2020£627.45 (15 weeks £41.83 being the difference in salary between the claimant’s current employment with the respondent Pension Loss 13th March – 1st £320.85 October 2019 Subtotal £2,299.12 Future loss 6 weeks £41.83£250.98 Loss of statutory rights £500.00 Uplift for failure to follow ACAS Code of Conduct at rate of 20% £610.00 Total compensatory award for unfair £3,660.10 dismissal Total award for compensation for £5,029.30 unfair dismissal[4]The Employment Tribunal (Recoupment of Benefits) Regulations 1996 apply to this award. The prescribed period is 20th February 2019 – 13th March 2019. The prescribed element is £349.51. EMPLOYMENT JUDGE MARTIN