Mr K Hartley v Chemence Graphics UK Ltd (In Administration): 2600157/2020
JUDGMENT
Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 – Rule 21[1]The Respondent failed to comply with the requirements of Section 188 Trade Union & Labour Relations (Consolidation) Act 1992 and therefore the Tribunal makes a declaration that there was a breach of the provisions of that section.[2]The Tribunal accordingly makes a protective award in respect of the above named Claimant.[3]The protected period is a period of 90 days commencing on 23rd October 2019.[4]The Employment Protection (Recoupment of Benefits) Regulations 1996 may apply to this award.REASONS
[1]On 11th February 2021 I held a Preliminary hearing to review the claims advanced against the above named Respondent by multiple Claimants, one of whom was the Claimant named above.[2]That had followed on from earlier Orders which I had made on 14th April 2020 for the sort of information that I would have requested at an attended hearing to be provided by each of the Claimants. That information was necessary to enable me to ensure that the Claimants were entitled to the protective award that they sought before considering making a Default Judgment. It had not been possible to hold an attended hearing to deal with that as would have usually been the case because of the Covid-19 pandemic and given the number of Claimants involved a telephone hearing was impracticable.[3]The Claimant did not respond to those Orders nor reminders sent by the Tribunal to chase up a reply. Given that position at the hearing on 11th February 2021 I issued an Unless Order against the Claimant and other Claimants who had also not complied with the earlier Orders. That was on the basis that the delay which was occasioned by their non-compliance was prejudicing the other Claimants who had complied with Orders. It was made plain that if those Claimants did not respond at all, in full or on time their claims would be struck out without the need for further Judgment or Order. The Unless Order was sent to the Claimant on 19th February 2021 at the address stated on his Claim Form.[4]The Claimant did not comply with the Unless Order and neither did a number of other Claimants. He and those others who had not complied were duly informed by letter dated 20th March 2021 that their claims had been dismissed for non-compliance with the Unless Order.[5]On 2nd April 2021 the Claimant wrote to the Tribunal asking why his claim had been dismissed and expressing confusion as to that state of affairs and saying that he had “completed, signed and returned all correspondence received in relation to this claim confirming my intention to remain involved in the action”. He was the only Claimant of those whose claims had been dismissed to contact the Tribunal.[6]The Claimant was asked for a copy of the replies to the correspondence to which he had referred and, particularly, his reply to the Unless Order.[7]The Claimant replied saying this: “Apologies for the delay in my response, I have been to great lengths too (sic) ensure I have checked all my personal correspondence to ensure I have not missed anything pertaining to this tribunal. As stated in my previous mail, the only letter that I have received and returned was the claim form on 15/01/20 however I did not make a copy prior to returning. Since retuning (sic) this letter by Royal Mail I have not received anything further until the last communication that I referred to in my previous mail stating I had been excluded from the claim. I have not remained in contact with any of my previous colleagues until I received my last letter at which point I reached out to see what had happened only to discover that there has been some additional correspondence that I have not been aware of. I would have had no reason to have intentionally excluded myself from this claim as I was greatly affected but the closure of Chemence Graphics and am still struggling with the financial impact that this has caused to me and my family.”[8]I have taken the Claimant’s correspondence as an application for relief from sanction. The Administrator for the Respondent has been given the opportunity to comment on that application before it was determined. They have not done so.THE LAW
[9]Rule 38 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“The Regulations”) deals with Unless Orders and the position in respect of seeking relief from sanction. Rule 38 provides as follows: “38.—(1) An order may specify that if it is not complied with by the date specified the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the Tribunal shall give written notice to the parties confirming what has occurred.(2) A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.(3) Where a response is dismissed under this rule, the effect shall be as if no response had been presented, as set out in rule 21.”[10]Although decided prior to the introduction of the most recent incarnation of the Regulations the decision in Thind v Salvesen Logistics Ltd UKEAT/0487/09/DA still provides useful guidance as to the appropriate approach to relief from sanction applications in respect of the following: “The Tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the Unless Order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an Unless Order has been made, which of course puts the party in question squarely on notice of the importance of complying with the Order and the consequences if he does not do so, will always be an important consideration. Unless Orders are an important part of the Tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if Tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.”CONCLUSIONS
[11]Whilst I do find it somewhat difficult to understand how the Claimant managed not to receive any item of correspondence - all of which were sent to his address as set out on his ET1 Claim Form - other than the letter dismissing his claim, ultimately his contentions in that regard have not been challenged by the Respondent via the Administrators.[12]Given that position, as the Claimant contends that he has not received the Unless Order and that which went before it, it is in the interests of justice and appropriate to grant him relief from sanction.[13]I now no longer need the information Ordered to be provided given the responses of all other Claimants and so I will now proceed to issue a Default Judgment.