Mr Carl Telford v Adam Whitehead: 2601828/2019
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimant was unfairly dismissed by the respondent. The respondent is ordered to pay to the claimant; A basic award £1000.00 A compensatory award £500.00 Total £1500.00 The recoupment regulations do not apply.[2]The claimant was dismissed in breach of contract in respect of notice and the respondent is ordered to pay damages to the claimant in the sum of £1,000.00 Employment Judge Hutchinson _____________________________ Date: 11 November 2019 Case No: 2601828/2019 Page 1 of 4 EMPLOYMENT TRIBUNALS Claimant: Mr C Telford Respondent: Adam Whitehead Heard at: Nottingham On: Friday 24 January 2020 Before: Employment Judge Hutchinson (sitting alone) Representatives Claimant: No appearance Respondent: In person[1]The judgment dated 11 November 2019 and sent to the parties on 12 November 2019 is hereby revoked. The response has been accepted.REASONS
[1]A claim was presented on 19 June 2019 to the Employment Tribunal in the name of Tammy Telford naming the Respondent as Adam Whitehead and accompanying that claim form was an ACAS Early Conciliation (EC) certificate in the name of Carl Telford.[2]The claim was rejected because the name of the Claimant on the early conciliation certificate was not the same as the name of the Claimant in the claim form.[3]On 4 July 2019 an application was made to reconsider the decision by Mr Telford explaining that he had used his wife’s iPad to submit the claim form which had automatically entered his wife’s details.[4]The claim was accepted. Case No: 2601828/2019 Page 2 of 4[5]The Claimant had he said been employed as a plumber between 10 January 2017 and 14 March 2019 and he claimed unfair dismissal and breach of contract in respect of notice.[6]When the papers were sent to Mr Whitehead the claim form was still in the name though of Tammy Telford.[7]Case management orders were made on 10 July 2019 and the Respondent was ordered to file a response at the Tribunal office by 7 August 2019 if he wished to defend the claim. No response was received by that date and the Tribunal wrote to the Claimant asking for details of his financial losses so the Tribunal could issue a judgment under rule 21 of the Employment Tribunal Rules of Procedure 2013 on the grounds that a defence had not been presented.[8]On 29 August 2019 an e-mail was received from Mr Whitehead.[9]The e-mail explained that the Claimant had not provided details of his claim and asked the Claimant to retract his claim due to insufficient information.[10]On 17 September 2019 Mr Whitehead wrote again saying that he had still not received the further information and asked to advise on what further action should be done. He still had not presented a response to the claim.[11]The Tribunal did not though reply to these e-mails.[12]On 28 September 2019 Employment Judge Camp wrote to the Claimant saying that he was considering striking out his claim because he had not been actively pursuing it because he had not provided details of the financial claim.[13]This was chased on 11 October 2019 and finally the Claimant provided his financial details on 24 October 2019.[14]The Tribunal wrote again to the Claimant on 29 October 2019 at my instruction saying that I proposed issuing a default judgment for unfair dismissal and for notice pay and asking whether he agreed to the amounts that I set out in the letter.[15]Mr Whitehead wrote again on 5 November 2019 saying that Mr Telford was not employed by the company and that he was a subcontractor to Palms Facilities.[16]In response to that letter on 12 November 2019 the Tribunal wrote to the Respondent to say that I had issued a default judgment as he had not responded to the claim. The default judgment was dated 11 November 2019 and sent to the parties on 12 November 2019.[17]On 14 November 2019 Mr Whitehead wrote again disputing the claim but still not presenting any ET3.[18]On 11 December 2019 the Tribunal wrote again to Mr Whitehead saying that he had written in on a number of occasions but had still not filed an ET3 response and that any request for a reconsideration could not be granted until he had filed an ET3. Case No: 2601828/2019 Page 3 of 4[19]Finally, on 11 December 2019 Mr Whitehead filed the ET3 with a request to reconsider the judgment issued against him.[20]This matter was then listed for a reconsideration hearing and a notice was sent to the parties on 4 January 2020.[21]In advance of the hearing Mr Whitehead had sent in a large bundle of documents which he had also copied to the Claimant. The hearing today[22]Mr Whitehead attended but the Claimant did not. I asked the clerk to telephone the Claimant to see if he was attending and the message I received was that the Claimant was unwell and would e-mail a request for the hearing to be vacated. No other details were provided at that time. It was 10:15 am and the Claimant should have telephoned prior to the commencement of the hearing with an explanation if he could not attend the hearing.[23]I considered the circumstances of the case and decided it was appropriate for me to continue. The claim related to the Claimant’s dismissal on 14 March 2019 and this matter had been listed for a reconsideration hearing since 4 January 2020. I took into account all the other circumstances and decided that the Claimant would be unable to add much to what he has already put in his claim form and I assumed that he would tell me that he objected to the judgment being revoked.The law
[24]Reconsideration of judgments is dealt with in rule 70-73 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[25]Rule 70 provides: “A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[26]In deciding whether it is in the interests of justice to revoke a judgment I have to deal with the case fairly and justly. I have to consider whether prejudice is caused in respect of each of the parties and balance the prejudice caused on both sides. Mr conclusions[27]I am satisfied in this case that the claim was originally submitted in the name of Tammy Telford and although this was rectified by the Claimant confirming that he was the Claimant in this matter, when the claim form was served upon the Respondents it was in the name of Tammy Telford because the Tribunal had not amended the details on the claim form. Case No: 2601828/2019 Page 4 of 4[28]Before the judgment was made by me on 11 November 2019 the Respondent had written to the Tribunal about the claim but had not received any response. Clearly the Respondent was confused by the claim form that was issued in the name of Tammy Telford.[29]The Respondent Mr Whitehead is the Director of a company called Palms Facilities Limited and he has produced to me invoices that the Claimant submitted to that company as well as some invoices directed at him personally. I also take into account that he was unrepresented and am satisfied he was confused by the name of the Claimant n the claim form and had not received any reply to his correspondence with the tribunal. I am satisfied that there is doubt as to who was the Claimant’s employer if indeed he was employed.[30]He also asserts that Mr Telford was in fact self-employed as a subcontractor and if a Tribunal agreed with that contention then the Claimant would not be entitled to claim unfair dismissal or breach of contract in respect of notice.[31]I am satisfied that Mr Whitehead would suffer substantial prejudice if I did not revoke the judgment and although Mr Telford will suffer prejudice by the revoking of the judgment that prejudice is outweighed by that of Mr Whitehead as there are triable issues between the parties. On the face of it Mr Telford would receive a windfall if I did not allow the case to proceed to a trial.[32]In all the circumstances I am satisfied that it is in the interests of justice to set the judgment aside and to list the matter for a Preliminary Hearing to determine whether the Claimant was employed and if so by whom.