Mr J Paulucci v Oxdale Products Ltd: 2602036/2022
JUDGMENT
[1]The response is struck out on the grounds that it has no reasonable prospects of success.[2]Rule 21 of the Rules of Procedure therefore applies. In accordance with that Rule, Employment Judge Camp has decided that on the available material a determination can properly be made of the claim.[3]The respondent made unauthorised deductions from the claimant’s wages in the sum of £1784.61 and must pay that sum to the claimant.[4]In accordance with section 25(4) of the Employment Rights Act 1996, the amount the respondent is entitled to recover by whatever means in respect of the monies the claimant is alleged to have defrauded the respondent of is reduced by the said sum of £1784.61.REASONS
[1]I [the Employment Judge] refer to my previous orders in this matter, in particular to the orders contained in the Tribunal’s letters that were sent to the parties by email on 17 February 2023 at 09:57 hrs, 10:37 hrs and 12:01 hrs.[2]In the order sent at 12:01 hrs, I gave reasons why I took the view that the response had no reasonable prospects of success and why I thought judgment should be given in the claimant’s favour for £1784.61. In particular, I explained that counterclaim and set-off are not available as defences to a claim for unauthorised deductions from wages in the Employment Tribunals. I refer to and repeat those reasons.[3]I gave the respondent until 24 February 2023 to raise any objections to my proposal to strike out the response and to give judgment under rule 21 in the sum of £1784.61.[4]In emails sent to the Tribunal on 23 and 24 February 2023 (in relation to both of which the respondent failed fully to comply with rule 30, despite being explicitly prompted to do so), the respondent expressed a wish “to appeal the decision made on 17.02.23 in regards to 1 of 2 Case Number: 2602036/2022 case number 2602036/2022”. I am not sure what decision made on 17 February 2023 is being referred to, and any appeal is a matter for the Employment Appeal Tribunal and not for me, but in the context I take those emails to be, or at least to contain, the respondent’s objections to the proposal.[5]In the emails, the respondent raises two substantive points. The first is a submission that the claim was dismissed pursuant to an unless order I made on 16 February 2023, varied the following day. What that submission ignores is that I set aside that unless order just before it took effect – see the letter contained in the email sent by the Tribunal on 17 February 2023 at 10:37 hrs. The second point is to repeat a submission that it would be unjust to give judgment in the claimant’s favour in circumstances where, allegedly, the claimant has defrauded the respondent of tens of thousands of pounds. Unfortunately for the respondent, that second point does not affect the position: as already explained, counterclaim and set-off are not available as defences in the Employment Tribunal to the kind of claim the claimant is making. That is the law and my job as a Judge is to apply the law. I have no discretion not to apply the law even if I consider the outcome to be unjust in a particular case.[6]Finally, I note paragraph 4 of the above Judgment. What this means is that any debt the claimant owes the respondent is reduced by £1784.61 and the respondent still owes the claimant the judgment sum of £1784.61 even after that reduction has been made. In other words, if, as the respondent alleges, the claimant owed it £34,873.69, the claimant now owes it £31,304.47 (£34,873.69, less £1784.61, less the above judgment sum of £1784.61). The respondent could have avoided this outcome by paying the claimant the amount owed. Had it paid the claimant the amount owed, it could then have made a claim against the claimant in the County Court for the full amount allegedly owing.