Mr N Gilliatt and Mr A Ewan v ATAG Cables & Tapes Ltd (in liquidation) : 2602996/2021 and 2600089/2022
JUDGMENT
[1]The Tribunal determines that:(1) The First Claimant’s unfair dismissal claim was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(2) The First Claimant’s breach of contract claim was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(3) The First Claimant’s claims of unlawful deductions from wages, except for his claim in respect of wages said to have been earned on 1 June 2022, was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(4) The First Claimant’s claim for a payment in lieu of accrued but untaken annual leave was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(5) The Second Claimant’s unfair dismissal was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(6) The Second Claimant’s breach of contract claim was presented out Case No: 2602996/2021 & 2600089/2022 10.2 Judgment - rule 61 February 2018 of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.(7) The Second Claimant’s claims of unlawful deductions from wages were presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present them within the time limit.(8) The Second Claimant’s claim for a payment in lieu of accrued but untaken annual leave was presented out of time and the Tribunal is not satisfied that it was not reasonably practicable to present it within the time limit.[2]All of the claims that the Tribunal has determined to be out of time are struck out pursuant to rule 37 of the Employment Tribunals Rules of Procedure, as having no reasonable prospect of success.[3]The final hearing on 27-28 July 2022 will remain listed, and will be used to resolve those claims which have not been struck out. Separate case management orders have been issued in respect of those matters.REASONS
[1]The first claimant, Mr Nigel Gilliatt, made a claim for unautorised deduction of wages. This was in regard to him not being paid for the 1 June 2021, the date of termination of employment. It was agreed between the first claimant and the respondent that this would have been paid on 31 July 2021. This Case No: 2602996/2021 2600089/2022 meant the claim was in time. It was further agreed by the parties that the gross pay for this day was £90.60. It was agreed that the respondent would pay the first claimant this amount. Case Management Orders[2]At the Preliminary Hearing, on 26 April 2022, case management orders were made for a file of documents to be agreed between the parties. The respondent was ordered to prepare an indexed file of those documents and send the file to the claimant by 23 May 2022. The respondent was further ordered to bring a copy of the file to the hearing for use of the tribunal. Such a file had not been agreed and prepared.[3]In addition, I did not have before me what could clearly be recognised as witness statements. Instead, I had from the first claimant letters addressed to the respondent as detailed below:(i) A seven page letter with ten pages of attachments, dated 4 March 2022.(ii) A seven page letter with four pages of attachments, dated 11 March 2022.(iii) A seven page letter, dated 4 June 2022.[4]From the second claimant, Mr Andrew Ewan, I had before me a two page, undated letter, addressed “to whom this may concern”.[5]Also, before me I had a one page witness statement from Mr Martin Osterman, dated 10th May 2022, and an undated one page letter from Mr Stephen Burrows.[6]From the respondent I had before me the following:(i) An 18 page document titled “Notes and Evidence about the above claim”, with 82 pages of attachments divided into 17 appendices.(ii) A three page response to the first claimant’s 4 June 2022 letter, with three appendices in three pages of attachments, dated 1 July 2022.(iii) A two page response to the second claimant’s undated letter, with four appendices in four pages of attachments, dated 1 July 2022.(iv) A one page response to the witness statement of Mr Osterman, with five appendices in five pages, dated 1 July 2022.(v) A one page response to the undated letter of Mr Burrows, dated 1 July 2022.(vi) A one page letter addressed “Your Honour”, with one appendix of one page, dated 1 July 2022.[7]All of the 1 July 2022 documents from the respondent had been placed in a bundle along with the documents to which they responded.[8]At the start of the hearing I explained to all parties my concerns that the case management orders had not been complied with. I asked for submissions whether we could continue today. All parties were of the view that they wanted to continue and adopt as evidence the documents they had Case No: 2602996/2021 2600089/2022 submitted. I considered that as all parties were litigants in person, and as the issue was narrow, that it was in the interests of justice to proceed. Witnesses[9]The respondent stated that he intended to call evidence from three witnesses in attendance. The witnesses were Mr Lee Clucas, Mr Dennis Wilson and Mr Peter Mchowan. Although there were no formal statements from the proposed witnesses there were documents from them in the respondent’s appendices. I expressed concerns that formal statements had not been submitted for these witnesses. Both claimants also wanted the witnesses to give evidence. I decided as all parties agreed that it was in the interests of justice to allow the witnesses to give evidence. Although documents were submitted by the claimants for Mr Osterman and Mr Burrows, they were not in attendance and there was no proposal made by the claimants for them to give evidence. Claims and Issues[10]Each claimant has presented a claim for a statutory redundancy payment.[11]At the start of the hearing, I confirmed with the parties the following were the issues for each claimant.(i) Has the claimant been continuously employed for a period of not less than two years ending with the date of termination of employment?(ii) If so, was the claimant dismissed by the respondent?(iii) Was redundancy the reason the claimant was dismissed? If the claimant was dismissed, it will be presumed that this was by reason of redundancy, unless the respondent proves otherwise (Employment Rights Act 1996, section 163(2)).(iv) If redundancy was the reason, is the claimant entitled to a redundancy payment and if so how much. .[12]The respondent confirmed at the hearing it was accepted that both claimants had been employed for a period of not less than two years. The respondent considered there had not been a dismissal but instead that the claimants had both resigned by agreeing with the respondent to terminate their contracts in a mutual termination of contract agreement The respondent asserted the reason for the resignation were the actions of the claimants’ of gross misconduct in stealing copper.[13]The claimants’ cases were that they were dismissed, having been left with no choice but to sign the mutual termination of contract letters. The claimants argued that the dismissal for gross misconduct was a sham so that they did not have to be paid redundancy. The theft of copper was not denied but instead it was argued that action was only taken to avoid redundancy payments. Case No: 2602996/2021 2600089/2022 Procedure, Documents and Evidence[14]Both claimants gave evidence, adopting documents detailed above (paragraphs 3 and 4), and were questioned by the respondent. Mr Andrew Graham, the Director of the respondent, also gave evidence, adopting the documents detailed above (paragraph 6). He was questioned by both claimants. The respondent chose not to call the other witnesses and was advised that without them giving evidence little weight could be placed on documents from those witnesses in the appendices to the documents.Findings of Fact
[15]Both claimants worked for the respondent as Process Operators. Both claimants had sixteen years of service.[16]The respondent purchased Nottingham Cables Limited, a cable manufacturer, in November 2019. The previous owner of Nottingham Cables Limited, Mr Burrows, was retained as a consultant and was to manage the day to day operations of the respondent’s business.[17]The four employees, at the time of the sale of Nottingham Cables Limited, were transferred to the respondent’s business.[18]One of the employees, Mr Ian Strickland, who ran the extruder machine, left employment almost immediately after the respondent took over. This left three employees who were the claimants and Mr Osterman.[19]The first claimant mainly ran the taping process and the second claimant undertook bunching. Mr Osterman worked in both bunching and taping.[20]The departure of Mr Strickland meant the company was no longer able to make cables and therefore became a bunching and taping facility only.[21]Trackers on a company vehicle identified that Mr Burrows had twice visited a local scrapyard in July 2020. This ultimately led to an internal investigation by the respondent, into whether copper wire was being removed from the company premises. Both claimants were interviewed as part of the investigation. It was considered by the respondent that there were substantial discrepancies between the amount of copper coming in and going out of the factory.[22]On 12 August 2020, Mr Burrows admitted to the respondent that copper was being removed. He stated it was in small amounts and had been normal for many years. The proceeds were shared among the workforce. The respondent decided to allow Mr Burrows to continue working, but it was made clear to him that as the manager it was his responsibility to ensure that the theft of copper ended.[23]I do not find that there is evidence as asserted by the first claimant that Mr Graham received money for the sale of copper. The first claimant did not himself see such and no direct evidence was given of such taking place. Mr Graham denied receiving such money and this is accepted. Case No: 2602996/2021 2600089/2022[24]Since February 2021, a camera had been fitted in the factory for insurance purposes.[25]Before May 2021, Mr Dennis Wilson and Mr John Briggs had been contracted by the respondent to work on improving processes, and carrying out maintenance on machines, in the factory.[26]In May 2021, it was reported to the respondent by Mr Wilson that several 25kg bags of copper had been found hidden behind a machine.[27]The respondent watched video from the cameras that has been fitted in the factory. The video showed seven bags of copper being found behind a machine. The video showed earlier that day the first claimant and second claimant, through a mechanism they had set up, removing copper from a reel and placing it in bags. The claimants could later be seen, along with Mr Burrows, removing and loading the bags into Mr Burrows’ car.[28]On 1 June 2021, both claimants were invited for a meeting. They were both told by the respondent that they could either enter a “mutual termination agreement” or be dismissed for gross misconduct with the matter referred to the police. Both claimants eventually signed the “mutual termination agreement” that day.[29]The third employee, Mr Osterman, was also invited to the meeting. He had resigned previously but had not given notice in writing. Although there was no evidence of him being involved in the May incident he also signed a “mutual termination agreement”. Mr Burrows was also invited to the meeting and his consultancy was terminated.[30]Following the termination of the claimants’ contracts, on the 1 June 2021, Mr Wilson proposed that the respondent subcontracted the only contract they had left to Cable and Taping UK Limited. Mr Wilson is the Director of that company. The respondent took up the proposal. Without doing so, the respondent would not have been able to complete the contract. Both the claimants and Mr Burrows undertook work with Cable and Taping UK Limited on this contract. The second claimant began such work on 7 June 2021 and left on 10 June 2021. The first claimant continued until the contract ended, which was before the respondent went into Creditors Voluntary Liquidation.[31]In October 2021, the respondent entered Creditors Voluntary Liquidation.Law
[32]Section 135 Employment Rights Act 1996 requires an employer to pay a redundancy payment to an employee who is dismissed by reason of redundancy.[33]Section 163(2) Employment Rights Act 1996 creates, on a claim for a statutory redundancy payment, a presumption that an employee who had been dismissed had been dismissed for redundancy unless the contrary is proved. Case No: 2602996/2021 2600089/2022[34]In Martin v Glynwed Distribution Ltd 1983 ICR 511, CA, Sir John Donaldson MR sated: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment”. If the answer is the employer, there was a dismissal.’ Conclusions Has the claimant been continuously employed for a period of not less than two years ending with the date of termination of employment?Conclusions
[35]Both claimants had, at the time of dismissal, 16 years of service. No issue was taken by the respondent on this. Was the claimant dismissed by the respondent?[36]I find that the claimants’ were dismissed by the respondent. It was clearly the actions of the respondent, giving the claimants no feasible alternative than to resign, that terminated the contract. In the alternative they would have been reported to the police along with being dismissed. Was redundancy the reason the claimant was dismissed? If the claimant was dismissed, it will be presumed that this was by reason of redundancy, unless the respondent proves otherwise (Employment Rights Act 1996, section 163(2)).[37]The respondent has proven that the reason for dismissal was not redundancy (Employment Rights Act 1996, section 163(2)). The respondent had investigated theft of copper in 2020 and there was clear evidence of theft of copper by the claimants in May 2021. The reason for the dismissals was therefore misconduct.[38]I do not find that the dismissals were contrived to avoid redundancy payments. The claimants would have been aware from their interviews, in the 2020 investigation, that theft of copper was not acceptable to the respondent. Yet, theft of copper took place in May 2021. The contracting out to Cable and Taping UK Limited followed from the dismissal of the claimants. The respondent no longer had a workforce to complete the contract. It was not until October 2021 that the respondent went into Creditors Voluntary Liquidation; several months after the dismissal of the claimants. _____________________________ Employment Judge Cansick Date: 27 October 2022 Case Number: 2602996/2021 2600089/2022 1 of 4 EMPLOYMENT TRIBUNALS Claimant:(1) Mr N GIlliatt(2) Mr A Ewan Respondent: ATAG Cables and Tapes Limited (in creditors voluntary liquidation)Conclusions
[1]The first claimant, in a letter dated the 28 October 2022 but received by the tribunal on 7 December 2022, stated that both he and the second claimant wish to appeal. As the letter is addressed to me, rather than the Employment Appeals Tribunal, I have understood this to be an application for reconsideration.[2]As the tribunal received the letter on 7 December 2022, I have taken this to be the date of the application for reconsideration. The application for reconsideration is therefore brought after the 14-day deadline. For that reason alone, the application might be refused. However, as the claimants are unrepresented, I have considered the application.[3]Although the application was received on 7 December 2022, due to an administrative oversight, partly for which I was to blame, I did not become aware of it until February 2022. I apologise to both claimants that they did not receive a response to the application sooner. Case Number: 2602996/2021 2600089/2022 2 of 4[4]The claimants’ claims for statutory redundancy payments were dismissed by a reserved judgment dated 27 October 2022, following a two-day hearing on 27 and 28 July 2022. Applicable Rules[5]The power to confirm, vary or revoke a judgment is found at Rule 70. That provides that a judgment can be reconsidered “if it is in the interests of justice to do so”.[6]Rule 72(1) provides: “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. …”[7]Where an Employment Judge refuses an application following the application of Rule 72(1), then it is not necessary to hear the application at a hearing. Rule 72(3) provides that the application for reconsideration should be considered in the first instance, where practicable, by the same Employment Judge who made the original decision. I am the judge who made the decision in respect of which the claimants make this application for reconsideration.[8]The interest of justice in this case should be measured as a balance between both parties; both the applicant and the respondent to a reconsideration application have interests which much be regarded against the interests of justice (Outasight VB Limited v Brown [2014] UKEAT/0253/14). Grounds and reasons of reconsideration application[9]The application for reconsideration appears to be made on the following grounds (in summary): 9.1. That the respondent’s Director, Mr Graham, fabricated the costs of repairing machines. 9.2. That the claimants did not remove any material from the factory. They did as they were told to do. An accompanying letter from Mr Burrows will detail that Mr Graham (the respondent’s Director) sanctioned the taking of materials.[10]A letter was received by the Tribunal, from Mr Burrows, on 8 December 2022. In that letter Mr Burrows detailed that Mr Graham had initially told him that scrap copper wire could be sold at the scrap yard and the money from such used to purchase consumable items at the factory. He further detailed that following the July 2020 investigation, he agreed with Mr Graham that the scrap copper would continue being sold at the scrap yard but the proceeds would now be shared with Mr Graham. Mr Burrows enclosed four receipts with his letter made out to him from Metal Management Ltd for bright copper wire. The receipts are dated September 2020 and January, February, March 2021. They are for amounts of £429, £217, £285 and £307 respectively. Each receipt has handwritten on it “Paid Andy” then details an amount of around half of the value in each receipt, before adding “Cash” after such. Case Number: 2602996/2021 2600089/2022 3 of 4 Decision on the reconsideration application[11]The hearing was the claimants’ opportunity to give information, ask questions and raise issues, which they did.[12]A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can adequately explain why the matter was not raised before. Such matters also need to be relevant to the issues in the claim.[13]I am not sure of the significance of the cost of repairs to machines or the arguments the claimants are making regarding this. If this was relevant to the issues in the claim the claimants could have argued such at the hearing.[14]The claimants’ assertion that the sale of copper wire was sanctioned by Mr Graham is detailed further in the letter by Mr Burrows. Mr Burrows details that the sale of scrap copper wire was agreed by Mr Graham and the proceeds were shared with him. If such was established it could be relevant to whether the reasons for the dismissal (theft of copper wire) was a sham as advanced by the claimant. However, it was advanced by the claimants at the hearing that Mr Graham was receiving payment for the copper wire. I did not consider there was evidence establishing such.[15]I note that Mr Burrows could have given evidence at the hearing. The claimants in advancing that Mr Graham was paid for copper wire would have known that this evidence could be relevant to their claim. No explanation has been given by the claimants as to why Mr Burrows did not give evidence at the hearing. No application was made at the hearing for him to give such or to adjourn for such.[16]I do not consider it would be in the interests of justice to consider the new evidence. It would not be fair for the respondent to be prejudiced by reconsideration of the judgment because the claimants have now decided to put forward new information, from a witness that would have been known to them before the hearing. I, therefore, consider there is no reasonable prospect of the original decision being varied or revoked.[17]I should also make clear that I have not accepted that Mr Burrows, letter establishes Mr Graham was part of an agreement to sell copper wire. This is a letter from someone likely on bad terms with Mr Graham and the documents submitted with it do not demonstrate there was an agreement with Mr Graham. The handwritten note on the receipts could have been added at any time and is not evidence establishing a payment has been made. My finding that Mr Graham did not receive money from the sale of copper wire remain. I also note that the focus of Mr Burrows letter is on scrap copper wire, while the reasons for dismissal of the claimants was found to be theft of copper wire rather than scrap copper wire.[18]I do not doubt that the claimants are unhappy with the judgment but, for all of the reasons outlined here, the claimants’ application for reconsideration of the judgment in their case is refused. Case Number: 2602996/2021 2600089/2022 4 of 4