Ms S F Wong and Others v Ara Catering Services Ltd: 3201857/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 3201857/2024, 3201858/2024, 3201859/2024
Between
Ms S F Wong and OthersClaimantAra Catering Services LtdRespondent
Before
Employment Judge MassarellaIn person for claimantNot represented for respondentDate 8 October 2025
JUDGMENT
The judgment of the Tribunal on liability and remedy is that: -[1]The Respondent made unauthorised deductions from the wages of the First Claimant (Ms Wong) in the net amount of £6,784.76.[2]The Respondent made unauthorised deductions from the wages of the Second Claimant (Mr Li) in the net amount of £5,530.52.[3]The Respondent made unauthorised deductions from the wages of the Third Claimant (Mr Wu) in the net amount of £5,921.01.[4]The sums above having been awarded net, they shall be paid to the Claimants without any deductions. The Respondent shall be liable Case Numbers: 3201857/2024 3201858/2024 & 3201859/2024 to the Inland Revenue for tax and national insurance referrable to these sums
REASONS
[1]By email of 11 August 2025 the Respondent applied for reconsideration of my judgment on liability and remedy in relation to the Claimants’ claims, sent to the parties on 31 July 2025.[2]The grounds are as follows [original text and format retained]: ‘We would like to apply the judge re-consider the case. It was because , we don have any hearing date information before hearing date change. And the company owner and Director had been Change from 15 July 2025. So, for the justice fair, we would request the judge reconsider . And then , our contact address and email had been change from 15 July 2025 New address: 662A Basement , Highroad Leytonstone, E11 3AA Email : ara-aquila@outlook.com Personal in charge : Mr.Chen’
The law
[3]The Tribunal thus has discretion to reconsider a judgment if it considers it in the interests of justice to do so.[4]Under rule 70(2), I must dismiss the application if I consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined: T.W. White & Sons Ltd v White, UKEAT/0022/21 (a case under the 2013 rules, which are in substantially the same terms as the 2024 rules).[5]If I consider there are reasonable prospects, I must (under rule 70(4)) consider whether a hearing is necessary in the interests of justice to enable the application to be determined. If, however, I decide that it is in the interests of justice to determine the application without a hearing, then I must give the parties a reasonable opportunity to make further written representations (rule 70(5).[6]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the ground for reconsidering Judgments (the interests of justice, rule 68) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2013 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the (then new) 2013 rules. The same must apply to the 2024 rules.[7]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[8]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[9]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P, held at paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[10]The test for determining whether fresh evidence is to be admitted is that laid down in Ladd v Marshall [1954] 1WLR 1489. The party seeking to adduce the fresh evidence must show:(1) that the evidence could not have been obtained with reasonable diligence for use at the original hearing,(2) that it is relevant and would probably have had an important influence on the hearing, and(3) that it is apparently credible. Assessment of the application under Rule 70(1) and (2)[11]The original notice of hearing was sent to the parties on 9 December 2024, to the Respondent by post at its address: 10 Church Lane, London E11 1HG. The date and time of the hearing was 9 April 2025 at 12 p.m.[12]On 6 March 2025 the Tribunal wrote to the Respondent (at the same address) warning it that, because it had not presented an ET3, judgment may be entered if there was no application for permission to defend the claims out of time. There was no such application. The letter repeated the date and time of the final hearing.[13]On 8 April 2025 the Tribunal wrote to the parties (by post to the Respondent’s address) postponing the final hearing owing to lack of judicial resources.[14]On 20 April 2025 a notice of hearing was sent to the parties (to the Respondent at the same address), identifying the date and time of the new hearing: 10 a.m. on 30 July 2025.[15]On 20 July 2025, the Respondent’s Mr Rex Kaiser wrote to the Tribunal (by email from rex@ara-aquila.co.uk) claiming not to have had ‘any new hearing date’, which clearly implies that the Respondent had received the old hearing date and knew about the postponement; it must therefore have been receiving correspondence at the Church Lane address. Mr Kaiser asked for confirmation of the new hearing date and said he would be out of the country from 21 July to 25 August 2025. He wrote: ‘please don’t arrange any hearing within this period.’[16]On 29 July EJ Crosfill replied as follows: ‘Employment Judge Crosfill has seen the e-mail from Rex Kaiser sent on Sunday 20 July 2024 where he says that the Respondent is not aware of the hearing date of this claim. The Respondent has not served a response to the claim within the time limit or at all. It follows that the Respondent is only permitted to take part in the proceedings with the permission of the Employment Tribunal. When the hearing for 9 April 2025 was postponed a further notice of hearing was sent to the Respondent by post. In accordance with the Employment Tribunal Rules of Procedure 2024 that notice is deemed to have arrived unless the contrary is shown. Mr Kaiser does not say why he needs to attend the hearing. There is a director of the company registered at companies house. I note that there is an active proposal to strike the company from the register on a voluntary basis. Given the fact that there are potential creditors this might suggest that the company is attempting to avoid its liabilities. I am not satisfied that the Respondent was not served with the notice of hearing. It can attend the hearing through its one active director. The hearing on 30/7/25 shall proceed.’[17]No one from the Respondent attended the hearing and it went ahead in its absence. Even if no director was available to attend, there was nothing to prevent it instructing a professional representative on its behalf.[18]The suggestion that the Respondent did not receive the notice of the hearing has already been rejected in a judicial decision given by EJ Crosfill. I cannot go behind that decision. As it happens, I agree with it: according to Mr Chen’s application, the Respondent’s contact address changed ‘from July 2025’; that is over two months after the notice of hearing was sent on 20 April 2025.[19]The fact that the company owner and director may have changed from 15 July 2025 is immaterial. The judgment was made against the company; the company is still active.[20]I am satisfied that the Respondent knew about the hearing (from both the original notice and EJ Crosfill’s letter) and chose not to attend it. In my judgment, this is merely a further attempt by the Respondent to avoid its liabilities.
Conclusions
[21]For all these reasons, I am satisfied that there is no reasonable prospect of the Tribunal varying or revoking its judgment. The application for reconsideration is refused pursuant to rule 70(2). Because I have dismissed the application at the first stage of the procedure set out in Rule 70, I have not invited the Claimants to comment on it.