Mr S Ball v Hall Farm Services Ltd: 3301776/2023 and 3311622/2024
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period 25 June 2022 to 27 January 2023.[2]The respondent shall pay the claimant £6,579.64, which is the net sum. The respondent has already deducted the payment of any tax or National Insurance. Notice Pay[3]The complaint of a failure to provide notice pay is well-founded.[4]The respondent shall pay the claimant £1,020 as damages. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay. The claimant is responsible for paying any tax or National Insurance. Case Number 3301776/2023 Holiday Pay[5]The complaint in respect of holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[6]The respondent shall pay the claimant £1,837.65. The claimant is responsible for paying any tax or National Insurance. Failure to provide a written statement of employment particulars[7]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. It is just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £2,572. Judge A Shields (sitting as an Employment Judge) 15 November 2023 6 December 2023 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.[1]The Respondent’s application dated 26 March 2024 for reconsideration of the judgment dated 15 November 2023 (“the Judgment”) is allowed. It is necessary in the interests of justice to do so.[2]The Judgment is revoked under Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”).REASONS
[1]By rule 70 of Schedule 1 to the ET Rules, the Employment Tribunal may reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the judgment may be confirmed, varied or revoked.[2]An application for reconsideration shall be presented in writing (and copied to all other parties) within 14 days of the date upon which the written record of the original decision was sent to the parties. This application was not in in time.[3]Under Rule 5 of the ET Rules, the Tribunal may, on its own initiative, or on the application of a party, extend any time limit in the Rules or in any decision.[4]The Respondent’s application states that it was first made aware of the Judgment on 19 March 2024, took immediate legal advice and applied for a reconsideration on 26 March 2024. The Respondent’s Director states that the company was completely unaware of the Judgment before that date. It is noted that, based on the Respondent’s application, the reconsideration application was made within 7 days of the company becoming aware of the enforcement action on the Judgment. The Respondent has supplied the Notice of Enforcement dated 19 March 2024 and it supports its position on the dating of the enforcement action and the date they became aware of the Judgment. Therefore, although the application for a reconsideration is out of time, the time limit for the reconsideration application is extended under Rule 5 of the ET Rules. The application is admitted for consideration.[5]Under Rule 70, a judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration is appropriate in the circumstances. Discretion must be exercised judicially. This means having regard not only to the interests of the party seeking the reconsideration but also the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[6]The procedure upon a reconsideration application is for the Employment Judge that heard the case to consider the application and determine if there are reasonable prospects of the judgment being varied or revoked. This is a reviewing function in which the Judge must consider whether there is a reasonable prospect of the original decision being varied or revoked (rule 72).[7]If the Judge considers that there is no such reasonable prospect, then the application shall be refused. Otherwise, the Judge shall send a notice to the parties setting a time limit for any response to the application by the other party and seeking the views of the parties on whether the application can be determined without a hearing (rule 72).[8]My role, on considering the application upon the papers initially, is therefore to operate as a filter to determine whether there is a reasonable prospect of the Judgment being varied or revoked were the matter to be the subject of a reconsideration hearing. I did not refuse the initial application. On 3 June 2024, I directed HMCTS to seek the views of the parties and requested a response by 17 June 2024. The Claimant requested an extension of time to respond to the direction. By the time the Claimant’s request for an extension of time was referred to me, the deadline had already passed by a period of 6 weeks. I refused the further extension of time because the Claimant had 8 weeks to consider the application and make any representations. None had been received.[9]On 1 August 2024, I directed that HMCTS write to the parties to provide my response that the application did not require a hearing but that both parties should be given the opportunity to make further written representations on the application. No response has been received from either party.[10]I have proceeded to consider the reconsideration application on the papers and without a hearing.[11]The reconsideration application is not based on a disagreement of the facts of the Judgment. It is based on the fact that the Respondent’s Director provided a sick note and email to the Tribunal dated 14 November 2023 requesting a postponement of the hearing based on his sickness. This postponement application was not provided to the Employment Tribunal and the Judgment hearing proceeded without the Respondent Director’s attendance and with no consideration of the postponement application. The Respondent wished to attend the hearing. If the postponement application had been before me at the hearing, I would have been more likely than not to postpone the hearing in the interests of justice and based on the exceptional circumstances of the sickness of the Respondent’s Director. There was evidence presented to the Employment Tribunal that was not before me as the Judge hearing the case with respect to the postponement application. There had been no previous postponements of the case. I have further considered Rule 2 of the ET Rules to determine this application for reconsideration. I have noted the Respondent’s additional application that the company had responded to the claim form by providing its response form to the ET by post and email on 12/04/2023. This would have been dealt with at the hearing on 15 November 2023 and a decision made on the extent to which the Respondent would be able to take part in the hearing.[12]Taking all of these issues into account, it is necessary in the interests of justice to reconsider the Judgment. The Respondent’s application for reconsideration is allowed and the Judgment is revoked. District Tribunal Judge A Shields (sitting as an[1]ACAS Early Conciliation took place between 30 January and 6 February 2023.[2]The ET1 was filed on 10 February 2023. In that claim form the Claimant sought to complain about unauthorised deductions from wages and unfair dismissal, although I note he had less than two years’ qualifying service.[3]The Respondent submitted an ET3 and counterclaim by post on 12 April 2023 which did not reach the Tribunal.[4]A default judgment was issued on 15 November 2023 with respect to unauthorised deductions, notice pay, holiday pay, and failure to provide a statement of particulars under s. 1 Employment Rights Act 1996.[5]The default judgment was set aside by way of reconsideration on 23 August 2024.[6]A fresh ET3 with counterclaim was submitted on 16 October 2024.[7]The matter was listed for a final hearing on 24 and 25 July 2025 however it was postponed. It appears to me that this was likely due to lack of judicial resource rather than due to an application from the parties.[8]The Respondent entered creditors voluntary liquidation on 31 March 2025.[9]On 12 August 2025 the hearing was relisted for 16 and 17 October 2025.[10]On 12 September 2025 Employment Judge Spencer asked the parties to confirm the matter was proceeding.[11]On 16 September 2025 Anderson Brookes (Licenses insolvency Practitioners) wrote to the Claimant and Tribunal and directed the Claimant to the Redundancy Payments Service.[12]On 10 October 2025 Employment Judge Spencer asked the parties to respond to the Tribunal’s letter of 12 September 2025.[13]On 15 October 2025 the hearing for 16 and 17 October was postponed on the application of the Respondent. I have not seen that application.[14]Today’s hearing was listed on 15 October 2025. Neither party was in attendance and no correspondence has been received to explain their nonattendance.[15]The Overriding Objective of the Tribunal under Rule 3 provides: “Overriding objective 3.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,(c) avoiding unnecessary formality and seeking flexibility in the proceedings,(d) avoiding delay, so far as compatible with proper consideration of the issues, and(e) saving expense. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b) interprets any rule or practice direction. (4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal.”[16]Rule 47 provides: “Non-attendance 47. If a party fails to attend or to be represented at a hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it must consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”[17]I could not proceed in the absence of the parties.[18]I formed the view that a postponement and a strike out warning would be inappropriate. I also formed the view that an unless order was inappropriate given that neither side attended.[19]I considered that simply re-listing today’s hearing would not have been an appropriate use of Tribunal time and resources; it is unlikely the parties would engage or attend; and it would serve only to increase delay and cause further unnecessary costs to the Tribunal; and to deprive other Tribunal users of their day in court.[20]In such circumstances I considered that the appropriate way forward (in the absence of any reasonable alternative) was to dismiss the claim and counter claim under Rule 47 due to the parties’ non-attendance and the inability to proceed with the hearing in their absence. This appeared to me to be in furtherance of the Overriding Objective of the Tribunal to deal with cases in a manner which is fair and just to both parties and to avoid the further unnecessary expenditure of time and costs for all concerned, taking into account the needs of other Tribunal users as well.[21]The claim and counterclaim are therefore dismissed in full under Rule 47. Approved by: