Mr M D Angeriu v Team Work Employment Services Ltd: 3302627/2021
JUDGMENT
[1]The judgment dated 20 April 2022 is revoked.[2]The respondent’s name is changed by the addition of the word “Limited” at the end of the name given in the claim form.[3]It was not reasonably practicable for the claim to be made within the primary time limit period of 3 months from the ending of the claimant’s employment and the claim was made within a reasonable period of time after the ending of that period.[4]The respondent owes the claimant, and the claimant is accordingly entitled to payment by the respondent (subject to the deduction of any applicable income tax and national insurance contributions) £3,139.20 gross, i.e. before the deduction of income tax and national insurance contributions, by way of unpaid holiday pay.REASONS
[1]On 1 April 2022, a hearing took place at Watford Employment Tribunals, Radius House, Clarendon Road, Watford. I conducted that hearing. The fact that the hearing was going to take place was notified to the parties in a letter dated 22 August 2021. That letter started with these words: “The respondent has failed to present a valid response on time and a Judgment has been issued against the respondent under Rule 21. A remedy hearing will now take place at 2nd Floor, Radius House, 51 Clarendon Road, Watford, WD17 1HP on 1 April 2022 at 12:00.”[2]On the day before, 31 March 2022, a member of the staff of the tribunal called the claimant by telephone to see whether he was intending to attend the hearing of the next day, 1 April 2022. The claimant did not answer his telephone at that time and he did not inform the tribunal whether or not he would be attending the hearing of 1 April 2022. He did not then attend that hearing. The respondent did not do so either. If it had done so, then it would have required my permission to participate in the hearing. That was because it had not presented a response to the claim.[3]Given(1) the failure by the claimant to attend the hearing of 1 April 2022, and(2) the failure by him to give any reason for his failure so to attend, I dismissed his claim under rule 47 of the Employment Tribunals Rules of Procedure 2013 (“the 2013 Rules”). The judgment in which I did that was dated 20 April 2022 and was sent to the parties on 21 April 2022.[4]On 2 May 2022, the claimant sent an email asking for the reconsideration of that judgment on the basis that he had not heard the telephone call of the member of staff of the tribunal of 31 March 2022 to which I refer in paragraph 2 above. He said that the reason for that was that his telephone had been in his locker at work and he had not heard the call.[5]On 22 June 2022, I directed the holding of a hearing at which(1) the claimant could attend and explain why he did not attend the hearing of 1 April 2022 and,(2) if appropriate, I would revoke my judgment dated 20 April 2022. I also said that I would correct the wording of that judgment if I did not revoke it, since judgment in favour of the claimant had been given and the appropriate words were “No order for financial compensation is made.”[6]On subsequently reviewing the file, however, I have concluded that the original judgment was correct, because, despite the notice of the hearing of 1 April 2022 stating that a judgment had been issued against the respondent, no such judgment had by that date been issued.[7]The hearing which I directed on 22 June 2022 should occur was held on 2 August 2022. The claimant attended it. He explained to me (but with great difficulty, his first language being Romanian and his English being poor) that he had not known about the possibility of making a claim to an employment tribunal about the claimed unpaid holiday pay in his employment with the respondent (which ended on 2 August 2020) until 2021, when several Indian former colleagues complained that they too had not been paid holiday pay by the respondent and they had helped him to make a claim to the employment tribunal after he had contacted ACAS on 23 February 2021. The early conciliation certificate was issued on 25 February 2021 and the claim form was presented on 3 March 2021. The claimant said that he had been helped by one of those colleagues also when preparing for the hearing of 2 August 2022. He put before me a coherent statement of the dates of the holidays in respect of which he claimed pay in these proceedings and the sums which he claimed by way of unpaid holiday pay. That statement was hand-written and was, the claimant said, put together by one of the former colleagues who had helped him to make his claim to the tribunal.[8]In the circumstances, I concluded that it was not reasonably practicable for the claimant to make a claim within the primary time limit period of 3 months and that he had made his claim within a reasonable time after the expiry of that 3- month period. I did so primarily because of the claimant’s language difficulties and his apparent ignorance of the possibility of redress and the means which it could be obtained, i.e. by making a claim to the tribunal. I came to that conclusion in the circumstance that the respondent was not present, so the claimant was not cross-examined, and in the absence of an interpreter. After the hearing had ended, I concluded that if there were to be any further hearings in the case then it would be in the interests of justice for there to be an interpreter of the Romanian language present.[9]I also concluded that the claimant’s case was well-founded on the facts. I did so on the basis of(1) the claimant’s oral evidence and(2) the documents put before me by him. Those documents included (1) a leave request form which the claimant had (he said) put before the respondent for the period from 12 July 2019 to 6 August 2019, (2) the claimant’s bank statements for that period, and(3) a series of pay statements starting before that period and ending after it. Those statements showed that the claimant had been paid nothing by the respondent in respect of that period, but that he had been paid sums by the respondent immediately before and immediately after that period.[10]I also concluded that there had been a series of unlawful deductions of wages which had ended on the last day of the claimant’s employment, namely 2 August 2020, and that that series consisted of all of the deductions in respect of which the claim was made.[11]I then checked the position concerning the identity of the respondent and its address. The claimant had omitted the word “Limited” at the end of the respondent’s name, and I concluded that the respondent’s name should be amended accordingly.[12]I then checked the address given in the claim form for the respondent. It was erroneous in that it did not state the number of the building on Dunstable Road, Luton, LU1 1DX, at which the respondent’s office (stated correctly, as far as I could see, to be on the second floor of Quantrill House) was situated. The number given on the respondent’s website (to which I referred myself during the hearing, having showed the claimant the webpage to which I was referring myself) for the building was “2”.[13]I saw in the file that the claim form had been sent twice; once to the address given by the claimant in the claim form and then (at the direction of Employment Judge Manley), on 22 April 2021, also to the registered address for the respondent given on the Companies House website, namely 18-20 Dunstable Road, Luton LU1 1DY. No response to the claim had at any time been presented.[14]I therefore concluded that I should direct that the address of the respondent on the claim form was to be amended by the addition of the number “2” before the words “Dunstable Road”, and that this judgment was to be sent to the respondent at its registered address and the following address: Team Work Employment Services Limited Quantrill House 2nd Floor 2 Dunstable Road Luton Bedfordshire LU1 1DX.[15]If the respondent is only then alerted to the existence of the claim then it will be able (if so advised) to apply under rule 71 of the 2013 Rules for a reconsideration of my above judgment, and, under rule 20 of those rules, for an extension of time for the presentation of a response to the claim (i.e. with a draft response to the claim).