Mr A Mostafazadeh v South Eastern Interiors Ltd: 3302777/2023

EMPLOYMENT TRIBUNALS

Case No 3302777/2023

Between

Mr A MostafazadehClaimant

South Eastern Interiors LtdRespondent

Date 25 March 2024

JUDGMENT

The claim for a redundancy payment is struck out.

REASONS

[1]The claimant claims the right to a redundancy payment.

[2]Section 155 of the Employment Rights Act 1996 says that employees do not have the right to a redundancy payment unless they have been employed for two years or more.

[3]The claimant was employed by the respondent for less than two years.

[4]Therefore, the claimant does not have the right to a redundancy payment.

[5]The claimant was given the opportunity to explain why the claim for a redundancy payment should not be struck out but has not given an acceptable reason.

[6]Accordingly, the claim for a redundancy payment is struck out. The claimant’s other complaints are not affected by this judgment.

[7]In Outasight VB Ltd v Brown 2015 ICR D11, the EAT explained that the revision to the rules had not been intended to make it more easy or more difficult to succeed in a reconsideration application. In the new version of the rules, it had not been necessary to repeat the other specific grounds for an application because an application relying on any of those other arguments can still be made in reliance on the “interests of justice” grounds.

[8]The situation remains, as it had been prior to the 2013 rules, that it is not necessary for the applicant to go as far as demonstrating that there were exceptional circumstances justifying reconsideration. There does, however, have to be a good enough justification to overcome the fact that, when issued, Page 2 of 5 judgments are intended to be final (subject to appeal) and that there is therefore a significant difference between asking for a particular matter to be taken into account before judgment (even very late in the day) and after judgment. As was stated in Ebury Partners Uk Limited v Mr M Acton Davis Neutral Citation Number:

[2023] EAT 40

The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution.

[9]Rule 20 reads as follows: 20.— Applications for extension of time for presenting response(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application.

(2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed.

(3) An Employment Judge may determine the application without a hearing.

(4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside. The Respondent’s application

[10]The Respondent submitted two copies of an identical letter, within the relevant time limit, which were both received on 22 April 2024.

[11]In my assessment, the letter is not an application under Rule20. It paraphrases (reasonably accurately) the effects of Rule

21. It does not suggest that Rule 21 was inapplicable; that is, it does not argue that a response had actually been submitted (whether rejected or otherwise). Nor does it give any explanation for failure to submit a response, nor request time for that to be done. It does not attach any draft response document.

[12]The letter does not state that it has been copied to the Claimant. Rules 20, 71 and 92 each require that to be done. However, my rejection of the application is based on its substantive merits rather than the failure to comply with the rules.

[13]In this case, the claim form gave the Respondent’s address as 29B Hall Mark Trading Estate Wembley HA9 0LB. The Notice of Claim was sent to that address on 17 April 2023. There was no reply.

[14]On 20 October 2023, a “re-sending of claim” letter was sent to Unit 37 Fourth Way Wembley HA9 0LB. This was (and still is) the registered office address Page 3 of 5 for Company number 06313194 according to Companies House. That number is the same company number that appears on the Respondent’s April 2024 letter. The company address given on that letter is 29B Hall Mark Trading Estate Wembley HA9 0LB.

[15]The re-sending of claim letter was also copied to 29B Hall Mark Trading Estate Wembley HA9 0LB.

[16]The same date (20 October 2023) a “no response received” letter was sent to the registered office, informing the company that judgment might now be entered.

[17]Also on 20 October 2023, a letter was sent to the Claimant, copied to the Respondent, which asked for evidence which to be supplied which (as stated in the letter) could avoid the need for a hearing. There was other correspondence, including a strike out warning to the Claimant which was sent to both addresses (19 January 2024)

[18]In due course, the Claimant supplied the required evidence. My decision, having reviewed the evidence, was that no hearing was necessary, and I issued the judgment on both liability and remedy.

[19]The only argument(s) raised in the letter are that no notice of hearing had been sent (and that, had it been, the Respondent would have attended the hearing and supplied evidence).

[20]There was no need for a notice of hearing, because there was no hearing. Rule 21 does not require a hearing.

[21]Had there been a hearing, the Respondent would have been entitled to notice of it. The Respondent might have been allowed to present evidence at the hearing, or it might not. That would have been a decision for the judge conducting the hearing. However, as mentioned, there was no hearing, and therefore the issue of whether the Respondent could participate in the hearing did not arise.

[22]I am satisfied that the Respondent was aware of the claim, of its failure to respond, and of the risk of a Rule 21 judgment being entered (without a hearing). Amongst other things, the judgment was sent by post to the registered office address and, within a few days, the Respondent sent a letter back to the Tribunal (including a copy of the judgment and covering letter) seeking reconsideration.

[23]I am satisfied that the Respondent was not prevented from providing submissions or evidence to the Tribunal, and its rights to a fair disposal have not been breached. As well as having the opportunity to reply to either the Page 4 of 5 original Notice of Claim letter, or the re-send letter, it had the opportunity to comment when it saw copies of letters to the Claimant inviting him to supply evidence which could lead to a decision without a hearing.

[24]For the reasons stated above, having considered the application, I am satisfied that there is no reasonable prospect of the original decision being varied or revoked, and the application is refused.

[1]I set out the relevant rules and principles in the first reconsideration judgment, sent to parties on 16 July 2024. I will not repeat what I said there about Rules 70-72 or about Rule 20 of the Tribunal Rules, or the case law guidance about the correct interpretation and application of those rules. I continue to have that guidance in mind.

[2]The Respondent submitted an undated letter, stamped as received by HMCTS on 31 July 2024. The letter was referred to me on 28 August, and was first seen by me on my return from leave on 29 August 2024.

[3]The letter states that it is “appeal to outcome 16 July 2024”. The Employment Appeal Tribunal (the EAT) is a separate court, and the details of how to contact it are set out in the covering letters (dated 16 April and 16 July 2024 respectively) which accompanied each judgment. Any application to “appeal”, using the word in its technical sense, would have to made directly to the EAT, and it would be for the EAT to decide if the application was in time, and complied with the relevant rules. I will treat the letter as an application for me to reconsider my earlier judgments.

[4]The two page letter makes assertions that the Respondent was not properly notified and that it has a good defence to the claim and that it would have presented that defence had it been properly notified. Page 1 of 2 Case No: 3302777/2023

[5]Having read the letter and the attachments, I noted that there were some documents which might be relevant, but for which there was no context. On my instructions, a letter was sent dated 30 August 2024 which gave the Respondent the opportunity to address the matters referred to in that letter. The letter gave the Respondent 14 days to reply, but there was no reply within that time frame, or up to today’s date. I have therefore made my decisions based on the information/documents on the Tribunal’s file.

[6]In terms of the notifications sent out by the Tribunal to the Respondent, I have nothing to add to what I said in the first reconsideration judgment. None of the points I made there are specifically addressed by the new application. It is unclear whether the new application asserts that a technically incorrect address was used and therefore the Respondent does not acknowledge that it was validly served, or that no communication was received at all, at either address. In any event, as stated in the reconsideration judgment, communications were sent by the Tribunal to both the registered office address and the address supplied by the Claimant. Not only did the judgment of 16 April 2024 reach the Respondent, so did the 16 July judgment. I remain satisfied – as per paragraphs 22 and 23 of the reconsideration judgment – that the Respondent was aware of the claim.

[7]In terms of notifying the Respondent about a hearing date, I have nothing to add to what I said in the first reconsideration judgment. The decision was made without a hearing, and so there was no hearing date to notify to the Respondent.

[8]In terms of the Respondent potentially having a valid defence to the claims made by the Claimant, in the particular circumstances of this case, the public interest in the finality of judgment, and the prejudice to the Claimant if the judgment was to be overturned, and an eventual decision delayed, outweighs the prejudice to the Respondent if it is not allowed to raise now a defence which it could and should have raised before the judgment was issued. Nothing in the new application has any reasonable prospect of persuading me that the decisions/reasons in the first reconsideration judgment (including at paragraph 23) were incorrect or that the earlier Rule 21 judgment should be revoked.