Mr A Wharton v Secretary of State Department of Business and Trade: 3302928/2024
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The respondent has made unauthorised deductions from the claimant’s wages and must pay the claimant £393.04 net. JUDGMENT on RECONSIDERATION APPLICATION[1]Of the Tribunal’s own initiative, the name of the Respondent is amended to Secretary of State for Business and Trade.[2]The Tribunal determines that a hearing is not necessary in the interests of justice.[3]It is necessary in the interests of justice to reconsider the Judgment.[4]On reconsideration, the Judgment is set aside.[5]The Respondent shall file his response to the claim within 28 days of the date the Judgment is sent to the parties.REASONS
(1) I want to start by acknowledging the delays experienced by the Claimant. He worked for the Black Diamond Pub Company Ltd in 2023 and is still endeavouring to recover his outstanding wages. The company became insolvent, with the result that he has pursued a claim against the Secretary of State. The sums involved are relatively modest, though understandably significant for the Claimant who is, or was, a student.(2) I see a great many claims by workers, particularly younger workers on minimal wages, who have not been paid what is due to them and I always try to ensure that I deal with the referrals on such claims promptly so that the claimants concerned have the best chance of recovering whatever sums may be due to them. In this case, on receipt of a breakdown of the sums being claimed by the 1 of 2 Case Number: 3302928/2024 Claimant, I gave directions on 30 July 2024 for a judgment in his favour. I signed the Judgment on the same day it was referred back to me for approval, albeit it was not then sent to the parties until 7 November 2024. Unfortunately, the address for service provided by the Claimant was not in fact the Respondent’s correct address in this regard (I do not blame him in any way for this), with the result it seems that the Judgment only came to the Respondent’s attention in or around June 2025. The Respondent made a prompt application for reconsideration of the Judgment having not been afforded an opportunity to respond to the claim.(3) Whilst I can appreciate the Claimant’s frustration at being denied his wages for work done over two years ago, I would be denying the Respondent his fair trial rights if I were to allow the Judgment to stand given it was not correctly served on the Respondent, in circumstances where I am satisfied that the Respondent has arguable grounds for resisting the claim. Whilst I offer no view as to whether his arguments will ultimately succeed, he must be permitted to make them and have them considered in the usual way. In this regard, although the amount claimed by the Claimant is seemingly not in dispute, the Respondent asserts that liability in respect of the Claimant’s unpaid wages transferred to Orange Tulip Hospitality Ltd, alternatively to Orange Rose Hospitality Ltd, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). The Claimant may dispute this, but it is an issue that the Respondent is entitled to ask the Tribunal to determine.(4) The Claimant may want to give further thought to whether to ask for those two companies to be added as respondents to his claim, so that if the Respondent successfully resists the claim because there was a ‘relevant transfer’ for the purposes of TUPE, he can secure a judgment in respect of any unpaid wages against the relevant transferee. Given what is said on behalf of the Secretary of State, the Tribunal will obviously need to consider any relevant TUPE case law, which may include decisions of the European Court of Justice regarding the meaning and effect of the Acquired Rights Directive from which TUPE derives. In Landorganisationen I Danmark v Ny Molle Kro 1989 ICR 330 and Foreningen af Arbejdsledere i Danmark v Daddy's Dance Hall A/S [1988] IRLR 315 the ECJ considered the application of the Acquired Rights Directive in circumstances where the lease of a restaurant/bar came to an end and, certainly in the Daddy’s Dance Hall case, where the landlord granted a new lease to another operator. In both cases there was found to be a ‘relevant transfer’. Approved by: