Jencin MathewClaimantService to the AgedRespondent
Before
Employment Judge ChudleighPatrick Tomlinson (instructed by counsel) for claimantNo appearance and no representation for respondentDate 23 February 2021
JUDGMENT
[1]The claim against Service to the Aged Ltd was dismissed upon withdrawal by the claimant. The claimant’s employer and the proper respondent to the claim is Service to the Aged company number 02580196, registered office 158-162 Shaftsbury Avenue, London, WC2H 8HR.[2]The Claimant was constructively dismissed by the respondent within the meaning of s. 95(1)(c) of the of the Employment Rights Act 1996.[3]That dismissal was automatically unfair within the meaning of s 103A of the Employment Rights Act 1996 (“the ERA”) as the sole or principal reason for the dismissal was protected disclosures she had made. It was also unfair within the meaning of s. 98 of the ERA.[4]The claimant’s complaint of detriment contrary to s. 47B of the ERA were presented in time as the acts in question were part of a series of similar acts and the last of them was in time.[5]The Claimant was subjected to detriment contrary to s. 47B of the ERA as follows: a) On multiple occasions between July 2019 and 3 February 2020, the Home Manager and the Deputy Home Manager either ignored or challenged reports of incorrect drug administration made by the Claimant. b) On 21 November 2019, the Home Manager displayed annoyance with the Claimant by questioning the Claimant about why she was reporting these matters to her. c) On 23 January 2020, the Home Manager questioned the credibility of the Claimant’s findings and denied there had been any expiry of the medication stock. d) On 13 February 2020 the Home Manager shouted at the Claimant and accused her of wrongly changing her shifts. e) On 6 December 2019 (in relation to an error that was alleged to have occurred on 22 November 2019), and on 12 February 2020 (in relation to an error that was alleged to have occurred on 22 January 2020) the Claimant was subject to false allegations by nurses that she had recommended for disciplinary action and/or performance review. f) On 16 March 2020 the Claimant was subjected to a disciplinary investigation meeting. g) On 16 March 2020 at the investigatory meeting disbelieving the Claimant and criticising and challenging her. h) The Claimant was disciplined on 27 March 2020 by being issued with a letter of concern and being advised to improve her practice.[6]The respondent is ordered to pay the claimant the following compensation: a) Compensation for injury to feelings in the sum of £10,000 plus interest in the sum of £1066.66 making a total of £11,066.66. b) Compensation for unfair dismissal in the sum of £26,258.44 comprising a basic award to £1,614 and a compensatory award of £24,644.44. The recoupment provisions do not apply.[1]Paragraphs 2 to 7 of the judgment sent to the parties on 8 March 2021are revoked.[2]The Tribunal is to serve a copy of the ET1 on the respondent together with this judgment.[3]Time for entering a response by the respondent is extended to 28 days from the date that this judgment is sent to the parties.[4]The matter is to be fixed for a three-day hearing to consider liability and remedy on the next available dates. A Notice of Hearing is to be sent to the parties with this judgment together with standard directions.
REASONS
[1]These proceedings were commenced on 30 June 2020. The ET1 was served on the respondent at Freshwater House, 158-162, London WC2H 8HR. This was the respondent’s registered office until 4 March 2021.[2]The respondent did not receive the ET1. I accept the account given by Stephen Jonathan Goldberg in his witness statement dated 27 May 2021. The nonreceipt of ET1s has been a familiar occurrence over the period since the COVID 19 pandemic started with many people working from home.[3]Judgment was given on 23 February 2021 in the absence of the respondent and of a response.[4]The respondent became aware of these proceedings for the first time on 20 May 2021 when they received documents from the County Court in connection with enforcement.[5]I have the power under rule 70 of the Employment Tribunal Rules to reconsider any judgment where it is necessary in the interests of justice to do so.[6]It is overwhelmingly in the interests of justice for the judgment to be revoked. I have accepted the respondent’s explanation for non-compliance, the defence is arguable and the balance of prejudice clearly favours the revocation of the judgment so the matter can be tried on its merits with the participation of the respondent.[7]The matter will be listed for a three-day hearing as soon as possible. The parties are to notify the Tribunal within 14 days of promulgation of this judgment if they consider the time estimate is inadequate. They are also to co-operate to agree a list of issues and to sensure the adequate preparation of this case for hearing.[1]The Judgment issued in this case on 19 July 2021 is revoked as it was issued without reference to the Claimant’s submissions on the application.[2]The full merits hearing listed for 11 to 13 April 2022 is vacated.[3]There will be an urgent open preliminary hearing on a date to be fixed for the hearing of the Respondent’s application to set aside the judgment of 23 February 2021.[4]The parties are to liaise to agree a joint bundle for that hearing which, together with any witness statements to be relied on by either party, are to be served on the Tribunal two working days before the open preliminary hearing.