Miss J Lewis v Barista Lounge Wokingham Ltd: 3306312/2020
JUDGMENT
[1]It is the Judgment of this Tribunal that the claimant’s claim for unlawful deduction of wages succeeds. The Tribunal makes a declaration to that effect. The claimant is awarded the sum of £1,663.79 payable by the respondent immediately. _____________________________ Employment Judge KJ Palmer Date: 21 July 2021 Sent to the parties on: .13 August 2021 THY ............................................................ For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[2]Case No: 3306312/2020 1 EMPLOYMENT TRIBUNALS Claimant Respondent Miss J Lewis v Barista Lounge Wokingham Limited Heard at: Bury St Edmunds (by CVP) On: 16 July 2021 Before:REASONS
[1]This matter came before me today listed for a full merits hearing to be conducted by Cloud Video Platform. The hearing was conducted by me in the Bury St Edmunds Employment Tribunal. Only the claimant attended. There was no attendance for the respondent.[2]I waited until 10.30 am to see if anyone attended on behalf of the respondent but in the absence of anyone joining the CVP hearing I resolved to continue and hear the matter in any event.[3]I was in some difficulties with the paperwork in that the file had not been sent to me by the administration. I had no bundle, no witness statements and no respondent. Case No: 3306312/2020 2[4]The claimant however did attend. I had received a copy of the claimant’s ET1. The claimant presented the claim to the Watford Employment Tribunal on 2 July 2020. In it she articulated that she had been engaged by the respondent as a Barista (All-rounder). The respondent company operates the Barista Lounge Wokingham Limited. I was able to ask the claimant more about her claim and in essence her claim was for unpaid wages that she worked for the respondent between 7 October 2019 and 2 March 2020. During the course of this hearing the claimant was able to scan in and send to me via my clerk at Bury St Edmunds various documentation amounting to 13 pages of documents.[5]By going through these documents with the claimant I was able to crystallise the nature of her claim. In essence that she had been underpaid for work done in October & November 2019 and February 2020.[6]She was able to take me through the amounts that she worked and the sums that she was paid. In essence in those months that she worked some 332.5 hours at £8.20 per hour. She should therefore have been paid the sum of £2,726.50. In fact she was only paid the sum of £1,066.03.[7]Having examined the documents I am satisfied that what she is telling me is correct and I am therefore prepared to give Judgment in her favour for the outstanding unpaid wages of £1,663.79.[8]I am bound to say that the situation today was far from perfect in that I did not have all the necessary documentation in front of me. However, that is common during the course of the last year and the pandemic that we have faced. Many hearings have taken place by CVP and often during the course of the hearing the parties have been required to forward documentation to the Tribunal for the Judge to see. Files have rarely been before me on hearings therefore only a partial picture can be gleaned.[9]However, Judges have to take a view as to whether they are able to proceed. To constantly postpone and re-list hearings is where possible to be avoided and cases need to be dealt with.[10]Of course there are circumstances where a Judge will have no alternative but to postpone a case and re-list it. However, not surprisingly the Tribunals are unsympathetic to parties who choose not to attend. No one from the respondent has chosen to attend today. Had they done so then they would have been able to put their side of the story. It may be that they would have been able to persuade me that a different outcome was just.[11]I have only the claimant in front of me and have seen no correspondence to indicate why the respondent is not represented here today. I have discussed the matter at some length with the claimant and have had her take me through the documentation she has submitted. On the basis of that which is before me I am satisfied that what she is claiming is correct and it Case No: 3306312/2020 3 is on that basis that I make an award to the claimant payable by the respondent of £1,663.79. ___________________________ Employment Judge KJ Palmer Date: 30 September 2021 Judgment sent to the parties on ....8th October 2021................... .....THY........................................ For the Tribunal office Case Number: 3306312/2020 1 EMPLOYMENT TRIBUNALS Claimant Respondent Miss J Lewis v Barista Lounge Wokingham Limited Heard at: Bury St Edmunds (in person) On: 29 June 2022 Before: Employment Judge K J Palmer Appearances For the Claimant: In person For the Respondent: Mr M Boyle (former Director of the respondent now dissolved) RECONSIDERATION OF A JUDGMENT GIVEN ON THE 16 JULY 2021[1]This matter came before me as a reconsideration of a judgment I gave on the 16 July 2021. There is something of a history of this matter.[3]The claim came before me as a full merits hearing conducted by Cloud Video Platform on the 16 July 2021. The claimant attended but there was no attendance from the respondent or any representative of the respondent. At that time, I had very little paperwork before me and did not have the file. I was not aware that originally the claimant had presented a claim against Mr Mark Boyle personally. I now have the file in front of me and I can see that the original claim for unpaid wages was presented to the Watford Tribunal on the 2 July 2020.[4]Having reviewed the file Employment Judge McNeill caused a letter to be written to the claimant requesting whether the claimant wished to change the name of the respondent to Barista Lounge Wokingham Limited. The respondent then filed an ET3 on behalf of Barista Lounge Wokingham Limited. It is not clear from the file whether the claimant ever responded to the letter from Employment Judge McNeill dated the 10 August 2020 but by June 2021 the Tribunal file had been amended to reflect the respondent as being Barista Lounge Wokingham Limited. So, that when the matter came Case Number: 3306312/2020 2 before me without a file Barista Lounge Wokingham Limited was the respondent.[5]In the absence of anyone representing the respondent at that hearing and having heard from the claimant who did attend I gave judgment for the claimant.[6]Pursuant to that Mr Boyle then requested written reasons and applied for a reconsideration which caused me to consider it was appropriate and necessary for there to be a hearing and that is the hearing before me today. The history and sequence of events is set out in my notice of postponement and re-listing of the 8 March 2022 and I will not repeat that here.[7]Safe to say that the hearing today is for a reconsideration of that judgment.[8]In my notice of postponement and re-listing I gave various orders to be complied with in terms of production of documents. It must be remembered that at the time I sat on this originally in July 2021 I had little or no documents in front of me. I expressed how unsatisfactory that was in my judgment on that day.[9]It now emerges, having seen documentation filed for this reconsideration hearing, that in fact Barista Lounge Wokingham Limited was no longer a legal entity at the time I gave judgment on the 16 July 2021.[10]In a witness statement provided by Mark Boyle for these proceedings he confirmed that the company had been dissolved on the 17 November 2020, some five months after the claimant had presented her claim and some eight months prior to my giving judgment.[11]I have myself caused a search to be made of the records and have confirmed that Barista Lounge Wokingham Limited was in fact dissolved on the 17 November 2020. The respondent is therefore no longer a legal entity.[12]As a matter of law, a claim in the Employment Tribunal cannot be pursued against an entity that does not exist. Who employed the claimant[13]It is clear therefore that if it was Barista Lounge Wokingham Limited the respondent that employed the claimant then the judgment on the 16 July 2021 was given against an entity that did not exist and must be revoked and the claim cannot proceed against Barista Lounge Wokingham Limited. The only potential solace for the claimant here is if she was not employed by Barista Lounge Wokingham Limited and was indeed employed by Mark Boyle as she indicated in her original ET1.[14]It is that question, therefore, that I sought to consider today. Having read the witness statements and questioned the parties in front of me I am very Case Number: 3306312/2020 3 satisfied that in fact the claimant was employed by the respondent which is now the dissolved company. The reason I conclude that is that I had before me a contract of employment given to the claimant which albeit was unsigned indicated the claimant’s employer as Barista Lounge and records were shown to me indicating that where payments were made to the claimant for salary, they were made from a company account of Barista Lounge Wokingham Limited. I understand from Mr Boyle that it was the company that owned and ran the business and that pursuant to financial difficulties presumably not helped by the corona virus pandemic the business failed and the company was dissolved as a result.[15]I understand from Mr Boyle that in fact he has another barista lounge operated under a separate company which he has had for some time and the respondent in these proceedings was a second business which he opened which for various reasons failed to succeed.[16]Even the claimant herself accepts that she was employed by the respondent Barista Lounge Wokingham Limited.[17]Accordingly, I must conclude therefore that these proceedings should not have proceeded against the respondent beyond the date of dissolution which was the 17 November 2020 and that therefore the judgment on the 16 July 2021 should not have been given albeit at the time I had no knowledge that the company was dissolved.[18]Accordingly, I revoke the judgment and make an order these proceedings cannot currently proceed against the dissolved company.[19]The proceedings are therefore stayed until such time, if ever, the company is re-registered.