Mr P Crinnigan v Bushbay Ltd: 3309682/2023
JUDGMENT
[1]Employment Tribunals Rules of Procedure 2013 – Rule 21 The respondent has made unauthorised deductions from the claimant’s wages and must pay the claimant £2,424.30 gross. Employment Judge Quill Date: 4 March 2024[2]JUDGMENT SENT TO THE PARTIES ON 14 March 2024 ........................................................................ AND ENTERED IN THE REGISTER ......................................................................... Case Number: 3309682/2023 EMPLOYMENT TRIBUNALS Claimant: Mr P Crinnigan Respondent: Bushbay Ltd[4]Employment Tribunals Rules of Procedure 2013 – Rule 21 The respondent has made unauthorised deductions from the claimant’s wages and must pay the claimant £2,424.30 gross.REASONS
[1]The Claimant’s claim form alleged that his employment commenced 24 September 2020 and was still ongoing.[2]Both in Box 9 of the claim form and in the attachment to the claim form, he asserted that he had a contractual entitlement to a payment which he described as “full retention pay (professional conduct bonus)”.[3]He said that the previous year it had been paid in November, and he had been promised that this year’s would be paid in November too. He said that, at the latest, it should have been paid by March 2023.[4]He asserted that the amount in question was £2424.30. The respondent did not file a response, and I was satisfied that the Claimant’s information demonstrated that there was an agreement between the Claimant and the Respondent and that I should decide that there was an unlawful deduction from the Claimant’s wages.[5]I therefore gave judgment under Rule 21 for that sum and that sum only.[6]The claim documents also mentioned that the Claimant thought that he should have received a KPI bonus too, because of what had happened in previous years, and thought that it was unfair that the Respondent had not set KPIs for that year.[7]My decision was that the Claimant had not demonstrated an agreement between him and the Respondent that he would be paid for achieving particular KPIs for 2022. He says it was unfair that they made it impossible to achieve the target by failing to set the KPIs, but that does not amount to an allegation of a failure to pay wages to which he had become entitled.[8]The Claimant’s request for reasons stated that it looks as if the judgment had not awarded him anything for holiday pay. That is correct. No claim for holiday pay was included in the claim form. In describing the terms of his Case Number: 3309682/2023 contract, he mentioned a contractual entitlement to holiday pay, but made no allegation that the term had been breached.[9]No matter how serious the failure of the Respondent, and no matter how inadequate its explanation, it is an error of law for a judge to fail to consider the other factors as well as part of the overall decision.[10]The analysis of the balance of prejudice is likely to be affected by whether a judgment has been issued and, if so, when. The fact that an extension of time, if granted, would have the effect of depriving the Claimant of a judgment is a relevant factor; judgments are intended to be final. However, it is not a decisive factor. In an appropriate case, an extension of time should still be granted, provided that proper weight has been given to the prejudice caused to the Claimant. The Respondent’s application[11]On 10 June 2024, the Respondent made an application to the Tribunal which was copied to the Claimant. It attached a Form ET3 response, and various Page 3 of 4 other documents seeking extension of time and purporting to supply evidence that the claim form had(a) not been received by the Respondent and(b) would have led to a response being submitted if it had been received.[12]No response to these items has been received from the Claimant. There had been previous correspondence, including emails on 27 March 2024 from each of the Respondent and its representatives, Avensure, and then on 12 April from Avensure. The Claimant did respond to that (at 19:19 on 15 April 2024).[13]Avensure wrote to the Tribunal on 16 April 2024, commenting on the Claimant’s reply, and the Tribunal wrote to the parties on 30 May on my instructions. The Respondent’s 10 June application was made within the time frame set out in that letter.[14]On 26 July, the Tribunal wrote to the parties on my instructions with my provisional opinions on how the application should be dealt with. The parties had the opportunity to comment generally. In particular, the Claimant was told he had until 23 August 2024 to write to the Tribunal if he objected to (the judgment being revoked and) the claim being struck out.[15]I am satisfied that the Respondent’s proposed defence is not fanciful. Give the lack of a response from the Claimant, I am not proposing to comment in detail on the alleged reasons for failing to submit a response in time.[16]The Respondent asserts that the Claimant has actually been paid the sums in question. I am not making a decision one way or the other on that, save to note that the Claimant has had the opportunity to assert that this is false, and has not done so.[17]I extend time for the response (under Rule 20) and I accept the 10 June response. For the reasons stated in the warning sent to the Claimant on 26 July 2024, I am striking out the claim because it is not being actively pursued.