Miss M Domanska v The Chair (Buckingham) Ltd: 3312414/2020

EMPLOYMENT TRIBUNALS

Case No 3312414/2020

Between

Miss M DomanskaClaimant

The Chair (Buckingham) LtdRespondent

Before

Employment Judge Tynan

In person for claimant

Not represented for respondent

Date 28 October 2022

JUDGMENT

[1]The Claimant’s complaint that she was unfairly dismissed by the Respondent is well founded. The Tribunal makes the following award of compensation for unfair dismissal to the Claimant:1.1 A basic award of £1,276.50; and

1.2 A compensatory award of £8,886.42.

[2]When the proceedings were begun the Respondent was in breach of its duty to the Claimant under Part 1 of the Employment Rights Act 1996 to provide her with a written statement of employment particulars. The Tribunal considers that it would be just and equitable in the circumstances to increase the award to the Claimant by £1,702.00, being the “higher amount” prescribed by section 38(4) of the Employment Rights Act 1996.

[3]The Claimant’s complaint that the Respondent dismissed her in breach of contract, by not giving her notice or paying her in lieu of notice, is well founded. However, the Tribunal makes no award of damages for breach of contract on the basis that any damages for breach of contract are covered by the compensatory award for unfair dismissal above.

[4]The Tribunal declares that the Respondent made deductions from the Claimant’s wages in contravention of section 13 of the Employment Rights Act 1996 and Orders the Respondent to pay to the Claimant the sum of £1,190.16 in respect of such deductions. Case Number: 3312414/2020

[5]The total of the sums above payable by the Respondent to the Claimant is £13,055.08.

[6]The Respondent’s employer’s contract claim against the Claimant is not well founded and is dismissed.

[7]The Tribunal makes a Preparation Time Order that the Respondent pay to the Claimant the sum of £820.00 in respect of the Claimant’s preparation time while not legally represented to reflect the Claimant’s time spent in working on the case, excluding her time spent at the Final Hearing.

REASONS

Background

[1]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]The hearing on 6 January 2022 proceeded in the absence of the Respondent. I delayed the start of the hearing in case the Respondent had experienced any difficulties in getting to Tribunal. However, it was clear on the face of the file that the Respondent had been given notice in August 2021 of the hearing on 6 January 2022 as it had responded to the Tribunal’s correspondence, albeit in angry terms.

[3]The Claimant informed me that the Respondent had failed to comply with the Tribunal’s case management orders, and that it had failed to provide disclosure of documents, co-operate in the preparation of a hearing bundle or serve any witness statements for the final hearing. In its Form ET3 the Respondent states an intention not to pay the Claimant any monies.

[4]At approximately 10.30am, half an hour after the hearing was scheduled to commence I made telephone enquiries of the Respondent to ascertain its whereabouts and intentions. I spoke with its owner and director, Mr Lowrie who was at its Towcester salon. On introducing myself, he immediately began shouting at me and talking over me, directing a barrage of questions at me in an angry and intimidating manner. Mr Lowrie made clear that he would not be attending Tribunal and ended the call, telling me that I was a “prick”. Being satisfied that the Respondent was on notice of the hearing but that it had chosen not to attend, I proceeded to hear the case in its absence albeit having due regard to its case as set out in its Form ET3 and in correspondence with the Claimant. 18 January 2022

[1]On 6 January 2022 I gave Judgment in favour of the Claimant in the absence of the Respondent. I set out in my Reasons why, having first made contact with Mr Lowrie of the Respondent to ascertain whether the Respondent would attend the hearing or be represented at it, I decided to proceed in its absence.

[2]Through Mr Lowrie, the Respondent raised a complaint about the matter by email dated 15 February 2022. Of the Tribunal’s own initiative, the email was treated as an application by the Respondent for reconsideration of the Judgment.

[3]Mr Lowrie’s conduct on the telephone on 6 January 2022 was hostile and disrespectful, and at times he has also expressed himself in angry terms in correspondence. Be that as it may, it is not the function of the Tribunal to punish the Respondent for his loss of control of his emotions on 6 January 2022, rather to remain focused on the interests of justice and whether a fair trial is still possible in this case. In my judgement, a fair trial is undoubtedly still possible; the issues in dispute are well understood by the parties and remain capable of being addressed by them in evidence to the Tribunal. In terms of the case being got ready for a full merits hearing, Mr Lowrie stated his personal support for the Employment Tribunal system, as well as his commitment to ensure the Respondent complies with any Orders of the Tribunal and to conduct himself professionally at any future hearing. I consider that it would be a disproportionate response to Mr Lowrie’s conduct on 6 January 2022 and to the Respondent’s earlier breaches of the Tribunal’s Orders to prevent the Respondent from defending the Claimant’s claims against it, particularly in circumstances where its Form ET3 and correspondence with the Tribunal disclose plainly arguable grounds for resisting the claims that have been brought against it. I am equally mindful that should the Judgment stand, without the Respondent being afforded a reasonable opportunity to challenge the claims that have been brought against it, this might have implications for the Respondent’s continuance as a going concern.

[4]That is not to say that if Mr Lowrie cannot control his emotions in future, that there will be no consequences for the Respondent; on the contrary, the Tribunal will always be alive to scandalous, unreasonable or vexatious conduct, given that such conduct provides grounds to strike out a Claim or Response under Rule 37 of the Tribunals Rules of Procedure.

[5]I take into account the unfortunate history to the proceedings, specifically Mr Lowrie’s wasted journey to Cambridge on 9 July 2022. I can understand why, particularly given that he is self-employed, he wanted to be certain that the hearing on 6 January 2021 would go ahead before committing to attend. Ordinarily, I might have limited sympathy for a party who failed to attend a hearing of which they had had prior written notice (in this case the Respondent had been on notice of the hearing since August 2021). However, I do not lose sight of Mr Lowrie’s previous unhappy experience (and which he would say is borne out by the further confusion that arose on 17 June 2022 when the scheduled hearing did not proceed). On the other hand, it would have been a simple matter for Mr Lowrie to have explained the position to me when I called him on 6 January 2021. My responsibility as a Judge is to afford parties a fair hearing, to listen carefully and with an open mind to what they have to say before making decisions that may affect them. That is precisely why I made contact with him on 6 January 2022. Unfortunately, he shouted at me, talked over me and swore at me on that occasion. It was only towards the end of the hearing on 4 July 2022 that there was some recognition on Mr Lowrie’s part that his conduct on 6 January 2022 had been unhelpful. I have weighed in the balance that prior to 9 July 2021 the Respondent had filed its Response late and had failed to comply with any of the Tribunal’s Case Management Orders (and was warned by letter dated 30 May 2021 that this could result in the Respondent being penalised or having its Response struck out). The Respondent certainly did not come to the hearing on 9 July 2021 with ‘clean hands’.

[6]It is not just the Respondent who has rights in this matter; I am required to do justice as between the parties. These proceedings can only go forward on the basis, and with the clear understanding, that the Respondent will comply with any Case Management Orders I make so that the case can be disposed of when it comes back for Final Hearing. It is my intention to make an Unless Order, so that should the Respondent fail to serve its Witness Statement(s) on the Claimant prior to the Final, then its Response is very likely to be struck out, in which event the Claimant will be entitled to a Judgment against it.

[7]Pursuant to Rule 76 of the Tribunals Rules of Procedure I am required to consider making a Time Preparation Order where a party has acted abusively, disruptively or otherwise unreasonably in the way that the proceedings were conducted. Mr Lowrie’s conduct on 6 January 2022 met that threshold test. If he was uncertain whether the hearing would go ahead and indeed, even if he believed that it would not go ahead, that does not justify his conduct when I phoned him. It would have been a straightforward matter to re-list the hearing on a date convenient to the parties had I been satisfied that there was a reasonable explanation for the Respondent’s non attendance. No such explanation was forthcoming on 6 January 2022 or, at least, could not be discerned in circumstances where Mr Lowrie was shouting at and talking over me.

[8]In making a Time Preparation Order on 6 January 2022, I had regard to the nature, gravity and effect of the Respondent’s conduct, making due allowance for Mr Lowrie’s relative lack of objectivity in the matter and emotional involvement in the issues. In the exercise of the discretion available to me, I was satisfied that it was just and proportionate for the Respondent to be responsible for the Claimant’s time preparing for the hearing. That remains my view. Even had Mr Lowrie attended the hearing on 6 January 2022 it seems to me that the hearing would inevitably have been postponed given the Respondent’s failure to comply with the Tribunal’s Orders. In other words, the Claimant’s time preparing for the hearing was inevitably wasted as a result of the Respondent’s unreasonable conduct of the proceedings. For these reasons I confirm that the Time Preparation Order stands and that the Respondent must therefore pay the Claimant the sum of £820 as previously ordered.

[1]The Claimant’s complaint that she was unfairly constructively dismissed by the Respondent is not well founded and is dismissed.

[2]The Claimant’s complaint that the Respondent dismissed her in breach of contract, by not permitting her to work her statutory notice period or alternatively paying her in lieu of that notice, is well founded. The Tribunal awards the Claimant the gross sum of £1,276.50 as damages for breach of contract.

[3]The Tribunal declares that the Respondent made deductions from the Claimant’s wages in contravention of section 13 of the Employment Rights Act 1996 and Orders the Respondent to pay to the Claimant the gross sum of £781.90 in respect of such deductions.

[4]When the proceedings were begun the Respondent was in breach of its duty to the Claimant under Part 1 of the Employment Rights Act 1996 to provide her with a written statement of employment particulars and increases her award by the “minimum amount” of two weeks’ pay, namely £851. The Tribunal considers that it would not be just and equitable in the Case Number: 3312414/2020 circumstances to increase the award to the Claimant to the “higher amount” prescribed by section 38(4) of the Employment Act 2002.

[5]The total of the sums above payable by the Respondent to the Claimant is £2,909.40.