Miss V L Beswick v Lorraine Susan Everett T/a Café Retreat: 3313018/2023
JUDGMENT
[1]The claim was presented in the South East Employment Tribunal on 6th November 2023. The respondent has failed to present a valid response on time. The Employment Judge has decided that a determination can properly be made of the claim, or part of it, in accordance with rule 22 of the Rules of Procedure.[2]The claimant was dismissed in breach of contract in respect of notice and the respondent must pay damages to the claimant of £18.22.[3]The respondent has failed to pay the claimant’s holiday entitlement and must pay the claimant £1,116.50.[4]The respondent must pay the claimant £1,134.72 in total. Approved by: JUDGMENT on RECONSIDERATION APPLICATION 1. It is not necessary in the interests of justice to reconsider the Judgment.REASONS
(1) After the Judgment was sent to the parties, the Respondent wrote to the Tribunal on 16 June 2025 stating her wish to appeal the Judgment. As an appeal only lies to the Employment Appeal Tribunal, I treated the Respondent’s letter as an application instead for reconsideration of the Judgment.(2) Rule 69 of the Employment Tribunal Procedure Rules 2024 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. 1 of 4(3) The Respondent’s letter of 16 June 2025 came from her new business address. I gave directions for the Respondent to provide her further comments on the claim by 22 August 2025. The Tribunal’s letter confirming my directions in that regard was sent to the Respondent at the address she had provided in her letter of 16 June 2025. The Respondent provided her further comments in compliance with those directions in good time on 17 August 2025. Notice of today’s hearing was then sent to the parties on 30 September 2025. Again, this was sent to the Respondent at the address given by her and at which correspondence has evidently reached her. She has not attended today’s hearing. I am satisfied that the notice of hearing will have come to her attention and accordingly that it is in the interests of justice to proceed in her absence, albeit on the basis that the application for reconsideration is still pursued and that I should have due regard to what she wrote in her letters of 16 June and 17 August 2025.(4) There is no particular explanation by the Respondent as to why she may not have received notice of the claim in time to respond to it. Where an employer says that they have not received correspondence from the Tribunal, for example because a business has closed or changed address, the employer will normally be expected to explain what arrangements they put in place to ensure that business related correspondence continued to reach them. I do not have any such information before me. It is for the Respondent to satisfy the Tribunal that it is necessary in the interests of justice for the Tribunal to reconsider the Judgment. In the absence of a satisfactory explanation from the Claimant, I feel compelled to refuse the application for reconsideration.(5) In any event, even if I had been minded to reconsider the Judgment because there was a satisfactory explanation for the Respondent’s failure to respond to the claim in time, on reconsideration I would have refused to set aside or vary the Judgment for the reasons that follow.(6) Employers have a responsibility to maintain adequate records in respect of their staff. Indeed, there are certain mandatory record keeping requirements in respect of working time. Whilst this does not extend to mandatory records of staff holiday, it is good practice for an employer to maintain adequate records in that regard so that where, as here, a dispute arises as to whether a worker has taken their pro rata holiday entitlement and accordingly whether they may be owed monies in lieu of accrued untaken holiday on the termination of their employment, the Tribunal can make appropriate findings.(7) In this case, the Respondent says that the Claimant took or was paid in lieu of any holiday due to her for what she says were the relevant holiday years coinciding with the financial year. In the absence of any documentary evidence, even in the form of WhatsApp or text messages, that the Respondent’s business holiday year coincides with the financial year, I have followed the Claimant’s approach (based in turn upon the Working Time Regulations 1998), which is to approach the relevant holiday calculation period as commencing on the date that the Claimant’s employment transferred to the Respondent under the TUPE Regulations 2006. I do not think in any event that it makes a difference to the final calculation of the total holiday that accrued to the Claimant during her employment by the Respondent, since whether I am concerned with a single 2 of 4 calculation period or two adjoining calculation periods, the Claimant was employed for exactly one year (or would have been had the Respondent permitted her to serve out the remaining four working days of her notice period). In which case, whether there was one or two calculation periods, the Claimant’s total holiday entitlement over the year she worked for the Respondent was 28 days’ paid leave (on the basis that she worked five days per week).(8) The Claimant has satisfied me that she was paid in lieu of accrued holiday by her previous employer at the point at which she transferred to the Respondent’s employment. Strictly, that should not have happened, as her accrued holiday should have transferred with her on a TUPE transfer. However, she is content to accept that the holiday slate was wiped clean on transfer.(9) The issue then is what holiday the Claimant took from 1 October 2022 and/or was paid in lieu of. The Respondent says that the Claimant was paid for 23 days’ holiday in total (9 days in 2021/22 and 14 days in 2022/23). However, she has not identified the dates in question or produced payslips or other written records evidencing this. The Claimant tells me that although she no longer has access to her completed timesheets, her holidays were noted on these and that she had taken 14 days’ holiday in total since transferring to the Respondent ie, not just in the period April to September 2023 as the Respondent suggests but over the entire 12 month period. The Claimant was certain about the matter today when I questioned her in some detail about the matter. I accept her evidence, not because the Respondent did not attend today’s hearing, but because the Claimant has satisfied me that she kept a careful running mental note of the holiday she had taken. In any event, as I say, the Respondent has failed to adduce evidence reasonably within its possession which might have put the matter beyond doubt, namely the timesheets submitted by the Claimant during her employment which documented the holiday taken by her. It also seems to be the case that the Respondent failed to issue payslips to the Claimant as the law requires. That and the Respondent’s failure to issue the Claimant with an updated contract of employment following the TUPE transfer, evidence to me some lack of record keeping on her part which in turn leads me to question whether she or I can be confident that the Claimant was paid for 23 days’ holiday as she claims. For the avoidance of doubt, I am not suggesting that she has been in any way untruthful with the Tribunal. I do not doubt her integrity or desire to do the right thing, but her failure to keep appropriate records and provide payslips, alternatively her failure to make copies available to the Tribunal, leads me to accept the Claimant’s evidence as the best evidence available to me.(10) As regards the Claimant’s wages, I shall leave this amount unchanged. It is possible that I may have undercalculated the sums due to the Claimant, though it depends upon whether she was scheduled to work for the Respondent on 25 and 26 September 2023. The Respondent is not on notice that the Claimant might seek reconsideration of the award in respect of the balance of her notice period. As this would necessitate a further hearing, I discussed with the Claimant that the award in respect of the deduction from her wages will remain undisturbed at £18.22. 3 of 4(11) In all the circumstances, the Respondent’s application to reconsider the Judgment is refused. The Judgment shall stand. Approved by: