Ms Lynne Sloan v Greenleaf Hygiene Solutions (Scotland) Ltd: 4103131/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4103131/2019Venue GlasgowHearing 25 October 2019 (Reconsideration Hearing in chambers)
Between
Ms Lynne SloanClaimantGreenleaf Hygiene Solutions (Scotland) LtdRespondent
Before
Employment Judge C McManusDate 28 October 2019
JUDGMENT
The Judgment of this Tribunal dated 27 June 2019, entered in the register and Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, and is confirmed without variation.
REASONS
[1]On 9 July 2019, the respondent’s representative made an application for reconsideration of my Judgment made following the Final Hearing in this case on 7 June 2019. The Judgment which is reconsidered is dated 27 June 2019,[2]This reconsideration is made in terms of Rules 70 to 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 (‘the ET Procedure Rules’). E.T. Z4 (WR) Issue[3]The respondent’s representative’s reconsideration application contends that reconsideration is necessary in the interest of justice because the Judgment shows an incorrect calculation and the claimant is entitled to the gross sum of £154.64 and not £265.10 as awarded. Reliance is placed on what is set out in the respondent’s representative’s email of 9 July 2019. Initial Consideration of Reconsideration Application[4]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘the Procedure Rules’) set out at Rule 70 – 73 provisions in respect of reconsideration of Judgments.[5]The respondent is represented by a solicitor, Margaret Gribbon, although the respondent’s representative at the hearing on 7 June 2019 was a Director of the respondent, Mr John O’Donnell. Ms Gribbon’s email to the Employment Tribunal office of 9 July 2019 made this reconsideration application in reliance of the terms of a forwarded separate email from Mr O’Donnell, also dated 9 July. The respondent’s position was set out as being that the reconsideration application can be dealt with without a Hearing[6]On 19 July 2019, email correspondence was sent from the Employment Tribunal office to both parties acknowledging the respondent’s solicitor’s application for a reconsideration of the Judgment dated 27 June 2019. This email informed that EJ McManus, who heard the case, was on annual leave and was due to return in mid-August.[7]The respondent’s solicitor’s email of 9 July 2019 was submitted in time, within 14 days of the date that the Judgment was sent to parties on 1 July 2019, and the application set out why reconsideration was considered to be necessary in the interests of justice. The application had been copied to the claimant. The application complied with Rule 71 of the Procedure Rules. I did not refuse the application at Initial Consideration, under Rule 72.[8]On 27 August 2019, correspondence was sent from the Employment Tribunal Office to the parties, informing that the application for reconsideration had not been refused on initial consideration and that any response to the application should be made by 10 September 2019. Parties were advised in this correspondence that the reconsideration application was brought to my attention on my return to office on 26 August 2019 and an apology was given for the delay. The following provisional view on the application was expressed:- “Parties are reminded that the decision is made on the basis of the findings in fact set out in the Judgment dated 27 June 2019. “[9]On 4 September 2019, the claimant sent an email to the Employment Tribunal Office, copied to the respondent’s solicitor, in the following substantive terms:- “Please note I have no interest in pursuing this any further…. I have found the whole process extremely stressful. I also wish to state that I am unhappy with the decision on the report, mainly the part where it is noted that J O’Donnell and L Dougal were regarded as more credible witnesses than myself.”[10]That correspondence was acknowledged by email from the Employment Tribunal office to both parties on 5 September 2019. In that email parties were informed that I considered that in terms of Rule 72(2) a Hearing is not necessary in the interests of justice. That email invited either party’s comments on the position that the decision was made on the findings in fact made following the Hearing, to be received in writing by 5pm on 23 September 2019. On 7 October 2019 correspondence was sent from the Employment Tribunal office to both parties, informing that I had decided that the reconsideration of the Judgment dated 27 June 2019 should take place on the basis of parties making written representations, rather than a Hearing taking place. Any further written representations or information which either party wished to be taken into account in this reconsideration were invited by 21 October 2019. The respondent’s solicitor confirmed on 8 October that the respondent had no further written representations to make beyond those contained in the forwarded email from Mr O’Donnell of 9 July 2019. On 23 October 2019 correspondence was sent to the parties from the Employment Tribunal office informing that the reconsideration in chambers would be on 25 October 2019, and not 23 October. Parties were given the opportunity to provide any further written representations of information by 24 October 2019. No further correspondence was received from either party.[11]The Reconsideration Hearing was scheduled to take place in the Glasgow Employment Tribunal offices on 23 October 2019, with that reconsideration being by way of my consideration of parties’ representatives’ written submissions only. Parties’ representatives were not in attendance. The reconsideration was re-scheduled to 25 October due to other requirements of the Employment Tribunal.[12]I was satisfied that it is in line with the overriding objective set out in Rule 2 of the Procedure Rules for this matter to be dealt with without a Hearing.
Relevant Law
[13]The reconsideration is dealt with in terms of Rules 70 to 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. In terms of Rule 70, at this Reconsideration Hearing, the Judgment might be confirmed, varied or revoked. The Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly, applies.[14]The previous Employment Tribunal Rules 2004 provided a number of grounds on which a judgment could be reviewed (now called a reconsideration). The only ground for reconsideration in the Employment Tribunal Rules of Procedure 2013 Rules is set out in Rule 70 and is ‘where it is necessary in the interests of justice” to do so. That means justice to both sides. That phrase is not defined in the Employment Tribunals Rules of Procedure 2013, but it is generally accepted that it encompasses the five separate grounds upon which a Tribunal could “review” a Judgment under the former 2004 Rules.[15]Reconsideration of a Judgment is one of the two possible ways that a party can challenge an Employment Tribunal’s Judgment. The other way is by appeal to the Employment Appeal Tribunal.[16]Although there are some differences between the current Rules 70 to 73 and the former Rules 33 to 36, it was confirmed by HHJ Eady QC in Outasight VB Limited v Brown [2015] ICR D11, that the guidance given by the Employment Appeal Tribunal in respect the 2004 Rules of Procedure is still relevant guidance in respect of the 2013 Rules. HH Judge Eady QC said: - “In my judgment, the 2013 Rules removed the unnecessary (arguably redundant) specific grounds that had been expressly listed in the earlier Rules. Any consideration of an application under one of the specified grounds would have taken the interests of justice into account. The specified grounds can be seen as having provided examples of circumstances in which the interests of justice might allow a review. The previous listing of such examples in the old Rules - and their absence from new - does not provide any reason for treating the application in this case differently simply because it fell to be considered under the “interests of justice” provision of the 2013 Rules. Even if it did not meet the requirements laid down in Rule 34(3)(d) of the 2004 Rules, the ET could have considered whether it should be allowed as in the interests of justice under Rule 34(3)(e). There is no reason why it should then have adopted a more restrictive approach than it was bound to apply under the 2013 Rules”.[17]Her Honour Judge Eady QC, provided further judicial guidance on reconsiderations in Scranage v Rochdale Metropolitan Borough Council [2018] UKEAT/0032/17. At paragraph 22, when considering the relevant legal principles, she stated as follows: - “The test for reconsideration under the ET Rules is thus straightforwardly whether such reconsideration is in the interests of justice (see Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported). The "interests of justice" allow for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.”[18]In Dundee City Council v Malcolm [2016] UKEATS/0019-21/15, the then EAT President, Mr Justice Langstaff stated, at paragraph 20, that the current Rules effected no change of substance to the previous Rules, and that they do not permit a claimant to have a second bite of the cherry, and the broader interests of justice, in particular an interest in the finality of litigation, remained just as important after the change as it had been before.[19]The Court of Appeal in Ministry of Justice v Burton & Another [2016] EWCA Civ.714, also reported at [2016] ICR 1128, referred to HH Judge Eady’s comments. At paragraph 25, Lord Justice Elias, refers, without demur, to “the principles recently affirmed by HH Judge Eady in the EAT in Outasight VB Ltd v Brown UKEAT/0253/14.” Further, at paragraph 21 in Burton, Lord Justice Elias stated :- “An employment tribunal has a power to review a decision "where it is necessary in the interests of justice": see Rule 70 of the Tribunal Rules. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, as Underhill J, as he was, pointed out in Newcastle on Tyne City Council v Marsden [2010] ICR 743, para. 17 the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily…”[20]Mr Justice Underhill commented on the introduction of the overriding objective (now found in Rule 2 of the 2013 Rules) and the necessity to review previous decisions, and on the subject of a review, in providing guidance to Tribunals in Newcastle upon Tyne City Council – v- Marsden [2010] ICR 743, as follows:- “But it is important not to throw the baby out with the bath-water. As Rimer LJ observed in Jurkowska v Hlmad Ltd. [2008] ICR 841, at para. 19 of his judgment (p. 849), it is “basic” “… that dealing with cases justly requires that they be dealt with in accordance with recognised principles. Those principles may have to be adapted on a case by case basis to meet what are perceived to be the special or exceptional circumstances of a particular case. But they at least provide the structure on the basis of which a just decision can be made. The principles that underlie such decisions as Flint and Lindsay remain valid, and although those cases should not be regarded as establishing propositions of law giving a conclusive answer in every apparently similar case, they are valuable as drawing attention to those underlying principles. In particular, the weight attached in many of the previous cases to the importance of finality in litigation – or, as Phillips J put it in Flint (at a time when the phrase was fresher than it is now), the view that it is unjust to give the losing party a second bite of the cherry – seems to me entirely appropriate: justice requires an equal regard to the interests and legitimate expectations of both parties, and a successful party should in general be entitled to regard a tribunal’s decision on a substantive issue as final (subject, of course, to appeal”).[21]The approach to be taken to applications for reconsideration was considered by Mrs Justice Simler, then President of the EAT, in Liddington v 2Gether NHS Foundation Trust [2016] UKEAT/0002/16/DA. That relates to the stage of initial consideration, but the comments of Mrs Justice Simler at paragraph 34 and 35 of her Judgment are relevant to the present case. These are as follows: “34.In his Reconsideration Judgment the Judge identified the Rules relating to reconsideration and in particular to the provision in the Rules enabling a Judge who considers that there is no reasonable prospect of the original decision being varied or revoked refusing the application without a hearing at a preliminary stage. In this case, the Judge addressed each ground in turn. He considered whether there was anything in each of the particular grounds relied on that might lead him to vary or revoke his decision. For the reasons he gave, he concluded that there was nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision, and accordingly he refused the application at the preliminary stage. As he made clear, a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration, and the opportunity for appellate intervention in relation to a refusal to order reconsideration is accordingly limited. 35. Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application. It seems to me that the Judge was entitled to conclude that reconsideration would not result in a variation or revocation of the decision in this case and that the Judge did not make any error of law in refusing reconsideration accordingly.’[22]There is a public policy principle that there must be finality in litigation and reviews or reconsiderations are a limited exception to that principle. In Stephenson v Golden Wonder Limited [1977] IRLR 474 it was made clear that a review (now a reconsideration) is not a method by which a disappointed litigant gets a “second bite of the cherry”. Lord Macdonald, the Scottish EAT Judge, said that the review provisions were “not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence produced which was available before”.[23]In Fforde v Black EAT68/80, the EAT set out that this ground does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the Tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”[24]The interests of justice in reconsideration, means the interests of justice to both sides. The Employment Appeal Tribunal provided further guidance in Reading v EMI Leisure Limited EAT262/81, where it was stated “when you boil down what it said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice”, means justice to both parties. It is not said, and, as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”[25]Following Lindsay v Ironsides Ray and Vials 1994 ICR 384, EAT, the failings of a party’s representative, professional or otherwise, will not usually constitute a ground for review. There are exceptions to that norm, e.g. Newcastle upon Tyne City Council v Marsden.[26]Following Neary v Governing Body of St Albans Girls’ School and another 2010 ICR 473 CA, in an application for review, all relevant all relevant facts and circumstances should be taken into account.[27]In Yorkshire Engineering and Welding Co Ltd v Burnham 1974 ICR 77 NIRC, it was held that ‘the tribunal’s errors fell well within the range of error inherent in any form of forecasting’. The test for a Tribunal is considering applications for review of remedies decisions in which the compensation awarded includes an element of future loss was set out as follows:- “That the test for an industrial tribunal to decide whether or not to review a decision was whether the forecasts that were the basis for the decision have been falsified to a sufficiently substantial extent to invalidate the Tribunal’s assessment, and whether that falsification occurred so soon after the decision that a review is necessary in the interests of justice; but that in the present case since the facts were not in the event substantially different from what was forecast the tribunal had rightly refused a review of their decision.” Respondent’s Application for Reconsideration[28]The respondent’s position is that it is in the interests of justice for the Tribunal to reconsider its Judgment dated 27 June 2019, for the reasons set out in the respondent’s Director’s email of 9 July 2019. I have now considered the full terms of that email and the comments made on the Judgment of 27 June 2019. There are no substantive submissions from the claimant, her only communication in respect of the reconsideration application being the email referred to above.[29]The Judgment of 27 June 2019 is a Judgment as defined in Rule 1(3) (b) of the Employment Tribunals Rules of Procedure 2013. It finally disposed of the claimant’s claim against the respondent, by setting out the remedy following the claimant’s claims of unpaid wages. That disposal was on the basis that some, but not all of what was claimed by the claimant to be unpaid wages due to her from the respondent was successful, as set out in that Judgment. I made findings in fact on the evidence before me at the Final Hearing. I applied the relevant law to my findings in fact and made my decision on remedy, all as set out in the 17 page Judgment dated 27 June 2019.[30]In this reconsideration, I have carefully considered the written submissions, and my obligations under Rule 2 of the Procedure Rules in terms of the overriding objective to deal with the case fairly and justly. The full terms of the respondent’s representative’s email of 9 July 2019 have been considered. A reconsideration application is not and should not be allowed to be an opportunity to repeat submissions already made or raise submissions which could have been made. Findings in fact were made on the evidence before me at the Final Hearing. The respondent should not use the reconsideration process to restate their position or to seek to change the evidence before the Tribunal. It is not in the interests of justice to allow a party to ‘have another go’ if they do not like the outcome of a hearing. The decision was made on the findings in fact. The findings in fact were made on the bass of the evidence at the Final Hearing.[31]The Judgment of 27 June 2019 sets out Findings In Fact which were made by me on my assessment of the evidence which was brought before me at the Final Hearing on 7 June. Those Findings In Fact are set out in pages 7 – 13 (at paragraphs 19 – 38). The findings in fact includes, at para 25 of the Judgment, a table which, as stated in the findings in fact, accurately sets out the respondent’s position in respect of the claimant’s attendance at work for the respondent in the period from 3 December 2018 to 4 January 2019, and accurately sets out the payments made to the claimant by the respondent in respect of that period, and the basis on which those payments were made by the respondent.[32]There is nothing in the respondent’s submissions that establishes or suggests that something has gone wrong at or in connection with the Judgment dated 28 June 2019, nor that something has happened since the Final Hearing in this case which makes the Judgment of 28 June 2019 unjust. It has not been argued that any significant event has occurred affecting the position set out in the Judgment dated 28 June which was not or could not have been known as at the dates of the Remedy Hearing.[33]In his email of 9 July 2019, Mr O’Donnell seeks to further comment on the position. At the Final Hearing, I heard evidence on the reasons why the respondent chose not to make payments (e.g. in respect of 12 December absence). That evidence is taken into account in the Judgment of 27 June 2019.[34]It is in the interests of justice for the decision on payment of SSP to be taken in line with the statutory provisions set out in the Social Security Contributions and Benefits Act 1992. That has been done, as referenced at para 46 of the Judgment. On that basis, account has been taken in the Judgment (as set out at para 46, lines 7 – 8, that SSP is not payable for the first 3 qualifying days in any period of entitlement. For that reason, the Judgment reflects that 3 days of the claimant’s absence in December 2017 (3, 4 & 12 December) did not lead to an entitlement to SSP. It is in the interests of justice to ensure that the Judgment accurately reflects those statutory provisions[35]The respondent’s relies in the reconsideration application on the claimant’s absences on 3 & 4 December 2018 being a separate period of incapacity from her absences later in December 2018. It was not argued before me at the Final Hearing that that the period of absence starting on 12 December was a new period of incapacity in terms of the Social Security Contributions and Benefits Act 1992. Section 152 of the Social Security Contributions and Benefits Act 1992 defines ‘period of incapacity for work’. This includes the following provisions:- “… (3) any two periods of incapacity for work, which are separated by a period of not more than eight weeks shall be treated as a single period of incapacity for work….”[36]On the application of Section 152(2) of the Social Security Contributions and Benefits Act 1992, the claimant’s period of incapacity for work began on 3 December 2017.[37]As set out in the findings in fact at paragraph 24. The claimant advised the respondent that she was unfit to attend the meeting on 12 December 2018. In doing so, the claimant self certified as unfit for work. She was then certified by her GP as being unfit for work from 13 December 2018 until 8 January 2019, as set out in the findings in fact at paragraph 24. The claimant was self - certified as unfit for work on 12 December. In terms of the Social Security Contributions and Benefits Act 1992, 12 December 2017 was the third day in a period of incapacity for work, which began on 3 December 2017.[38]The respondent’s position in the reconsideration application is that 13 December was a new period of entitlement in terms of the Social Security Contributions and Benefits Act 1992. On the application of section 152(2), the period of entitlement began on 3 December 2017. The claimant is entitled to payment of SSP in respect of absences as set out at paragraph 52 of the decision.[39]In the reconsideration application the respondent seeks to bring new evidence in respect of bank holidays. This evidence was not brought at the Final Hearing and it is not in the interests of justice for the this new evidence to be taken into account.[40]For these reasons, it is not in the interests of justice for any adjustment to be made to figures set out in the judgment issued following the Final Hearing. The respondent seeks the award to be varied from £265.10, with possible deductions for tax and National Insurance, to £154.64 with appropriate deductions. It is not proportionate in terms of the overriding objective in Rule 2 of the Procedure Rules, for further reasoning to be provided. The calculations in the Judgment are accurate based on the findings in fact, and on application of the relevant law, including the Social Security Contributions and Benefits Act 1992.[41]The phrase ‘in the interests of justice’ means in the interests of both parties. The respondent is entitled to finality of the litigation in the Judgment (subject to appeal). The outcome of the reconsideration is confirmation of the Judgment dated 28 June 2019, without variation.
Introduction
[1]The claimant’s claim is for unpaid wages. Notice of Claim and Notice of Final Hearing on 7 June 2019 was issued on 29 March 2019. The case was initially scheduled to take place at the commencement at 11:30 AM on that day. On 18 April correspondence was sent from John O’Donnell contracts manager at Greenleaf hygiene solutions in Scotland Ltd, informing that ‘the company will be defending the action’ and indicating that more than the hour allocated for the case would be necessary, due to the documentation involved. The respondent was named in the ET1 form as John O’Donnell. The ET3 response form was submitted on behalf of Greenleaf Hygiene Solutions (Scotland) Ltd on 25 April 2019. On submission of that ET3 response, it was indicated that it would take up to a day for all documents to be reviewed. That response was accepted. The respondent’s representative was stated in that ET3 to be Margaret Gribbon of Bridge Litigation UK Ltd.[2]On 1 May 2019, the claimant sent an email to the Employment Tribunal office, copied to the respondent and to the respondent’s representative, with some attached documentation. In that email, the claimant objected to the duration of the hearing being extended. On 2 May 2019, the respondent’s representative sent an email to the Tribunal office, copied to the claimant informing that they were ‘content to treat the additional information contained in the claimant’s email (so far as it is relevant to the legal claims pled) as further particulars.’ In that email. It was there stated regarding the duration of the hearing: “..we are of the very firm view that this is not a case suitable for the fast track and that one day is a reasonable assessment of the likely duration of the hearing, given the amount of categories of sums the claimant claims are owed to her. The claimant was asked to confirm whether or not she was legally represented.[3]On 7 May, the claimant wrote to the Employment Tribunal office in respect of correspondence received from the respondent’s representative, with attached, illegible, scanned documents. In reply, the Employment Tribunal office wrote to the claimant (copied to the respondent’s representative) reminding the claimant of her obligations in terms of Rule 92 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 ((‘The Procedure Rules’) and directed that the claimant should provide the Employment Tribunal with a legible copy of her correspondence to enable it to be considered by an Employment Judge.[4]On 14 May 2019, an amended Notice of Final Hearing was sent to the parties, informing that the start time had been changed to 10 AM on 7 June 2019, and the duration had been increased to 3 hours.[5]On 14 May 2019 (by email of 17:14), the claimant sent legible copies of the correspondence previously forwarded to the Employment Tribunal, and complying with Rule 92. On 14 May 2019 (by email of 17:51), the respondent’s representative responded to that communication from the claimant. In that response (which complied with Rule 92) . It was the respondent’s representative’s position that the correspondence forwarded by the claimant related to a matter in which the respondent had engaged separate legal representatives, and was a separate matter involving the claimant, which is unrelated to the ongoing proceedings before the Employment Tribunal.[6]On 23 May 2019, parties’ emails of 14 May were replied to by email from the Employment Tribunal office to the claimant and the respondent’s representative. It was stated that the Tribunal cannot offer advice, and that if it is claimant’s position that the correspondence which she had forwarded to the Employment Tribunal refers to her Employment Tribunal claim, she should state that, and explain why this is her view. The claimant was informed that any correspondence to the Employment Tribunal requires to be copied to Ms Gribben, as solicitor for the respondent.[7]On 26 May, the respondent’s representative sent to the Employment Tribunal (copied to the claimant), the respondent’s response to the claimant’s amended ET1 (as detailed in the claimant’s email to the Employment Tribunal office dated 1 May 2019).[8]The Tribunal was copied into correspondence between parties of 4 June in relation to preparation of the documents for use at the Employment Tribunal hearing. It was the claimant’s position that she had her ‘own productions’ made up, so did ‘not require a joint bundle’.[9]On 6 June, the Employment Tribunal office was notified by email from the respondent’s representative (copied to the claimant) that, although they should remain listed as the respondent’s representative, to save expenses, one of the respondent’s Directors (Mr John O’Donnell) would represent the respondent at the hearing on 7 June.[10]No Orders had been requested by either party or had been issued by the Tribunal in this case. At the hearing on 7 June, the claimant appeared in person, and the respondent was represented by Mr John O’Donnell. Each party had their own bundle of productions, although there was some duplication between them. There was considerable delay on the morning of the hearing while the productions were ordered and paginated. The respondent relied upon a Bundle including documents numbered 1 to 24, with page numbers 1 – 111. The claimant relied upon a similar number of documents, paginated in sections 1 - 11, with various page numbers within each section. The numbers in brackets in this Judgment preceded by a ‘C’ refer to document at that page number in the claimant’s bundle. The numbers in brackets in this Judgment preceded by a ‘R’ refer to documents at that page number in the respondent’s bundle.[11]The Hearing did not conclude in the 3 hours allocated, and on the agreement of both parties, continued after lunch on 7 June 2019.[12]Evidence was heard from the claimant and, for the respondent, from Mr John O’Donnell (Director) and from Lorna Dougall (Sales Manager). All evidence was taken on oath or affirmation. Issues for Determination[13]I required to determine whether the claimant is properly due outstanding payments from the respondent in respect of her employment with them. The sums sought are set out in the claimant’s email of 1 May 2019 (which has been accepted as an amendment to the ET1) and are in respect of• Salary• SSP• Accrued but untaken holidays• Commission• Bonus• Car hire• Legal expenses[14]The respondent denies that payments are due to the claimant from them, for the reasons set out in their ET3 and in the further particulars of 26 May 2019.
Relevant Law
[15]I dealt with this case in terms of the Tribunal’s overriding objective as set out in Rule 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Procedure Rules’), being:- “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[16]The Employment Rights Act 1996 (‘the ERA’) at section 13 provides for the right of an employee not to suffer unauthorised deductions from wages. Section 14 sets out the provisions in respect of excepted deductions and section 16 sets out the provisions in respect of excepted payments. Section 13(3) states: ‘Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.’[17]Section 27 sets out provisions with regard to meaning of wages, including at section 27(1)(a) ‘any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.’ Statutory Sick Pay (SSP) is included by section 27(1)(b).[18]Statutory Sick Pay is payable for ‘qualifying days’, as defined in Regulation 5(2) of the Statutory Sick Pay Regulations. SSP is not payable for the first three qualifying days in any period of entitlement (Social Security Contributions and Benefits Act 1992, section 155). Findings in Fact[19]The following material facts were found by the Tribunal to be proven.[20]The respondent is a washroom services business, providing products to various customer’s premises. The respondent has approximately 24 employees. The claimant was employed by the respondent from March 2011 until 4 January 2019. Her position with the respondent was Account Manager. Her duties included securing contracts on behalf of the respondent with third party customers for the provision of washroom services.[21]The written terms of the claimant’s employment with the respondent are set out in the contract of employment between the parties, dated 19 May 2011 (at R76 – R84). That contract is signed by both parties (at R84). Clause 2(c) contains the following statement:- “The Company is hereby authorised by the Employee to properly deduct from any final payments to be made to the Employee upon termination of his employment any cash advances, expenses, loans or other similar indebtedness owed to the Company.”[22]That contract of employment includes provisions at clause 3 in respect of holidays (R77). It sets out that the claimant was entitled to(i) ‘statutory and bank holidays in force in the territory of employment and customarily recognised by the company’.(ii) annual holidays, according to the scale set out therein.[23]On 5 December 2018, the claimant resigned from her employment with the respondent. In her resignation letter (C3.1) the claimant gave one month’s notice of the termination of her employment with the respondent. The effective date of termination of the claimant’s contract of employment with the respondent was 4 January 2019. On her resignation, it was indicated to the claimant by the respondent’s Account Sales Manager, Lorna Dougal that the claimant would be placed on garden leave for her notice period. That position changed, and on the same day, the claimant was told that she was suspended pending investigation. That position was then confirmed to the claimant by letter. That suspension was on full pay.[24]Arrangements were made for the claimant to attend a meeting on 12 December 2018 in respect of the investigations which the respondent was conducting. The claimant did not attend that meeting. The claimant advised the respondent that she was unfit to attend. The claimant was certified by her GP as being unfit for work from 13 December 2018 until 8 January 2019 (Med 3 form at C3.2). The certified reason for that absence is stated in the med three form (C3.2) as ‘work related stress’.[25]The document at page 27 of the respondent’s bundle (R27), accurately sets out the respondent’s position in respect of the claimant’s attendance at work for the respondent in the period from 3 December 2018 to 4 January 2019, and accurately sets out the payments made to the claimant by the respondent in respect of that period, and the basis on which those payments were made by the respondent. This is summarised as follows:- Date Attendance Payment 3 Dec Absent- Uncertified ill health NIL 4 Dec Absent- Uncertified ill health NIL 5 Dec Worked £95.73 6 Dec Suspended £95.73 7 Dec Suspended £95.73 WEEKEND 10 Dec Suspended £95.73 11 Dec Suspended £95.73 12 Dec Suspended & Uncertified Ill health NIL 13 Dec Suspended & Certified Ill health NIL 14 Dec Suspended & Certified Ill health NIL WEEKEND 17 Dec Suspended & Certified Ill health NIL 18 Dec Suspended & Certified Ill health £18.41 SSP 19 Dec Suspended & Certified Ill health £18.41 SSP 20 Dec Suspended & Certified Ill health £18.41 SSP 21 Dec Suspended & Certified Ill health £18.41 SSP WEEKEND 24 Dec Suspended & Certified Ill health £18.41 SSP 25 Dec Holiday £95.73 26 Dec Holiday £95.73 27 Dec Holiday £95.73 28 Dec Holiday £95.73 WEEKEND 31 Dec Holiday £95.73 1 Jan Suspended & Certified Ill health £18.41 SSP 2 Jan Suspended & Certified Ill health £18.41 SSP 3 Jan Suspended & Certified Ill health £18.41 SSP 4 Jan Suspended & Certified Ill health £18.41 SSP[26]The claimant was absent from work due to ill health on the dates as recorded above. The claimant has received payment from the respondent of the sums set out above. The SSP payments paid to the claimant in respect of this period were paid on the basis of the respondent’s understanding that for the first five days of the claimant’s absence from work due to ill-health in this period, whether certified or uncertified claimant, the claimant would not be entitled to any payment of SSP.[27]There are recognised Bank Holidays in Scotland on 25 and 26 December and on 1 and 2 January. These bank holidays are recognised in the contract of employment at clause 8 (R83). In Scotland Bank Holidays do not fall on 27, 28 or 31 December. The contract of employment provides at clause 3 as follows (R77):- “Termination of employment before the end of any calendar year shall entitle the company to recover from any remuneration owing or otherwise to recover from the employee the amount of remuneration relative to any period of holiday taken in excess of the entitlement for that year. If notice is served terminating employment, the employee must take any holiday entitlement during the period of notice, unless otherwise requested by his manager. Any outstanding holiday entitlement shall be deemed included to the extent of any notice period for which salary may be paid in lieu.”[28]The claimant had accrued 5 days holiday to her termination date. The claimant is also entitled to bank holidays. Payment of holidays to the claimant was at the gross daily rate of £95.73.[29]The car which was provided to the claimant by the respondent in respect of her employment was removed from the hands of the claimant prior to the end of her contract of employment with them. The claimant incurred expense of £255.98 in respect of the hire of an alternative car (a Ford Fiesta) from 22 December 2018 until 4 January 2019 (C6.6). The contract of employment provides at clause 5(ii) (R79) as follows:- “Upon termination of his employment hereunder for whatsoever reason, the employee shall immediately deliver up to the company upon the date of termination with company’s vehicles which may be in his possession or under his control, and the employee hereby agrees that he shall have no right whatsoever to claim from the company any compensation or redress for any alleged or actual loss of private use of such vehicle arising or likely to arise following such return.”[30]In February 2019, a wage slip was issued by the respondent to the claimant (C9.4) dated 28 February in respect of basic pay and SSP and setting out deductions made in respect of Income Tax, National Insurance, pensions, expenses, ‘Absent’, ‘Overpayment’ and ‘Statutory Pay Paid’. That wage slip set out the net pay to the claimant as being £94.47. The claimant received payment of £94.47 from the respondent at that time.[31]There is another wage slip issued by the respondent in respect of payments to the claimant which also purports to be in respect of the February pay period (at C9.2 and at R109). That wage slip sets out details of payments made to the claimant in respect of basic pay, commission, salary and SSP and setting out deductions made in respect of Income Tax, National Insurance, pensions, expenses, ‘absent’ and ‘overpayment’. That wage slip sets out the net pay to the claimant as being £388.43. On 25 April 2019, the claimant received a cheque from the respondent in the sum of £293.96 (C9.3). That payment represented the balance due between what was set out in the wage slip at C9.2 and that at C9.3.[32]The claimant’s wage slips at C9.5 and C9.7 show that in October and November 2018 the claimant received a gross payment in respect of bonus of £613.67. During the course of her employment with the respondent, the claimant normally received a gross monthly payment of £613.67 in respect of bonus. The claimant did not receive any bonus payment in respect of her employment with the respondent during December 2018 or January 2019.[33]During the course of her employment with the claimant, payments were made to the claimant taking into account commission. The system operated by the respondent is that ‘commission’ was calculated on contracts entered into on behalf of the respondent with third parties by the claimant (and other employees). Deductions were made to the commission calculated as being payable, dependent on certain factors. Those factors include the premises where services are provided by the respondent to a particular customer. Commission is paid by the respondent to the employee who is responsible for entering into a contract with a new customer for provision of services in a particular premises. In circumstances where a premises, e.g., a bar or restaurant is operated by one customer who enters into a contract for provision of services by the respondent, and where that operation then closes down, and a contract is entered into with the respondent by a new customer operating out of those same premises, that is not considered to be a new contract, and no commission is paid. That is because it is considered that there is no ‘additional value’ to the respondent. Those were the circumstances in respect of the claimant’s engagement on behalf of the respondent to provide services in premises operated by Onion and Sugar Ltd. Those services were largely the same services which had been delivered by the respondent to those premises, when the premises had been operated by a different company, under a different restaurant name. The factors which affect ‘commission’ also includes the length of the contract. The commission payable to the claimant as an employee of the respondent was a percentage (e.g.) 12.5% of the total commission on the contract. The commission rules are set out at R42 – 43 (which also includes provisions re bonus payments).[34]On 24 January 2019, John O’Donnell (Contracts Manager) wrote to the claimant with the respondent’s position in respect of the calculation of deductions to be applied to payments due to the claimant, in respect of what the respondent termed ‘commission’(C8.2). The claimant was asked to ‘check and confirm all ok’.[35]The document at R 45 – R46 (which is also at C8.15 – C8.16) accurately sets out the correct calculation of what is deducted because of what the respondent refers to as ‘commission’. The claimant is not due any sums from the respondent in respect of what is referred to as ‘commission’.[36]The respondent operates a retention bonus system relating to the re-signing of new owners and re-signing of existing contracts. The contract of employment provides at clause (1)(a)(c)(iii):- “Any commission bonus or incentive payments as set out in the letter dated 23/03/11 shall be made to the employee, subject to the rates and conditions as varied by the company in its discretion and advised in writing to the employee from time to time.”[37]This payment of this bonus is on the basis set out in the email to the claimant and other employees of 13 September 2018 (R40) and is covered in the statement of the commission rules set out at R42 – R45. This includes the following (at R43):- “This may be adjusted as per the staff handbook 2018 if a member of the sales team is not at work due to illness or leave of absence sales closed while a member of the sales team is off due to illness or leave of absence, then commission may be adjusted dependent on what further work is required by other members of the sales team during this period to close the sale. This will be looked at on an individual basis.”[38]Adjustments were made to the bonus payable to the claimant because the claimant was absent from work in December and January 20 December 2018. In January 2019. Similar deductions were previously applied by the respondent to bonus normally payable to Lorna Dougal. Observations on the Evidence[39]There was clearly tension between the claimant and John O’Donnell. This case was not completed within the allocated three hours. Both parties agreed to continue the case after lunch on 7 June 2019. Immediately prior to the lunch break, I stated to both parties that it seemed to me that there may be a number of matters which were not in dispute, and I asked the parties to seek to agree matters which were not in dispute, and to inform me of their position in respect of that after the lunch break. On the continuation of the hearing after the lunch break, I was informed that no agreement on any matter had been reached.[40]There was a lack of clarity from the claimant as to exactly what sums she was seeking as sums which ought to have been paid to the her. The claimant was not straight forward in her responses to questions put to her. The claimant’s position in respect of what the respondent termed ‘commission’, as had been set out to the claimant by the respondent in their correspondence to her of 24 January 2019 (at C8.2) was ‘I didn’t state these as minuses in my working out as I was confused what these deductions were.’ Some confusion was understandable to me, as the system operated by the respondent in respect of what is called ‘commission’ did not appear to me to be straightforward, particularly as it was a calculation in respect of deductions. The claimant’s evidence was that she accepted that there should be ‘some deductions’ to the sums sought by her before the Tribunal, but that there were a ‘couple of issues’ in the final draft of what was the respondent’s position. That final draft referred to by the claimant is at C8.15 – C8.16 and also at R 45 – R46. The claimant disputed that there should be no commission due to her in circumstances where there had been an uplift of equipment provided by the respondent, and a new customer operated out of the premises where services were provided by the respondent. The claimant did make some concessions during cross examination.[41]In respect of bonus, the claimant’s position was that her bonus was calculated on an annual basis, in accordance with the previous year’s work, and was a fixed monthly payment of £613.67. It was the claimant’s position that she had received a payment in that amount in respect of bonus monthly, as detailed in her payslips up to December 2018, but had not received a bonus payment in respect of December 2018 or January 2019.[42]I found John O’Donnell to be credible and reliable in his evidence before me, which was consistent with the documentary evidence.[43]I found Lorna Dougal to be an entirely credible and reliable witness. She was straightforward in her responses and did not seek to avoid answering questions. I entirely accepted her position in respect of the calculation of bonus and commission and that she had been affected by a reduction in bonus payments by the respondent when absent due to ill health. Submissions[44]It was the claimant’s position in submissions that she had been suspended on full pay and ought to have received full pay during the entire period up to her termination date. It was the claimant’s position in submissions that she ‘still believed’ she was due bonus. The claimant’s position was that she considered it to be unfair for the respondent to withdraw bonus payment because she was absent from work due to ill health.[45]In his submissions, the respondent’s representative relied upon what had been paid to the claimant as set out in the documentary evidence. He relied on the evidence before the Tribunal in respect of how the respondent operates its bonus and commission payments. It was submitted that the respondent has paid all sums due to the claimant. It was submitted that due wine. The claimant was absent from work due to ill health. She was not entitled to full pay although she had been suspended on full pay. He submitted that if it is now the claimant’s position that she ought to have been paid full pay during the entire period of her suspension, then that had not been argued previously. His submission was that he had ‘not had the opportunity to argue that point’.[46]The respondent’s understanding that SSP is not payable for the first 5 days of absence is not in line with the provisions of the Social Security Contributions and Benefits Act 1992, section 155, which are that SSP is not payable for the first three qualifying days in any period of entitlement. The claimant is due wages in respect of SSP for absences on 13 and 14 December 2018. The claimant is due the gross sum of (2 x £18.41) £36.82 in this respect. The claimant’s sickness absence supersedes the claimant’s entitlement to full pay while suspended pending investigation.[47]On the basis of my assessment of the evidence on the applicable standard of proof (the balance of probabilities), and on my assessment of the respondent’s witnesses as being more credible that the claimant, I accepted the respondent’s witnesses’ evidence on the contractual position in respect of payment of bonus and commission. The claimant is not due any sums from the respondent in those respects.[48]Sums incurred by the claimant in respect of car hire and legal expenses are not ‘wages’ within the meaning of section 13 of the Employment Rights Act 1996.[49]The claimant has received payment for her 5 days accrued but untaken holidays. The entitlement to statutory (bank) holidays, which are on fixed dates, is separate to the claimant’s accrued holiday entitlement. The respondent’s calculations at R27 do not take into account that there were bank holidays on 25 and 26 December and 1 and 2 January.[50]Following Kinsman and anor v Drumconnerr Ltd and others ET case number 1401769/16 , as referred to in IDS Handbook on Working Time (Volume 15), Chapter 4 (Annual leave) at section 4.259 (Disciplinary Suspension), suspension, like sickness absence is a form of enforced absence from work. The terms of the contract of employment at clause 3 (R77) are taken into consideration. There was no evidence before me of any agreement with the claimant that she take her accrued holidays during the period of suspension. That suspension continued until the date of termination of employment. The notification that the claimant would receive full pay during that period of suspension was superseded by the claimant being unfit for work, and so being only entitled to sick pay during the remaining period of suspension.[51]In these circumstances, when the claimant was suspended and unfit for work in part of her period of notice before the termination date of 4 January 2019, the respondent ought not to have deemed the claimant to have taken her accrued 5 days holiday during that period. The claimant was entitled to be paid in respect of the 4 days fixed bank holidays in that period (25 and 26 December and 1 and 2 January). The claimant was paid for 5 days holiday during her notice period. She ought to have been paid for the 4 days bank holiday and receive payment on termination of her 5 days accrued but untaken holidays.[52]The claimant ought to have received payment of SSP in respect of her absences on 13, 14 & 17 December 2018 (3 x £18.41 = £55.23). The claimant was paid holiday pay in respect of the bank holidays on 25 and 26 December 2018 (2 x £95.73 = £191.46). The claimant ought to have received payment of SSP in respect of her absences on 27, 28 and 31 December 2018 (3 x £18.41 = £55.23). The claimant instead received payment for holidays on those days (3 x £95.73 = £287.19). That was in effect an overpayment to the claimant in respect of those days of (£287.19 – 95.73) £191.46. The claimant ought to have received holiday pay in respect of bank holidays on 1 and 2 January 2019 (2 x £95.73 = £191.46). The claimant instead received payment of SSP for those days (2 x £18.41 = £36.82). On termination of employment the claimant ought to have received payment in respect of 5 days accrued but untaken holidays calculated at the gross daily rate of £95.73 (5 x £95.73 = £478.65) (separate to her entitlement to bank holidays).[53]In respect of these particular days, the claimant then ought to have been paid the gross sum of (£55.23 + £55.23 + £191.46 + £478.65) £780.57. Account requires to be taken of sums paid to the claimant for these days (£191.46 + £287.19 + £36.82 ) £515.47.[54]Taking all these payments due and payments made for these days into account, the balance due to the claimant in respect of unpaid wages is (£780.57 - £515.47) £265.10. There may be deductions which require to be applied to that sum in respect of tax and National Insurance.