Mr B Logue v DSG International: 4104122/2020
JUDGMENT
The judgment of the Tribunal is that the Claimant was unfairly dismissed and the Respondent is ordered to pay the Claimant the sum of TEN THOUSAND FOUR HUNDRED AND NINETY ONE POUNDS (£10,491) by way of compensation.REASONS
[1]The Claimant was employed by the Respondent as a delivery driver. He was dismissed with effect from 4 May 2020. At that time, he had 13 complete years’ service and was 59 years of age.[2]The claim is one of unfair dismissal. The Respondent has not defended the claim. Having failed to do so and having accordingly failed to advance any potentially fair reason for dismissal in accordance with Section 98(4) of the Employment Rights Act 1996 (“ERA”) (the burden of proof resting on the Respondent) the Tribunal found the dismissal to have been unfair.[3]The Tribunal then went on to consider the question of compensation. Basic Award[4]The Claimant had a basic salary of £25,000 per annum with regular overtime payments. He accepted that the Respondent’s calculation of 12 weeks’ notice pay (£6,559.91) was a fair assessment of his average earnings including overtime. This gives rise to gross weekly pay of £546.65.[5]On termination of employment the Claimant received certain payments, including a sum described as a redundancy payment (“the Redundancy Payment”) from the Respondent.[6]Notwithstanding the characterisation of the Redundancy Payment, the Respondent having failed to establish that the dismissal was by reason of redundancy, the exclusion from entitlement to a basic award in s122(4) of ERA does not apply. The Claimant is, therefore, entitled to a basic award of £10,491 (being 19.5 weeks’ pay). The calculation is based on the Claimant’s gross weekly pay of £546.65 (capped at £538) and 13 weeks of service above the age of 41. Compensatory Award[7]In addition to receiving payment in lieu of 12 weeks’ notice (£6,559.91), the Redundancy Payment amounted to £18,180.44 (paid gross).[8]The Claimant commenced alternative employment on 26 October 2020. His current earnings are marginally lower than those he enjoyed with the Respondent. Of the 25 weeks between termination of the Claimant’s employment with the Respondent and his commencing alternative employment, the payment in lieu of notice covered 12 of those, leaving an unpaid period of 13 weeks. The Redundancy Payment received being considerably in excess of the loss of earnings sustained during that period, the Claimant suffered no financial loss to the date of the Hearing.[9]Having regard to the extent of the termination payments received by the Claimant, and his current earnings, there will be no loss for a further considerable period of time (without even considering the Claimant’s continuing duty to mitigate loss). For that reason, the Tribunal did not consider it appropriate to make any award for future loss. No compensatory award is accordingly payable.[1]This case previously came before the Employment Tribunal in circumstances where the Respondent had not defended the claim and did not participate in the Hearing. The Tribunal upheld the Claimant’s claim for unfair dismissal and awarded the Claimant a basic award. No compensatory award was made.[2]By email of 24 December 2021, solicitors acting for the Respondent made an application for reconsideration under Rule 71 of the Employment Tribunals (Rules of Procedure) 2013 (“ET Rules 2013”).[3]In support of the application, the Tribunal was advised that the Respondent name given on the claim form (DSG International) was incorrect. The Claimant’s employer was said to be DSG Retail Ltd which changed its name to Curry’s Group Ltd in September 2021.[4]It was submitted that the Respondent had no record of receiving the claim form and first became aware of the Judgment on 22 December 2021 when a High Court Enforcement Officer attended premises seeking to enforce the Judgment.[5]Enquiries were made which resulted in no record of the claim being received at any of the likely locations.[6]The Respondent’s solicitors advanced a stateable defence to the claim, namely that the Claimant had been dismissed by reason of redundancy and had received a redundancy payment thus meaning no basic award should have been ordered.[7]Following receipt of the application, the Employment Tribunal ordered that a copy of the claim form be sent to the Respondent’s solicitor, copied to the Claimant.[8]Following receipt of that, the Respondent’s solicitors stated that the address used on the claim form was incorrect. The address was the group registered office until 15 October 2015. It had changed with effect from that date. They produced an extract from Companies House evidencing the change of registered office address.[9]The Tribunal was advised that post was diverted for a period of 48 months from the change of address, being the maximum time permitted by the Royal Mail. The application for reconsideration was renewed.[11]The Tribunal invited the Claimant to provide any response to the application and the subsequent correspondence. Both parties were invited to offer an opinion on whether the application required a hearing.[12]The Claimant did not respond. The Respondent’s solicitors indicated that they considered a hearing was required.[13]Having considered the papers, the Employment Judge directed that having considered the application, and the information provided in support, and considering also the lack of any objection by the Claimant, the Employment Judge did not consider a hearing to be necessary. Parties were invited to make any further written representations before a decision was made. Neither party did so.Relevant Law
[14]A Tribunal may reconsider any judgment where “it is necessary in the interests of justice to do so”: Rule 70 ET Rules 2013.[15]Under the previous version of the ET Rules (ET Rules 2004) there were five grounds upon which a Tribunal could review a judgment. Two are relevant to this case:a. That a party did not receive notice of the proceedings leading to the decision;b. That the decision was made in the absence of a party.[16]In Outasight VB Ltd v Brown [2015] ICR D11 EAT, HHJ Eady QC held that the specific grounds are now subsumed within the “interest of justice” test. In this case, HHJ Eady held that the “interest of justice” test provides Tribunals with a broad discretion but that decision 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 the public interest requirement that there should, so far as possible, be finality of litigation”.[17]A Tribunal dealing with a reconsideration application must seek to give effect to the overriding objective of dealing with cases “fairly and justly” which includes:a. Ensuring that the parties are on equal footing;b. Dealing with cases in ways which are proportionate to the complexity and importance of the issues;c. voiding unnecessary formality and seeking flexibility in proceedings;d. Avoiding delay, so far as compatible with proper consideration of the issues; ande. Saving expense. Rule 2 ET Rules.[18]In Williams v Ferrosan Ltd [2004] IRLR 607, the EAT held that in light of the introduction of the overriding objective the “interest of justice” ground should not be read “as if inserted into it are the words “exceptional circumstances” – there is therefore no “exceptionality hurdle”.[19]Having regard to the evidence submitted, the Tribunal was satisfied that the Respondent met the burden of proof that it had not received the ET1 at the relevant time. It was sent to an address which has not been applicable to the Claimant’s employer for over six years.[20]Having not received the ET1, and the decision having been made in the absence of the Respondent, there is a clear prejudice in that the Respondent has not been able to put forward its defence to the claim. The position advanced on behalf of the Respondent does suggest that there are arguments on liability which, if successful, may affect the outcome. Whilst mindful of the benefit of the finality of litigation, with a view to ensuring that the issues can be addressed with the parties being on an equal footing, the Tribunal allowed the Respondent’s application for reconsideration. In doing so, it noted the absence of any objection from the Claimant.[21]The case will accordingly proceed in the normal way with the Respondent being invited to respond to the claim and, should it do so, the case will be listed for a fresh Hearing.