Case No 4104568/2022Venue GlasgowHearing 9 January 2023
Between
Ms A McKnightClaimantF47 Ltd and WBI LtdRespondent
Before
Employment Judge B Campbell; Members Mr R McPherson and Mr VMr B McKinlay for claimantTrainee Solicitor for claimantDate 14 February 2023
JUDGMENT
[1]the claimant was an employee of the second respondent at all material times;[2]the claimant was subjected to a detriment by the second respondent under section 47C of the Employment Rights Act 1996, and separately unfavourable treatment because of her pregnancy under section 18 of the Equality Act 2010, in the following ways:a. Being offered fewer hours of work than normal because of her pregnancy or pregnancy-related illness despite confirming her ongoing availability for work; andb. Not engaging with her sufficiently or adequately in relation to her pregnancy and steps to accommodate it, including allocation of shifts, arrangements for maternity leave and confirmation of maternity pay arrangements; and a declaration is made to that effect;[3]The claimant was dismissed by the second respondent by reason of her pregnancy and as such was automatically unfairly dismissed under sections 99(1) and 99(3)(a) of the Employment Rights Act 1996;[4]She is awarded £9,900.00 in respect of injury to feelings, together with interest at the rate of 8% per annum from 20 May 2022;[5]She is awarded £5,465.12 as compensation for her unfair dismissal, made up of £2,006.13 past loss to the date of the hearing and £3,458.99 in respect of future loss; and[6]The claimant was not issued with a written statement of terms and conditions of employment under section 38 of the Employment Rights Act 1996, and an additional award of four weeks' pay amounting to £591.28 is made, together with interest at the rate of 8% per annum from the date of this judgment.
REASONS
[1]This claim arises out of the claimant's employment by the second respondent. The claimant worked latterly as an assistant manager in the 'Fenwick'/'F47' restaurant in Greenock. Her period of continuous service as an employee began on 15 November 2021 and she was dismissed on 20 May 2022 for the reasons and in the manner described in more detail below.[2]The claim was raised against two respondent companies as the claimant was unclear about which was her employer. This was a matter the tribunal had to determine. She completed ACAS Early Conciliation against both respondents and named both in her claim form. Neither lodged a response to the claim with the tribunal and nor did they appear at the hearing.[3]The tribunal heard evidence from the claimant alone. Generally she was found to be credible and reliable in the evidence that she gave.[4]The claimant provided a bundle of productions. This was supplemented by a smaller additional bundle, the page numbers of which followed on from the first. References in square brackets below are references to the page numbers of the bundle. She also provided a schedule of losses claimed.[5]It had been agreed at an earlier case management hearing that the claimant's evidence in chief could be given by way of a written statement, and one was provided. The claimant confirmed her statement under oath and in addition the tribunal asked her a number of questions in order to gain as full an understanding of the relevant circumstances as was possible.[6]Mr McKinlay helpfully provided a written notes of his closing submissions which were carefully considered in reaching the outcome in the claim. Legal issues[7]The following legal issues had to be decided:a. Was the claimant an employee of either (or both) respondent(s) up until 20 May 2022 as she alleged;b. If so, which entity or entities was/were her employer;c. When did her employer become aware of her pregnancy;d. Did her employer subject her to any detriment relating to her pregnancy contrary to section 47C of the Employment Rights Act 1996 ('ERA'), and/or unfavourable treatment because of her pregnancy under section 18 of the Equality Act 2010 (EqA), in any of the following ways: i. Overlooking her when providing work or shifts; ii. Ostracising her; and/or iii. Not engaging with her in response to her attempts to contact it.e. Was the claimant dismissed by reason of pregnancy or maternity.f. Did her employer fail in its obligation to provide her with a written statement of terms and conditions of her employment compliant with section 1 of ERA;g. To the extent any of the complaints are successful: i. What compensatory award should be made; ii. What compensation should be awarded for injury to feelings; and iii. What declarations should be made.
Applicable law
[1]Employees are entitled to protection against discrimination on the basis of certain protected characteristics, as provided for in the Equality Act 2010 (EqA). One such protected characteristic is pregnancy and/or maternity. A pregnant employee is therefore protected against various types of unfavourable action by her employer both during employment and in relation to dismissal. The key terms are found in section 18 of EqA. An employer will unlawfully discriminate if it treats the employee unfavourable because of her pregnancy or because of illness suffered by her as a result of it.[2]Similar protection is given to pregnant employees by section 47C of the Employment Rights Act 1996 (ERA). That provides that an employee should not be subjected to a detriment by her employer's actions or failure to act where the reason is pregnancy, childbirth or maternity.[3]Where the sole or principal reason for an employee's dismissal is their pregnancy, utilisation of maternity rights or childbirth, that dismissal is deemed automatically unfair under section 99 ERA.[4]Every employee is entitled to be given a written statement of the key particulars of their employment, as set out in section 1 ERA. If the employer does not comply, the employee may make a complaint to an employment tribunal to that effect, but only in conjunction with certain other types of claim. If the complaint is successful, a tribunal may award up to four weeks' pay as compensation. Findings in fact[5]The following findings of fact are made as they are relevant to the issues.[6]The claimant was employed by the second respondent for the reasons given below from 15 November 2020. Both respondents have the same registered office, namely Clarence House, 7 Hood Street, Greenock, Scotland, PA15 1YQ. The second respondent recruited the claimant, administered her pay, seconded her to the first respondent, was responsible for observing her rights as a pregnant employee and ultimately dismissed her.[7]The claimant began working for the second respondent at the 'Word Up' bar and nightclub in Greenock on or around 15 November 2020. She cannot be precise about the date other than that it was in that month, and so the midpoint is found to be the correct date. Nothing material turns on the matter of which day in that month was the correct date. When she started her partner already worked there and made her aware that staff were needed. She worked as a barperson. The bar was operated by the second respondent. This was common knowledge among the existing staff. It was reported as such in local newspapers. The claimant worked a trial shift and then was offered the role by the bar manager, Ms Leah Campbell. In that way she became an employee of the second respondent.[8]She was not given any confirmation of her appointment in writing, whether by way of a paper document or anything electronic. She was offered further part time hours to fit in with her college studies.[9]In late November 2021 the claimant was asked by her then manager Mark Bryceland if she would be interested in working in the role of Assistant Manager at the restaurant Fenwick 47, trading sometimes as Fenwick Tapas ('Fenwick'), which is also in Greenock and a short distance from Word Up. This would be a promotion for her and she agreed. Fenwick was also commonly understood and reported to be owned by the second respondent. It had no apparent management structure of its own.[10]The claimant began working at Fenwick on or around 1 December 2021. Mr Bryceland did not work at Fenwick but Ms Campbell would come in from time to time to oversee how things were being run. The General Manager at Fenwick was a Mr Jonny Carruthers and the claimant reported to him. His shifts and those of the claimant tended to be such that there was not a lot of overlap between them, other than at weekends if the premises were busy. One or other would act as the de facto manager of the premises when they were there. Other members of staff from Word Up would be deployed at Fenwick for shifts from time to time. Ms Campbell would cover for Mr Carruthers when he was unable to work, for example when on holiday.[11]There was a high degree of interchangeability of staff between the two establishments. After moving over to Fenwick the claimant would still occasionally be asked to work shifts at Word Up.[12]On moving to Fenwick the claimant's rate of pay was increased to £9.50 per hour. She asked for a minimum of 16 hours per week which was accommodated to begin with. In January to March 2022 she tended to work between 18 and 23 hours per week. She was satisfied with the arrangement. Mr Carruthers drew up the rota for Fenwick on a weekly basis. He would usually send a text message to each member of staff to ask them how many hours they wished to work in the following week, then draw up the rota based on that.[13]The claimant was paid weekly and received her pay through a combination of bank transfer of a set amount of up to £76, and cash in hand for any pay earned above that. She did not receive any payslips physically and so had no evidence of that sort to show who was paying her. She produced extracts from her online bank account [53-61] but those stated 'W/W CLIENTS SALARIE' and gave no indication of the company making the payments. She was given details to log on to an online portal or app where, she was told, her payslips were available to view, but she could not gain access to them on the occasions she tried. After her dismissal she was denied access altogether.[14]The claimant's average weekly pay was £147.82. She was not a member of a pension scheme through her employer. She received no other benefits. The claimant's pregnancy[15]The claimant found that she was pregnant in mid-January 2022. She told Mr Carruthers within days and he congratulated her. On 30 January 2022 he sent her a WhatsApp message to say that he would be abstaining from drinking the following week and that he 'will kiddon I am preggers tae' [30]. He therefore knew about the pregnancy on or before that date.[16]The claimant's due date was 20 September 2022. She planned to commence maternity leave between 11 and 23 August 2022, wishing to wait until nearer the time to see how she felt.[17]In February 2022 the claimant experienced pain and sickness connected with her pregnancy. She was open with Mr Carruthers about this but was largely able to work her usual number of hours. The symptoms were not constant.[18]From the end of March 2022 Mr Carruthers offered the claimant noticeably fewer shifts than before. She was still experiencing occasional sickness at this point. On 16 April 2022 the claimant offered availability for three shifts the following week, but was not put on the rota at all [35]. Mr Carruthers said it had been a quiet week. On 26 April 2022 he said to her it was still quiet in the restaurant and asked her to 'pop in for a catch up'. He also said he had some staff issues [36].[19]The claimant was offered one further shift, on either Saturday 7 or Saturday 14 May 2022 – it is not clear from Mr Carruthers' message which day it was and the claimant asked for clarification, which was not given by way of a further message at least. The claimant's dismissal and matters following[20]The claimant contacted a Ms Lynsey Penman to discuss her plans for taking maternity leave, any formalities required and any entitlement she would have to maternity pay. Ms Penman worked in an office above Word Up and dealt with HR matters and employee wages for both Word Up and Fenwick. She was known by staff at either location to be the person to contact if an HR matter needed to be raised. The claimant tried for four days between 17 and 20 May 2022 to reach Ms Penman by telephone.[21]The claimant managed to speak to Ms Penman by telephone on 20 May 2022. She explained the purpose of her call. Ms Penman replied to say that she had been 'P45'd' in a way which suggested any conversation about maternity rights had been superseded. The claimant took from her words that she was being dismissed. This was the first she had heard if so. Ms Penman told the claimant she should speak to Mr Carruthers.[22]The claimant was surprised at Ms Penman's statement, and it upset her. It took her about two days before she was able to contact Mr Carruthers, which she did by WhatsApp. She told him on Monday 23 May 2022 of her call to Ms Penman and asked why she had been told nothing of this beforehand by him. She also said that if her illness had been an issue, she could have obtained fit notes from her GP.[23]Mr Carruthers did not deny that the claimant had been dismissed as Ms Penman had indicated. He said he would try to speak to her about it. The claimant assumed this meant that he would try to persuade her to change her mind. He sent her a WhatsApp message which said 'no hard feelings'. He did not follow up on that message. The next time he sent her a message was on 17 September 2022 to congratulate her on the birth of her son.[24]The claimant did not hear further from Mr Carruthers, or Ms Penman, in relation to her employment status and when she tried to contact both she was unsuccessful. She therefore remained out of work. The claimant believed that she was dismissed because of her pregnancy and in particular because the point when she would be taking maternity leave, and would become entitled to maternity pay, was approaching.[25]There were no other apparent factors in the claimant's relationship with Mr Carruthers, which was friendly and supportive until the end, or any issues with the claimant's performance or conduct which suggested another reason for her being dismissed in the way that she was.[26]The unexpected decision to dismiss the claimant caused her a degree of stress at a time when she was already experiencing illness and other symptoms connected to her pregnancy. She had financial commitments in relation to her flat and car as well as everyday expenses. She called upon her partner and father to help her pay her bills. She felt upset and vulnerable. She felt that the way in which her dismissal was implemented was particularly underhand.[27]The claimant was not at any point provided with a statement of her terms and conditions of employment in writing as required by section 1 of ERA. A document in the bundle purporting to be such a statement was included in the bundle [39-45] but was only provided to the claimant during negotiations over the settlement of her claim, which did not lead to resolution. The claimant had not seen the document before that point, which is to say at any point while she was in employment.[28]The document is not helpful in determining who was the claimant's true employer. For example, it is headed up 'F47 Limited / Contract of Employment' but then goes on to state the claimant 'should also refer to the Employee Handbook for further information on policies and procedures applicable to your employment with WBI Limited, Clarence House, 7 Hood Street, Greenock PA15 1YH.' The claimant's commencement date as stated is wrong, as is the description of her job title. The claimant had never seen an 'Employee Handbook' or been made aware of the existence of one.[29]The claimant had intended to go on working her normal hours – that is to say, 16 to 20 per week – up until 23 August 2022 and then take maternity leave of between six and nine months. She has by now returned to her college course and has good options for securing childcare via members of her family. The parties' submissions[30]Mr McKinlay provided a written note of submissions which was considered by the tribunal in reaching its decision on the issues. Discussion and conclusions Was the claimant an employee until 20 May 2022 as she alleged?
Discussion and conclusions
[31]On the evidence above it is found that the claimant was employed continuously by the second respondent between 15 November 2020 and 20 May 2022. Which entity or entities was/were her employer?[32]The tribunal finds that the second respondent, WBI Limited, was the claimant's employer between the above dates.[33]The finding is made on the balance of probability and based on the evidence before the tribunal. There was a notable lack of evidence in the form of a reliable contract document, payslips or evidence from the respondents themselves.[34]However, the tribunal concluded that the claimant was originally employed by the second respondent, as it operated Word Up where she first worked, and that she remained employed by that company when transferred to Fenwick. Her managers appeared to have been employees of the second respondent and there was no evidence of her employer changing at any point. She was not notified that the company employing her would change. It was not unusual for employees of the second respondent to be transferred to Fenwick on a short-term basis. She herself occasionally worked shifts at Word Up after transferring to Fenwick. When did her employer become aware of her pregnancy?[35]On the evidence it is found that the claimant's employer became aware of her pregnancy in the last week of January 2022. This occurred by way of the claimant telling Mr Carruthers, an employee of her employer and someone who reported to her employer. He knew by 30 January 2022 that she was pregnant as he sent her a WhatsApp message clearly referring to it. Did her employer subject her to any detriment relating to her pregnancy contrary to section 47C of the Employment Rights Act 1996 ('ERA'), and/or unfavourable treatment because of her pregnancy under section 18 of the Equality Act 2010 (EqA)?[36]The claimant alleged that the (second) respondent acted unlawfully in three ways, namely by:36.1 Overlooking her when providing work or shifts;36.2 Ostracising her; and/or36.3 Not engaging with her in response to her attempts to contact it.[37]Effectively the tribunal upholds the claimant's complaints, but expresses them as follows. The claimant was both subjected to a detriment under section 47C ERA and treated unfavourably because of her pregnancy under section 18 EqA by:37.1 Being offered fewer shifts by reason of her pregnancy despite providing her employer with details of her availability and willingness to work as she had done before; and37.2 Not engaging with her properly in relation to her pregnancy and the ways in which it should have been accommodated, including in relation to the allocation of shifts, arrangements for her to take maternity leave and provision of maternity pay.[38]On the evidence, and again applying the balance of probability, the claimant was treated in this way and it was because of her being pregnant in itself and/or being ill as a result of her pregnancy. Her employer had knowledge of both. Was the claimant dismissed by reason of pregnancy or maternity?[39]On the evidence the claimant was dismissed because of her pregnancy. There was no evidence of any other reason for her dismissal. The claimant was given no indication that she was being dismissed, much less a reason, until she began contacting her employer to discuss her maternity leave and pay arrangements.[40]As such, the claimant was automatically unfairly dismissed under section 99 ERA and the fact that she had not completed two whole years of service does not matter. Did her employer fail in its obligation to provide her with a written statement of terms and conditions of her employment compliant with section 1 of ERA?[41]The claimant was not provided with a compliant statement of terms and conditions of employment. The tribunal accepted that the document at pages 39 to 45 of the bundle was not provided to her at any point when she was an employee. To the extent any of the complaints are successful, what remedy should be awarded?[42]The claimant sought declarations that:42.1 The second respondent unlawfully discriminated against her in contravention of section 18 EqA as a result of her pregnancy or pregnancy-related illness:42.2 The second respondent automatically unfairly dismissed her contrary to section 99 ERA by reason of her pregnancy or pregnancy-related illness; and42.3 The claimant was not provided with a written statement of terms and conditions of employment compliant with section 1 ERA.[43]The tribunal makes those declarations in its judgment above.[44]The claimant also sought an award of compensation for injury to feelings in respect of her discriminatory dismissal and discriminatory and detrimental treatment before dismissal.[45]She did not provide any medical or other third-party evidence to support her claim for an award. She sought an amount consistent with the upper end of the lowest of the three bands of compensation introduced by the well known authority of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102. This Mr McKinlay argued was consistent with the approach taken by another employment tribunal in the claim of Gay v Leeds Warehouse Solutions Limited – 1800043/2018. In that claim the employee had similarly short service and was dismissed because of her pregnancy. A further consistent first-instance decision was relied upon.[46]Whilst those judgments are not binding on this tribunal, we agree that this is an appropriate level of compensation in this claimant's case. The effect on her by the decision to dismiss her was clearly not minimal or insignificant. However, it was a single act by her employer.[47]The claimant sought a figure of £9,900 consistent with the upper end of the bottom Vento band currently, and the tribunal consider it proportionate to award her this sum.[48]Interest will accrue on this figure from the date of her dismissal, 20 May 2022, at the rate of 8% per annum. The tribunal was conscious that as it could be argued that the detrimental treatment began earlier, possibly as early as March 2022, interest should run from an earlier point. However, the key act was clearly the claimant's dismissal and so her dismissal date is used as a reference point.[49]Were she not dismissed, the claimant planned to work up until 23 August 2022 as normal, then take a period of Ordinary Maternity Leave and possibly also Additional Maternity Leave following that. She indicated she would have taken a period of six to nine months before returning to work. Had she done so (and not been discriminated against or unfavourably treated because of her pregnancy or any related illness) she would have most likely received an average of £147.82 gross per week between 20 May and 23 August 2022, calculated to be 13.57 weeks or £2,006.13 after rounding as a monetary equivalent.[50]In order to be eligible to receive Statutory Maternity Pay (SMP) the claimant had to be employed for at least 26 weeks by the point 15 weeks before her expected week of childbirth, which was 20 September 2022 at the relevant time. 15 weeks before that was the week commencing 5 June 2022. The claimant had been an employee since 15 November 2020 and therefore qualified.[51]The claimant earned more than the Lower Earnings Limit of £123 per week which applied. There is no reason why she would have been unable to comply with the other formalities associated with taking maternity leave.[52]According to the evidence, the tribunal therefore finds that the claimant would have been eligible to receive maternity pay at the statutory rate of 90% of her average weekly earnings for a period of 26 weeks. This equates to £133.04 per week for 26 weeks, or £3,458.99. But for her unfair dismissal the claimant would most likely have been entitled to these payments and she is awarded the same sum as part of the compensatory award the tribunal makes.[53]The tribunal considered whether to compensate the claimant for a further period but considered that the above approach was proportionate and in keeping with what was just and equitable, including the losses the claimant herself was seeking.[54]Finally, the tribunal considered whether to compensate the claimant under section 38 of ERA as a result of not being given a written statement of terms and conditions of employment. There was no apparent good reason for her employer's failure in this respect, and the lack of a statement caused her uncertainty and difficulty during her employment and when she came to pursue her rights via this claim. The tribunal did not consider this a mere oversight, and saw fit to award the claimant the sum of four weeks' pay together with interest at the statutory rate of 8% as is competent.
Conclusions
[55]As a result of the above findings the tribunal makes the declarations and awards as indicated at the outset of this judgment.
Background
[1]The claim was originally presented to the employment tribunal on 19 August 2022. Before that, the claimant had initiated ACAS Early Conciliation involving both respondents on 14 June 2022 and Early Conciliation numbers and certificates were issued on 22 July 2022.[2]The claimant was unsure which of the respondents was her employer, and so raised her claim against both.[3]The claim form and a notice of preliminary hearing were sent to both respondents in the usual way by post on 24 August 2022. Both have the same registered office, namely Clarence House, 7 Hood Street, Greenock PA15 1YQ and the correspondence was sent there. Response forms had to be lodged by 21 September 2022. The preliminary hearing was scheduled for 18 October 2022.[4]No responses were submitted to the tribunal and the respondents did not contact the tribunal office in any other way.[5]The preliminary hearing was converted to a full hearing at which the claim was to be heard undefended. Owing to unavailability of the claimant's solicitor who was on leave, it was then postponed.[6]Correspondence from the tribunal confirming both of those developments – the conversion of the preliminary hearing and its subsequent postponement - was sent to the respondents' registered address on 3 and 7 October 2022 respectively.[7]A case management preliminary hearing was arranged for 1 November 2022. Notice of the hearing was sent to the respondents at their registered address on 12 October 2022. The notice indicated that the full hearing would be listed within the period January to March 2023.[8]The preliminary hearing proceeded on 1 November 2022 by telephone. The respondents did not join in person or through a representative. A copy of the judge's note of the hearing was issued to the claimant and the first respondent (although not, it appears, the second respondent) by letter to its registered address, dated 2 November 2022. It indicates among other things that the claimant's solicitor stated he: “…had been in touch with the respondents' HR department, and they had told him that the claimant was employed by the first respondent. However, the claimant's payslips disclose both names, and accordingly, while the claims are undefended, there remains a lack of clarity as to the precise identity of the correct respondent in this case, as it is not clear which of the respondents was the claimant's employer.”[9]Following the preliminary hearing a full hearing was fixed for 9 and 10 January 2023 at the Glasgow Employment Tribunal centre. The notice of hearing was sent to both respondents on 5 December 2022 at their registered address. The respondents were also copied in on a letter with the same date from the tribunal to the claimant's solicitor, directing him to provide a hearing bundle by 19 December 2022 and to bring sufficient copies of the bundle to the hearing itself. The claimant's solicitor complied, although he did not send a copy of the bundle to the respondents.[10]It had been agreed at the preliminary hearing on 1 November 2022 that the claimant's evidence in chief would be provided by way of a written witness statement, which would be submitted to the tribunal no less than 7 days before the first day of the full hearing. On 23 December 2022 the claimant's solicitor applied for an extension of that deadline until 4 January 2023 on the basis that holidays in between were anticipated to prevent the claimant's necessary instructions on the statement from being obtained. On 30 December 2022 a letter was sent to the claimant's solicitor confirming that a judge had granted his application. The letter was copied to the first respondent, although not the second, at its registered address.[11]The full hearing of the claim took place on 9 and 10 January 2023 as scheduled and after deliberation the tribunal issued a written judgment with reasons dated 14 February 2023. This was sent to the respondents on 15 February 2023 by post. The address used for each respondent was their registered address. It was also sent to the claimant's solicitor by both post and email on that day.[12]On 8 March 2023 a Ms Lynsey Penman emailed the Glasgow Employment Tribunal office to say that she dealt with HR for both respondents and had received the judgment on 6 March 2023, followed by a request by the claimant's solicitor for payment of the award granted in the judgment the following day. It was said that this was the first that 'we', taken to be both respondents, were aware of the hearing having taken place.[13]The email also said that until that point the respondents were unaware that the tribunal had progressed, they had not received a response form to complete and return, and were unable to defend the claim. Ms Penman said that she had received emails from ACAS about the claimant in July 2022 and then Early Conciliation certificates, but nothing further since then.[14]On 10 March 2023 Ms Forsyth, a solicitor having been instructed by both respondents, emailed the tribunal office and attached an urgent request for reconsideration of the judgment under rule 71 of the Employment Tribunals (Constitution and Rules of Procedure) 2013 (the 'ET rules') – referred to below as the 'application'.[15]In summary, the grounds were:a. Neither respondent received notification of the claim, or any further correspondence about it, until the judgment itself was received by post on 6 March 2023;b. They were consequently unaware of any of the hearings and were denied the opportunity to state their position to the tribunal;c. The tribunal's finding that the second respondent was the claimant's employer was denied, and this would have been stated had it been able to participate in the claim;d. The respondents were unaware of any problems with them receiving items of mail; ande. It would not therefore be in the interests of justice to allow the judgment to stand.[16]On initially reviewing the application I did not consider there to be 'no reasonable prospect of the original decision being varied or revoked' under rule 72(1). Subject to fuller development, and any submissions in reply by the claimant, the respondents had put forward a stateable case. This was my preliminary assessment of the application both in relation to its merits and any question of whether it had been submitted out of time, and if so, the reasons for that and whether time should be extended to allow it to be determined.[17]I therefore did not refuse the application at that time and asked for the claimant's preliminary view on the application, and sought confirmation from both parties of whether they were content for the application to be determined without the need for a hearing. Both parties confirmed they agreed to the application being determined without a hearing. Mr McKinlay for the claimant provided a note summarising the claimant's reasons for resisting the application on 20 March 2023.[18]In summary, the basis for the claimant's objection to the application were:a. As the judgment was dated 14 February 2023 and sent to the parties the following day, and the application was made on 10 March, it was nine days late according to the 14-day time limit in rule 71;b. Further, no application had been made to vary that time limit (under rule 5);c. It was denied that the respondents were unaware of the claim. It was said that they participated in Early Conciliation via ACAS and there were further settlement discussions involving ACAS in their capacity as conciliators after the claim had been presented to the tribunal;d. It was 'doubtful' that the respondents had received no correspondence from the tribunal until the judgment, particularly as the address used on every document was the same;e. Under rule 90(a) of the ET rules there is a presumption that any piece of correspondence sent by post will have been delivered within the usual timescale for that process. That presumption would be for the respondents to rebut with evidence, or otherwise it should operate in favour of a conclusion that any items sent by post were delivered;f. It would not be in the interests of justice to grant the application. Noting in particular the emotional toll on the claimant by the tribunal process and the additional financial cost she would incur were the claim to be reset to the beginning of the process; andg. There would be significant delay in the claimant receiving closure of the matter. This would prejudice her and run contrary to the principle of finality in litigation.[19]I agreed to consider the application on the basis of written submissions and gave the parties an opportunity to provide anything further in support of their positions. I was content that the overriding objective under rule 2 was best served by dispensing with the need for a hearing, taking into account in particular the desire to save expense and further delay, and to deal with issues proportionately. Both parties were legally represented and able to set out their positions in writing in a way which did justice to them.[20]Ms Forsyth provided a note of submissions on 7 April 2023. A colleague of Mr McKinlay, Mr Dorrian, provided a note of submissions on 14 April 2023.[21]In addition to the points made in the application, Ms Forsyth's note of 7 April covered the following:a. Had they been able to participate in the claim the respondents would have given evidence to the effect that the second respondent was not the claimant's employer, as had been found by the tribunal, and that instead the first respondent was her employer;b. The complaints of unlawful discrimination and unfair dismissal would have been defended on their merits in any event;c. The first and second respondents are separate legal entities and should be treated as such;d. It was not possible to make the application within the 14-day period prescribed by rule 71 as the judgment was received by the respondents after that deadline had elapsed;e. The respondents had discussions with ACAS about 'a potential claim' but were not made aware that claim had been lodged with the tribunal, and could not have known that;f. The respondents received no correspondence or communication from the claimant's solicitor or the tribunal (until receipt of the judgment);g. It was assumed that no further correspondence was sent to the respondents after the claim was issued to them and the deadline for lodging responses had passed without any responses being lodged; andh. The respondents cannot prove non-receipt of correspondence and so cannot produce evidence to rebut the presumption in rule 90(a).[22]Mr Dorrian's note added the following to Mr McKinlay's initial submissions:a. The claimant's solicitors had sent a copy of the judgment to the respondents on 2 March 2023 by recorded delivery post together with a letter of request for payment by post and email to the first respondent on that day. The email was sent to Ms Penman's email account 'lynsey@wbigroup.co.uk' which the address she had given at the ACAS Early Conciliation stage;b. Accordingly it is to be assumed that the email was received by Ms Penman on 2 March 2023. If so there was a delay in making the application of 8 days. It was out of time;c. Further, the reference to 'WBI' in Ms Penman's email address suggested that the second respondent was her employer and it would be 'bewildering' to the claimant were Ms Penman to argue that she the claimant was an employee of the first respondent;d. The merits of the application itself should be considered under reference to the judgment of the Employment Appeal Tribunal in TM White and Sons Limited v White UK/EAT/0022-23/21/VP;e. The respondents have not displaced the presumption of regular delivery created under rule 90(a). Their address has remained the same at all material times and was used on the Early Conciliation certificates provided by ACAS;f. The claimant provided the address of her workplace separate to the respondents' registered office in her claim form, and assumed that the claim form had also been sent there;g. It was likely that each piece of correspondence sent by the tribunal office to the respondents at their registered office address was received there – a total of eight occasions. Alternatively, on the balance of probability at least one item would have been successfully delivered. That would have been enough to reasonably prompt the respondents to contact the tribunal office;h. No statement was provided by Ms Penman as to her evidence on the matter of how the respondents normally receive correspondence and what happened in relation to the correspondence issued in this claim;i. It was not in the interests of justice to decide the application in the respondents' favour on its merits. This would conflict with the principle of finality of judgments. The respondents are in effect seeking a 'second bite at the cherry'. Reference was made to the cases of Ebury Partners UK Limited v Mr M Acton David [2023] EAT 40 and Flint v Eastern Electricity Board [1975] ICR 395;j. The respondents have not explained adequately how it would be in the interests of justice for the application to be granted. They do not go beyond the point that they did not have notice of the claim. The tribunal has already fulfilled its role in deciding the claim;k. The claimant herself complied with all orders and directions of the tribunal;l. The tribunal satisfied the overriding objective in dealing with the claim as it did; andm. The balance of fairness should favour the judgment being undisturbed. Discussion and decision[23]I took note of the judgment of HHJ Tayler in T W White & Sons Limited v Ms K White UKEAT/0022/21 and UKEAT/0023/21 and in particular paragraph 49 which summarised the sequential approach to be taken in dealing with an application for reconsideration.[24]I considered the following to be relevant to the determination of the application:a. As it was not made within the time period prescribed by rule 71 of the ET rules, whether it was appropriate to extend time under rule 5 so that it could be considered on its merits;b. If the application was to be considered on its merits, was it 'necessary in the interests of justice' per rule 70 that it be granted; andc. If the application were granted, what further orders or directions should be made for the management of the claim.[25]I noted that the respondents were seeking that the entire judgment dated 14 February 2023 be set aside and that the claim proceed anew by being served again on them so that they could defend it. In essence the whole of the procedural history of the claim would be erased. Time bar question[26]The judgment was posted out to the parties on 15 February 2023. The respondents say they did not receive it until Monday 6 March 2023. It was received in the post. They suggest that the claimant may have received the judgment around the same time given that her solicitor's letter requesting payment was received on 7 March 2023, although they do not say when it was dated. The claimant's solicitor stated in his note dated 14 April 2023 that the letter was emailed to Ms Penman and posted on 2 March 2023 – a Thursday. Neither a copy of the email nor one of the letter was produced.[27]On the information available I consider the most likely sequence of events to be that the claimant's solicitor sent the copy judgment and payment request letter by post on Thursday 2 March 2023 and that this was received by Ms Penman on Monday 6 March 2023. He also emailed those documents to Ms Penman on 2 March 2023 using the email address the claimant had nominated at the Early Conciliation stage and which Ms Penman had confirmed was correct.[28]It is possible that this email did not reach Ms Penman on 2 March, or at all, for example if it had been held up because it contained attachments or because the sender was unknown. I consider it more probable than not that the email was safely received by Ms Penman on 2 March 2023 but in any event this only gave her one further full working day to respond to it as compared with receipt of the hard copy on the following Monday.[29]On any interpretation of the information available, it was not possible to say that the respondents had received the judgment within 14 days of its issue date and therefore had the opportunity to apply for reconsideration within time. The likelihood is that they did not. Therefore the balance of fairness is in favour of extending time subject to them demonstrating that they did not delay unduly after receiving the judgment in submitting their application.[30]The judgment was received on Thursday 2 March at the earliest and the application was made on Friday 10 March. Given that the judgment would have to be read, its findings and consequences considered, and then legal advice obtained before the application could be drafted in the form in which it was submitted, I do not consider the time taken to be excessive. I believed it to be in the interests of justice for the application to be decided on its merits given the potential consequences for both respondents as weighed against the relatively short period of time in which they had to respond, given that they had no realistic opportunity of applying within the normal timescale. The substantive application[31]I turned to consider the respondents' application on its merits. There is no onus on either party in terms of whether it is in the interests of justice that a tribunal decision be varied revoked under rule 71.[32]It is self-evident that for a party to be denied the opportunity to defend a claim through no fault of their own would be unjust. This is particularly so if the party would seek to challenge the evidence of its opponent, and even more so where the party's argument is that it is not a legal person which could be liable at all.[33]The gravamen of the respondents' application is that they were in such a position. It is said that the second respondent was not even legally capable of being liable for any of the claimant's complaints, and the first respondent would have mounted a legitimate defence of them.[34]I gave consideration to the parties' submissions as well as the additional facts available from the tribunal file, and I considered the overriding objective of employment tribunals set out in rule 2 of the ET rules. My decision was not to grant the application for the following reasons. Whether the respondents had notice of the claim[35]The respondents were sent a number of pieces of correspondence by the tribunal office in connection with the claim. Eight items were sent out in total, although it is noted that on two of those occasions the correspondence was sent to the first respondent only. Nevertheless, whilst the respondents are, as Ms Forsyth correctly points out, separate legal entities, they shared a registered office and were both represented by Ms Penman. In reality, the second respondent had an equal opportunity to become aware of the claim and its progress at various stages to the first respondent.[36]Notably, the correspondence was sent to the same postal address each time, which was also the address used when the judgment was sent out, and which the respondents received. The respondents' position was that they were aware of no problems receiving mail properly addressed to them.[37]Whilst it is credible for a respondent to hold the position that merely by participating in Early Conciliation they would not be expected to know an employment tribunal claim had subsequently been raised, here the claimant took part in settlement negotiations via ACAS after the claim was raised. It is unlikely that any such discussions would have taken place without any ACAS Conciliator involved making reference to the claim itself.[38]I therefore concluded that most likely the respondents would have received at least one of the eight pieces of correspondence issued, and that there was no good reason why they would not have received all of them. The nature of each item was such that it would readily convey that the claim had been formally raised and was progressing towards a full hearing. I also concluded that there would have been reference to the claim by ACAS in the contact that they made with the respondents following it being raised.[39]The wording of rule 90(a) creates a presumption of effective service of documents, which is determinative 'unless the contrary is proved'. It may have been possible to accept that the respondents did not receive one document which was sent to them, but not to receive eight over a period of five months and have no explanation as to why is insufficient to discharge the onus that rule 90(a) imposes.[40]It follows that the respondents' key argument, namely that they were unfairly denied the opportunity to defend the claim, is not accepted. The consequences for the respondents should the application not be granted[41]I considered the consequences for the respondents in not now having the opportunity to defend the claims. I recognise that there is a risk that the wrong respondent was found liable to the claimant for the complaints she raised, and that they could have been successfully defended in any event. These matters initially mitigate in favour of the granting of the application.[42]However, when weighed against the evidence in support of the position that the respondents had adequate opportunity to defend the claim (or at least apply to be heard before it was determined) but did not take it, this is insufficient to reach the threshold of the interests of justice being met.[43]Although it would be possible that either respondent would bring further evidence – documentary or oral – to the hearing which would help clarify the issues, there was a sufficient body of evidence available at the original hearing on which to base the findings of fact and legal conclusions which the tribunal made. The respondents did not specify any new evidence in support of their contrary position. Finality of litigation[44]Also of relevance was the 'finality of litigation' issue. The principle was reinforced as recently as the beginning of this year by the EAT in Ebury Partners UK Limited v Mr M Acton David [2023] EAT 40. Tribunals are urged to make decisions which offer a party a second bite at the cherry 'with caution'. In Ebury it was the tribunal's own decision to reconsider its previous judgment in order to consider arguments not led by the parties that drew criticism. Nevertheless the wider principle was that if parties had a fair opportunity to lead their respective cases, the process should not be reopened after a final judgment had been reached unless there was something akin to a 'procedural mishap'. I did not consider there had been a procedural mishap in this claim, and in any event not one which prevented the respondents from asking to have their position considered before a judgment was reached.[45]The claimant raised her claim in August 2022 and received a judgment in February of 2023. In the process, as the tribunal found, she had been emotionally affected by her dismissal and the actions of her managers leading up to it. It was visibly upsetting to her to recount that in the hearing. She would have to repeat that process and would not be able to achieve closure of the matter for a number of further months from this point. To allow the respondents to reset the process to the start would have consequences, in terms of both the claimant's emotional state and in taking further time and tribunal resources. The claimant herself would be put to further expense without there being any guarantee of recovery.[46]The balance is therefore in the claimant's favour and against the granting of the application on this issue, and as a whole. Accordingly, there is no need to make further directions as the original judgment stands.