Mr M Hall v Mr M Basi T/a Professional Gardening Services: 4104915/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4104915/2020
Between
Mr M. HallClaimantMr M. Basi t/a Professional Gardening ServicesRespondent
Before
Employment Judge A. TinnionDate 27 February 2023
JUDGMENT
[1]the Claimant’s complaint of unlawful deduction from wages is dismissed under Rule 52, that complaint having been withdrawal by the Claimant;[2]the Claimant’s complaint of unfair dismissal is well-founded, and the Claimant is entitled to a remedy in respect of same;[3]the Claimant’s complaint of failure to pay holiday pay is well-founded and the Claimant is entitled to a remedy in respect of same.[1]A remedy hearing (by CVP) shall be listed for 3 hours on the next available date after 26 February 2021 to determine the Claimant’s remedy entitlements.[2]The Respondent and any representative shall be entitled to:a. attend the remedies hearing;b. submit written submissions to the Tribunal on remedy/compensation, any submissions to be sent to the Claimant and copied to the Tribunal no later than 4pm on the business day falling 2 business days before the remedies hearing;c. cross-examine the Claimant’s witness(es) on issues of remedy/compensation only;d. make oral submissions to the Tribunal on issues of remedy/compensation only.[3]By 4pm on 12 February 2021, the Claimant shall send to the Respondent and copy to the Tribunal the following:a. an updated schedule of loss(i) particularising all sums sought(ii) providing clear explanation of how each sum is calculated;b. particulars of benefit(s) received since 7 May 2020;c. particulars of any income/earnings from any source since 7 May 2020;d. particulars of any efforts to mitigate loss arising from dismissal;e. copies of any documents on which the Claimant intends to rely at the hearing, which shall include copies of the following: i. Claimant’s bank statements for period 1 August 2016 – 31 May 2020 (which Claimant must obtain if he does not already have copies), Claimant has leave to redact irrelevant entries/private information if so advised; ii. Claimant’s wage/pay slips received during Respondent’s employment (or confirm he has none); iii. documents evidencing Claimant’s wages in 2016, 2017, 2018, 2019, 2020 (or confirm he has none); iv. documents evidencing Respondent’s financial contribution to Claimant’s work pension plan in 2020 (or confirm he has none); v. Claimant’s P60s for tax years 2016/2017, 2017/2018, 2018/2019 and 2019/2020 (Claimant must check HMRC do not have copies) (or confirm there are none); vi. any other documents relevant to compensation/remedy on which the Claimant intends to rely at the remedies hearing.
REASONS
[1]At the hearing on 15 January 2021, the Tribunal heard the Claimant’s oral evidence, considered the documents referred to in the Claimant’s production, and heard the Claimant representative’s submissions on(i) jurisdiction/time limits(ii) liability.[2]For reasons given orally at the hearing, the Tribunal held it has jurisdiction over the Claimant’s complaints of unfair dismissal and failure to pay holiday pay, and held in the Claimant’s favour on those two complaints.[3]The Tribunal determined there to be a need for a separate hearing to determine remedy (today’s hearing having been listed for only 1 hour to consider jurisdiction, liability and remedy, and having overrun by more than 20 2 hours).[4]The Tribunal referred the Claimant’s solicitor to the principles set out in Office Equipment Systems Ltd v Hughes [2018] EWCA Civ. 1842, paras. 16-20, who agreed that as there will now be a separate hearing to determine remedy the Respondent should be given the opportunity to participate in that hearing to the extent indicated below notwithstanding the debarring order. Employment Judge A. Tinnion Date of Judgment 15 January 2021 Date sent to parties 29 January 2021 NOTES 1. You may make a written application to the Tribunal under Rule 29 for this Order to be varied, suspended or set aside. Your application must set out the reasons(s) why you say this Order should be varied, suspended or set aside, and if you seek alternative directions, what alternative directions you seek. You must send the other party a copy of any application and state in your application that you have done so (failure to do this may result in your application not being considered by the Tribunal). Any application to the Tribunal must state in it that the other party should notify the applicant and the Tribunal of any objections to the application as soon as possible. 2. If this Order is not complied with, the Tribunal may make an order under Rule 76(2) for expenses or preparation time against the party in default. 3. If this Order is not complied with, the Tribunal may strike out the whole or part of the claim under Rule 37. EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104915/2020 Held via Cloud Video Platform on 19 November 2021 Employment Judge Frances Eccles Mr M Hall Claimant Represented by: Mr B Thornber – Solicitor Mr M Basi t/a Professional Gardening Services Respondent Represented by Ms K Dingwall - Solicitor[1]The claim was presented on 18 September 2020. The final hearing held on 9 and 10 August 2022 was continued to hear evidence about when a 25 recording on the claimant’s telephone and on which he relies was made. The claim was listed for a continued final hearing to take place on 27 February 2023. At the final hearing there was no appearance by the claimant. He was not represented. The respondent was in attendance with his solicitor, Ms K Dingwall. Enquiries were made by the clerk to the Tribunal about the reasons 30 for the claimant’s absence. 4102344/2022 Page 2[2]The claimant informed the clerk to the Tribunal that he had not received notice of today’s hearing. The claimant explained that he was still in the process of identifying alternative representation. The claimant informed the clerk to the Tribunal that he had not received a response from the Tribunal to outstanding 5 emails. The claimant informed the clerk to the Tribunal that he felt unwell and that his car was in the garage.[3]I am satisfied, having checked the Tribunal’s records, that the claimant was sent notice of today’s hearing. It was sent to the email address provided by the claimant to the Tribunal. The claimant’s representative withdrew from 10 acting on his behalf on 4 January 2023. I am satisfied that the claimant has had sufficient time to identify and instruct another representative. There is no record of any outstanding emails from the claimant to which the Tribunal has not responded.[4]The respondent informs me that, notwithstanding his undertaking to do so, 15 the claimant has failed to provide an expert with his telephone for the purposes of determining when the recording he relies on was made.[5]In the absence of the claimant and having considered the available information about the reasons for his absence, I concluded that it is appropriate and in accordance with the overriding objective to dismiss the 20 claim. In reaching my decision I have taken into account that the claimant informed the clerk to the Tribunal that he felt unwell and had transport issues. I was not persuaded that these factors outweigh the other factors in reaching a decision about whether or not to dismiss the claim in the claimant’s absence.[6]It is open to the claimant to seek reconsideration of the Tribunal’s decision 25 under Rules 70 to 72 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. 30 4102344/2022 Page 3[7]The respondent sought strike out of the claim at today’s hearing. I considered that, in all the circumstances, it is appropriate to refuse the above application and to dismiss the claim in the absence of the claimant under Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 5 2013.