Miss M Szalek v Pure Cleaning (Scotland) Ltd: 4110355/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4110355/2019

Between

Miss M SzalekClaimant

Pure Cleaning (Scotland) LtdRespondent

Before

Employment Judge M Whitcombe

Date 22 June 2020

REASONS

[3]By a claim form submitted on 21 August 2019 the claimant seeks payment of accrued holiday pay entitlement outstanding on the termination of her employment.

[4]In accordance with rule 15 of the ET Rules of Procedure 2013 the Tribunal administration sent that claim form to the respondent under cover of a letter dated 27 August 2019. The letter also enclosed the mandatory prescribed response form and an explicit reminder that the response must be received at the Tribunal office by 24 September 2019, the period specified by rule 16(1). The letter also explained that the respondent could apply for an extension of the time to submit the response if it applied in writing setting out the reason why the extension was sought.

[5]Neither a response nor any application for an extension of time for submission of a response was received by the deadline of 24 September 2019.

[6]A response was received on 1 October 2019, 7 days outside the specified period. It was not accompanied by an application for an extension of time. It was not accompanied by any explanation for the lateness.

[7]I decided to reject the response under rule 18 because it was late and because there was neither any application for an extension of time nor an acceptable explanation for the lateness which I might have treated as an implicit application for an extension of time. The Tribunal administration recorded my decision in a standard letter dated 4 October 2019. In the normal way, that letter reminded the respondent that the deadline for any application for a reconsideration of the decision to reject the response was within 14 days of the date of the letter.

[8]The respondent made an application for reconsideration of the decision to reject the response in a letter bearing the date 18 October 2019. However, it was received by the Tribunal on 22 October 2019, outside the time limit for seeking a reconsideration.

[9]I dismiss the application for a reconsideration of my decision to reject the response both because the application for reconsideration was itself out of time and also because it is not well-founded on the merits anyway. I would have rejected it for either of those alternative reasons.a. The reconsideration application was made on 22 October 2019, several days outside the 14 day time limit in rule 19(2).

b. There was neither any application for an extension of the period prescribed by rule 19(2) nor any explanation for the lateness of the reconsideration application itself. I therefore decline to extend the normal 14 day time limit derived from rule 19(2), and the reconsideration application would be dismissed for that reason alone.

c. Further, I would have dismissed the application on its merits anyway. The only explanations put forward for the failure to submit a response by the relevant deadline are that the respondent was in discussions with the claimant through ACAS “in order to establish facts relating to her claim”, and the respondent’s expectation that matters would be resolved through conciliation and go no further. Those are poor and unacceptable reasons for failing to comply with clear and important litigation deadlines. I also note that the latest date on which ACAS are said to have acted was 12 September 2019. In fact I have found an email from ACAS referring to having “reached an impasse” dated 13 September 2019. That still left 11 or 12 days in which to submit a response.

d. Further, the above failures to comply with deadlines occurred despite clear reminders in Tribunal correspondence. There is nothing to suggest that the respondent was reasonably ignorant of the relevant dates.

e. In summary, I am not satisfied that the original decision to reject the response was wrong and the application for reconsideration is therefore dismissed for that reason too.

[10]This claim will therefore proceed to a final hearing with a time allocation of 1 hour. Rule 21(3) will apply. The extent of the respondent’s participation is a matter for the judge conducting that hearing, but Court of Appeal authority (including Office Equipment Limited v Hughes

[2018] EWCA Civ 1842

) makes it clear that a respondent should normally be able to participate on issues of remedy.

Introduction

[1]With the consent of the parties, this decision was made on the papers without a hearing. The issues and the scope of the evidence are both very narrow and an early decision on the papers is intended to be a proportionate response to the practical implications of the pandemic given the modest sums at stake. “In person” hearings are not currently possible and neither side thought that a remote hearing by video or telephone would add anything to a consideration of the papers.

[2]These reasons are intended to be fairly concise but compliant with rule 62(4). That rule requires that reasons should be “proportionate to the significance of the issue”, which I interpret as including the complexity of the issues and the amount of money at stake. Claims and issues

[3]The claimant formerly worked for the respondent as a cleaner. The claimant seeks allegedly accrued but unpaid holiday pay upon termination of £114.94. The respondent concedes that £101.00 is owed but has not paid it. The respondent failed to submit a response within the applicable time limit. An application for reconsideration of the decision to reject a late response was dismissed. It follows that the respondent is entitled to participate on questions of remedy (only) as a result of Office Equipment v Hughes

[2018] EWCA Civ 1842

[4]Additionally, as a result of the respondent’s allegedly unreasonable conduct of proceedings (including a failure to attend earlier “in person” or telephone hearings conducted by EJ McMahon and by me) the claimant now seeks to recover taxi fares and an order for 10 hours of preparation time. Reasoning and conclusions

[5]The parties are agreed that the respondent’s holiday year ran from 1 January to 31 December each year. They also agree that the effective date of termination was 28 May 2019 and that the claimant worked a 5 day week. This is not a case in which the claimant claims to have been entitled to carry over unused holiday from a previous holiday year.

[6]On the basis of the facts in the preceding paragraph, I calculate that 148/365 of the holiday year had expired by the effective date of termination. The combined effect of regulations 13 and 13A of the Working Time Regulations 1998 is to grant an entitlement to 5.6 weeks’ paid leave during each holiday year, reduced pro rata for unexpired years such as the one under consideration (see the formula in regulation 14).

[7]The accrued entitlement to paid annual leave under regulations 13 and 13A of the Working Time Regulations 1998 was therefore 148/365 x 5.6 = 2.27 weeks’ pay (to two decimal places).

[8]I accept the respondent’s evidence that the claimant had taken 4 days’ holiday during the relevant leave year. I have not seen time sheets but that figure has been given by an accountant who has examined a “pay details spreadsheet”. That equates to 0.8 weeks of leave taken.

[9]The accrued entitlement for which the claimant is entitled to a payment under regulation 14 is therefore (2.27-0.8) = 1.47 weeks’ pay.

[10]The respondent has calculated the claimant’s average pay over a 12 week reference period from its records. Alternative methods were offered by the respondent’s accountant but I have chosen the one consistent with the formula in section 224 of the Employment Rights Act 1996, which defines “a week’s pay” for present purposes. The calculation should be based on a 12 week average ending with the last full week prior to termination: see section 224(2)(b). Although the reference period is now 52 weeks that amended rule does not apply to this claim.

[11]I therefore adopt the figure of £89.65 for “a week’s pay”. This comes from the paragraph of explanation attached to the (late, rejected) response reading, “If you ignore the week she left, and count back 12 weeks prior (and include the holiday pay of £34.06 paid on the 17th May pay run) then we get a higher 12- weekly average for the final holiday pay calculations £89.65”. That would be the right approach under the statute. Again, I accept the accuracy of the respondent’s records on the balance of probabilities since they appear to be taken from payroll data and the claimant has not offered any more reliable records of her own.

[12]The total sum owed is therefore 1.47 x £89.65 = £131.79. The claimant is owed that sum either as an unlawful deduction from wages, or as compensation under regulation 30 of the Working Time Regulations 1998, it makes no difference which. Application for expenses/costs

[13]My power to award expenses or costs depends on a threshold finding that the respondent has conducted the proceedings (among other things) unreasonably (rule 76(1)(a)) or that the proceedings had no reasonable prospect of success (rule 76(1)(b)). I would not go that far. While I have found against the respondent and have awarded a sum greater than that sought by the claimant, the respondent had relied on an alternative method of calculation suggested by its accountant. While that alternative method was in my judgment incorrect, I can see why the respondent adopted it and I do not think it was unreasonable to adopt that position in the litigation or that it was an argument which lacked reasonable prospects of success.

[14]I take at face value the respondent’s explanation for its failure to attend the preliminary hearing for case management conducted by me on 14 April 2020. The respondent claims that it was unable to connect and gave that explanation promptly on 15 April 2020. There were occasional problems with the telephone conferencing service used at that time and I am prepared to accept this explanation.

[15]The respondent’s failure to attend the hearing conducted by EJ McMahon on 1 November 2019 is a separate issue. However, that hearing was adjourned not because the respondent failed to attend but because the respondent’s application for a reconsideration of the decision to reject the response remained outstanding at that time. While there remained a possibility that the response might be accepted EJ McMahon was almost bound to adjourn that hearing and the additional costs or expenses incurred by the claimant are not attributable to any unreasonable failure to attend that hearing on the part of the respondent.

[16]I therefore reject the claimant’s application for preparation time or expenses. I am not satisfied that the respondent’s defence of the proceedings lacked a reasonable prospect of success or that the proceedings were defended or conducted unreasonably.