Case No 4120664/2018Venue GlasgowHearing 13 August 2019
Between
Mr C KerrClaimantGM Pub LtdRespondent
Before
Employment Judge R McPhersonS Wilson (instructed by Solicitor) for claimantDate 16 March 2020
JUDGMENT
The judgment of the Employment Tribunal is that: (1 ) the claimant was dismissed in breach of contract (in respect of notice pay) and the respondent is ordered to pay damages to the claimant in the sum of Four Thousand and One Hundred and Seventy Seven Pounds and Sixty Eight Pence (£4,177.68); and (2) the respondent is ordered to pay the claimant the monetary award for unfair dismissal in the sum of Eleven Thousand Five and Eighty Six Pounds and Sixty Five Pence (£11,586.65). As there is not a prescribed element of this award this sum is payable immediately to the claimant (3) both those sums are payable immediately to the claimant.
REASONS
1 . The claimant presented his claim on 21 September 2018.[2]Absent an ET3 being presented, a Rule 21 judgement was issued dated 13 November 2018 and sent to the parties on 13 November 2018.[3]The respondent sought reconsideration of that judgment and a late ET3 was presented on 8 January 2019 and reconsideration was granted.[4]Case Management Orders for a Final Hearing scheduled for 25 June 2019 were issued to the parties on 26 February 201 9.[5]At that Final Hearing on 25 June 201 9 the claimant attended with his solicitor. There was no appearance from that respondent. In the absence of the respondent the Final Hearing of 25 June 2019 and having regard to the terms of Rule 47 of the 2013 Rules, that hearing was adjourned and a new Final Hearing was appointed for 13 August 2019 and specific Orders were made. No subsequent explanation for the respondents non attendance was provided.[6]Further and following correspondence by the claimant’s representative to the Tribunal, the Tribunal wrote to the respondent in correspondence dated 29 July 2019 to the respondent. The respondent responded to that correspondence on 1 August 2018 which response was received by the Tribunal on 5 August 2019.[7]The respondent was provided with Notice of Hearing and Orders granted by the Tribunal on 25 June 2019 by correspondence issued the Tribunal to the respondent dated 30 June 2019 issued to the respondent’s Company House registered address. That Notice of Hearing and Orders included confirmation of the new and adjourned Final Hearing date of 13 August 2019.[8]The respondent was, separately, and again notified of the new Final Hearing by the Tribunal in correspondence dated 5 July 2019 issued to the respondent’s Company House registered address. That Tribunal letter of 5 July 2019 set out that the respondent was responsible for making sure all the witnesses they wanted to call could attend the hearing and know the date and time of the hearing. The respondent was further notified in that letter that unless there wholly exceptional circumstances, no application for postponement due to non availability of witnesses or for other reasons would be granted.[9]At this hearing the claimant was again represented by his solicitor. The respondent was not in attendance and not represented. No communication had been received from the respondent notifying of any reason for non-attendance. Having made such enquiries as were in all the circumstances reasonable, having regard to the procedural history of this case, including Rule 47 and the overriding objective, including seeking to ascertain whether the respondent was elsewhere in the building, the hearing proceeded in the absence of the respondent.
Evidence
[10]The Tribunal heard evidence from the claimant. The Tribunal was referred to a number of documents throughout the hearing and where relevant I identify those documents below. Findings in fact 1 1 . The respondent’s registered address is as set out above.[12]At previously scheduled Final Hearing on 25 June 2019 the claimant attended with his solicitor. There was no appearance from that respondent. In the absence of the respondent the Final Hearing of 25 June 2019 was adjourned and a new Final Hearing was appointed for 13 August 2019 and a Note with specific Orders were made and issued to both parties That note made specific reference to the respondent’s non attendance, the overriding objective and the possible impact of the ACAS Code in relation to any award. No explanation for the respondent’s nonattendance was subsequently provided by the respondent.[13]Following correspondence by the claimant’s representative to the Tribunal, the Tribunal had written to the respondent on 29 July 2019. The respondent responded on 1 August 2018 which correspondence was received by the Tribunal on 5 August 2019. 1 4. The respondent was provided with Notice of Hearing and Orders granted by the Tribunal on 25 June 2019 by correspondence issued the Tribunal to the respondent dated 30 June 2019 was issued to the respondent’s Company House registered address. That Notice of Hearing and Orders included confirmation of the location and date of the new and adjourned Final Hearing date of 13 August 2019.[15]The respondent was, separately and again, notified of the new Final Hearing by the Tribunal by correspondence dated 5 July 2019 issued to the respondent’s Company House registered address. That letter of 5 July 2019 set out that the respondent was responsible for making sure all the witnesses they wanted to call could attend the hearing and know the date and time of the hearing. The respondent was further notified in that letter that unless there were wholly exceptional circumstances, no application for postponement due to non availability of witnesses or for other reasons would be granted. 1 6. At the outset of this hearing it was noted that the respondent was, again, not in attendance and not represented. At this hearing the claimant was again represented by his solicitor.[17]No communication had been received from the respondent notifying of any reason for non-attendance. Having made such enquiries as were in all the circumstances reasonable, against the background of this case, including seeking to ascertain whether the respondent was elsewhere in the building, this hearing proceeded in the absence of the respondent.[18]The claimant’s continuous employment with the respondent commenced on 1 September 2001 . In particular the claimant was engaged at the licenced public bar operating as the Swan Bar in Eaglesham (the bar) since that date without a break in his continuous employment.[19]While the claimant’s National Insurance Record for the tax year April 2009 to March 2010 suggested that his employment has not been continuous, the claimant had worked continuously in that year. It is accepted that due to a change in the operational ownership of the bar that then operators of the bar that year had not fully reflected his continuous period of employment in reports and/or contributions made on behalf of the claimant to HMRC.[20]The claimant was initially employed as a waiter and had over time been promoted to the role of Bar Manager. The claimant held that post in from the start of 2018. In addition to being the Bar Manager the claimant was the designated person (the designated person) at the premises holding the relevant regulated Personal License required for the supervision of, or otherwise authorising the, the sale of alcohol on the premises.[21]As the designated person the claimant had certain personal responsibilities in connection with the sale of alcohol on the premises.[22]The respondent had taken over the operation of the Swan Bar together with it’s then approximately 17 staff including the claimant in or around January 2017. A staff meeting was held by the respondents in January 2017 with the staff and while a draft form of written terms and conditions was suggested as being available no actual written terms of employment were provided to the claimant at that meeting or subsequently.[23]The claimant had not been provided with any written terms of employment by the respondent.[24]During his period of employment, the claimant was not provided by the respondent with an opportunity to join a pension scheme.[25]In June 2018 to July 2018 the claimant’s net weekly pay was £348.35 as reflected in 3 wage slips provided to the claimant in June 2018.[26]During the evening of Saturday 7 July 2018, the claimant was advised by a colleague, a D Heath, that a customer on the premises had been notified previously that they were “barred”. Reflective of the claimant’s role as Bar Manager and as the designated person, the claimant supported his colleague’s position in declining to serve the customer. The claimant carried on with his shift. The claimant became aware that evening that his colleague D Heath’s employment was terminated by the respondent. The claimant towards the end of his shift on Saturday 7 July 2018 was asked by the respondent owner to provide his keys for the premises and was advised he should leave. It was not clear at this time what the respondent's reason was and there no communication suggesting that any formal action was being taken. The claimant was unaware of whether the respondent owner’s actions were meant suggest any form of reprimand or equivalent action.[27]The claimant phoned the respondent owner on several occasions on Sunday 8 July 2018 initially without receiving a response. On obtaining a response the claimant was simply advised to come to work on Monday 9 July 2018.[28]On attending for work for his usual shift on Monday 9 July 2018 the claimant was called into a meeting with the respondent owner and was advised that he had been sacked with immediate effect for insubordination. The claimant had not been advised that he was due to attend a disciplinary hearing. He was not advised of any right to be accompanied. He was not advised of the nature of any allegations against him and had attended work on Monday 9 July 2018 expecting to work his usual shift. During his meeting the claimant was not advised of any right of appeal. No written notice of the outcome of the meeting was issued to the claimant. No notice of any right of appeal was issued to the claimant.[29]Following the termination of the claimant’s employment the claimant was paid outstanding net pay to the date of termination and outstanding holiday pay being £822.62 on 13 July 2018 shown on wage slip dated 13 July 2018. The claimant was not paid statutory notice pay.[30]The claimant wrote to the respondent on 1 7 July 2018 stating that 7 refer to my dismissal on the 9th July and write to inform you that I wish to appeal that decision. I have not received written reasons for my dismissal nor have I received my P45. Please arrange to send both items to me as soon as possible. I consider that the decision to dismiss was unreasonable and without justification. I was not guilty of any misconduct. I look forward to hearing from you.” 31 . The claimant did not receive any response from the respondent and he was not offered any opportunity to attend any appeal against the decision to dismiss.[32]Following the termination of his employment the claimant did not receive any state benefits.[33]The claimant sought and obtained alternative employment initially through a job agency working as a warehouse operator from 18 August 2018 earning £9.22 per hour. The claimant subsequently secured full time employment with Royal Mail as of 3rd September 2018 earning £290.00 net per week. Submissions[34]The claimant solicitor confirmed the claimants’ position in informal submissions and by reference to updated schedule of losses provided for the purpose of this hearing. Breach of Contract and Unfair Dismissal Reduction under Polkey principle.[35]The Tribunal is required to consider whether it is appropriate to make any deduction under the principle derived from Polkey v AE Dayton Services Ltd [1988] ICR 142, which requires an assessment of the possibility of a fair dismissal had the procedure adopted been a fair one. That requires an assessment of whether in all the circumstances a fair dismissal could have been decided upon by a reasonable employer. Reduction under Polkey principle. Discussion and Decision[36]In these circumstances no reasonable employer would have dismissed. The issue was one of conduct. It is considered that no reasonable employer would have dismissed in the circumstances of this case, the claimant as a personal licence holder had personal responsibilities including relating to the sale of alcohol on the respondent premises. Has the claimant contributed to the dismissal?[37]ERA 1996 s 122(2) provides in relation to basic awards that "Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.[38]ERA 1996 s 123 (6) provides in relation to compensatory awards that “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. ” (4) In the Court of Appeal decision in Nelson v BBC (No 2) [1980] ICR 110 (Nelson) LJ Brandon stated that “an award of compensation to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy”. Discussion and decision Had the claimant contributed to the dismissal?[39]I n the circumstances of this case I do not consider that the claimant’s conduct was culpable or blameworthy. The claimant’s actions reflected his role as the designated person and Bar Manager. The claimant’s losses: Breach of Contract Notice Pay, Relevant Law, Discussion and Decision[40]Section 211 of the Employment Rights Act 1996 (ERA 1996) provides that “(1) An employee ’s period of continuous employment for the purposes of any provision of this Act —(a) (subject to [subsection] (3)) begins with the day on which the employee starts work, and(b) ends with the day by reference to which the length of the employee's period of continuous employment is to be ascertained for the purposes of the provision (3) If an employee's period of continuous employment includes one or more periods which (by virtue of section 215, 216 or 217) while not counting in computing the length of the period do not break continuity of employment, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period, or the aggregate number of days falling within those periods, calculated in accordance with the section in question." 41 . Section 86 of ERA 1 996 provides for the minimum period of notice. There was no basis for the respondent to have failed to give notice. The claimant was dismissed in breach of contract (in respect of notice pay) and the respondent is ordered to pay damages to the claimant in the sum of 12 weeks’ notice x £348.14 being £4,177.68. Adjustment of award resulting from failure to comply with Code of Practice[42]Section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) provides for an adjustment in unfair dismissal awards of up to 25% where there has been an unreasonable failure to comply with the ACAS Code. The ACAS Code of Practice on Disciplinary and Grievance Procedures came into effect on 1 1 March 2015: Code of Practice (Disciplinary and Grievance Procedures) Order 2015. Basic Award Relevant Law, Discussion and Decision[43]Section 1 19 of ERA 1996 sets out the provision for a basic award. The claimant is entitled to a basic award of £5,710.50. Compensatory Award[44]Section 1 23(1 ) of ERA 1 996 provides" ... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”. Mitigation of Loss[45]Section 123(4) ERA 1996 provides that in ascertaining the loss "... the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. "[46]I have reminded myself that in Cooper Constructing Ltd v Lindsey [2016] ICR D3 the Honourable Mr Justice Langstaff (President) (Cooper) confirmed that a Claimant does not have to prove that he has mitigated his losses Provision of terms and conditions[47]In terms of s1 ERA 1996 each employee is entitled to receive from his employer not later than two months after the beginning of the employee's employment a written statement of the major terms upon which he is employed. The Employment Act 2002 provides as s127 that where the matter is before the Tribunal, it is required to increase an award by at least 2 weeks’ pay and may if it is just and equitable increase that award to 4 weeks’ pay. Recoupment of benefits
Relevant Law.
[48]The Employment Protection (Recoupment of Jobseekers Allowance and Income Support Regulations 1996 (the Recoupment Regs 1996) applies where the claimant had been paid a recoupable benefit. The claimant did not receive a recoupable benefit. Compensatory Award Discussion and Decision[49]The claimant is entitled to a Compensatory Award. Discussion Mitigation of Loss
Discussion
[50]There was no evidence that the claimant had failed to minimise her loss. 51 . The claimant secured alternate secured paid employment by 3 September 201 8 however the claimant continued to suffer a limited comparative weekly wage loss while is reasonable calculated at £58.00 from 3 September 2018. In all the circumstances, I am satisfied that the claimant mitigated his loss.[52]The claimant was entitled to 12 weeks’ statutory notice pay being (12x £348.14). I consider that it is just and equitable to calculate his weekly loss beyond the notice period to the date of this hearing August 2019 (being 44 weeks) as being £2,552.00.[53]I consider that it is just and equitable to award the claimant £500 for loss of statutory rights having regard to the full circumstances of this case.[54]The claimant was not provided with a written statement of the terms of his employment. As such the claimant is entitled to 2 weeks’ pay. In all the circumstances it is considered just and equitable to increase that to 4 weeks’ pay. The claimant is entitled to an increase to reflect the failure of the respondent to issue statement of particulars of employment (£348.14 x4) £1,392.56[55]The claimant is entitled to pension loss for the period of loss. From the wages slips it is apparent that the respondents had not paid employer pension contribution required in terms of section 3 of Pensions Act 2008 and I am satisfied that the claimant was not offered the opportunity to join a Pension Scheme or otherwise opt out of same and thus by reference to the 4th edition (August 201 7) of the Principles for Compensating Pension Loss the pension loss arising from the unfair dismissal is reasonably calculated by the claimant at £256.36[56]The ACAS Code sets out the standard of reasonableness and fairness for handling disciplinary issues and grievances. The Code suggests that in disciplinary matters, the employer should carry out an investigation, inform the employee, hold a meeting with the employee, at which the employee may be accompanied and at which the employee should have the opportunity to respond and then the employer should decide on appropriate action and give the employee an opportunity to appeal. The Code applies to dismissal in this case. There was a significant failure on the part of the respondent in terms of its obligations under the ACAS Code. I am satisfied that the respondent’s failure was unreasonable. In all the circumstances it is considered just and equitable that an uplift to the compensatory award of 25% be awarded.[57]The total Compensatory Award including the uplift is £5,876.15[58]The claimant did not receive any recoupable benefits in terms of Reg 8 of the Recoupment Regs 1996.[59]The total compensation award for unfair dismissal is (£5,710.50 plus £5,876.15) £11,586.65 and is payable immediately. Expenses of Hearing[60]On behalf of the claimant it was submitted that consideration should be given to an award of expenses as against the respondent.[61]The issue which arises for the Tribunal is whether or not any of the circumstances set forth in Rule 76(1) apply: 76.(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that —(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.[62]While the respondent did not attend this hearing and indeed did not attend the previous notified Final Hearing, on balance at this time, I do not consider that it is appropriate to exercise discretion to make an award of costs.[63]The Court of Appeal, in Scott v Russell [2013] EWCA Civ 1432 (Scott), cited with approval, the definition of vexatious given by Lord Bingham in Attorney General v Barker [2000] 1 FLR 759 (Barker), that the hallmark of a vexatious proceeding is that whatever the intention of the proceedings may be, its effect is to subject the other side to inconvenience, harassment and expense out of all proportion to any gain likely to accrue, and that it involves an abuse of the process of the court, which is significantly different from the ordinary and proper use of the court process.
Conclusion
[64]The claimant is awarded the sums set out above. RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Employment Tribunal is that;
Conclusion
[1]On reconsideration under Rule 70 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the 2013 Rules), the judgment dated 14 August 2019 and sent to the parties on 21 November 2019 is varied on the basis of the respondent’s application for reconsideration, limited to the issue of whether there was a relevant transfer in January 2017; and[2]In that limited regard, both awards in the judgment, dated 14 August 2019 and the quantum of;(1) damages in respect of breach of contract (notice pay) which the respondent is ordered to pay to the claimant being in the sum of Four Thousand and One Hundred and Seventy Seven Pounds and Sixty Eight Pence (£4,177.68); and(2) monetary award for unfair dismissal which the respondent is ordered to pay to the claimant being in the sum of Eleven Thousand and Five Hundred and Eighty Six Pounds and Sixty Five Pence (£11,586.65); pending a Final Hearing on whether there was a relevant transfer to the respondent in January 2017 which matter was not fully ventilated at the Final Hearing on 13 August 2019; and[3]I have issued separate Case Management Orders in relation the appointment of the one day Final Hearing to consider whether there was a relevant transfer in January 2017 and in consequence the impact on both the quantum of breach of contract and unfair dismissal but which judgment dated 14 August 2019 and sent to the parties on 21 November 2019 is confirmed.
Conclusion
[1]The appointed Final Hearing of 25 June 2019 was notified by the Tribunal to the respondents at the address, provided by the respondent in its ET3 by letter dated 17 April 2019.[2]The respondents did not attend that Final Hearing. Order granted on said dated 25 June 2019 and confirming a new Final Hearing date of 13 August 2019 was issued to the parties at the respondent’s registered address by the Tribunal under letter 30 June 2019. The terms of that order are referred to herein.[3]The Tribunal wrote to the respondents at their registered address on 5 July 2019 confirming the date of the Final Hearing being 13 August 2019.[4]The Tribunal sought the respondent’s comments as to the claimant’s written statement provided in light of Order dated 25 June 2019 by letter issued to the respondent’s registered address dated 29 July 2019. The respondent provided its response under cover of letter dated 1 August 2018 received at the Tribunal on 5 August 2019.[5]The respondent was advised, by letter from the Employment Tribunal dated 6 August 2019 that the case would proceed to the Final Hearing fixed for 13 August 2019.[6]The respondent did not attend on 13 August 2019. Judgement dated 14 August 2019 was issued to the parties on 21 November 2019.[7]The respondent has sought reconsideration, by letter which was dated 22 November 2019 but which was received by the Tribunal on 6 January 2020. That letter from the respondent set out that “we have no contract of TUPE with Iona Pubs, we have no record of Mr Kerrs employment before 2017”.[8]Parties were notified by the Employment Tribunal, by letter dated 9 January 2020 that the application for reconsideration was not refused and views were sought as to whether the application could be determined without a hearing.[9]By letter from the Tribunal dated 24 January 2020, the respondent was asked to set out its position on whether reconsideration can be considered on written submissions and requested to set out in terms why the reconsideration which bears to have been dated 22 November 2019 was not received by the Tribunal until 6 January 2020.[10]The claimant confirmed that it was content that reconsideration could be determined without a hearing having already expressed the view that the Tribunal had before it what is said to be the line of argument for the respondent and had “required to consider that in light of evidence led by the claimant”. The respondents further express specific criticism of the respondents noting the “past failure of the respondents to appear or be represented”.[11]On 30 January 2020, the respondent provided an e-mail response to the Tribunal setting out the terms of the respondent’s position. In relation to the respondent’s non-appearance at the hearing on 13 August 2019 the respondent explained that it “did not appear for the hearing on 13th August 2019 as I was waiting to hear back from ACAS… My argument is that we do not have a tupe with Iona, so Colins employment does not go all the way back to 2001 but simply starts at 2017”.
Relevant Law
[12]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the 2013 Rules) Rule 3 provides: “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.”[13]Rules 70, 71 and 72 of the 2013 Rules provides: “Rule 70 Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Rule 71 Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Rule 72 Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision…”[14]The approach to be taken to applications for reconsideration had been set out in the case of Liddington v Gether NHS Foundation Trust UKEAT/0002/16/DA (Liddington) in the judgment of Simler P. The tribunal (as set out at para 34) is required to:a. identify “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”; andb. address “each ground in turn” and consider “whether is anything in each of the particular grounds relied on that might lead him to vary or revoke the decision”; andc. give reasons for concluding “that there was nothing in the grounds advanced by the Claimant that could lead him to vary or revoke his decision.”[15]Further at paragraph 34 and 35 of Liddington Simler P set out that: “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. Where … 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.”[16]Her Honour Judge Eady QC, EAT Judge, in her judgment delivered on 19 February 2018, in Scranage v Rochdale Metropolitan Borough Council [2018] UKEAT/0032/17 (Scranage), at paragraph 22, when considering the relevant legal principles, 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.”[17]Section 211 of the Employment Rights Act 1996 (ERA 1996) provides: “211 Period of continuous employment. (1) An employee’s period of continuous employment for the purposes of any provision of this Act (a) …. begins with the day on which the employee starts work, and (b) ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision.”[18]Section 218 of ERA 1996 provides: “Section 218 Change of employer.(1) Subject to the provisions of this section, this Chapter relates only to employment by the one employer.(2) If a trade or business, or an undertaking (whether or not established by or under an Act), is transferred from one person to another— (a) the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and (b) the transfer does not break the continuity of the period of employment.”[19]Regulation 4 of Transfer of Undertakings Regulations 2006 (TUPE) provides: “4. Effect of relevant transfer on contracts of employment (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.”[20]Regulation 8 of TUPE provides: Insolvency: “(1) If at the time of a relevant transfer the transferor is subject to relevant insolvency proceedings paragraphs (2) to (6) apply. (2) In this regulation 'relevant employee' means an employee of the transferor –(a) whose contract of employment transfers to the transferee by virtue of the operation of these Regulations; or(b) whose employment with the transferor is terminated before the time of the relevant transfer in the circumstances described in regulation 7(1). (3) The relevant statutory scheme specified in paragraph (4)(b) (including that sub-paragraph as applied by paragraph 5 of Schedule 1) shall apply in the case of a relevant employee irrespective of the fact that the qualifying requirement that the employee's employment has been terminated is not met and for those purposes the date of the transfer shall be treated as the date of the termination and the transferor shall be treated as the employer. (4) In this regulation the 'relevant statutory schemes' are – (a) Chapter VI of Part XI of the 1996 Act; (b) Part XII of the 1996 Act. (5) Regulation 4 shall not operate to transfer liability for the sums payable to the relevant employee under the relevant statutory schemes. (6) In this regulation 'relevant insolvency proceedings' means insolvency proceedings which have been opened in relation to the transferor not with a view to the liquidation of the assets of the transferor and which are under the supervision of an insolvency practitioner. (7) Regulations 4 and 7 do not apply to any relevant transfer where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor and are under the supervision of an insolvency practitioner.”[21]I have reminded myself that the EAT in Services for Education (SE4 Ltd) v White and another [2015] All ER (D) 123 (Aug) (SE4 Ltd) held that an employee’s continuity of employment was preserved by section 212(2) of the ERA 1996, despite a transfer of the undertaking in which the employee was employed, between a transferor employer and the transferee.[22]I have further reminded myself that the EAT in Ward Brothers (Malton) Ltd and others v Middleton and others, and Slater v the Secretary of State UKEAT/0249/13/RN (Ward) considering present wording of TUPE Reg 8, followed the approach set out in Slater v Secretary of State for Industry [2007] IRLR 928 (Slater) and Key2Law v De Antiquis [2012] IRLR 212 (Key2law). Slater and Key2Law are to the effect that an appointment (formal or informal) was necessary before there could be said to be supervision by an insolvency practitioner. The EAT in Ward noted with approval the position set out by set out by Elias J in Slater at para 30-32 “30. During the course of the hearing the court raised the question whether at the time of the sale, the proceedings were under the supervision of the insolvency practitioner, a requirement for both Regulations 8(6) and 8(7) to apply. It appears to have been assumed before the Employment Tribunal that Mr Ramsbottom of Deloittes was, from the moment when he was initially asked to assist the company, an insolvency practitioner within the meaning of the Regulations[31]I heard written submissions on that point and both parties accepted that this assumption was wrong. The definition of insolvency practitioner, set out above, makes it plain that it was not until he was appointed liquidator that he could be so described. He was of course qualified to act as an insolvency practitioner, but he was not acting in that capacity with respect to the transferor.[32]Accordingly, the transferee accepts that on this ground alone, his principal contention must fail. Assuming that the transfer was effected on the 27 July, as the tribunal found, this was on any view before the proceedings were under the supervision of the insolvency practitioner.”23. In summary Ward sets out out that a transfer must be “under the supervision of an insolvency practitioner” for Regulation 8(7) to apply.24. Rule 45 of the 2013 Rules provides in relation to Timetabling that “A Tribunal may impose limits on the time that a party may take in presenting evidence, questioning witnesses or making submissions, and may prevent the party from proceeding beyond any time so allotted.”. Discussion and Decision25. Under rule 71 of the 2013 Rules an application for reconsideration must be made within 14 days the date on which the judgment (or written reasons, if later) was sent to the parties.26. The respondent has not provided an explanation why its letter dated 22 November 2019 was not received by the Tribunal until 6 January 2020. However, I consider that it is the interests of justice to; extend the time limit in terms of Rule 5 of the 2013 Rules and in all the circumstance to permit reconsideration of the original judgment dated 14 August 2019 issued to the parties 21 November 2019, in terms of Rule 70 of the 2013 Rules, without appointing a hearing.27. As set out above the Tribunal's powers concerning reconsideration of judgments are contained in rules 70 to 72 of the 2013 Rules. A judgment may be reconsidered where “it is necessary in the interests of justice to do so.” Applications are subject to a preliminary consideration. They are to be refused if the judge considers there is no reasonable prospect of the decision being varied or revoked. If not refused, the application may be considered at a hearing or, if the judge considers it in the interests of justice, without a hearing. In that event the parties must have a reasonable opportunity to make further representations. Upon reconsideration the decision may be confirmed, varied or revoked and, if revoked, may be taken again.28. Having considered the respondents application for reconsideration, and having sought parties views it is considered in the interests of justice that the application be considered without a hearing. Parties have been afforded a reasonable opportunity to make further written representations.29. The respondent set out in their letter dated 22 November 2019 “we have no contract of TUPE with Iona Pubs, we have no record of Mr Kerrs employment before 2017”, and further in their e-mailed letter of 30 January 2020, “My argument is that we do not have a tupe with Iona, so Colins employment does not go all the way back to 2001 but simply starts at 2017”.30. The respondent in their e-mailed letter of 30 January 2020, in providing its explanation for nonattendance, does not suggest that it was unaware of the hearing, rather the respondent “did not appear for the hearing on 13th August 2019 as I was waiting to hear back from ACAS…”.31. Section 218(2) of ERA 1996, provides that if an undertaking is transferred from one person to another, the period of employment of an employee in the undertaking at the time of the transfer counts as a period of employment with the transferee and the transfer does not break the continuity of the employment of the employee. 32. The judgment of the Tribunal was issued reflecting the unchallenged evidence adduced at the Final Hearing. The Tribunal at paragraph 18 of the judgment sets out in a finding in fact that the claimant’s continuous employment with the respondent commenced on 1 September 2001 and that the claimant was engaged at the licenced public bar operating since that date without a break in his continuous employment. It does not however set out that there was a relevant transfer in 2017. It cannot be said that the matter of whether there was a relevant transfer in 2017 has been fully ventilated.[33]The awards in respect of breach of contract and monetary award for unfair dismissal, as set out in the judgment dated 14 August 2019 and sent to the parties including calculations which reflect date of commencement of employment of the claimant. In particular the calculations of Notice Pay at s211 of ERA 1996 and Basic Award in terms of s119 of ERA reflect the date of commencement of employment of the claimant.[34]The respondent elected not to attend at the Final Hearing. It was however open to it to do so, in order to argue that there was no relevant transfer, adduce evidence on its behalf and/or otherwise challenge the claimant’s position.[35]The claimant argues, broadly, that the respondent’s reconsideration is seeking to re re-litigate matters which were already before the Tribunal.[36]Having considered the respective representations, including the terms of the respondent’s emailed letter of 30 January 2020 and its letter dated 22 November 2019 together with the statutory provisions and case law identified above, I am however satisfied that it is in the interests of justice that reconsideration be granted to the limited extent that parties may adduce such evidence as they consider appropriate to address the issue of whether their was a relevant transfer in January 2017. In particular I am satisfied that the interests of justice include the assessment of both notice pay and basic award, each of which assessment directly impact on the monetary awards.[37]For all those reasons I grant the respondent’s application for reconsideration, limited to the issue of whether there was a relevant transfer in January 2017.