A S S Morales v F W Launderettes Ltd: 6003877/2025
JUDGMENT
The Respondent did not submit a Response in time the application for an extension of time to submit the Response was refused with oral reasons given to the parties. As a consequence Employment Tribunal Rule 22 applies, and:[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. The respondent shall pay the claimant the following sums:a. A basic award of £4,118.40.b. A compensatory award of £500 for loss of statutory rights.[2]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply:a. The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £4,618.40b. The prescribed element is £0.c. The period of the prescribed element is from 26 September 2024 to 18 August 2025.d. The difference between(1) and(2) is £4,618.40 and this sum must be paid to the Claimant.[3]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of the reasons for her dismissal. In accordance with section 93 ERA 1996 the respondent shall therefore pay the claimant £1,372.80.[4]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £1,372.80.[5]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period from 26 August 2025 to 26 September 2025. The respondent shall pay the claimant £1,630.20, which is the gross sum deducted. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as earnings[6]The complaint in respect of holiday pay is well-founded. The respondent failed to pay the claimant in accordance with regulation 14(2) and/or 16(1) of the Working Time Regulations 1998. The respondent shall pay the claimant the gross sum of £3,843.84. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as earnings.[7]The complaint of breach of contract in relation to notice pay is well-founded. The respondent shall pay the claimant £2,745.60 as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay.[8]The total sum that the Respondent must pay to the Claimant is therefore £15,883.64 and the Claimant is responsible for the payment of any tax or National Insurance due. Approved by:REASONS
JUDGMENT having been sent to the parties on 28 August 2025 and written reasons having been requested in accordance with Rule 60(4)(b) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:[1]I heard the Respondent’s (renewed) application for a postponement of the hearing and for an extension of time to submit their response. I refused both applications and gave oral reasons for my decision in the hearing.[2]I reviewed the case and gave judgment under Rule 22.The Claims
[3]By a claim form dated 5 February 2025 the Claimant brought claims of:a. Unfair dismissalb. Failure to provide a written statement of reasons for dismissalc. Failure to provide a written statement of employment particularsd. Unauthorised deductions from wagese. Unpaid holiday payf. Breach of contract (notice pay)[4]The Claimant said that she had been employed as a laundry worker for 25.5 hours per week from 25 August 2016, increasing to 30hrs per week from July 2018. She said she had never been given a statement of terms and conditions, was never given any paid holiday (although she was given paid medical leave on one occasion). She said that on 26 September 2024, Mr Charles Otter had spoken to her on the phone and was rude to her and falsely accused her of theft. After she ended the call she said he then came into the laundrette, physically grabbed her, called her a thief and fraudster in front of customers and told her to ‘get out’. She says his son then came to the shop and took her keys and that by these actions she was unfairly summarily dismissed.[5]She says she sought support from the North Kensington Law Centre, who represented her in these proceedings, and they wrote to the Respondent and asked for written reasons for her dismissal and details of her notice and holiday pay entitlements, but that this information was not provided. Procedural history[6]The Tribunal sent the Claimant’s ET1 to the Respondent on 25 February 2025, together with a Notice of Hearing listing the case for hearing on 18th and 19th August 2025.[7]On 24 June 2025 the Tribunal wrote to the parties and explained that as no response had been received from the Respondent Judgment may be issued under Rule 22.[8]On 8 Jule 2025 the Respondent emailed the Tribunal and stated that they ‘may’ apply for a postponement of the listed hearing. The email did not attach an ET3, did not apply for an extension of time to file a response and did not actually make any application for a postponement.[9]On 7 August 2025 the Tribunal wrote to the Respondent and asked for confirmation as to whether the Respondent was applying to postpone the hearing and asked for medical evidence to be provided. The Respondent was reminded that no response had been submitted and no application had been submitted for an extension of time to file a response and therefore the case would be reviewed to determine whether a default judgement should be issued.[10]On the same day the Tribunal wrote to the Claimant to request further information in relation to calculation of her losses.[11]On 12 August 2025 the Respondent applied for a postponement of the hearing and provided a Drs letter dated 2 July 2025 stating that Mr Charles Otter has several long-term health conditions including type 2 diabetes, COPD and heart failure and that due to this he has been struggling with his financial affairs. The Respondent also submitted a GP letter dated 11 August 2025. That letter makes no reference to any particular health condition or injury but states that Mr Charles Otter had requested a letter in support of a postponement due to ill health and the GP had agreed to provide it. The Respondent did not make any application for an extension of time to file a response or provide an ET3.[12]On 14 August 2025 the Claimant provided financial loss calculations and supporting documents.[13]On 15 August 2025 Regional Employment Judge Freer considered the Respondent’s application for a postponement and refused it because the medical evidence provided did not state that the Respondent was unable to engage in the proceedings nor did it give any prognosis.[14]On 18 August 2025, the morning of the hearing, the Respondent submitted a draft ET3 which included the statement the “only reason why CO on behalf of the Respondents failed to file its Response within the Deadline was solely due to his health problems as reported with evidence to the tribunal”. Renewed Application for Postponement[15]At the outset of the hearing Mr Stephen Otter and Mr Charles Otter renewed the Respondent’s application to postpone the hearing. Mr Stephen Otter said that REJ Freer had ignored the medical evidence provided and said that they had submitted evidence of Mr Charles Otter’s ill health.[16]I made enquires of Mr Charles Otter as to his health and he said that didn’t think he was ‘quite up to it’ and while having breaks in the proceedings would be helpful, he preferred to have a postponement. He said he had had a couple of heart attacks and a fall down stairs and had had two brain scans and would appreciate having more time.[17]Mr Stephen Otter said that a postponement would be beneficial so that ‘the Claimant can digest the facts that have been sent to them’ and Mr Charles Otter said he was ‘hoping that she has the decency to back down’.[18]Ms Wong objected to the application because there had been no change of position since the application had been made and refused by REJ Freer. She said the basis of the ill health was vague and unsupported by medical evidence as neither letter complied with the applicable guidance and the threshold was not met to grant a postponement application. She noted that the Respondent had in fact been able to engage in the proceedings and prepare a draft ET3 response 2 days after REJ Freer had refused the prior postponement request and that Mr Stephen Otter was also a director of the Respondent company and could assist in the proceedings.[19]Mr Stephen Otter in response to the latter submission agreed that he was a director of the Respondent but said that he had no involvement in the day to day running of the laundrette and knew nothing about the case other than what his father had told him. While he was assisting his father in practical terms he was not involved in running the shop itself.[20]I refused the application for a postponement because I agreed that there was no change of position since the application had been made and refused by REJ Freer. The Respondent relied on the same medical evidence which, as noted by REJ Freer did not include any evidence that Mr Charles Otter was too unwell to participate in the proceedings or contain any prognosis. The need for further medical evidence which dealt with both of those essential issues had been highlighted to the Respondent by REJ Freer but nothing further had been provided. In the circumstances and in accordance with the overriding objective I decided that it was appropriate to refuse the application. Application for an extension of time to file a response[21]Although no formal application had been made by the Respondent, I considered that the ET3 ought to be read as containing an application for an extension of time in light of the paragraph quoted above.[22]Mr Charles Otter confirmed that he wanted to make an application for an extension of time and that the reason for this was because of his ill health. I heard from Mr Otter in relation to the application and he said that when he received the claim form in February 2025 he chose to engage with North Kensington Law Centre in the hopes of resolving matters. He was experiencing financial difficulties at the time and was delayed in submitting the company accounts. He said he now realised he should have engaged a solicitor to deal with the claim but was preoccupied with his concerns in relation to the company accounts and his health and had hoped to have a meeting with the Claimant’s representative directly, although ultimately that never occurred.[23]In relation to his health he said that the fall he had was about 18 months previously and he had had two brain scans.[24]Mr Stephen Otter then said that the Respondent wanted to rely on evidence from their accountant and that he disputed the Claimant’s factual account of events. He said that more time ‘is essential for the Claimant to re-think and re-present the claim’.[25]Ms Wong objected to the application. She said there was a very serious delay of about 6 months and no satisfactory explanation had been provided. For the same reasons the medical evidence was insufficient in relation to the application for postponement, it was insufficient in relation to the application for an extension of time because it did not include any evidence that Mr Charles Otter was unable to participate in the proceedings during the relevant period. She said that making the application so late meant that it was a backdoor attempt to obtain a postponement. She noted that Mr Charles Otter had said in the hearing that they effectively wanted more time so that the Claimant would just drop the case. There had been no explanation as to why the response could not have been provided earlier. She said that there would be prejudice to the Claimant in granting the application because it would inevitably mean further delay as the draft response included serious allegations against the Claimant that would need to be dealt with in evidence. She said the Claimant had no intention of re-presenting her case and stood by the claims made.[26]The leading authority in relation to applications for an extension of time to file a response is Kwik Save Stores Ltd v Swain and ors 1997 ICR 49. A three stage approach should be adopted considering all relevant factors including the employer’s explanation as to why an extension of time is required (the more significant the delay the more important that there is a good explanation for it), the balance of prejudice to each party of allowing or refusing the application and the merits of the proposed defence. Employer’s explanation as to why an extension of time is required[27]I first considered the length of the delay. I noted the procedural history set out above. The ET3 should have been submitted by 25 March 2025 but was not submitted until 18 August 2025. That is a delay of 5 months and 24 days which I find is a very substantial delay in light of the 28 day time limit.[28]Mr Charles Otter’s explanation for the delay was his ill health however I do not accept this explanation. The reasons for this are that Mr Charles Otter told me that when he received the claim in February 2025 he chose to engage with the Law Centre and hoped to arrange a meeting with them and that he now accepts he should have sought representation at that time. I therefore find that he was able to engage in the proceedings and was in fact doing so, but chose not to prepare a response. No medical evidence has been adduced which states that Mr Charles Otter was not able to engage with the process in February and March 2025 prior to the deadline or that he has been unable to do so up to today.[29]Further, when the application for postponement was refused, the Respondent was then able to produce a draft ET3 which was uploaded to the Tribunal’s online system on Sunday 17 August 2025 and therefore effectively provided to the Tribunal and the Claimant on 18 August 2025, on what had originally been listed as the final merits hearing date.[30]I note that the notice of claim was clear as to the relevant deadline.[31]I find in all the circumstances that no good explanation has been provided for the delay in providing the response or for seeking an extension of time to do so. The balance of prejudice[32]Would the employer, if its request for an extension of time were to be refused, suffer greater prejudice than the complainant would suffer if the extension of time were to be granted?[33]I accept that there would be some prejudice to the Respondent if the application is refused in that they would not be able to contest the claims brought against them. I accept that this is a real prejudice where they say that they dispute the facts of the claim and wish to contest it. I also accept that there would be prejudice to the Claimant if the application was granted. The Claimant would lose the resolution of her claim in circumstances where the final hearing date had been listed for over 6 months and a Judgment under Rule 22 was due to be considered.[34]If the response is allowed out of time the claim could not proceed today because the case has not been prepared on the basis of a contested claim. The Respondent has raised serious allegations against the Claimant and disputes the majority of the core facts of the claim, including whether the Claimant was an employee or worker and whether she was dismissed. Such disputes could only fairly be resolved through the hearing of evidence. A postponement would cause substantial delay and lead to increased costs.[35]Mr Charles Otter and Mr Stephen Otter did say, a number of times, that they wanted more time in the hope that the Claimant would retract her allegations and essentially give up on the claim and I agree with Ms Wong that failing to file a Response on time and then seeking an extension of time so late that if granted, the final hearing date would have to be postponed does appear to be an inappropriate use of the Tribunal procedure in order to attempt to ‘wear down’ the Claimant. I find that the Respondent has deliberately delayed in making this application for that improper purpose.[36]In the circumstances I find that balance of prejudice is in favour of refusing the application. The merits of the defence[37]I note that if the employer’s defence is shown to have some merit in it, justice will often favour the granting of an extension of time as otherwise the employer might be held liable for a wrong which it had not committed. I have reviewed the draft ET3 and consider that the Respondent has raised arguable defences to some of the claims. The Response disputes the central facts of the Claimant’s claim and I am unable to make any assessment, without hearing evidence, as to the merits of that dispute.[38]However, I note that the response to the holiday pay claim appears on the face of it to be extremely weak as under WTR ‘workers’ are entitled to 5.6 weeks paid annual leave per year and this applies equally to so-called ‘zero hours’ workers. I also note that the Respondent’s response describes the Claimant as working 30hrs per week in any event. Therefore those particular arguments do not appear to have any obvious merit in them.[39]In relation to the unfair dismissal complaint the Respondent denies any dismissal occurred but at the same time seeks to raise multiple extremely serious allegations of misconduct against the Claimant and there may therefore be some difficulty in reconciling those two positions.[40]On balance I find that as the draft response does include arguable defences to some of the claims this is a factor which supports the Respondent’s application being granted. Conclusion on the application for an extension of time[41]Considering all matters in the round, I refuse the application. I find that the very substantial delay of almost 6 months, in circumstances where the Respondent had no good reason why they could not have prepared a response or an application for an extension of time within the deadline heavily weighs against the Respondent. I have found that the delay was in fact a deliberate tactic that the Respondent chose to use in order to put pressure on the Claimant to abandon her claim and therefore it is appropriate to refuse the application. In the circumstances this outweighs the prejudice to the Respondent of being unable to defend the claims on their merits. Rule 22[42]Having refused the Respondent’s application for an extension of time to present their Response I went on to consider whether it was appropriate to give judgment under rule 22.[43]The Claimant had provided detailed information as to her financial losses by letter dated 14 August 2025 including her gross and net weekly pay, hours of work and the precise dates she said she worked but was not paid.[44]The Claimant relied on her statutory entitlements in relation to holiday pay and notice pay and provided documents evidencing that she had requested written reasons for her dismissal.[45]In the circumstances I considered that there was sufficient material for me to give judgment under Rule 22 and there was no response to the claims. I therefore gave judgment under Rule 22 and awarded the sums on the basis of the information contained in the 14 August 2025 letter. Approved by: