Ms V Kranha v Byerley Turk E-Commerce Logistics Ltd: 6008152/2024
JUDGMENT
[1]The complaint in respect of holiday pay is well founded. The respondent made an unauthorised deduction from the claimant’s wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[2]The respondent shall pay the claimant £839.24 which is the gross sum deducted. The claimant is responsible for the payment of any tax and national insurance. Case Number: 6008152/2024REASONS
[1]The claimant’s complaint of unlawful deduction from wages regarding unpaid holiday pay was successful and an oral Judgment was delivered on 3 December 2024 and the Judgment sent to the parties on 10 December 2024.[2]The respondent made an application for reconsideration by email dated 24 December 2024. Rules on reconsideration[3]Rule 70 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides that an Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied, or revoked.[4]Rule 71 states that 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.[5]The process to be followed on reconsideration is set out at Rule 72 which provides: “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 already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal.”[6]The Employment Appeal Tribunal held in Outasight VB Ltd v Brown 2015 ICR D11, EAT, that necessary in the interests of justice in accordance with Rule 70 affords the Tribunal a wide discretion that must be exercised judicially. The Tribunal must determine whether reconsideration is appropriate in the circumstances having regard to the party seeking the reconsideration but also the other party to the litigation and the public interest requirement for finality in proceedings.[7]Reconsideration cannot be ordered simply because a party disagrees with the Judgment. Further guidance was provided by the President of the Employment Appeal Tribunal in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16/DA ; “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 is 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.”Conclusion
[8]The respondent’s application was received within the relevant time limit and in summary the application was made on the following grounds.(a) the signed agreement by the claimant.(b) misrepresentation by the claimant in suggesting she was unaware of the existence or terms of the signed agreement. It was the respondent’s position at the hearing the claimant’s entitlement to carry forward only 5 days annual leave was set out in the terms of the signed agreement between the parties which the claimant was aware of.[9]These issues were explored during the hearing and the claimant was cross examined by the respondent regarding these matters. The Tribunal made findings of facts based on the oral and documentary evidence presented and applied the law accordingly.[10]Therefore, the grounds the respondent seeks to rely on were considered by the Tribunal, and the application is an attempt to relitigate issues that were dealt with at the hearing, and as such they do not provide any basis on which to revoke or vary the Judgment. Nor does the application raise any other matter that would make reconsideration necessary in the interests of justice.[11]In the circumstances, the application for reconsideration of the Judgment is rejected on the basis there is no reasonable prospect of it being varied or revoked. The application for reconsideration is refused.