Mrs P LumbhaniClaimantKids 1st Steps LtdRespondent
Before
Judge CowxDate 13 January 2025
JUDGMENT
[1]The claimant’s claims of breach of contract by failing to make a full payment in lieu of notice, failing to pay wages and failing to pay holiday pay, and the claimant’s claim of unlawful deduction from wages, are dismissed in accordance with Rule 47 of the Tribunal Rules upon the non-attendance of the claimant. _____________________________ Judge Cowx 13 January 2025[1]Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[2]Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Case No: 6014094/2024 EMPLOYMENT TRIBUNALS Claimant: Mrs Parulbeni Lumbhani Respondent: Kids 1st Steps Limited
REASONS
[1]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment dismissing her claims. That application is contained in a form T444 Notice of Appeal from Decision of Employment Tribunal. I have also considered the comments in the claimant’s email to the Tribunal at 22:36 13 January 2025.
The Law
[2]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[3]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[4]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” Case No: 6014094/2024[5]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by 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.”[6]In Ebury Partners UK Limited v David [2023] EAT 40 the EAT put it this way in paragraph 24: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so “in the interests of justice.” A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a “second bite of the cherry” and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.”[7]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Where a party has raised arguments, or had a reasonable opportunity to raise them, it will not generally be in the interests of justice to grant them a second such opportunity. The Application[8]The claimant brought a claim of unpaid wages, holiday pay and notice pay against the respondent, after her employment ended suddenly when the respondent ceased trading. The amount of unpaid wages claimed was £2324.78. No amounts were specified in the claim for holiday pay and notice pay.[9]The Tribunal acknowledged receipt of the claimant’s claim in a letter, entitled ‘Notice of Claim and Notice of Hearing’, dated 17 October 2024. This letter was sent to the claimant’s address as provided in her claim form. The Tribunal’s letter informed the claimant that her case would be heard at a hearing which would take place by video starting at 10:00 am on 13 January 2025. Half a day of Tribunal time was allocated to hearing the claimant’s case.[10]The Tribunal received no correspondence or other contact from the claimant after it sent out the Notice of Hearing and before the start of the hearing. Prior to the hearing, Tribunal staff sent the claimant the link which would enable her to join the video hearing. The claimant did not join the hearing at the appointed time. The respondent did not send a representative to the hearing, but this was not unexpected in light of the respondent ceasing trading. Case No: 6014094/2024[11]I delayed the start of the hearing to allow efforts to be made to contact the claimant. The Tribunal clerk made such attempts to contact her by telephone and email. However, no reply was received from the claimant. On being satisfied that the claimant had been properly notified of the date, time and method of hearing, and after all reasonable steps had been taken to try to contact the claimant, I decided it was not in the interests of justice to adjourn the hearing to a different date because to do so was not in accordance with the overriding objective. In particular, I decided that it was not a proportionate use of limited Tribunal time and resources to allocate a further half a day to a case of unpaid wages, holiday pay and notice pay, in the amount claimed. I therefore decided to dismiss the claimant’s claim in accordance with Rule 47 of the Tribunal Rules upon the non-attendance of the claimant.[12]At 22:36 on 13 January 2025 the claimant emailed the Tribunal explaining that she had not received an email notifying her of the date and time of the hearing and that she was not permitted to have her mobile phone with her at work and so could not join the hearing at the appointed time.[13]I have taken into consideration what the claimant has said about not receiving notification of the hearing. However, on the balance of probability I do not accept that as being likely. She was first sent a letter on 17 October 2024 notifying her of the date, time and method of the hearing. This letter was sent to the correspondence address she provided to the Tribunal. Subsequently she was sent an email by the Tribunal containing the link to the video hearing. I am not therefore satisfied that she was unaware that the hearing was taking place, given she was contacted twice by the Tribunal, by different means, and informed of when and how the hearing was taking place.[14]In these circumstances, as I have found them to be, I refuse the application for reconsideration based on my preliminary consideration that there is no reasonable prospect of the original decision being varied or revoked. This is because I am satisfied the claimant knew when and how the hearing was taking place and it will not be in the interests of justice, in terms of proportionality, to allocate another half day of Tribunal time and resources to this matter. Judge Cowx 8 July 2025 _____________________________