Mr C O’Hara-Lee v The Medical Warehouse Ltd: 6014962/2024
EMPLOYMENT TRIBUNALS
Case No 6014962/2024
Between
Mr C O’Hara-LeeClaimantThe Medical Warehouse LtdRespondent
Before
Employment Judge RichterDate 24 February 2025
JUDGMENT
The judgment of the Tribunal is as follows: The respondent’s application dated 15th July 2025 for reconsideration of the judgment with reasons dated 12 March 2025 (following a final hearing on 24 February 2025) is refused.
REASONS
The Law
[1]I have undertaken preliminary consideration of the respondent’s application for reconsideration of the judgment set out above.
The Law
[2]The ability to reconsider a judgment is set out at Part 12 of the Employment Tribunal Procedure Rules 2024 (“the Rules”).[3]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.[4]The test, as set out in Rule 68 is whether it is ‘necessary in the interests of justice’ to reconsider the judgment.[5]Rule 69 provides, so far as is relevant, that any application for reconsideration should be made within 14 days of the date when the written reasons were sent. The judgment with reasons in this case was sent on 2 July 2025 and therefore I accept that this application is made in time.[6]Rule 70(2) of the Rules provides that if the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked the application must be refused and the parties informed.[7]The importance of finality in decision making was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in 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.”[8]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT - Simler P - said at paragraph 34 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 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.” The Application[9]The respondent’s application is set out over 6 pages. I have considered the application with care and address the arguments advanced below. In essence they concern two aspects: 1) the quantum of the sum awarded; and 2) the conduct of the hearing on 24 February 2025 in respect of a potential offer of settlement which was made. 1 - The sum awarded is said to be incorrect.[10]It is said that at the hearing there was an “an unaddressed central argument; that being that Conan was not owed 10 months’ salary as in his claim, but was owed 6 months’ salary plus Redundancy as agreed”. Attention is drawn to evidence set out within the reconsideration application and an email exchange between the respondent and the claimant, which it is said there was no opportunity to submit in evidence prior to or at the hearing. It is said that the evidence now sought to be given and the email exchange establishes that the claimant was no longer employed as from April 2024 onwards. The respondent asserts that at the hearing “I attempted to suggest that Conan was owed 6 months’ salary plus Redundancy, rather than 10 months’ salary as claimed, and to introduce Conan’s said email of the 17th of April 2024.”
The Law
[11]At section 5 of ET1 claim form the claimant had completed that he was employed by the respondent between 8 July 2005 and the 27 August 2024 as a General Manager. At section 8.2 of the claim form the claimant set out that he had not been paid any salary from October of 2023 up until he left the company i.e. on the date set out above. At the hearing on 24th February 2025 the claimant confirmed these details in oral evidence.[12]Section 4.1 of the ET3 response form asks ‘Are the dates of employment given by the claimant correct?’ the answer ‘Yes’ has been completed by the respondent. Within section 6.1 of the form it is recorded that the respondent does not defend the claim. A narrative is then given about efforts made to secure finance for the company and efforts to pay the claimant but no issue is raised about the detail of the claim brought. In particular no dispute in respect the period of employment, or the sum said to be due to the claimant, is raised.[13]Between the submission of the response and the date of the hearing no material was submitted by the respondent as being relevant to the claim nor any issue identified with the detail of the claim. Not all claims within the Employment Tribunal have a preliminary or case management hearing and none was held in this case which was set for final hearing on 24th February 2025.[14]At the hearing on 24th February 2025, after the claimant had confirmed the dates of his employment, the details of his claim and explained his calculation of the sum he was owed, the respondent was given a full opportunity to respond. The respondent was able to present such argument and material as it wished to rely upon. Ms Lee on behalf of the respondent made representations about the difficulties the company had encountered, the significant and ongoing efforts to try to secure finance, the emotional strain which had been placed on all by the financial difficulties and set out how a personal relationship existed between Ms Lee and the claimant and how she had tried to work with the claimant to keep him informed through this period.[15]I have no record or memory of any issue being raised on behalf of the respondent at the hearing in relation to the period of the claimant’s employment. I have no record or memory of it ever being suggested at the hearing that the figure claimed was disputed, indeed my firm recollection is that there was an acceptance that the sum should be paid. Further there was no reference to the claimant and respondent having agreed any different basis to the claim beyond that which had been set out in the claim form (and at the hearing) and acknowledged in the ET3 response (and at the hearing).[16]Given that the two central elements of the claim concerned: 1) whether an unlawful deduction had occurred and 2) if it had what the quantum of that was, I am entirely confident that if, as the respondent acknowledges, there had been a ‘central argument’ that the sum due was not as claimed then this would have formed a significant component of the hearing. Such a dispute would clearly in this case have required judicial determination. The representations made at the hearing on behalf of the respondent did not cause such a determination to have to be made.[17]I must consider however whether it is necessary ‘in the interests of justice’ to reconsider the judgment with regards to the ‘central argument’ sought to be relied upon now. I am satisfied that it is not necessary to do so. 1) The evidence sought to be adduced and the emails now relied upon were available to the respondent prior to the hearing and could have been clearly referred to or submitted as evidence, they were not; 2) the fact that there is said to be a dispute concerning the claimant’s dates of employment could and should have been identified in the ET3 response submitted, it was not 3) in any event the material sought to be advanced and the terms of the emails submitted are not in my judgment of the weight the respondent suggests. They are clearly part of informal correspondence between the parties. The emails occur at a time when efforts, which were anticipated to be effective, were ongoing to secure further finance. The emails clearly indicate that they are ‘back of a napkin workings’. The phrase in the emails ‘I am in no position to continue without being paid this month’ is not the same as a clear formal termination of the employment contract and does not establish that claimant ceased employment in April 2024.[18]I remind myself in line with the authorities above that finality is an important concept. Here the claimant had clearly set out the dates of his employment both within the ET1 and at the hearing. The respondent accepted the dates of employment in their written response and raised no substantive argument at the hearing. I am satisfied that in the all the circumstances it is not necessary in the interests of justice to reconsider the judgment given in relation to this argument advanced for reconsideration. Settlement offer[19]The respondent further submits that the tribunal should have postponed the hearing of the claim to allow the claimant time to consider an offer of settlement which the respondent wished to make.[20]The respondent sets out how, as the tribunal was due to commence, it set about trying to make an offer of settlement to the claimant. The respondent notes that an error exists within the written judgment with reasons which has been issued. It is recorded in the judgment that the claimant stated at the hearing that ‘he had received an offer’, when in fact the claimant and respondent now agree that the claimant said ‘he had not yet received the offer’ from the respondent but he was aware one was ready to be made.[21]The respondent acknowledges that at the outset of the hearing the claimant made clear that he wished the hearing to proceed that day. The respondent further acknowledges that later in the hearing the respondent re-iterated that it wished to make a settlement offer and that I asked the claimant if he wished time to consider the offer. As the respondent accepts the claimant was adamant that he did not want to consider the offer and wanted the hearing to proceed.[22]The respondent highlights that, in their view, the claimant appeared to suggest that the purported offer was ‘contrived or untrue’ by the response made to the offer at the hearing. If that was the impression conveyed then certainly the tribunal was always of the view that a genuine offer existed. The central issue remained however that the claimant did not want time to consider the offer. The respondent acknowledges that it never asked for the hearing to be postponed and it was the clear position of the claimant that he did not want time to consider the offer but wanted the hearing to proceed that day.[23]I have seen attached to the application for re-consideration an email from the claimant who again confirms that he did not ask for the hearing to be postponed and he further confirms, as he did at the hearing on 24 February 2025, that he wanted the hearing to proceed and states he “wanted a conclusion brought to the matter as soon as possible”.[24]In respect of this argument advanced in the application 1) for the avoidance of any doubt the tribunal was never concerned at the ‘genuineness’ of any offer and understood a considered offer had been prepared; 2) Any difference between the claimant having said words to the effect ‘he had not yet received’ as opposed to having said ‘he had received an offer’ as recorded in the judgment makes no material difference to the progress of the hearing, given that the claimant was entirely clear he did not want the hearing postponed and wanted the matter resolved that day. Further the difference could have no impact at all upon the substance of the claim which was pursed by the claimant at the hearing.[25]Having therefore considered all the points made by the respondent in the application I apply Tribunal Rule 70(2). I am satisfied on the material presented that there is no reasonable prospect of the original decision being varied or revoked. There is no necessity to reconsider the judgment in the interests of justice. The application for reconsideration is refused.[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period October 2023 – August 2024.[2]The respondent shall pay the claimant £71,666.67, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance. The Tribunal’s reasons are as follows: The Claim[3]By means of an ET1 claim form, received by the Tribunal on 14 October 2024, Mr O’Hara-Lee brought a complaint that unauthorised deductions had been made to his wages.[4]On the form the claimant set out that he had been employed by the respondent between 8 July 2005 and the 27 August 2024 as a General Manager. He stated that he had been paid £86,000 annually gross. The claimant alleged that he had not been paid any salary from October of 2023 up until he left the company on the date set out above.[5]By an ET3 response form, received by the Tribunal on 7 January 2025, the respondent set out that it was not defending the claim. It set out that efforts were continuing to try to overcome the financial problems the respondent faced and it was hoped that a payment plan may be able to be put in place to repay the claimant.[6]The late response of the ET3 was accepted by the Tribunal. The case was listed for hearing on 24 February 2025. The Hearing[7]By 24 February 2025 no further correspondence from the parties had been received by the Tribunal. At the outset of the hearing the respondent indicated that it had, within the last few minutes, sent a proposal to the claimant setting out a possible settlement. A potential investor had been found which could lead to funds becoming available to pay the claimant although the details had not been finalised.[8]At the hearing the claimant indicated that he had received the offer but had not had time to consider it and did not want further time to. The claimant made clear that he did not seek a postponement of the hearing which he wanted to proceed that day. No application for postponement was made by the respondent and the hearing proceeded.[9]At the hearing the claimant confirmed on oath the details provided in his claim form. He set out that he claimed £71,666.67 as being owed to him for unpaid wages from October 2023 through to the August of 2024. He set out he had calculated this sum by using his gross salary. Nothing had been paid to him in respect of this sum to date. The claimant detailed how he believed that the underpayment was actually greater than the amount he was claiming and spoke about consequential financial losses but made clear he did not seek amend his calculation or to claim any award in respect of these aspects.[10]The respondent accepted that the claimant had been employed as he had described. The respondent accepted that he had been paid the salary described and that there had been a failure to pay wages as alleged. The respondent did not dispute the amount calculated to be owed. The respondent set out the history of financial difficulties which had beset the company and the efforts which had been made to try to secure funding which to date had been unsuccessful.
The Law
[11]S.13 of the Employment Rights Act 1996 (“ERA”) provides: “An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[12]A claim in respect of an unauthorised deduction from wages must, pursuant to s.23(2)(a) of the ERA must be presented within 3 months of beginning with the date of payment of the wages from which the deduction was made. S.23(2) makes clear that in respect of a complainant concerning a series of deductions time starts to run from the date of the last deduction or payment in a series. No issue as to any potential break in the series arises in this case.[13]Section 13(3) ERA provides: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.”[14]It is settled law that a deduction is a complete or partial failure to pay what was properly payable on a particular occasion. It includes a reduction in wages - Bruce and ors v Wiggins Teape (Stationery) Ltd 1994 IRLR 536, EAT.[15]Section 230(3) ERA defines “worker” as: “In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.” Findings and Conclusion[16]Having heard evidence from Mr O’Hara-Lee and submissions from the Respondent, who do not challenge any of the evidence, I am satisfied of the following facts:[1]Mr O’Hara-Lee presented a claim for a series of unauthorised deductions on 14 October 2024.[2]The deductions complained of were a series of deductions running from October 2023 to August 2024.
The Claim
[3]ACAS had properly been consulted before the claim commenced and a certificate issued.[4]The claim had therefore been submitted within the primary time limit.[5]The Claimant had been employed by the Respondent since July 2005. He was a ‘worker’.
The Hearing
[7]He received a gross salary of £86,000 payable monthly.[8]The Respondent has failed to pay his wages during the period October 2023 to August of 2024 when he left the company.[9]The sum claimed as wages was properly payable to the Claimant.[10]The failure to pay was an ‘unauthorised’ deduction in that it was neither ‘authorised’ nor an ‘exempt’ deduction.[17]Given the findings as set out above the complaint of unauthorised deductions is well founded and judgment is given as set out at the start of this decision.