Employment Tribunals

Case Number: 2205002/2018 - 1 - EMPLOYMENT TRIBUNALS BETWEEN Claimant AND Respondent Mr M Dirar OCS Group UK Ltd Heard at: London Central On: 6 March 2020 Before: Employment Judge Stout Representations For the claimant: In person For the respondent: Mr I Ahmed (counsel) JUDGMENT The judgment of the Tribunal is that: (1) The Claimant’s claim for unlawful deductions from wages is well-founded, but the Respondent is not ordered to repay any amount to the Claimant because it has already paid the Claimant the sums in question. (2) The Claimant has not suffered any additional financial loss attributable to the unlawful deductions and is not ordered to pay any amount pursuant to s 24(2) of the Employment Rights Act 1996. Case Number: 2205002/2018 - 2 - REASONS 1. The Claimant represented himself. The Respondent was represented by counsel and Ms Holly Trenholme appeared as a witness for the Respondent. 2. The Respondent had prepared a bundle of documents and a chronology, which I read. Ms Trenholme had prepared a witness statement, which I read. The Claimant brought along various hard copy documents, of which two appeared to me to be potentially relevant: a letter from the Council refusing him housing benefit and a notice of repossession in respect of his flat. 3. There had been a previous Preliminary Hearing in this matter on 5 October 2018 before EJ Mason, at which it was identified that the Claimant’s employment had transferred under TUPE from Interserve (Facilities Management) Ltd (Interserve) to OCS Group UK Ltd (OCS) on 1 April 2018. OCS was accordingly substituted as Respondent to these proceedings. It is significant to note that the unlawful deductions about which the Claimant claims occurred during the period that he was employed by Interserve. 4. There were two alleged deductions in issue: a. 7 weeks’ statutory sick pay for January and February 2018; and, b. Wages for March 2018. 5. In respect of the first, the Claimant had said at the hearing before EJ Mason that he accepted he was paid the monies due, albeit late, although he was unsure the payment was correct and suggested he had suffered other financial loss. 6. In respect of the second, the Respondent had understood that the Claimant accepted that the wages for March 2018 had also been paid, again albeit late as there had been correspondence between the parties in May 2018 in which this was apparently confirmed. 7. At this hearing, however, the Claimant appeared uncertain about these concessions and unwilling to accept that he had been paid all he was due. I accordingly considered the issue of liability in respect of the two points in issue as if there had been no past concessions. In doing so, I noted that the Respondent had not attended the hearing expecting to have to prove the matters that they understood the Claimant previously to have conceded and so I did not have copies of any bank statements from either party showing what payments had been made or when. 8. I heard evidence on oath from the Claimant and Ms Trenholme. I made findings of fact on the balance of probabilities. Case Number: 2205002/2018 - 3 - 9. So far as the sick pay was concerned, this concerned 7 weeks when the Claimant was sick in Sudan in January and February 2018. Interserve had not initially recognised as valid his sick notes from Sudan and so had not paid statutory sick pay (SSP) for this period. Later, this was acknowledged to be an error and on 28 May 2018 the Claimant was paid £839.89 gross, which gave a net payment of £655.54. There was a payslip supporting this payment. The parties were agreed that what should have been paid was 7 weeks SSP. At that time SSP was £89.35 per week so 7 weeks would have been £625.45 gross. I find that the Claimant was therefore overpaid sick pay in the gross amount of £214.44. 10. So far as the March 2018 wages were concerned, Interserve wrongly thought the Claimant was on unpaid leave during March 2018 so £1720 was deducted from his wages on 28 March 2018 as is shown in the payslip of that date. In fact, however, it is agreed he was at work and wages were owed. The Respondent’s case was that this was repaid as a ‘hardship’ payment on 18 April 2018. The Respondent’s case was that the Claimant had also been paid an additional sum as an actual ‘hardship’ payment (i.e. ex gratia), but there was no evidence of this having actually been paid. The Claimant’s evidence, which I accept, was that he received the following payments on the following dates from Interserve: a. 26 Jan 2018 - £191.80 b. 28 Feb 2018 - £191.80 c. 28 Mar 2018 - £306.53 d. 18 Apr 2018 - £1,186.80 e. 27 Apr 2018 - £164.16 f. 25 May 2018 - £655.55 11. Also on 25 May 2018 he received £1939 from OCS. That includes overtime the Claimant says. 12. Of those, there was no payslip in the bundle supporting either the 18 April 2018 payment or the 27 April 2018 payment. I find that these two payments represent Interserve’s attempt to repay the Claimant for his March wages. This was a total of £1350.96. £1,720 gross would be about £1,464 net given the Claimant’s apparent level of earnings. So I find that there was in respect of the March wages an underpayment of about £113. 13. Overall, putting the overpayment of sick pay together with the underpayment of wages, I am satisfied on the balance of probabilities that the Claimant has received all monies that are due to him in respect of the 7 weeks’ sick pay for January and February 2018 and his March 2018 wages, albeit that he received the payments late. 14. I note, on preparing these written reasons, that I heard no evidence as to what the Claimant had or had not been paid by way of wages for April 2018, but wages for April 2018 were not identified by the Claimant at any point as being in issue. Case Number: 2205002/2018 - 4 - 15. EJ Mason had directed the Claimant at the Preliminary Hearing that “the Tribunal has no jurisdiction to consider non-financial loss, such as injury to feelings or upset, and urged the Claimant to clarify his financial losses as a result of the alleged unlawful deductions”. Despite this direction the Claimant had not clarified his financial losses but attended this hearing with only vague information about consequent financial losses and distress. I nonetheless gave the Claimant an opportunity to say orally what his losses were and I found ultimately that he had not suffered any further financial losses attributable to the Respondent’s delay in paying the monies due to him. 16. So far as Council tax is concerned, he said he was already behind on Council tax, but the problems with Interserve exacerbated this. He had to pay a £230 charge for the debt collector’s visit at the end of January 2019. I find that this loss is not attributable to the late payments by the Respondent as the Claimant appears to have been in financial difficulties in any event and the debt collector’s visit happened over six months after the problems were rectified. 17. So far as housing benefit is concerned, he had to make a claim because he was sick. He first tried to claim in April 2018, although he had come back into the country from Sudan at the end of February 2018. The Claimant was in Sudan from 20 December 2017 until end of February 2018. The Claimant said he did not have the figures from Interserve he needed to make the application earlier, but the letter from the Council he showed me indicates that housing benefit claim must be made within one month, that it cannot be made while abroad and that being abroad was not a good reason for delaying a claim. I find that the refusal of housing benefit was not attributable to late payment by the Respondent but owing to the Claimant’s own delay in claiming and the fact that he was out of the country. 18. As to the notice seeking possession of his flat, this was not proceeded with and the Claimant confirmed there was no financial loss. 19. As to utility bills, he said that he thought that British Gas made an extra charge for late payment, but he did not know what that was or when it had happened. Otherwise there were no extra charges. I find that the Claimant has not proved any additional financial loss from this. 20. The Claimant said that his credit rating had suffered and he had not got a credit increase from HSBC, but again he did not have any details and I cannot find this was a financial loss or that it was attributable to the Respondent. 21. For all these reasons, I find that: (1) The Claimant’s claim for unlawful deductions from wages is wellfounded, but the Respondent is not ordered to repay any amount to the Claimant because it has already paid the Claimant the sums in question (see s 25(3) of the Employment Rights Act 1996 (ERA 1996). Case Number: 2205002/2018 - 5 - (2) The Claimant has not suffered any additional financial loss attributable to the unlawful deductions and is not ordered to pay any amount pursuant to s 24(2) of the ERA 1996. Employment Judge Stout Date 10th March 2020 JUDGMENT & REASONS SENT TO THE PARTIES ON 11/03/2020 …….................................................................................................................... FOR THE TRIBUNAL OFFICE Case Number: 2205002/2018 - 1 - EMPLOYMENT TRIBUNALS BETWEEN Claimant AND Respondent Mr M Dirar OCS Group UK Ltd JUDGMENT ON APPLICATION FOR RECONSIDERATION The Claimant’s application for reconsideration of the Reserved Judgment sent to the parties on 11 March 2020 is dismissed. REASONS Introduction 1. I gave a Reserved Judgment in this matter following a hearing on 6 March 2020 which was sent to the parties on 11 March 2020. 2. By an application received on 28 April 2020, the Claimant made an application for reconsideration. 3. By a Provisional Decision and Case Management Orders dated 11 May 2020 I indicated that I provisionally considered the application had a reasonable prospect success so far as concerns the March wages only. 4. By email of 21 May 2020 the Respondent made Submissions, enclosing evidence, in response to my Provisional Decision. Case Number: 2205002/2018 - 2 - 5. In the light of those Submissions and Evidence I have concluded that there is not in fact a reasonable prospect of my original Judgment being varied or revoked and I have therefore decided to dismiss the application in its entirety. 6. The reasons which follow include the reasons already included in the Provisional Decision for rejecting the other parts of the Claimant’s application for reconsideration, but with amendments to reflect my final conclusions on the whole application in the light of the Respondent’s Submissions. The Law 7. Rules 70-73 of the Tribunal Rules provides as follows:- 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. 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. 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 already 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. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such Case Number: 2205002/2018 - 3 - members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. 73. Reconsideration by the Tribunal on its own initiative Where the Tribunal proposes to reconsider a decision on its own initiative, it shall inform the parties of the reasons why the decision is being reconsidered and the decision shall be reconsidered in accordance with rule 72(2) (as if an application had been made and not refused). 8. The Tribunal thus has discretion to reconsider a judgment if it considers it in the interests of justice to do so. Under Rule 72(1), I must dismiss the application if I consider that there is no reasonable prospect of the original decision being varied or revoked. I may, before finally determining the application, send a notice to the parties setting out my provisional views and inviting the Respondent’s submissions on the application. If I conclude that there is a reasonable prospect of the original decision being varied or revoked, I must (under Rule 72(2)) consider whether a hearing is necessary in the interests of justice to enable the application to be determined. A hearing would, unless not practicable, be a hearing of the full tribunal that made the original decision (Rule 72(3)). If, however, I decide that it is in the interests of justice to determine the application without a hearing under Rule 72(2), then I must give the parties a reasonable opportunity to make further written representations. 9. In deciding whether or not to reconsider the judgment, the authorities indicate that I have a broad discretion, which “must be exercised judicially … 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” (Outasight v Brown [2015] ICR D11). The Court of Appeal in Ministry of Justice v Burton [2016] ICR 1128 also emphasised the importance of the finality of litigation (ibid, para 20). 10. That said, if an obvious error has been made which may lead to a judgment or part of it being corrected on appeal, it will generally be appropriate for it to be dealt with by way of reconsideration: Williams v Ferrosan Ltd [2004] IRLR 607 at para 17 per Hooper J (an approach approved by Underhill J, as he then was, in Newcastle upon Tyne City Council v Marsden [2010] ICR 743 at para 16). 11. It may also be appropriate for a judgment to be reconsidered if a party for some reason has not had a fair opportunity to address the Tribunal on a particular point (Trimble v Supertravel Ltd [1982] ICR 440, and Newcastleupon- Tyne City Council v Marsden ibid at para 19). 12. However, a mere failure by a party (in particular, but not only, a represented party) or the Tribunal to raise a particular point is not normally grounds for review: Ministry of Justice v Burton (ibid) at para 24. Case Number: 2205002/2018 - 4 - 13. Where a party wishes to rely on fresh evidence, the EAT has given clear guidance to the effect that the most appropriate way to do so is by way of an application for reconsideration of the tribunal’s decision, rather than an appeal to the EAT, since the tribunal is better placed to decide whether the evidence would if available at the original hearing have made any difference to its conclusions: Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 and para 9 of the Practice Direction (Employment Appeal Tribunal - Procedure) 2018. The same Ladd v Marshall test applies both on reconsideration and on appeal to the question of whether fresh evidence should be admitted, i.e. the question is whether the evidence have been obtained with reasonable diligence for use at the hearing; whether it is relevant and would probably have had an important influence on the hearing; and whether it is apparently credible: Outasight VB Ltd v Brown [2015] ICR D11 (approved by the Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714, [2016] ICR 1128). However, as the EAT made clear in Outasight (para 31), reconsideration may be permitted on the basis of fresh evidence not meeting the Ladd v Marshall test where it is in the interests of justice to do so. 14. The normal time limit for submitting a reconsideration application is 14 days under Rule 70. However, the Tribunal has power under Rule 5 to extend that time limit. This is a broad discretion to be exercised in accordance with the overriding objective: Gosalakkal v University Hospitals of Leicester NHS Trust (UKEAT/0223/18/DA) per HHJ Richardson at para 10. This case 15. The Claimant in this case represented himself at the hearing. He has now obtained advice from the CAB and his application for reconsideration makes a number of points, which I have considered, and address as follows:- 16. First, the Claimant submits that the Respondent misled the Tribunal in claiming payments made to him on 26 January 2018, 28 February 2018 and 28 March 2018 were wages. He says that on further investigation it appears these are refunds from the UK Tax Authority (HMRC). He provides a print-out of information from HMRC said to support this position. In my judgment this point is misconceived. There was no misrepresentation by the Respondent. Payslips in the bundle supported those payments and the basis for them and the Claimant himself provided evidence that these were payments made into his bank account by the Respondent (see para 10 of the Judgment). I did not take these sums into account at all in my judgment, either when addressing the March wages claim (see para 12) or the SSP claim (para 9). 17. Secondly, it is suggested that the ‘hardship’ payment made to the Claimant on 18 April 2018 was reversed in a deduction made to the Claimant on 31 May 2018. The Claimant’s payslip for 31 May 2018 is provided. This is new Case Number: 2205002/2018 - 5 - evidence that was not before me at the hearing. It details a net payment of £1,939.59 which appears to correspond to the sum that the Claimant told me he was paid on 25 May 2018 (see para 11 of my judgment). That payslip includes basic pay of £3,726.66 (approximately twice the Claimant’s normal monthly wage), and an ‘Advance Recov’ deduction of £1,487.98. Without further evidence from the Respondent, I was unable to tell what this ‘Advance Recov’ deduction was for. It did not appear to correspond to the £1,350.96 that was paid to the Claimant by the Respondent in two instalments on 18 April and 27 April 2018 and which I took into account when determining his March wages’ claim (para 12 of the judgment). However, given that I was provided with no evidence relating to the Claimant’s April 2018 wages (see my judgment para 14), I considered it possible that the basic pay of £3,726.66 on the May payslip now provided was intended to cover two months’ basic pay (March and April). It did therefore appear possible that the ‘Advance Recov’ deduction was an incorrect deduction of the ‘hardship’ payment made to the Claimant in two instalments on 18 April and 27 April 2018, and which I found were Interserve’s attempt to repay the Claimant for his March wages. This led me to the provisional conclusion, that as a matter of substance, this point raised by the Claimant stood a reasonable prospect of success as a ground for reconsideration of the judgment. 18. However, the Respondent has now provided evidence (the May and June 2018 payslips, and e-mail chain 18/19 May 2020), which shows that the “Advance Recov” of £1,487.98 marked on the May 2018 payslip was in fact a record of the payment of the Claimant’s April 2018 wages which the Respondent contends were paid on 1 May 2018 at a point when the Claimant was not yet set up on OCS’s payroll system (following the transfer from Interserve). The “Advance Recov” appears as a deduction on the May 2018 wage slip to prevent the Claimant being paid twice for this sum. That this is the case is demonstrated by the June 2018 payslip which shows the Claimant’s pay for the Tax Year to Date as total gross £6,191.99, a figure which comprises the Claimant’s total Basic Pay for May 2018 (prior to deduction of the “Advance Recov”) and the total Basic Pay for June 2018. I am therefore satisfied that the “Advance Recov” deduction does not represent an attempt by the Respondent to recover the £1,350.96 that I took into account when determining his March wages claim. As such, I consider that there is no reasonable prospect of my original Judgment being varied in the light of this new evidence. 19. In any event, this evidence does not meet the Ladd v Marshall test because no explanation is advanced as to why the Claimant could not reasonably have obtained this payslip for use at the hearing and ordinarily I would have thought that his payslips ought to have been accessible to him. I have further considered the interests of justice. Although it seemed to me in my Provisional Decision to be potentially in the interests of justice to permit this new evidence to be admitted for the reasons I there set out, since I have concluded that the reconsideration application does not stand a reasonable prospect of success on this point, it is not in the interests of justice to admit the new evidence. Case Number: 2205002/2018 - 6 - 20. Thirdly, the Claimant suggests that the SSP calculations were wrong because the Claimant was off sick for 10 weeks and 1 day from 20 December 2017 to 28 February 2018. However, this point is misconceived because the Claimant was not sick from 20 December 2017. My understanding was that that was the date that he went on holiday to Sudan. In any event, there was no dispute that initially his trip to Sudan was annual leave, not sick leave, so the key point so far as SSP is concerned is when he first claimed to be, and provided evidence of, being sick. That was from 3 January 2018 as confirmed by the sick note provided by Dr Elfatih dated 14 January 2018 (see p 54 of the bundle). The parties were thus agreed at the hearing that it was 7 weeks’ SSP that should have been paid (see para 9 of my judgment). 21. I should add this: it is right to note that the Claimant did not at the hearing refer to having received a payment from OCS on 1 May 2018. I do not therefore know whether he accepts he received a payment on this date or not. Nor do I make any finding as to whether he was paid on that date (although I have recorded the Respondent’s evidence on the point above). However, none of this is material to the application for reconsideration in respect of his claim for March wages, since I am satisfied that the payment that OCS contends was made on 1 May 2018 can (if it was made) only relate to his April 2018 wages. As noted at paragraph 14 of my Reserved Judgement, the Claimant never raised his April wages as an issue in these proceedings. Accordingly, I have made no determination about the Claimant’s April 2018 wages. My Reserved Judgment dealt only with the matters identified in paragraph 13 thereof, i.e. the Claimant’s claims for 7 weeks’ sick pay for January and February 2018 and his March 2018 wages. I found, on the balance of probabilities, that the Claimant had received all monies that were due to him in respect of those two matters, albeit that he received the payments late. I further found that the Claimant had suffered no financial loss consequent on the late payments. This Judgment now finds that there is no reasonable prospect of that Reserved Judgment being reconsidered or revoked in the light of the matters raised by the Claimant in this application. This Judgment, like the Reserved Judgment, does not deal with the April 2018 wages. The time limit 22. Since I have now decided that the application stands no reasonable prospect of success and should be dismissed, the time point becomes academic. However, for completeness, I record that had I considered the application to be meritorious, I would have been prepared to extend time for the Claimant’s application. This is because of the Claimant’s evident struggles with the Tribunal process, the nature of the issue (the Claimant’s contractual entitlement which in the ordinary courts would carry a 6-year limitation period), and the period of delay (just over a month) which is relatively short given the Claimant’s need to obtain legal advice and the Case Number: 2205002/2018 - 7 - problems caused for everyone by the Covid-19 pandemic. Since I do not consider the application to be meritorious, however, I am not prepared to extend time for it. Conclusion 23. For the reasons set out above, I conclude that the there is no reasonable prospect of the original decision being varied or revoked. The Claimant’s application for reconsideration is accordingly dismissed. ___________________________________________ Employment Judge Stout ____________________________________________ Date 1 June 2020 SENT TO THE PARTIES ON 1 June 2020 FOR THE TRIBUNAL OFFICE