JUDGMENT ON RECONSIDERATION
Under rule 70 of the Employment Tribunal Rules of Procedure 2013, I confirm the Rule
21 Judgment of Employment Judge Shepherd sent to the parties on 28th June 2017.
The respondent will be entitled to participate in a hearing only on the question of
remedy. The parties must, by 11th September 2017, send unavailable dates in
October/November 2017 for a one day remedy hearing to the Tribunal.
1. Introduction and Issues
1.1. The claimant was born on 26th August 1961. Her continuous employment as a personal
carer to the respondent started on 1st November 2009. She worked 45 hours per week
latterly paid £324 per week which is the National Minimum Wage.
1.2. The respondent has Multiple Sclerosis (MS). She has full mental capacity and is helped
by her husband, Ian, in dealing with her financial and other affairs. The Local Authority has
statutory duties as to the care of vulnerable people in its area. A commonplace arrangement
many Authorities use is to provide funding for carers by paying money to the person in need
of care who then becomes the legal employer of the carer. I have even seen cases in other
Authorities where the person in need lacks the mental capacity to enter into contracts at all.
Such people are “cast in the role” of employer when they unaware of the duties the law
imposes on them. They usually, however, can ask a social worker for advice on how to deal
with employment issues.
1.3. The claimant’s pleaded case is that on about 1st or 2nd December she was asked to pick
up the respondent’s grandson from nursery on 7th December to enable his mother and the
rest of the family to attend the funeral of a close relative. She initially agreed but changed her
mind and so told the respondent on 5th December. On 6th December the respondent’s
husband, in his wife’s presence, said the claimant had let them down. He said to the claimant
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“nice to have known you Ann, nice to have had you working for us”. When the claimant asked
what he meant he replied “Just leave now”. The respondent did not dissociate herself from
her husband’s words.
1.4. The claimant contacted the social worker responsible, who told her to go back to work on
8th December, the day after the funeral. She did and was met by Mr Woodhead who said “I
thought we had parted company, so please leave”, and closed the door. The claimant
contacted the social worker again. That person responded later that Mr Woodhead would be
in touch with her to arrange for her to return to work.
1.5. On 9th December the claimant received a call on her mobile from Mr Woodhead. At the
time the claimant was out with her sister. He asked if she would like to return, she said she
would and asked when. He replied “Now” and said he was recording the conversation. The
claimant did not feel able to return. She “resigned” on 22nd January 2017, commenced Early
Conciliation (EC) on 1st March, received an EC Certificate on 15th April, and presented her
claim on 5th May 2017.
1.6. Secton 95 of the Employment Rights Act 1996 (the Act) includes:
(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to
subsection (2), only if)—
(a) the contract under which he is employed is terminated by the employer (whether with or
(c) the employee terminates the contract under which he is employed (with or without notice)
in circumstances in which he is entitled to terminate it without notice by reason of the
1.7. Martin –v- MBS Fastenings held, whatever the respective words and actions of the
employer and employee at the time, the question remains, “Who really terminated the
contract?” If the respondent’s words and conduct show she, via her husband, did, that will be
dismissal under 95(1)(a). On the above facts the claimant was in my judgment actually
dismissed on 6thor 8th December 2015 with no notice. The claimant’s alternative would be to
say s. 95 (1) (c) applied, which is an equally strong argument.
1.8. The claim was served on 8th May. A response was due by 5th June. The case was listed
for a one day full hearing on 29th August and directions were given. The claimant’s
representative applied on 9th May to vary the dates and copied his application by first class
post to the respondent. On 18th May Mr Woodhead telephoned the Tribunal saying ACAS
had been in touch with him until when he knew nothing about the case. I cannot accept
ACAS did not make contact during the extended EC period. The service address was
correct. Even if the service documents went astray in the post, Mr McDermott’s letter should
have arrived. The Tribunal clerk said she would send the papers again by e-mail. He replied
he does not have a computer. They were sent by first class post on 19th May. The claimant
still had over two weeks in which to respond. By 26th June no response or further
communication having been received Employment Judge (EJ) Shepherd issued a Rule 21
judgment on liability only , converted the hearing to a remedy hearing and informed the
respondent she could partake on remedy only . The judgment was sent to the parties on 28th
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1.9. On 13th July, the claimant submitted her schedule of loss. The basic award is correctly
calculated at £3402. Her loss of statutory rights claim at £300 is realistic. However, she
claims 52 weeks loss of earnings up to and beyond the date of hearing.
1.10. On 19th July Mr Woodhead wrote to the Tribunal saying his e-mails to his legal
expenses insurer were “misdirected”. I accept Mr Woodhead is not very computer orientated,
neither am I, but any prudent person would check to see if the insurer had safely received
what it needed in good time. The insurer later refused cover because the response was out
of time. When Mr Woodhead asked his wife to be allowed to defend, EJ Buchanan directed a
letter be sent which fully explained the options, emphasised the urgency and urged the
respondent to take advice. This was sent on 3rd August.
1.11. On 16th August Mr Woodhead telephoned the Tribunal complaining no ET3 form was
enclosed with the letter, he had no access to the internet and was going on holiday until 27th
August. On 21st August an ET3 was received at the Tribunal saying the claimant resigned
and the respondent wished to defend the claim. Although it disputes the tone of the words
used, the response is not significantly different from the claimant’s pleaded case as to the
events of 6th 8th or 9th December.
1.12. The respondent applied for a reconsideration of a judgment on liability only. I was
appointed by Regional Employment Judge Reed to deal with that in the absence of EJ
Shepherd. If I refused it, I would then deal with remedy .On the last working day before the
hearing the claimant applied for a postponement. She, for a very sound reason, could not
attend today. I held a telephone hearing with the parties and agreed her attendance was not
necessary for the reconsideration part of the today’s hearing, but would be for the remedy
hearing. It was agreed only the reconsideration would proceed. The issue is whether the
judgment should be confirmed, varied or revoked.
2. Relevant Law and Conclusions
2.1. Under Rule 71 an application for reconsideration has to be made within 14 days of the
date upon which the reasoned judgment was sent to the parties. The first contact from the
respondent was well after that.
2.2. The only ground for a reconsideration is whether one is necessary in the interests of
justice. Quite apart from having no basis on which to extend time for making the application,
it is not in the interests of justice to allow a party who has no reasonable excuse for not
presenting a response in time to do so late. Nothing Mr Woodhead says comes close to
explaining why he did not simply follow the instructions which accompany service of a claim.
Contacting an insurer and assuming they would deal with everything was not enough, in my
view. Even when he contacted the Tribunal and was given advice he did not follow it
promptly, or in some respects at all.
2.3. In any event, I see no arguable defence on liability. Section 98 the Act provides:
“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair
or unfair it is for the employer to show –
(a) the reason (or if more than one the principal reason) for dismissal
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a
kind such as to justify the dismissal of an employee holding the position which the employee
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(2) A reason falls within this subsection if it relates to.. the conduct of the employee.”
2.4. Thomson-v-Alloa Motor Company held a reason relates to conduct if, whether the
conduct is inside or outwith the course of employment, it impacts in some way on the
employer/employee relationship. It is hard to see how the claimant refusing to do a favour,
outside the scope of her employment, impacts on the employment relationship.
2.5. Assuming the respondent can rely on conduct, as to fairness, section 98(4) says:
“Where an employer has fulfilled the requirements of subsection (1), the determination of the
question whether the dismissal is fair or unfair (having regard to the reason shown by the
(a) depends on whether in all the circumstances (including the size and administrative
resources of the employer’s undertaking) the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee
(b) shall be determined in accordance with equity and the substantial merits of the case.”
2.6. In Polkey v AE Dayton Lord Bridge of Harwich said:
..an employer having prima facia grounds to dismiss .. will in the great majority of cases not
act reasonably in treating the reason as a sufficient reason for dismissal unless and until he
has taken the steps, conveniently classified in most of the authorities as “procedural”, which
are necessary in the circumstances of the case to justify that course of action. Thus; …in the
case of misconduct the employer will normally not act reasonably unless he investigates the
complaint of misconduct fully and fairly and hears whatever the employee wishes to say in
his defence or an explanation or mitigation; …
No such procedure was followed at all. Lord Bridge continued:
If an employer has failed to take the appropriate procedural steps in any particular case, the
one question the Industrial Tribunal is not permitted to ask in applying the test of
reasonableness proposed by section 98(4) is the hypothetical question whether it would have
made any difference to the outcome if the appropriate procedural steps had been taken. On
the true construction of section 98(4) this question is simply irrelevant. …… but if the likely
effect of the appropriate procedural steps is only considered, as it should be, at the stage of
assessing compensation, the position is quite different. In that situation as Browne-Wilkinson
J puts it in Sillifant’s case
“There is no need for an “all or nothing” decision. If the.. Tribunal thinks there is doubt
whether or not the employee would have been dismissed, this element can be reflected by
reducing the normal amount of compensation by a percentage representing the chance that
the employee would still have lost his employment”.
2.7. Under the Act, a Tribunal must explain to the claimant the power to order the respondent
to re-instate her in her old job or re-engage her in a similar one. These powers are explained
in s 113 to 117. She does not request either.
2.8. There are two elements to compensation: the basic award which is an arithmetic
calculation set out in s 122, and the compensatory award explained in s 123 which as far as
(1) … the amount of the compensatory award shall be such amount as the tribunal
considers just and equitable in all the circumstances having regard to the loss sustained
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by the complainant in consequence of the dismissal in so far as that loss is attributable to
action taken by the employer.
(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule
concerning the duty of a person to mitigate his loss as applies to damages recoverable under
the common law of England and Wales..
(6) Where a tribunal finds that the dismissal was to any extent caused or contributed to by
any action of the complainant , it shall reduce the compensatory award by such proportion as
it considers just and equitable having regard to that finding .
2.9. Section 123(6) as explained in Nelson-v-BBC empowers a Tribunal to reduce a
compensatory award if the conduct of the claimant caused or contributed to the dismissal.
Section 122(2) empowers a Tribunal to reduce the basic award on account of the conduct of
the claimant before the dismissal, if it thinks it just and equitable to do so.
2.10. Although decided under the 2004 Rules, DH Travel Ltd -v-Foster held the respondent
who has not entered a response is entitled to be heard on remedy. I must emphasise, as the
Employment Appeal Tribunal did in DH Travel, this is not an opportunity to run arguments
about the fairness of the dismissal. However, as for the remedy claimed, the respondent may
challenge mitigation of loss even by saying the dismissal was in the heat of the moment, the
claimant unreasonably refused an offer to return so it is not just and equitable she should be
compensated. The respondent may argue she should have found another job and even
argue contributory conduct. I cannot advise if and how any of these arguments should be run.
However, I have no difficulty in concluding that although a defence on liability would be
hopeless, arguments on remedy are not.
EMPLOYMENT JUDGE GARNON
JUDGMENT SIGNED BY EMPLOYMENT JUDGE ON
29th August 2017
SENT TO THE PARTIES ON
5 September 2017
FOR THE TRIBUNAL