Mr E Gomes v Michael Shane Croner Sitting At: By CVP — 2019

This was a reconsideration hearing of the judgment sent on 26 July 2019, which had awarded the claimant £8,721 for unlawful deduction of wages. The respondent applied for reconsideration on the basis that he was unaware of the proceedings until bailiffs attended at his address in August 2021. The tribunal identified the issue as whether service of the proceedings had been proper, and if not, whether the claim form or its substance had nevertheless come to the respondent's attention within Rule 91 of the Employment Tribunal Procedural Rules 2013.

The tribunal accepted that the ET1 had been sent to the restaurant address at Why Not Restaurant, 197-199 Replingham Road, Wimbledon, and noted that a later Notice of Hearing had been addressed to 333A Heydons Road, suggesting the tribunal had at some stage been notified of a different address. However, the original tribunal file had been mislaid, possibly destroyed, and there was limited electronic information, so the tribunal could not verify from its own records what had been served or whether any documents were returned undelivered. The respondent also produced a 9 May 2022 letter said to confirm that the restaurant keys were handed back on 8 April 2018, but the judge gave it little weight because it was not contemporaneous and was not supported by oath evidence or surrender documents.

On the material before it, the tribunal found there was insufficient evidence to conclude that the claim form or its substance had in fact come to the respondent's attention. Giving the respondent the benefit of the doubt and applying the balance of probabilities, the tribunal found that he was not aware of the proceedings. In those circumstances, and in the interests of justice, the reconsideration application was granted, the judgment of 10 June 2019 was revoked, and the claim was to be re-served on the respondent's solicitors' office.