Ms D McCarthy v Saint Gobain Building Distribution Ltd: 1302850/2021
JUDGMENT
[1]The claimant’s claim for constructive unfair dismissal succeeds on the basis that s.95(1)(c) is met having considered the following:(a) There was a repudiatory breach by the respondent.(b) There was a breach of contract in that the actions of the respondent damaged the relationship of confidence between the claimant and the respondent. (c ) The above breaches caused the claimant to resign with the ‘last straw’ being, after a culmination of incidents, the restructure which excluded the claimant in January 2021. (d) It is clear that the claimant did not affirm the contract. (e) The respondent has not pleaded fairness in response to the dismissal.[2]The claimant’s claim for wrongful dismissal succeeds on the basis that the claimant’s employment contract was breached as set above in relation to her pay and the grievance process.[3]The claimant’s claim for 12 weeks' notice pay succeeds given the above findings.[4]The matter is listed for a remedy hearing on 5 April 2022 as to what awards, if any, the respondent should make to the claimant. In respect of the case management applications made prior to the hearing commencing the Tribunal found:[1]The respondent’s application for an adjournment pursuant to Rule 30 of the 2013 Tribunal Rules is refused on the basis that they failed to provide sufficient medical evidence as to Ms Maguire’s illness, they had sufficient notice of proceedings to ensure someone else attended on her behalf and the impact that the delay would have on the claimant in terms of freshness of evidence, having already provided the respondent with her evidence and the stress of waiting for a new date is not justified. I note my overriding objective and the Presidential guidance on this issue.[2]It is noted there was an outstanding Unless Order application that was not renewed given the respondent was not in attendance and had failed to provide a response prior to the hearing.[3]The hearing should proceed in absence of the respondent, after considering Rule 47 of the 2013 Rules. They had sufficient notice of the proceedings and were given an appropriate amount of time the morning of the hearing to attend proceedings, with Jackie Troth of the respondent joining by CVP and then disconnecting sending an e-mail request for an adjournment instead.[1]The claimant’s application for costs made on 2 June 2022 pursuant to rule 77 of the Employment Tribunal Rules of Procedure succeeds.[2]The respondent is ordered to pay the claimant £15,000 towards her legal costs.REASONS
[1]The Tribunal needed to consider Rule 76 (1) (a) and (b) of the Employment Tribunal Rules of Procedure when considering whether to award costs. The first limb of the test was assessing if the respondent behaved in an unreasonable way in their conduct of the proceedings.[2]In assessing this I have considered the following:(i) The respondent is a well-resourced company with a HR department.(ii) The respondent failed to produce any witness statements in this matter to support their position.(iii) The respondent failed to engage with the Tribunal when directed to file 10.1 Judgment – no hearing - rule 60 February 2018 Case No: 1302850/2021 evidence.(iv) The respondent produced no bundle, and it was left for the claimant to produce this.evidence.
[3]Given the findings in paragraph 2 it is clear that the respondent failed to conduct the proceedings in a reasonable manner. Prospect of Success[4]The second limb of the test requires the Tribunal to assess whether the respondent had a reasonable prospect of success in their response to the claim. Given the respondent’s failure to engage with the claim and produce any evidence to support their position it has been found that the respondent could not have had a reasonable prospect of success. Notice of Costs Application[5]The Tribunal is satisfied the respondent was copied into their application for costs on 2 June 2022 and were put on notice on 5 April 2022 of the intention to do so.[6]Further to this the Tribunal sent correspondence to the respondent on 27 September 2022 requesting they provide any response to the application by 30 September 2022. They have failed to respond to the application neither consenting nor opposing the application for costs. What Costs Should be Awarded[7]The schedule of costs provided by the claimant has been broken down and amounts to £29,024.40 including VAT. The claimant has agreed, given the costs threshold, the reduce this to £15,000. This sum appears reasonable considering the work undertaken by the claimant on this matter.