Mr D Marshall Ltd v Motordepot Ltd: 1305116/2018
JUDGMENT
[1]The judgment of the Tribunal is that(1) The claimant’s claim of unfair dismissal is well founded.(2) The claimant’s claims for breach of contract, unlawful deduction from wages and arrears of holiday pay are dismissed. JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Birmingham ON 20th August 2019 EMPLOYMENT JUDGE Richardson Representation For the Claimant: In person For the Respondent: Mr J Green, Counsel[2]JUDGMENT ON REMEDY The judgment of the Tribunal is that(1) The respondent is ordered to pay the claimant the sum of £23,222.00.(2) The Recoupment Regulations do not apply.REASONS
[1]The claimant was successful in his claim of unfair dismissal at a hearing on 4th and 5th July 2019, the decision being promulgated on 12th July 2019. A remedy hearing was held on 20th August 2019.Evidence
[2]I was provided with an agreed bundle and a witness statement by the claimant and Ms Rourke, both of whom were cross examined.Findings of Fact
[3]I make my findings of fact on the basis of the material before me taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. I have resolved such conflicts of evidence as arose on the balance of probabilities. I have taken into account my assessment of the credibility of witness and the consistency of their evidence with surrounding facts and documents. My findings of fact relevant to the issues which have been determined are as follows.3.1 The claimant’s date of birth is 5th August 1975. He commenced work with the respondent’s predecessor on 9th March 1993. The effective date of termination was 15th October 2018. The claimant was 43 years of age at the date of termination. He had 25 years continuous service.3.2 Based on the claimant’s payslip for August 2018 which is the last payslip showing standard deductions before the termination of his employment and payment of notice pay and redundancy pay, the claimant earned a gross weekly wage of £857.20 which is a net weekly wage of £608.80.3.3 The claimant had professional advice at the time of the substantive hearing and also prior to this remedy hearing. He had assistance in preparing his schedule of loss.3.4 The claimant set out in his remedy witness statement the conditions he worked under, being an employment contract he signed in 2015. I found at the end of the substantive hearing that without sight of the original copy of the 2015 employment contract, it could not be relied upon because the final pages were not sequential. The claimant did not bring his original copy of the 2015 contract with a ‘wet’ signature to the remedy hearing to support his continued assertion that it was the relevant contract. Mitigation3.5 The claimant’s witness statement made no reference to mitigation of loss. A list of job applications made by the claimant was provided. They showed that he had registered with two recruitment agencies that specialise in motor trade jobs and made 7 job applications in the months from November 2018 to February 2019. The claimant was unsuccessful in a job search although he did not state specifically why he thought that was the case.3.6 To earn income due to the lack of finding employment in the motor trade industry, the claimant set up an online leasing brokerage offering car leasing deals via a website. The business, Ashbourne Automotive Limited, was registered on 27th March 2019. The claimant had to register for VAT and corporation tax, and also register with the Financial Conduct Authority. The claimant used a large national software company to provide him with a website and the dealer and client management software which enabled him to trade as a vehicle leasing brokerage.3.7 The business was authorised by the Financial Conduct Authority on 16th April 2019 and registered for VAT on 28th April 2019. On about 12th June 2019 the claimant was advertising his business on a website Ashbourne Leasing and provided potential customers with a telephone number to call. The claimant was effectively “open for business” and was actively seeking business through Facebook and Twitter as well as from his website, from about June 2019. No business was won until July 2019.3.8 The claimant made one job application for employment in March April and June 2019.3.9 In cross examination the claimant confirmed that he had only applied for a small number of jobs as there were few that suited his abilities and experience. He had not looked for sales position, senior or otherwise, outside the motor industry as that is where his expertise and his experience lay.3.10 The claimant refused to contemplate any role which required weekend working and confirmed that some of the roles advertised and referred to by the respondent by way of illustration of the claimant’s failure to mitigate, were not roles the claimant said he would have applied for, because either they were not in the automotive industry where his expertise lay, or if they were in the automotive industry, they would have inevitably involved weekend working which he was not prepared to do. He was also not prepared to travel out of the West Midlands.3.11 In July the claimant made four sales giving him a total gross profit of £2950 less cost of sales. These costs of sale were not broken down but appeared to be in the region of about £280. The cost of setting up the company on line was £240. The profit and loss account for the month of July 2019 showed a loss of £320.32.3.12 The claimant claimed to have realised that to be successful in the online leasing brokerage he would have to invest significant sums of money to give him an on line profile which would attract business at a sufficiently high rate. The claimant was disappointed that his efforts to date (in July and August 2019) had produced so little return.3.13 In August the claimant sold a car for £8,900. He was abroad at the time which caused a difficulty and resulted in him paying the sum of about £8,900 from his Canadian dollars credit card to the vendor on behalf of his client. The claimant then reimbursed himself once the business account had received the funds for the car purchase from the finance company. The claimant refused to disclose statements in the course of these proceedings for his personal bank account which was a joint account with his wife. The respondent claimed that the claimant had received a personal payment of over £8000. The claimant claimed that he would only receive about £1000 commission of the £8,900 transaction. The claimant was however, unable or unwilling to demonstrate to the respondent and the tribunal by disclosing his personal banks statements that the receipt of over £8,900 was not receipt of personal income but a business transaction.3.14 The claimant did not confirm any intention to invest sums in significant sums in the future to increase the on-line brokerage business. Nor did he confirm that he would be willing to reduce his requirement, or expectation of what he considered to be a suitable role – it was to be at senior managerial status and nothing less. Bonus 3.14 Ms Rourke’s evidence related to the question of whether the claimant would have been entitled to an annual bonus had he remained in the respondent’s employment.3.15 The claimant’s 2005 contract of employment referred to the payment of a bonus being dependent on work performance. The claimant was not in receipt of a bonus throughout the period of February 2015 until May 2016 apart from one commission payment in October 2015 of £550. No bonus was paid in the months April – July 2018 prior to transfer to the respondent. There was no documentary evidence to support a bonus claim. Medical insurance3.16 I was provided with a quotation from AXA for the annual premium to provide the claimant, his wife and two children, private medical insurance. The quotation is for £3605.03. The medical insurance quotation includes provision for specific medical needs of children under the age of 14, none of which medical conditions applied to the claimant’s children. The claimant was unable to explain why reference to these children’s medical conditions were included in the quotation. Submissions[4]I heard submissions from both parties of which I have retained a full note on the tribunal file. I have read and re-read both the notes of evidence of the remedy hearing and the submissions.Conclusions
[5]The claimant did little to help himself in these remedy proceedings. The claimant failed to disclose to the respondent that his had attempted to mitigate loss by setting up company and only did so when the respondent discovered that the claimant was running a business and asked the claimant for disclosure of documents relating to his income arising from the business. The claimant’s revised schedule of loss made no reference to the business of Ashbourne Leasing. The claimant stated he had been acting on advice and had not disclosed the potential income of car sales in July and one sale (which hadn’t been completed) in August 2019 because at the time of disclosure, no income had been received.[6]The claimant also refused to assist the tribunal and the respondent by disclosing his personal bank accounts through which at least the August transaction had been made. This did not assist the claimant in establishing his credibility although otherwise the claimant appeared to answer questions in cross examination without guile and in a manner which was accepting of points put to him by the respondent.[7]The claimant has been unsuccessful in finding any role in the motor trade despite his many years’ experience in the automotive industry starting from being a technician in repair and servicing vehicles, graduating to sales, management and then to the position of general manager in charge of sales and servicing.[8]The claimant refused to consider any senior management role, or in deed any role where he would have to work weekends. He is not prepared to work in job of lesser status than general manager/branch manager. He refuses to consider taking a job which would entail weekend working as he said that would make him look foolish as it had been the requirement to work weekends by the respondent that had caused the termination of their working relationship. The potentially suitable vacancies in the motor trade that were put to the claimant in cross examination were rejected because inevitably they would have required, by the inherent nature of the advertised position, weekend working.[9]I have stepped back to consider all the evidence as a whole. I make the following decisions:-9.1 The assessment of the compensatory award for past lost will be based on the salary that the claimant had been earning at Platts prior to the transfer as shown in his payslip of August 2018, the net sum of £608.80 for a period of 44 weeks.9.2 The respondent says no future loss should be awarded. It is entirely legitimate that the claimant sets up a business to mitigate his loss. He has acknowledged that it has not been the success he had expected and for it to be successful he would have to invest significant sums. The claimant has claimed future loss for 8 weeks. Given the claimant’s refusal to consider any job which entailed working weekends, and the inevitability of any role let alone a senior role in the automotive industry requiring the claimant to work at weekends at some over the weekends, I do not accept that the claimant is likely to find suitable employment within 8 weeks being the figure claimed in his schedule of loss for future loss. He is unlikely to find work at all in the automotive sector because of the self-imposed restrictions of type of work, status of position, location of work and refusal to work at weekends. Nevertheless I do not agree that the claimant should be provided with no past lost compensation.9.3 The claimant was taking legal advice in preparation for the remedy hearing and I am prepared to accept his assertion that he has not been deceitful. However, his attempt to mitigate loss prior to setting up the on-line business, after January 2019 lacked commitment and did not show a reasonable level of application to the task. I accept that setting up a new business in March 2019 will have taken some research and time spent on regulatory requirements and setting up relationships with as software provider and the finance house providing credit to his clients. 9.3 The claimant did not confirm that he was prepared to invest significantly in the new on-line business or provide any evidence of future cost to continue the on-line business. He refers in his foot note to the July management accounts that the business will take time to develop and gain a customer base to become profitable. He forecast that the business will grow at a steady rate but will need to be self-funding with any profits reinvested into marketing the business. 9.5 In all the circumstances, therefore, I make a compensatory award of past loss and make no award for future loss. 9.6 With regard to annual bonus, the claimant claims £8000 based on a comment that he says was made in discussions about the Branch manager role - that the claimant could earn £1000 per month in bonus. The claimant was not on the respondent’s own terms and conditions of employment, but on the previous 2005 terms and conditions of employment which did not disclose any bonus calculation details. The claimant had not received any bonus during the previous 2 years at the former Platt’s garage and there was no evidence that he had received a bonus in the financial year April 2018 – March 2019. I make no award of bonus. 9.7 I make no award for loss of statutory rights as the claimant is now selfemployed. 9.8 I make an award of £2750 for medical insurance, making an assessed reduction for the removal of medical conditions which are not relevant to his children. 9.9 I award the sum of £658 loss of pension rights. 9.10 A break down is on the attached annex A, The claimant did not claim benefits and therefore the recoupment regulations do not apply. Employment Judge Richardson Signed on 10th October 2019 Annex A Basic award 21 weeks gross pay at £508 per week (capped sum) £10,668.00 Compensatory award Past Loss: Loss of earnings from date of dismissal 15th October 2018 to date of remedy hearing 20th August 2019 44 weeks at £608.80 £26,787.20 Future loss: nil Loss of pension rights £685.00 Loss of private medical insurance £2,750.00 Loss of bonus: nil Loss of statutory rights: nil ___________ £30,222.20 £40,890.20 Less payments received: statutory redundancy pay £10,668.00 pay in lieu £6,600.00 £17,268.00 Total sum payable £23,222.20