In exercise of powers contained in Rule 72 of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”), the respondent’s application of the 10th February 2023, for reconsideration of the judgment sent to the parties on the 27th January 2023, is refused because there is no reasonable prospect of the original decision being varied or revoked.
REASONS
[1]The claimant’s complaints of unfair dismissal, unlawful deduction from wages and breach of contract, were upheld by a written reserved judgment dated 24/10/22 and sent to the parties on the 27/1/23. This followed a 3-day hearing on the 24/5/22, 25/5/22 and 15/6/22, with written submissions being sent in subsequent to the hearing by the parties by the 12/8/22.[2]Rule 71 of the ET Rules requires that an application for reconsideration is made within 14 days of the written record being sent to the parties. The respondent made an application for reconsideration of the judgment on the 10/2/23. The application for reconsideration is therefore made in time.[3]Rule 72 (1) of the ET Rules provides: “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. …”[4]The application for reconsideration appears to be made on the following grounds:a. There was evidence disallowed / missing from the bundleb. The claimant's solicitors failed to provide information requestedc. Incorrect findings of fact were made[5]During the hearing the respondent was able to give information, ask questions and raise issues, which he did. He had the opportunity to ask questions of all witnesses and advance all relevant arguments.[6]The respondent as a litigant in person was given appropriate assistance and support throughout the hearing, and the Tribunal was careful to take steps throughout to ensure that the parties were on an equal footing in pursuance of the overriding objective. The issues between the parties had been explored at the commencement of the hearing, and are contained in the list of issues at paragraphs 13 – 17 of my reserved judgment.[7]In respect of evidence being disallowed / missing from the bundle, I refer to paragraph 10 of my reserved judgment, in relation to the 2 analysis documents attached to the 24/7/19 e mail, which were not before the tribunal in evidence, and which I disallowed to be adduced in evidence on late application. Cross examination was paused whilst the respondent was able to explain the significance of information at page 73 of the bundle, which the respondent conceded contained part of the disallowed evidence.[8]The reference to the claimant’s solicitors not providing evidence is a request made on the 11/5/22 by the respondent, in respect of the claimants work activity for the previous year. I note this request was made 13 days prior to the final hearing. The respondent did not provide any time sheets, holiday logs or documentary evidence to the tribunal as part of its case. No request for an adjournment was made, or suggestion that further evidence was available from either the claimant or respondent at the final hearing. No additional evidence has been put forward as part of this reconsideration application.[9]The Tribunal gave all the issues full consideration and prepared its decision and reasons in detail. The respondent is, perhaps not surprisingly, unhappy with the outcome of the Tribunal as the decision was not in his favour.[10]The respondent seeks to challenge findings of fact that were made or the conclusions that the Tribunal reached from those findings. The application is an attempt to re-litigate what was explored in detail at the hearing. A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can explain why the matter was not raised before. The respondent's application does not identify any new matters.[11]It is not the purpose of reconsideration to allow a party to dispute a determination that a party disagrees with and it is a fundamental requirement of litigation that there is certainty and finality. If conclusions made are disputed with regard to a whether a correct interpretation of the law was made, they are matters for an appeal which the respondent is able to make to the Employment Appeal Tribunal. These are not matters for a reconsideration request.[12]I have therefore exercised my discretion to refuse the application for reconsideration as there is no reasonable prospect of the judgment being varied or revoked. The respondent’s application for a reconsideration is therefore rejected. I confirm this judgement has been electronically signed[14]It is difficult in some cases to be certain whether the dismissal would have occurred had the employer acted fairly. Classically this problem arises in circumstances where the employer has failed to act fairly because it has failed to apply certain procedural safeguards which might, had they been applied, have led to the employee retaining her job. Prior to the decision in Polkey v AE Dayton Services Ltd [1987] IRLR 503 HL, the courts took the view that, if on the balance of possibilities, the dismissal would have occurred, then the dismissal should be held to be fair; the House of Lords in Polkey held that this was not good law. Lord Bridge said that the chances of whether the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee but not the basic award. Accordingly, if the prospects of the employee having kept his job had proper procedures been complied with were slender, then there would be a significant reduction in compensation: this is sometimes referred to as “the Polkey reduction” or simply as “Polkey”. Tribunals are required to take a common-sense approach when assessing whether a Polkey reduction is appropriate and the amount of any such reduction (Software 2000 Limited v Andrews [2007] IRLR 568); the nature of the exercise is necessarily “broad brush” (Croydon Health care Services v Beatt [2017] IRLR 274). 15.The Polkey reduction does not apply to the basic award for unfair dismissal, where the test is whether the employee’s conduct makes it just and equitable to reduce or extinguish the award. These questions may turn on the same evidence as Polkey though.[16]I found at paragraph 66 of my decision on liability that there should be no Polkey reduction. Mitigation[17]An employee who has been unfairly dismissed is under the same duty to mitigate her losses as all claimants in any civil proceedings. The duty to mitigate only arises after the dismissal and it requires the employee to take reasonable (and not all possible) steps to reduce her losses to the lowest reasonable amount. The burden of proving a failure by a claimant to mitigate lies on the respondent (see Wilding v British Telecommunications plc [2002] ICR 79 and Cooper Contracting Limited v Lindsey [2015] UKEAT/0184). In Singh v Glass Express Midlands Limited [2018] UKEAT/0071, HHJ Eady QC gave the following guidance on the correct approach to the question of mitigation:(1) The burden of proof is on the wrongdoer; a claimant does not have to prove they have mitigated their loss.(2) It is not some broad assessment on which the burden of proof is neutral; if evidence as to mitigation is not put before the ET by the wrongdoer, it has no obligation to find it. That is the way in which the burden of proof generally works; providing information is the task of the employer.(3) What has to be proved is that the claimant acted unreasonably; the claimant does not have to show that what they did was reasonable.(4) There is a difference between acting reasonably and not acting unreasonably.(5) What is reasonable or unreasonable is a matter of fact.(6) That question is to be determined taking into account the views and wishes of the claimant as one of the circumstances, but it is the ET's assessment of reasonableness – and not the claimant's – that counts.(7) The ET is not to apply too demanding a standard to the victim; after all, they are the victim of a wrong and are not to be put on trial as if the losses were their fault; the central cause is the act of the wrongdoer.(8) The test may be summarised by saying that it is for the wrongdoer to show that the claimant acted unreasonably in failing to mitigate.(9) In cases in which it might be perfectly reasonable for a claimant to have taken on a better paid job, that fact does not necessarily satisfy the test; it would be important evidence that may assist the ET to conclude that the employee has acted unreasonably, but is not, in itself, sufficient. The statutory cap[18]ERA section 124 places a cap on the compensatory award for unfair dismissal which, at the date of the claimant’s dismissal, was the lower of £80,541 or 52 weeks’ pay. Basic Award[19]The parties agreed to the calculation of the claimant's gross weekly wage for the purposes of the basic award. It included the commission she was in receipt of, which was part of the claimant's normal remuneration. This was based upon the salary received during the period February, March and April 2020. The parties agreed to the figure of £405.80 gross weekly salary.[20]The schedule of loss submitted by the claimants' solicitors on page 57 of the bundle included a gross weekly wage figure of £744.45. This was based on October, November and December 2019 wage slips, which Mr Blitz accepted was an incorrect calculation, based on section 221 (3) ERA (1996), which required the last 12 weeks before the calculation date to be taken into account.[21]The parties agreed the basic award was based on 16 years' service, and the claimant being entitled to 1 ½ weeks' pay for each of those 16 years, on the grounds she was over 41 years old. £405.80 x 1.5 x 16 = £9,739.20 gross. Compensatory Award[22]The parties were not able to agree on the figure that should be used to calculate any compensatory award. The claimant's position was that an average figure of £744.45 should be used, for the claimant's gross weekly wage, which was the average of the claimants October, November and December 2019 pay slips. This was the amount put forward in the claimant’s schedule of loss, the net weekly wage being £528.59.[23]The respondent argued that this 3-month period represented 37.2% of the claimant's total pay for that full year period, and a more appropriate reference period would be January – December 2019. An aggregate of the 12-month net figures gave a salary of £19,532.15, and a net weekly figure of £375.62. The respondent accepted this did not include 3% for employer's pension contributions.[24]Section 221(3) ERA (1996) does not apply in the calculation of a week's pay for the purposes of the compensatory award. The tribunal is required to ascertain the claimant’s true losses, there is no upper limit on a week's pay for these purposes. The tribunal is required to determine the claimant's weekly net wage.[25]In calculating a week's pay for the purposes of the compensatory award, it seems appropriate to consider the parties have agreed the gross weekly figure based on February, March and April 2020, of £405.80.[26]As I am required to make an award based on actual losses, it seems fair, reasonable, and appropriate to base this on the average wages received by the claimant between January – December 2019, as suggested by the respondent. I take this view because, as both parties have accepted, the claimants' weekly wage did vary over the year, taking into account higher amounts of commission were paid during busier periods. By using the period January to December 2019, it takes into account the peaks and troughs of sales throughout a full year.[27]Therefore for the purposes of the calculation of the compensatory award, I accept the figures provided by the respondent, that the net salary for January – December 2019 was £19,532.15, the net weekly wage being £375.62.[28]Mr Blitz helpfully checked during the hearing that the net weekly wage figure of £375.62 complied with the National Minimum Wage requirements, and agreed this figure was correct if I sought to rely on it. Both parties accepted that this figure did not include a 3% employers' pension contribution, and this would need to be added to any award. 29.I refer to paragraph 66 of my liability judgement, in which I determined that in my view if the respondent had followed the correct procedures, the claimant would not have been dismissed. Also, my finding in paragraph 67, that the claimant did not contribute to the dismissal by her actions. 30.The claimant gave evidence that she was in disbelief when she was dismissed aged 65, after 16 years of what she described as loyal service. She advised the tribunal she loved her job and had no plans to leave it, was not considering retiring from her role. She had worked in the sales industry for 25 years. 31.She states the dismissal affected her confidence, to the extent that she sought help from her sister-in-law who is a psychiatric nurse, although she did not visit her GP. She questioned her own judgment at the time, lost confidence, had difficulty sleeping and lost weight due to a lack of appetite. She did not apply for jobs straight away, but began looking in the latter part of 2020, but she could not find any similar vacancies. When cross examined, she confirmed she looked at ‘total jobs’ and could not find any similar roles.[32]Mr Blitz made representations, that the claimant would have been in a position to obtain a job within 12 months and sought loss of earnings based on a 12-month period. He pointed out the impact of the national lockdowns which took place in 2020 and made representations that similar jobs in sales would not have been available during this time due the impact of covid and national lockdowns. Whilst the claimant began drawing her pension in December 2020 aged 66, this was a benefit she was entitled to, and this should not be taken into account in any calculation. 33.Mr Tenant accepted the impact of covid but made representations the claimant had not mitigated her losses and taken reasonable steps to find employment. No evidence of jobs which were available and appropriate for the claimant at the time were produced by the respondent. Mr Tenant made representations that the claimant should be entitled to loss of earnings for a 3-month period. 34.I accept the claimant’s evidence that the impact of the dismissal upon her was a loss of confidence, lack of appetite and a loss of weight. She had worked for the respondent for 16 years without any oral or written warnings being recorded in her record. (paragraph 23 of my liability judgment). Whilst she has not provided evidence of job searches, she undertook, I remind myself of the burden of proof, which is on the respondent to prove a failure to mitigate losses, and that the claimant acted unreasonably. The respondent has not provided any evidence of jobs which were available at the time, which the claimant failed to apply for. I accept it was reasonable that the claimant did not look for a role immediately, taking time to look after her own well-being when she was dismissed from a role, she was passionate about. 35.I have considered the period to which this claim relates. The UK entered the first national lock down on the 23/3/20 - 23/6/20. A second national lockdown was in place between 5/11/20 and 2/12/20. A third national lockdown took place between January 2021 and March 2021. For 6 months of the period of 12 months for the claimant seeking loss of earnings, the UK were operating under instructions which required people to stay at home. Other restrictions were in place during the remainder of the period, regarding restricted numbers meeting up, keeping 2 metres away from others, schools being closed, retail premises being shut. 36.I accept against the background of Covid restrictions, it would have been reasonable for the claimant to start searching for jobs in the later part of 2020 and accept her evidence that she made attempts to do so. The reality is this period was then followed by 2 further national lockdowns, in December 2020 and January 2021, which would have made it very difficult for the claimant to find a job. In coming to this conclusion, I take into account the nature of the sales role she undertook, which was driving round retail premises selling stock lines. Even if she had tried for example to obtain a retail role at this time, I accept it would have been very difficult to achieve with many staff on furlough or shops operating on reduced hours / staff. 37.I also take into account the claimants age, and at 66 the fact that it would have been more difficult to obtain another role. It seems reasonable that, after the UK came out of the third lockdown in March 2021, and things were returning slowly to normal, it would have been reasonable for the claimant to have obtained a new job by this stage. I do not find that the respondent has proved the claimant acted unreasonably in failing to mitigate her losses. Therefore, I find that the claimant is entitled to recover her loss of earnings for a 12-month period from April 2020 to April 2021. 38.The parties have accepted that a 3% pension contribution would need to be added to any compensatory figure. Based on the calculation provided in the claimant's schedule of loss, a weekly contribution of £27.49, based on the last 12 weeks wages before her dismissal, I adopt these figures. The claimants' weekly net wage is £375.62 + £27.49 = £403.11. 39.The compensatory award is therefore 52 weeks x £403.11 = £20,961.72. ACAS Uplift[40]I refer to paragraphs 51, 52 and 61 of my liability judgment. I determined that there were breaches of the ACAS Code 1 disciplinary and grievance procedures (2015) in respect of paragraphs 9,10,11,12,13,18, and 22 of the code.[41]Mr Blitz on behalf of the claimant, makes representations that the breaches of the codes of practice are significant and substantial, and should attract a maximum 25% uplift. 42.Mr Tenant made representations that whilst the respondent accepts technical breaches of the codes, the severity of the breaches did not merit a 25% uplift on the award. The respondent's position is that the breaches had little impact on the dismissal, and that a 5% uplift was more appropriate. 43.I remind myself, that the respondent accepted breaches of the ACAS code, in respect of not advising the claimant the 10/1/20 meeting could result in dismissal, not informing her of her right to appeal, not considering alternative employment or provide written confirmation of dismissal until the 8/3/20. 44.In paragraph 68 of my liability judgment I determined the breaches of the codes were unreasonable. They relate to fundamental matters such as the employee not being provided with written evidence in advance of the disciplinary meeting, no notification of the right to be accompanied, or being allowed to set out their case in response, or notification of the action taken in writing. I have a discretion in accordance with section 207A Trade Union and Labour Relations (Consolidation) Act (1992), if I consider it just and equitable in the circumstances, to increase any award to the employee by up to 25%. Because of the fundamental nature of the breaches of the code in this case, which were serious, I consider an uplift of 25% to be just and equitable in the circumstances. Notice Pay[45]The claimant's effective date of termination was the 3/ 4/20. She was entitled under her contract to 12 weeks' notice which expired on the 3 /4/20. The claim is for 9 weeks' notice pay, based upon the fact the claimant has made a separate claim for deduction from wages for the period 10/1/20 to 30/1/20. Mr Blitz explained the figures in the schedule of loss were based on average net weekly wage figures from October, November and December 2019 pay slips, because the claimant has not received wage slips for the February – April 2020 period. The net weekly figure was calculated at £528.59.[46]I refer to my findings in paragraph 71 of my liability judgement. The claimant is entitled to a period of 9 weeks' remaining notice pay. The claimant's evidence she was paid £1,013.76 in February 2020 and £961.27 in March 2020 has not been challenged. I accept the claimant's evidence that in April 2020 she was paid £297.21. This is total pay over this 3-month period of £2,272.24. Whilst the respondent indicated it had paid £2674.00 in notice pay, I have not seen any evidence of this amount. 47.There was discussion concerning whether the figures of £2,272.24 included crystalized commission figures. Mr Blitz suggested that the claimant may be due a higher figure but could only base that on for example the net monthly pay figure for the previous year, March and April 2019 being £3,663.64, or March, April and May 2019 being a net figure of £3,522.70. Mr Tenant did not agree with these figures but was unable to clarify the position further. 47.I took the view the calculations put forward at paragraph 47 were speculative, and the fairest basis for the calculation was based upon the initial calculation provided to me, which included a deduction for actual salary received which had been confirmed by the claimant. Therefore, 9 weeks' notice pay x £528.59= £4,757.31 - £2,272,24 = £2,485.07 due in notice pay. Unlawful deduction from wages[48]I made a finding in paragraph 39 of my liability judgement, that the claimant worked for the period 10/1/20 - 30/1/20. She is entitled to receive her salary in full for this 3 week / 15-day period. I also made a finding in paragraph 76 of the liability judgment, that this should be reduced by 3 days, which the claimant accepted she had taken as additional holiday. 49.The claimant indicated she should have been paid £1,326.31 for January 2020 salary, receiving £926.84 according to her salary slip on page 148. I invited the claimant to set out how the claim for the difference, 399.47, was calculated. 50.Both parties agreed that the claimants basic pay was £891.62 a month. Mr Blitz calculated £891.62 x 12 divided by 52 weeks = £205.76 weekly basic wage. To reflect the 3-week period she worked, £205.76 x 3 = £617.21. To allow a deduction for the 3 days extra holiday, the daily basic pay was £617.21 divided by 15 days x 12 days= £493.82. Mr Blitz confirmed this was the claim made, for £493.82. 51.Whilst Mr Tenant accepted the monthly basic pay of £891.62, he stated £411.52 had been paid, but could not show how he had calculated this figure. He indicated the balance of £480.10 was the actual basic pay due with a deduction required for the 3 days holiday. 52.I am adopting the figures provided by Mr Blitz in the calculation of the outstanding wages, as I believe it reflects a more accurate position. Therefore, I order £493.82 as an unlawful deduction from wages. Calculations Basic award £ 9,739.20 gross Compensatory award £20, 961.72 net Deduction for part notice pay already paid - £ 2,274.24£18,687.48 25% ACAS Uplift to £ 4,671.87 Compensatory award Compensatory award £23,359.35 Application of statutory £21,101.60 CAP to Compensatory Award (£405.80 gross weekly wage x 52) Reduction of - £ 2,257.75 Compensatory award by amount in excess of Statutory CAP Final Compensatory £21,101.60 Award Remaining notice £ 2,485.07 pay due Unlawful deduction £ 493.82 from wages Total £33,819.07
Conclusions
[49]Therefore I conclude that the respondent has discharged his burden of proof to establish a potentially fair reason for dismissal exists, namely conduct or capability. Was the dismissal fair / unfair and within the band of reasonable responses[50]I have considered in accordance with section 98(4) ERA (1996) the circumstances, including the size and administrative resources of the respondent. The respondent confirmed in his ET3 form that he employs 53 people in his business, and there is no HR department.[51]I have taken into account the respondents' admissions that it did not warn the claimant that the meeting on the 10/1/20 could result in a dismissal decision, that it did not inform her of the right to appeal against dismissal, did not consider alternative employment, or provide written confirmation of dismissal until the 8/3/20 e mail.[52]I have considered the ACAS Code of Practice 1 Disciplinary and Grievance Procedures (2015), which applies in cases where poor performance is alleged. It requires issues to be raised and dealt with promptly, employers to carry out necessary investigations to establish the facts of the case, employers should inform the employee of the basis of the problem and allow them to put their case, allow employees to be accompanied at a formal disciplinary meeting, and allow an appeal against any decision made.[53]In this case the initial communication was by e mail. The respondent by e mail dated 24/7/19 gave the claimant 2 sets of analysis figures as attachments, and drew attention to figures contained within them. The e mail did not contain an invitation to the claimant to a meeting to discuss matters, or even an opportunity for the claimant to respond with her comments on the figures in writing by a certain date. There was reference to a customer complaint dating back to 2018 which had not been mentioned to the claimant before. The e mail did not set out that this was to be treated as a first written warning for the claimant, as the ACAS Code recommends, or set out that failure to improve could lead to a final written warning, or dismissal.[54]It is clear for my findings of fact at paragraph 24, the respondent had concerns about the claimant's performance dating back to 2018, stemming from the customer complaint at the trade show, and in evidence said he had begun looking more closely at claimants' sales figures and conduct from this point. If he has concerns regarding the claimant’s conduct or performance in 2018, It would have been reasonable for this to have been raised with the claimant at an earlier point, to allow the claimant an opportunity to respond.[55]The claimant was placed on trial by e mail dated 4/8/19. She was not given an opportunity to put her case in person, in response to the e mail of the 24/7/19, before the respondent made the decision to place her on trial. She was entitled to attend a meeting where she was able to refute any allegations of poor performance, before the respondent made any further decisions. In accordance with the ACAS code, she would have also been entitled to be accompanied in such a meeting. There is no evidence before me that she had any input into the one target set of 100 account visits in 67 days. I am satisfied on the evidence that this was the only criteria against which the claimant was being assessed.[56]It was accepted that there was no contact between the parties during the trial period until the 6/1/20 e mail from the respondent. The ACAS code requires a fair opportunity to be given to improve, and support and resources should be made available to do so. As per my findings at paragraph 33 the respondent did not provide assistance to the claimant to improve her performance during this period.[57]During the trial period on the 27/9/19, the Mill Houses Leeds account was removed from the respondent. Apart from an e mail communicating this change, I have not seen any evidence that the target for the trial period of 100 order taking visits was reconsidered, in light of the loss of this account by the claimant on order after the 30/9/19, with 2 months of the trial period left to run. See finding of fact, paragraph 34. I conclude it would have been reasonable for the claimants target to have been reconsidered / reduced.[58]In relation to the trial period, 4/9/19 - 6/12/19, and my findings at paragraph 38, I conclude that the claimant did work for the whole of the 67-day trial period.[59]The claimant as the respondent had conceded was not told in advance the 10/1/20 meeting could result in dismissal. As provided by the ACAS code, she was entitled to attend that meeting accompanied, and be given an opportunity to respond. The respondent in his e mail had set out his concerns in relation to the trial, the meeting was held 4 days later with no indication it could result in dismissal.[60]At the meeting on the 10/1/20, the respondent concedes alternative employment was not considered, and the claimant was not advised of her right to appeal against the decision.[61]As described above at paragraphs 52-60, the ACAS code was not followed, and I find the procedure adopted was outside the range of reasonable responses that a reasonable employer might have adopted in these circumstances and so I conclude it was unfair. The breaches of ACAS Code 1 Disciplinary and Grievance Procedures (2015) relate to paragraphs 9,10, 11, 12, 13, 18, 22 of the code.[62]It is necessary in my view to comment on the uses of language by the respondent in his e mail to the claimant dated 24/7/19. The use of expressions such as ‘absolute rubbish’, ‘to add insult to injury’, ‘poor excuses’ does not convey the impression of a reasonable employer who is keeping an open mind, and seeking to engage with the claimant to address any poor performance issues, or provide an opportunity for improvement. Polkey / Contributory Negligence / ACAS uplift[63]The claimants written submissions in respect of Polkey were that the claimant was not performing poorly, she was on par with her colleagues, and would not have been dismissed, even if a fair procedure was adopted. The claimant states that a warning would be the most a fair process could have resulted in for the claimant, indicates that this would not attract deduction under Polkey. A reduction based on contributory negligence is not appropriate, based on her conduct before dismissal. The claimant seeks a 25% uplift for failing to comply with the ACAS Code.[64]The respondent's written submissions are that a significant Polkey reduction is appropriate. Dismissal was not an inevitability and the claimant had numerous opportunities to show improvement, showed a lack of engagement and contributed to her own dismissal. The respondent's position in written submissions is that the claimant would have been dismissed sooner, if more formal procedures were followed.[65]I have taken into account both parties' representations on the issue of a Polkey reduction in their written submissions. I am required to consider whether any adjustment to compensation should be made on the grounds that if a fair process had been followed by the respondent in dealing with the claimant's case, the claimant might have been fairly dismissed.[66]I take the view that if the respondent had followed correct procedures, the claimant would not have been dismissed. The claimant has no disciplinary record, and sales figures contained as findings at paragraphs 19,20 and 21 indicate that the claimant was broadly achieving sales comparable with her colleagues. No other representative was placed on trial. At paragraph 30 I made a finding that the respondent in his e mail 24/7/19, accepted all representatives had a downturn in everyday sales. The respondents' own procedures did not provide for immediate dismissal for poor performance. The ACAS Code outlines that dismissal for a first matter of poor performance should not occur unless it is serious, I do not consider that to be the case here, 48 order taking visits in 67 days would not have resulted in dismissal.[67]I do not find the claimant contributed to the dismissal by her actions, for reasons given in paragraph 66.[68]I have found that the respondent acted in breach of the ACAS Code of Practice, and that the breaches of the code were unreasonable. I have to consider whether it is just and equitable to apply an uplift to the compensatory award to reflect the breach of the code. The claimant in written submissions invites me to allow the full 25% uplift. I note from the respondent's written submissions that this point has not been addressed. The respondent is entitled to make submissions on the point, see my direction at paragraph 79 below. Breach of contract[69]I refer to my finding of fact at paragraph 42 above. I do not find the claimant had breached her contract in these circumstances, or committed an act of gross misconduct, her contract had been terminated before she drove away.[70]The fact that there was no contact from the respondent to the claimant, concerning the car until the claimant emailed the respondent on the 2/3/20, to clarify her position, supports my finding. I would have expected an employer, acting in circumstances where they say the employee has committed gross misconduct, to have been in contact with the employee immediately, not leave the matter 6 weeks until the employee contacts them.[71]Therefore I find that the claimant was entitled to the remainder of her notice pay, for the period 31/1/20 - 3/ 4/20, a period of 9 weeks. The claimant's evidence that she was paid £1,013.76 in February 2020 and £961.27 in March 2020 has not been challenged. The claimant has been unable to provide wages slips for the 2-month period, and says they were not provided to her. At paragraph 27 of the respondent's statement dated 17/2/22 there is an acceptance that the full 12 week notice period has not been paid, on the basis of a mistake regarding the inclusion of commission in the salary, £2,674 has been paid. The claimant's complaint for breach of contract succeeds. National Minimum Wage Claim[72]In respect of the claim for National Minimum Wage arrears going back to February 2014, Regulation 2 Deduction from Wages (Limitation) Regulations (2014) applies. The regulations apply to all claims brought for unlawful deductions from wages involving pay, which are brought after the 8/1/15. Complaints in relation to deductions can only be made before 2 years ending with the date of presentation of the complaint. In this case the ET1 claim was made on the 26/6/20. Therefore, claims can only be made in respect of wages for the period 26/6/18 - 26/6/20.[73]I have considered the claims for January 2019 and February 2019. The wage slips provided in the bundle are at page 147. January 2019 shows gross pay (which can include commission) of £1263.39. There were 21 working days between 1/1/19 and 30/1/19. The claimant worked 37.5 hours a week as per her contract, assuming a 1-hour lunchbreak. This would be 7.5 hours x 21days totaling 157.50 hours worked that month. £1263.39 divided by 157.50 hours equates to an hourly rate of £8.02. The National Minimum Wage for the period 1 /4 /18 - 31/3/19 was £7.38. In February 2019 the total gross earnings were £1240. 60. There were 20 working days between 1/ 2/19 and 28/2/19. 7.5 hours x 20 days totals 150 hours. £1240.60 divided by 150 hours is £8.27 per hour.[74]Therefore I find the complaint for arrears of the national minimum wage not well founded and is dismissed. Unlawful deduction from wages[75]I made a finding at paragraph 39 above, that the claimant worked from the 10/1/20 meeting until the 30/1/20 meeting. Therefore, she was entitled to receive her salary in full for this period. I note in the claimant's schedule of loss at page 110 she has reduced her claim for statutory notice pay from 12 to 9 weeks, for the period 31/1/20 - 3 / 4/20, to reflect the fact she has claimed for her wages for this 3-week period.[76]On the basis no holiday records have been produced by the respondent showing the dates which the claimant took off in January, in addition to her Christmas leave, and no specific evidence was given by the respondent in respect of this, I find that the claimant is entitled to be paid in full for working the period 10/1/20 - 30/1/20. However, the claimant did accept in her own evidence she took 17 days leave over the Christmas period, which appears to be an additional 3 days. I accept the pay slip in the bundle at page 148 for the period January 2020 shows a salary of £926.84 being paid. The claim for unlawful deduction from wages succeeds, for the balance of wages due, however this should take into account the additional 3 days holiday taken.
Remedy
[77]On the information in the bundle, and in the absence of pay slips for the claimant for February and March 2020, whilst accepting in principle monies are outstanding, I am unable to ascertain what notice pay and salary are due. The claimants' schedule of loss indicates payments of £1,974.96 in total in February /March 2020, the respondent indicates it has paid £2674.00 regarding notice pay.[78]In relation to January 2020, the claimant indicates the salary received should have been £1,326.31, £926.84 being paid according to the salary slip at page 148, it not being clear how the claim for £399.47 is calculated. I invite the claimant to set out the details of its calculations and to correspond with the respondent to see if the figures can be agreed between the parties, in respect of notice pay and arrears of salary.[79]I invite the parties to consider whether they are able to agree remedy in this matter regarding the unfair dismissal complaint, given my indications in respect of Polkey and contributory negligence. If the respondent wishes to make any representations in respect of the ACAS uplift in writing, should remedy be agreed, I will consider those also.[80]If the parties are able to agree remedy, I would invite counsel for the claimant to submit within 28 days an agreed order. If the parties are not able to agree remedy, notify the tribunal within 28 days requesting the matter be listed for a remedy hearing. I confirm this judgment has been electronically signed