Miss S Bellucci and Mr R Clarke v Mr R Perkins: 1400474/2021 and 1400475/2021
JUDGMENT
[1]The Judgment of the Tribunal is that the claimants’ claims are well founded and succeed, in particular:- 1.1. The respondent unfairly dismissed the first and second claimants. 1.2. The respondent unreasonably failed to comply with the ACAS Code on disciplinaries and it is just and equitable to increase the award of compensation in respect of the unfair dismissal claim by 25%. 1.3. The respondent unreasonably failed to provide the claimants with written particulars of employment and it is just and equitable to award 2 weeks’ pay. 1.4. The respondent made unlawful deductions from the claimants’ wages and failed to pay the claimants the national minimum wage: 1.5. The respondent failed to pay the claimants in respect of untaken annual leave. Case No: 1400474/2021 1400475/2021[2]The respondent is Ordered pay the claimants compensation in respect of the claims above, as detailed in Appendix 1 hereto.[3]The respondent is Ordered to pay the claimants their costs of bringing the claims which were summarily assessed at £5,500.00 inclusive of VAT in total. Employment Judge Midgley Date: 27 October 2021 Judgment sent to the parties: 28 October 2021 FOR THE TRIBUNAL OFFICE Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 1400474/2021 1400475/2021 Appendix 1 Claim First Claimant Second Claimant 1. Unfair dismissal 1.1. Basic Award £2,613.00 £3,066.00 1.2. Compensatory award 1.2.1. Loss of statutory rights 1.2.2. Loss of income to 18.10.21 1.2.3. Loss of accommodation 1.2.4. Pension contribution £538.00 £21,704.85 £2,160.00 £872.30 £538.00 £21,509.10 £2,160.00 £863.47 1.3. ACAS Uplift s.207A TULRCA 1992 £6,305.29 £6,254.14 1.4. Statutory Cap (52 weeks’ pay) £27,390.49 £27,208.13 1.5. Subtotal unfair dismissal1 £30,003.49 £30,456.49 2. Failure to provide written particulars of employment S.38 EA 2002 (2 weeks’ pay) £1,133.60 £1,133.60 3. Unlawful deductions from wages 3.1. Holiday pay 3.2. National minimum wage £2,240.25 £5,184.95 £2,240.25 £27,677.28 3.3. Subtotal unlawful deductions £7,209.20 £29,701.53 Total (Paras 1.6+2+3.3) £38,346.29 £61,291.62 Recoupment (Unfair dismissal) The Prescribed Element2 is: First Claimant £13,239.96 Second Claimant £13,120.96 The Prescribed Period is 17 September 2020 until 18 October 2021 The Total Award is: First Claimant £30,003.49 Second Claimant £30,456.49 The Balance3 (which must be paid by the respondent to the claimants in respect of the claims of unfair dismissal) is: First Claimant £16,763.53 Second Claimant £17,335.94 1 Basic award and statutory cap 2 A reduction of 61% is made to the Prescribed Element to reflect the 61% difference between the compensatory award and the statutory cap 3 The ‘Total Award’ less the prescribed element Case No: 1400474/2021 1400475/2021 Explanation of recoupment The Respondent must retain that part of the award which relates to the Claimants’ loss of earnings up to the date of the hearing - it is called the Prescribed Element and is £13,239.96 for Mr Clarke and £13,120.96 for the Miss Bellucci, until the Respondent receives from the Department for Work and Pensions a Notice. The Notice will either require the Respondent to pay all, or part, of the Prescribed Element to the Department, or tell the Respondent that it does not require any payment. When the Respondent receives the Notice he must pay to the Department for Work and Pensions the sum specified in the Notice and the balance between the Prescribed Element and the sum paid to the DWP should be paid to the Claimants. The rest of the awards detailed in the Judgment, over and above the Prescribed Element, and as detailed below, are due to the Claimants straight away: Claim First Claimant Second Claimant Unfair dismissal £16,763.53 £17,335.94 Failure to provide written particulars of employment £1,133.60 £1,133.60 Unlawful deduction of wages £7,209.20 £29,701.53 Total £25,106.33 £48,171.07 Costs £2,750.00 £2,750.00 Case No: 1400474/2021 1400475/2021 EMPLOYMENT TRIBUNALS Claimant:(1) Miss S Bellucci(2) Mr Robin Clarke Respondent: Mr Robert Perkins PRELIMINARY HEARING Heard at: Bristol (By video) On: 18 and 19 October 2021 Before: Employment Judge Midgley Representation Claimants: Miss C Mallin-Martin, Counsel Respondent: Did not attend[1]The application for reconsideration of the Judgment on remedy for all claims succeeds and the Judgment is revoked.[2]The application for reconsideration of the liability Judgment in respect of the claims of unauthorised deductions of wages and underpayment of the national minimum wage succeed; the Judgments are revoked;[3]The application for reconsideration of the the liability Judgment for unpaid annual leave is dismissed;[4]The respondent is ordered to pay a deposit of £1000.00 by 25 May 2022 in Case No: 1400474/2021 1400475/2021 respect of each claimant in relation to the following claims: 4.1. Unfair dismissal (arguments as to Polkey and contributory conduct); 4.2. Unauthorised deduction of wages and underpayment of the national minimum wage.[5]The respondent is ordered to pay the claimant £5,029.00 +VAT in respect of the claimant’s costs by 25 May 2022.[6]The claims of unfair dismissal, unauthorised deduction of wages and underpayment of the national minimum wage will be listed for a final hearing, notice of which will be sent to parties by separate notice.[7]The parties must by 25 May 20222 send to the Tribunal, marked for the attention of Employment Judge Midgley: 7.1. The dates to avoid for their representatives and witnesses for the period November 2022 to January 2023 7.2. Draft directions for the preparation for a final hearing of the claims.