Mrs R Kelly v Annettes Domicilary Care Ltd: 1401716/2019
EMPLOYMENT TRIBUNALS
Case No 1401716/2019Venue CHAMBERS AT PlymouthHearing 11 June 2019 THE TIME FOR PRESENTING A RESPONSE HAVING EXPIRED AND NO VALID RESPONSE HAVING BEEN PRESENTED JUDGMENT UNDER RULE 21 1. The claimant was discriminated against on the grounds of her disability; and 2. The claimant’s claim for breach of contract succeeds in respect of her notice pay; and 3. The claimant’s claim for unlawful deduction from wages succeeds; and 4. The claimant’s claim for accrued but unpaid holiday pay succeeds; and 5. The appropriate remedy will be determined at a hearing notice of which is attached. 6. The case management hearing listed on 5 December 2019 is cancelled. A one-hour remedy hearing will now be listed, notification of which will be sent to parties in due course.
Between
Mrs R KellyClaimantAnnettes Domicilary Care LimitedRespondent
Before
Employment Judge GorajIn person for claimantNot represented for respondentDate 11 June 2019
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, in her letter which was received by the Tribunal on 15 May 2019, why the complaint of unfair dismissal should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment and the matter will proceed to a telephone case management hearing as previously advised. ________________________ Employment Judge Goraj Date: 4 June 2019 Case No. 1401716/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mrs Roxanne Kelly AND Annette’s Domiciliary Care Limited[1]In this case the claimant Mrs Roxanne Kelly has the benefit of a judgment entered under Rule 21 dated 11 June 2019 and sent to the parties on 17 June 2019. This judgment deals with the remedy awarded pursuant to that initial judgment.[2]I have heard from the claimant. The respondent did not enter an appearance in response to this claim, and did not attend today. As at today’s date, the respondent is still an active company.[3]Disability Discrimination: The claimant’s dismissal was an act of disability discrimination. As a result of her dismissal the claimant suffered considerable hurt and upset, and claims injury to feelings of £10,000 which is towards the lower end of the middle Vento band. I Case No. 1401716/2019 2 have considered Vento v West Yorkshire Police [2003] IRLR 102 CA; Da’Bell v NSPCC [2010] IRLR 19 EAT; Simmons v Castle [2012] EWCA Civ 1039; De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879; and the Presidential Guidance on awards for injury to feelings and psychiatric injury dated 5 September 2017. Given that the claimant needed to visit her GP and receive medication to deal with the considerable upset which her dismissal caused, I consider that the sum of £10,000 is an appropriate award for injury to feelings and I make that award.[4]The interest payable on discrimination awards is to be calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 ("the Interest Regulations"). Under regulation 2 the tribunal shall consider whether to award interest, and if it chooses to do so then under regulation 3 the interest is to be calculated as simple interest accruing from day to day. Under regulation 6 the interest on an award for injury to feelings is to be from the period beginning on the date of the act of discrimination complained of and ending on the day of calculation. All other sums are to be calculated for a period beginning with a mid-point date between the act of discrimination and ending on the day of calculation. Following the Employment Tribunals (Interest on Awards in Discrimination Cases) (Amendment) Regulations 2013 the rate of interest payable is 8%.[5]322 days have elapsed between the claimant’s dismissal and today’s hearing. Interest at 8% on £10,000 is £800 per annum, or £2.19 per day. I award interest for 322 days which is £705.18.[6]Breach of Contract: the claimant was dismissed in breach of her contractual notice period of one week. She worked 56 hours per week at £9.00 per hour and I therefore award damages for breach of contract in the sum of £504.00.[7]Unlawful Deduction from Wages: As at the date of her dismissal the claimant had worked for 42 hours at £9.00 per hour which was unpaid, which is a sum of £378.00. In addition, the respondent had deducted the sum of £284.00 from the claimant’s pay towards council tax owed by the claimant to Plymouth City Council, but did not pay this sum to the Council. This was therefore a further unlawful deduction of £284.00. The respondent is ordered to pay the claimant compensation in the sum of £662.00 in respect of these unlawful deductions.[8]Holiday Pay: Finally, the respondent is ordered to pay the claimant the sum of £1,545.34 in respect of unpaid holiday pay. The claimant worked 56 hours per week and her contractual arrangements were that any hours worked in excess of 30 hours per week attracted holiday to the value of 12.7% over the initial 30 hours. For her last 52 weeks her excess hours were 26 hours per week at £9.00 per hour, which is a total sum of £12,168.00. This holiday was earned but never paid and at 12.7% the unpaid holiday pay amounts to £1545.34.