Mr K Nicholas v Capita plc: 1404746/2021
JUDGMENT
The judgment of the tribunal is that the claimant succeeds in his claim for breach of contract and the respondent is ordered to pay the claimant the net sum of £30,222.74REASONS
[1]In this case the claimant Mr Nicholas brings monetary claims for breach of contract against his ex-employer Capita plc. The respondent has not responded to these claims.[2]This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was online by Video Hearing Service. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that I was referred to are Claimant’s original claim and a subsequent statement which reiterated the claim, the contents of which I have recorded. The order made is described at the end of these reasons. Case Number: 1404746/2021[3]I have heard from the claimant. I have not heard from the respondent who has not responded to this claim in any manner. Accordingly the only evidence I have heard is the documentary evidence referred to above. I have also heard from the claimant in the hearing today. None of the assertions or claims made by the claimant have been challenged by the respondent.[4]Based solely on this, I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by the claimant.[5]The claimant started work for the respondent on 21st September 2019 as a consulting partner.[6]At some point in his employment, the claimant emailed a disgruntled colleague asking if he wanted to be introduced to someone working at another firm who may be interested in hiring; the colleague declined. The colleague reported this to HR.[7]Following a hearing and appeal process, he was summarily dismissed for purported gross misconduct on 4th October 2021.[8]The claimant states that he is entitled to three months’ notice. His monthly pay before tax was £18416, with a normal post tax take home pay of £10,300.[9]He commenced a new job at a higher monthly salary on 3 January 2022, just under three months after the effective date of termination.[10]Having established the above facts, I now apply the law.[11]The claimant’s claim for breach of contract is permitted by article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and the claim was outstanding on the termination of employment.[12]The claimant is entitled to three months’ notice on termination of employment but has not received that notice. The respondent is therefore in breach of contract and the claimant is therefore entitled to be placed in the position he would have been in had he been given the required notice. His claim for breach of contract accordingly succeeds.[13]The starting point for assessing the remedy is therefore the three months’ notice which he has not been given. Compensation for breach of contract is paid net, so taxes and other deductions which would have been made should be deducted. The claimant is also required to mitigate his losses, which he has done here by finding new employment.[14]Applying these principles in order to calculate the compensation, the claimant received a net sum of £10,300 per calendar month, which was £18,416 gross. Three months’ notice would therefore amount to a net figure of £30,900.[15]Two days’ pay need to be deducted to reflect the new job, which was at a higher salary, meaning there was no shortfall for those days. £10,300 per calendar month gives an annual net figure of £123,600 and so a daily rate of £338.63. Two days at that rate amounts to £677.26, which needs to be deducted from the £30,900. The net sum payable by the respondent to the claimant is therefore £30,222.74[1]The respondent has applied for a reconsideration of the judgment dated 6 May 2022 which was sent to the parties on 20 May 2022 (the “Judgment”). The grounds are set out in its email dated 31 May 2022. That letter was received at the tribunal office on 31 May 2022. A date of 12 August 2022 was set for the reconsideration hearing.[2]The claimant is now asking for the claim to be dismissed on the basis that he wishes it to be withdrawn following the settlement of his claim. Case No. 1404746/2021[3]This reconsideration has been on the papers alone as I did not consider that a hearing is necessary. The order made is described at the end of these reasons.[4]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[6]On the basis that the parties have now settled the claim following the application for reconsideration, I consider it in the interests of justice to vary the Judgment to reflect the claimant’s request for withdrawal and for the case to be dismissed as a result of the settlement reached between them.[7]Accordingly, I allow the application for reconsideration and vary the judgment made on 6th May 2022 to read as follows: “The judgment of the tribunal is that the claimant’s claim for breach of contract is dismissed”[1]The respondent has applied for a reconsideration of the judgment dated 6 May 2022 which was sent to the parties on 20 May 2022 (the “Judgment”). The grounds are set out in its email dated 31 May 2022. That letter was received at the tribunal office on 31 May 2022. A date of 12 August 2022 was set for the reconsideration hearing.[2]The respondent was originally applying for reconsideration on the basis that it had not received the claimant’s ET1 or notice of the hearing on 6 May 2022. It now accepts that it did in fact receive the relevant papers and has Case Number: 1404746/2021 withdrawn its application for reconsideration of the whole judgment but instead is applying to the judgment to £25,000 as the maximum permissible by the Employment Tribunals Extension of Jurisdiction Order 1994 (the “Jurisdiction Order”).[3]This reconsideration has been on the papers alone as I did not consider that a hearing is necessary. The order made is described at the end of these reasons.[4]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[6]The grounds relied upon by the respondent are the award is for breach of contract and £30,222.74 was awarded. Jurisdiction for the Employment Tribunals to hear breach of contract claims arises solely through Jurisdiction Order. Regulation 10 of the Jurisdiction Order states: “An employment tribunal shall not in proceedings in respect of a contract claim, or in respect of a number of contract claims relating to the same contract, order the payment of an amount exceeding £25,000.” The respondent therefore submitted that there is no jurisdiction for the current order of £30,222.74. It submitted that the award made should be substituted for a permissible order of £25,000. They submitted that the award in excess of jurisdiction is a clear error of law and that it was in the interests of justice for the award to be corrected to fall within the Tribunal’s proper jurisdiction.[7]I agree that an award in this case in excess of £30,222.74 is in excess of the £25,000 permitted by the Jurisdiction Order and it is in the interests of justice that the award be varied to a net sum of £25,000.[8]Accordingly, I allow the application for reconsideration and vary the judgment made on 6th May 2022 to read as follows: “The judgment of the tribunal is that the claimant succeeds in his claim for breach of contract and the respondent is ordered to pay the claimant the net sum of £25,000.00”