Mr M Coombs v Paul Williams & others: 1601190/2017
JUDGMENT
Having heard evidence on oath from the claimant, the employment judge’s decision is:[1]The claimant was unfairly constructively dismissed by reason of redundancy and is entitled to compensation for unfair dismissal of £17,799.[2]The respondents have made unauthorised deductions from the claimant's wages and are jointly and severally liable to pay the claimant the sum of £6,354.55.[3]The respondents have failed to pay the claimant’s holiday entitlement and are ordered to pay the claimant the sum of £240.[4]In total the respondents are jointly and severally liable to pay the claimant the sum of £24,393.55.REASONS
[1]The respondents have not filed a response to these proceedings; neither have they attended this hearing. I am satisfied that the claim form and notice of this hearing have been properly served on the respondents. Rule 47 Employment Tribunal Rules 2013 provide I can proceed with the hearing in the absence of a party.[2]The claimant commenced employment as a carpenter with Acorn Home Repairs (Wales) Limited on 30th July 2004. The first respondent was the sole director of that company. The second respondent “ran” the business with the first respondent.[3]Unbeknown to the claimant, Acorn Home Repairs (Wales) Limited was dissolved in August 2016; the first and second respondent continued to operate their business after that date and continued to employ the claimant who continued to work for them until 19th September 2017. In effect, the claimant was TUPE transferred to the first and second respondents. When his employment ceased on 19th September 2017, he had 13 years’ continuous service.[4]The claimant was constructively dismissed by the first and second respondents. By 19th September 2017, on a number of occasions his wages had not been paid on time (cheques drawn against the account of P R & J K Williams had been returned marked “refer to drawer”). In addition, the claimant discovered the respondents had not paid his tax and national insurance since 24th July 2015. These were fundamental breaches of his employment contract; the claimant was entitled to regard himself as having been dismissed.[5]Since 24th July 2015, the respondents have deducted national insurance and PAYE from the claimant’s wages, but have not paid these monies to HMRC. This means the claimant is personally liable to pay this tax / national insurance to HMRC. These deductions are unauthorised deductions from the claimant’s wages as they would only be deductions authorised by statute if they had been properly paid to HMRC.[6]The claimant was only paid £158.95 for the week ending 14th September 2017; he should have received £239.12, so is owed £80.17 for that week. He is also owed £87.50 for work he undertook on 18th and 19th September 2017.[7]At the time of his dismissal, the claimant had 4 days’ accrued holiday outstanding.[8]The claimant was able to find alternative employment on 1st May 2018, albeit this is parttime work for which he receives £190 per week.