Mr T Yasin v Cap HPI Ltd: 1800040/2019
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claim succeeds and the remedy to which the claimant is entitled will be determined at the Remedy Hearing on 25th February 2019. . Employment Judge Keevash 18th February 2019 Case No. 1800040/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mr T Yasin Respondent: Cap HPI Limited HELD AT: Leeds ON: 25 February 2019 BEFORE: Employment Judge D N Jones REPRESENTATION: Claimant: Respondents: Mr I Rehman, union representative Not in attendance, written submission contained in the responseREASONS
[1]By section 11(3) of the Employment Relations Act 1999, when a tribunal finds a complaint that the employer has breached the right to be accompanied contained within section 10 of the Act, it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks’ pay.[2]In Toal v G B Oils Ltd [2013] IRLR 696 the Employment Appeal Tribunal held that the compensation was for a loss or detriment suffered; if there was no detriment or it was of little consequence a nominal sum must be ordered.[3]I am satisfied that Mr Yeltsin suffered a significant detriment. His employment was terminated in a probation review meeting at which he had the right to be accompanied. There were a number of points he could have advanced to persuade his employers to allow his employment to continue, with the assistance of such accompaniment. This included giving further explanation as to his absences through ill-health. At this hearing he has produced a letter from his GP. His union representative informed me, and I accept, that he would have been able to secure a further reference to assist Mr Yeltsin to Case No. 1800040/2019 2 comply with the screening policy. These points address some of the issues raised by the respondent, in its response.[4]I do not accept the written submission of the respondent that this is a case where there was no detriment or loss. That is not measured solely by reference to the question of whether representation would have made a difference. For the reasons set out in the previous paragraph, I consider there was at the very least an opportunity lost, for the claimant to persuade the respondent to retain him, because of the disadvantage the violation of his right gave rise to. In addition I have regard to the fact that to lose his employment in this manner, after having requested representation, was a considerable blow. The situation is entirely different to the case of Toal, in which the employees had representation but not that of their first choice.[5]I reject the submission of the respondent that a nominal sum of £100 should be awarded for the above reasons.[6]The claimant’s weekly earnings were £309. I am satisfied he is entitled to the maximum award of two weeks.[7]Mr Rehman invited me to order a further sum of 25% to reflect an unreasonable failure to comply with the ACAS Code of Practice on Discipline and Grievance Procedures. I do not have jurisdiction to make such an award because this is a complaint which is not included in schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992. Nor do I have jurisdiction to make any order requiring the respondent to provide a reference, as also requested.