Mr S Armstrong v Crosfill & Archer Claims Ltd: 1807087/2020
JUDGMENT
[1]The Claimant was unfairly dismissed but no award of compensation is made because his claims were subsumed and discharged by a Redundancy payment.[2]The Claimant’s claim for unpaid holiday pay is dismissed as the value of his Redundancy Payment exceeded his holiday pay entitlement.[3]The Claimant has established breach of contract in not being paid 11 days’ notice as at the effective date of termination of his employment on 16 October 2020 and thus the Respondent shall pay to him the total sum of £880.00 to which extent his claim succeeds. COVID-19 Statement on behalf of Sir Keith Lindblom, Senior President of Tribunals. This has been a remote hearing. The parties did not object to the case being heard remotely. The form of remote hearing was V - video. It was not practicable to hold a face-to-face hearing because of the Covid19 pandemic. /REASONS
[4]The Claimant attended in person but despite my ascertaining that the Respondents were notified of today’s hearing and its mode (by video link) and were provided with the means of access, they did not attend . However, they applied by email to postpone the hearing because they alleged, they had not received the Claimant evidence documents. I noted that all of his evidence was generated by the Respondents, so they were seised with possession of all the material he sought to rely upon, and that in any event it would only be relevant to them if they were entitled to respond to the claims. As they had not filed an ET3 Response in time nor applied for leave to do so in time, they could take no part in the proceedings other than observe. Therefore, I refused their application for postponement which I noted they could not be concerned enough to attend via video link in order to make in more formal fashion. Thus, I had to rely solely on the Claimant’s statement and his evidence which was given very candidly. I had no reason to conclude that the Claimant’s testimony was anything other than credible and probative to the required civil law standard.[5]I made the following findings of fact: -5.1 the Claimant was dismissed on grounds of redundancy on 16 October 2020 without prior consultation;5.2 at that stage he had three years’ service but was paid a redundancy payment based upon four years; the sum paid was £2,098.36 and exceeded the statutory minimum by 1 week’s pay in the sum of £494.00;5.3 he had been paid for 128 hours holiday but had accrued 168 hours and as his holiday pay was 32 hours short; the sum in question is £312.00 net;5.4 the shortfall of his holiday pay had been set off against is redundancy payment insofar as it exceeded his statutory entitlement to the extent that his holiday pay entitlement was extinguished, and he had agreed to this;5.5 he was given notice on the 24 September 2020, but he was only required to work up to 16 October 2020 and was not paid for the balance of 11 days’ notice which was at a rate of £80 per day;[6]I made the following findings on applying the law: -6.1 section 98 ERA provides that it is for the Respondent to show what their reason was for the Claimant’s dismissal and that it was it was a / potentially fair reason. As the Respondents were not entitled to take part in the proceedings, they have failed to establish these points and therefore I find that the Claimant’s dismissal was unfair but that his entitlement to a Basic Award of compensation is subsumed within the redundancy payment he received and that he would have been dismissed in any event on grounds of redundancy and therefore he has no provable loss in respect of ongoing earnings; therefore there is no Compensatory Award entitlement to declare; nonetheless I make a declaration that the Claimant was unfairly dismissed6.2 the shortfall of the Claimant’s holiday pay is extinguished by the value of the excess of the redundancy payment over and above the statutory minimum;6.3 pursuant to his contract, the Claimant was entitled to three weeks’ notice but in fact only had 10 days. He was therefore entitled to a further 11 days and he is therefore entitled to be paid damages of 11 days’ pay at the rate of £80 per day, and thus the total sum of £880 which the Respondents shall pay to him.[1]This case first came before me at the substantive hearing of it on 7 April 2021, and I gave judgment for the Claimant on that date. My judgment and reasons were promulgated on 19 April 2021, and my conclusion was that though the Claimants claims of unfair dismissal succeeded, he was not awarded compensation because he had received a redundancy payment which subsumed such compensation, and his claim for unpaid holiday pay was dismissed.[2]However, his claim for breach of contract succeeded and he was awarded damages of £880.00 being the value of pay for 11 days’ notice he did not receive and to which he was entitled. His claims were unopposed, and no Response had been entered. /[3]The Respondents did not attend the hearing or make any representations, leaving the Claimant to face the necessity of preparing a fully contested case without knowing the Respondent’s position.[4]I noted the Respondents had also been made aware of today’s hearing by Notice and reminder sent by the Tribunal (on 2 August and 27 September 2021 respectively) but again did not attend or make representations in any form whatsoever.[5]This was an application under rule 76 paragraph 1(b): the Claimant asserted that this was a claim which had at all material times a reasonable prospect of success, and further for the purposes of paragraph 1(a) that it was unreasonable to have not responded to or conceded these claims.[6]I was helped substantially by the detailed submissions of the Claimant, to whom I am extremely grateful for his assistance. I had before me a bundle of documents for this hearing produced by him, which included my Judgment. It also included a calculation of the costs that had been incurred in respect of the time he had been forced to take to prepare his case. It was augmented in this respect by oral submissions which I accepted as evidence.[7]The bundle also included a copy of a letter which the Claimant had written to the Tribunal 4 May 2021, amounting to an application warning that he would invoke a claim for costs under rule 76 calculated as being for 20 hours preparation time upto that date at a rate of £41 per hour.[8]I noted that the Claimant says, and I accept that since 4 May 2021 in preparation for today he has expended a further 1 hour of time and that thus his claim as at today’s date is for 21 hours of preparation time.[9]I accept from the Claimant that, other than correspondence about the Respondent discharging the Judgment on 7 April 2021 by an initial part payment and then a further payment which included interest on the Judgment debt, there has been no response from the Respondent in any substantive form or way to the application for costs, despite the Respondents apparently knowing the fact that they faced a costs claim by having been given notice of the hearing date today and advice as to the means to attend.[10]Therefore, I award to the Claimant and order that the Respondents shall pay to him preparation time cost calculated as follows:- - Time expended upto date of Judgment – 7 April 2021 - 20 hours - Time expended to today’s date thereafter – 1 hour - Total time spent – 21 hours at £41 per hour - Total awarded – 21 x £41 = £861.00 - /