Mrs R Gill Tomaz and Mr A E Tinum v Churrasco Ltd: 1807154/2020 and 1807155/2020 Mrs R Gill Tomaz and Mr A E Tinum v Churrasco Ltd: 1807154/2020 and 1807155/2020
JUDGMENT
[1]The claimants’ complaint of automatic unfair dismissal under section 99 of the Employment Rights Act 1996 is well founded. The respondent shall pay to the first claimant compensation of £10,956.25 net. The respondent shall pay to the second claimant compensation of £13,475 net.[2]The Recoupment Regulations apply as follows: First claimanta. Grand total of compensatory award £10,956.25b. Prescribed element £5,400.00c. Period of prescribed element from 31.12.20 to 03.11.21.d. Excess of grand total over prescribed element £5, 556.25 Second claimant a. Grand total of compensatory award £13,475.00 b. Prescribed element £10,035.00 c. Period of prescribed element from 31.12.20 to 03.11.21 d. Excess of grand total over prescribed element £4,440.00[3]The claimants’ complaint of pregnancy/maternity discrimination is well founded. The respondent shall pay to the first claimant compensation for injury to feelings of £9,720 (of which £720 is interest). The respondent shall pay to the second claimant compensation for injury to feelings of £6,480 (of which £480 is interest).[4]The claimants’ complaints of breach of contract in respect of notice are well founded. The respondent shall pay to the first claimant damages of £2,200 Case Nos: 1807154/2020 and 1807155/2020 10.2 Judgment - rule 61 March 2017 gross and to the second claimant damages of £2,200 gross.[5]The respondent made unauthorized deductions from the claimants’ wages. The respondent shall pay to the first claimant of £7,048.55 net and shall pay to the second claimant compensation of £6,819.65 net. Calculations Annex Unauthorised deductions from wages First claimant[1]From 23.03.20 (date of furlough) to 31.08.20 (date of final furlough payment received) = 4.25 months x £79.57 (difference between agreed furlough amount 80% net monthly wages of £1,440 and amount actually received net £1,360.43) = £338.17 net.[2]From 01.09.20 (start of zero wages) to 31 December 2020 (effective date of termination (“EDT”) = 4 months x £1,440 (agreed furlough amount 80% of net monthly wages) = £5,760 net.[3]Holiday accrued from 01.03.2020 to EDT 31.12.20 = 2.86 weeks x £332.30 weekly net wages = 950.38 net. Total: £7,048.55 net Second claimant[5]From 23.03.20 (date of furlough) to 31.08.20 (date of final furlough payment received) = 4.25 months x £25.71 (difference between agreed furlough amount 80% net monthly wages of £1440 and amount actually received net £1,414.29) = £109.27 net.[6]From 01.09.20 (start of zero wages) to 31 December 2020 (effective date of termination (“EDT”) = 4 months x £1,440 (agreed furlough amount 80% of net monthly wages) = £5,760 net.[7]Holiday accrued from 01.03.2020 to EDT 31.12.20 = 2.86 weeks x £332.30 weekly net wages = 950.38 net.[8]Total: £6,819.65 net. Wrongful dismissal First claimant[9]£2,200 (gross wages for one months’ contractual notice). Case Nos: 1807154/2020 and 1807155/2020 10.2 Judgment - rule 61 March 2017 Second claimant[10]£2,200 (gross wages for one months’ contractual notice). Automatically unfair dismissal: First claimant Basic award[11]No entitlement Compensatory award[12]From 31.01.21 (end of notice period and start of maternity leave) to 31.07.21 (end of maternity leave) – no entitlement owing to government payment of statutory maternity pay.[13]From 31.07.21 (end of maternity leave) to 03.11.21 (date of assessment) = 3 months x £1,800 monthly net wages = £5,400 net.[14]From 03.11.21 (date of assessment) to 13.12.21 (start of new job) = 1.5 months x £1,800 monthly net wages = £2,700 net.[15]From 13.12.21 (start of new job) to 31.12.21 (anniversary of EDT and cut off for losses) = 0.5 months x £500 net (difference between net old monthly pay £1,800 and net new monthly pay £1,300) = £250 net.[16]Loss of statutory rights (1 week) £415 net[17]Sub-total £8,765.00 net x 25% uplift for employer’s failure to follow ACAS Code (Grievance) x 1.25 = £10,956.25 net Second claimant Basic award[18]No entitlement Compensatory award[19]From 31.01.21 (end of notice period) to 16.05.21 (date workplace re-opened) = 3.5 months x £1,440 agreed net monthly furlough pay = £5,040 net.[20]From 17.05.21 (date workplace re-opened) to 31.07.21 (start of new job) = 2.5 months x £1,800 agreed net monthly furlough pay = £4,500 net.[21]From 31.07.21 (start of new job) to 03.11.21 (date of assessment) = 3 months x £165 (estimated difference between old wages (£2,200 gross) and new wages (£1950 gross) calculated net of tax and national insurance at 33%) = £495 net. Case Nos: 1807154/2020 and 1807155/2020 10.2 Judgment - rule 61 March 2017[22]From 03.11.21 (date of assessment) to 31.12.21 (anniversary of EDT/cut off for losses) = 2 months x £165 (estimated differential in net pay between old and new jobs) = £330 net.[23]Loss of statutory rights (1 week) £415 each[24]Sub-total £10,780 net x 25% uplift for employer’s failure to follow ACAS Code (Grievance) x 1.25 = £13,475 net. Discrimination First claimant[25]Injury to feelings of £9,000 plus £720 interest (at 8%) = £9,720. Second claimant[26]Injury to feelings of £6,000 plus £480 interest (at 8%) = £6,480 Employment Judge Bright 16 November 2021