Mr R McDonagh and others v Rise 2 Shine Ltd: 1808695/2023 and others
EMPLOYMENT TRIBUNALS
Case No 1808695/2023
Between
Mr R McDonagh and othersClaimantRise 2 Shine LtdRespondent
Before
Employment Judge JM WadeIn person for claimantNot represented for respondentDate 4 November 2024
JUDGMENT
The claimant’s complaints of entitlement to a statutory redundancy payment, entitlement to notice pay, holiday pay, arrears of pay and holiday pay succeed and the respondent shall pay to them the following gross sums: Mr R McDonagh: Statutory redundancy payment : £4322.75: (10.5 weeks’ pay for complete years’ service below and over 41, 1/09/2014 to 21/08/2023, £411.69 gross weekly pay). Notice pay: £1235.07 (three weeks gross weekly pay – mitigated from 11/09/2023); Holiday pay: 4.2 weeks: £1729.09 Arrears of pay for August 2023 unlawful deductions: £617.53 (1.5 weeks) Unfair dismissal compensatory award £500 Total payable to Mr R McDonagh: £8404.44 Mr D Keighley Statutory redundancy payment : £4613: (10 weeks’ pay for complete years’ service below 41, 4/03/2013 to 21/08/2023, £461.30 gross weekly pay). Notice pay: £2527.15 (5.5 weeks gross weekly pay – mitigated from 27/09/2023); Holiday pay: 4.2 weeks: £1937.47 Arrears of pay for August 2023 unlawful deductions: £691.95 (1.5 weeks’) Unfair dismissal compensatory award £500 Total payable to Mr Keighley: £10269.57. Mr P McDonagh Statutory redundancy payment : £6654: (15 weeks’ pay for complete years’ service below 41, 7/7/2008 to 21/08/2023, £443.60 gross weekly pay). Notice pay: £5323.20 (12 weeks gross weekly pay – mitigated after 20/11/23); Holiday pay: 4.2 weeks: £1863.12 Arrears of pay for August 2023 unlawful deductions: £665.40(1.5 weeks’) Unfair dismissal compensatory award £500 Total payable to Mr P McDonagh: £15005.72.
REASONS
[1]These joined claims case came before me for a final hearing. All claimants brought the claims above, although in Mr Keighley’s case the claims were indicated in the narrative rather than by ticking particular boxes. The claims were presented on 25 November 2023 and 19 December 2023 and they were joined to be heard together on 28 March 2024. They were all presented in time, given the effects of ACAS conciliation – they related to dismissals on 21 August 2023 and a failure to pay various sums by no later than 11 September 2023, the date found by me to be the usual pay date.[2]Two previous hearing dates have been ineffective. Mr A Walker, who was the contact at the respondent identified on the response forms, had sought a postponement on 1 May 2024 because of a funeral on the 2 May 2024; and during a hearing on 5 August 2024, at which the respondent was not represented, he had emailed to indicate family circumstances preventing his attendance.[3]Case management orders were made for an orderly final hearing today, the Employment Judge considering it was not just to proceed in the respondent’s absence on the last occasion. His orders required the respondent to send all the papers for the hearing in advance to the claimants and the Tribunal. It did not do so.[4]Today there was no attendance on behalf of the respondent and there was no explanation for that absence. I considered it in the interests of justice to continue the hearing pursuant to Rule 47. I weigh the prejudice to the claimants in having their cases put off for a third time, against the prejudice to the respondent. The respondent has had the opportunity to attend by the sending of the notice of hearing; it is said to employ 70 people and ought reasonably to have been represented because its systems would reasonably have alerted the need to be represented, even if Mr Walker is no longer available. The response forms/grounds of resistance do not set out the substantive reasons to resist the claims, but do indicate opposition to, for example, one start date asserted.[5]Today I swore in each of the three claimants, heard their oral evidence which I found to be straightforward, and found as follows: 5.1. They all worked for the respondent undertaking cleaning of large supermarket refrigeration in the North of England. They had all previously worked for predecessor contractor firms, with varying start dates (as indicated in the start of service dates above). The respondent was the contractor in post at the material times in 2023. 5.2. To the extent the start dates above are earlier than those indicated in the ET1 forms, it emerged in the evidence that the claimants have been subject to repeated TUPE transfers, and I accepted that evidence and found the start dates for continuous service purposes as they appear above. 5.3. On or around 21 August 2023 an email was sent telling the claimants they were, “stood down”. 5.4. The claimants were then locked out of the respondent’s “Sage” system which permitted them to access pay slips and the like. 5.5. They received pay monthly, typically around 11th of the month for the previous months’ work. 5.6. They had slightly different weekly pay and days of working. Weekly pay was calculable from the sums entered in their ET1 forms and which the respondent accepted were correct and I find the weekly pay sums which appear above. 5.7. The claimants’ vehicles (or at least one of them) had been vandalised in early August 2023 and the respondent did not provide them with replacement vehicles, but “stood them down, and did not engage in further communication in response to their enquiries. 5.8. The claimants were all ready and willing to work. 5.9. One claimant was paid on 31 August for about a week and a half’s pay for August; two claimants were paid similarly but on or around 11 September. All therefore had a shortfall of pay of a week and half for August 2023 up to 21 August. 5.10. Holidays were required to be taken typically for Easter and Christmas shutdowns – after saving those holiday days, the claimants had some discretion. Consequently by August 2023 they all had 21 days of their annual 28 day entitlement remaining. 5.11. The claimants all secured new work earning similar wages or more on the dates indicated above in the Judgment, although in Mr P McDonough’s case this was not until November when he worked for Amazon for a while, then stopped before Christmas.
The Law
[6]The provisions applicable to the claimants’ claims are largely within the Employment Rights Act 1996: Part II protection of wages; Part IX termination of employment; Part X unfair dismissal; Part XI redundancy payments; Part XIV II a week’s pay. Further Regulation 14 of the Working Time Regulations 1998 gives employees the right to pay for accrued holiday untaken on the termination of employment. The Tribunal has jurisdiction to determine disputes relating the breach of contractual terms as to notice.
Conclusions
[7]Applying the law to the facts above I find that the stand down emails, together with a lock out from the respondent’s systems and failure in communication, amounted to dismissals of the claimants by the employer’s conduct on or around 21 August 2023 (which is to be understood in the context of the later conduct – the stand down emails were, in truth, dismissals).[8]The principal reason for those dismissals (the claimants asserting their entitlements to statutory redundancy payments) was that the employer’s need for employees to carry out work of the kind carried out by the claimants had diminished.[9]The respondent did not act reasonably in treating that reason as sufficient to dismiss the claimants in all the circumstances, including equity and the substantial merits of the case.[10]The respondent has failed to pay holiday pay and wages. It has caused the claimants loss and damage for failing to give notice to lawfully terminate their contracts of employment. It has failed to pay them redundancy payments to which they are entitled; and it has unlawfully and unfairly dismissed them.[11]I discussed with the claimants that the primary remedy for unfair dismissal is reinstatement/re-engagement but none sought this. I considered £500 an appropriate sum for loss of statutory rights in each case, and I made no Basic Award as this had been awarded within the statutory redundancy payment declaration.[12]The recoupment regulations do not apply to this Judgment. The regulations do not apply to awards of damages, and other than loss of statutory rights, I made no element of compensatory award to which they would apply. Dated: 4 November 2024