Mrs R Samra and Others v UL Realisations 2013 Ltd (In administration) formerly Ultralase Ltd: 2200393/2013 and others
JUDGMENT
[1]The Respondent shall pay to each Claimant in respect of their successful claims the following sums:-[3](a) Notice pay of £5,877.54(b) A protective award of £12,985.57(c) A compensatory award for unfair dismissal of £400[5](a) Notice pay of £3,587.23(b) A protective award of £8,577.16[13](a) Notice pay of £7,994(b) A protective award of £10,738.07(c) A compensatory award for unfair dismissal of £400[15](a) A protective award of £49,486.59(b) A compensatory award for unfair dismissal of £1,766.47[17](a) Notice pay of £611.75(b) A protective award of £9,754.48[31]Mrs E Johnson, in the absence of any correspondence from her or any response to the tribunal’s Order sent on 12 December 2016, shall write to the tribunal by 21 February, 2017 and say whether or not she wishes to proceed with any claim. If so, she shall set out the claims that she pursues, in light of the fact that Ultralase Realisations 2013 Ltd is in administration (contact: Ms L Thomas, BDO, 55 Baker Street, London, W1U 7EU. Telephone: 02078932264.)REASONS
[1]The Claimants seek protective awards and we consider that on the facts of the case, there is no argument that any lesser figure than 90 days’ compensation should be awarded. The employer here kept all employees in the dark and reassured them that all was well, when the reality was that the company was facing financial collapse. There is no evidence on the basis of which we could arrive at any lesser figure. The award is punitive, not compensatory and we have no difficulty in assessing 90 days as the correct award.[2]In all calculations 90 days is 12.857 weeks which is the correct multiplier, rather than 13. This explains why the sums awarded are a little lower than the Claimants have calculated.[3]In all cases we have made an adjudication against the responses to the Orders made on 26 October. This obliged the Claimants to say what they were claiming and how much. In the case of 4 Claimants, there has been no response, although Ms Jeyes did write to ask what was happening and the tribunal sent her the Orders. In three of these cases, Mr Gupta, Mr Sandhu and Ms Jeyes, we have only made protective awards, knowing that all Claimants are equally entitled in this regard and that no payment could have been made before this hearing by the RPO.[4]Ms Johnson stands alone as she was dismissed in September 2012 ie 1-2 months before these dismissals. I have searched through the file and found nothing from her since April 2013 and this is why we have made the above Order.[5]We would repeat our sincere thanks to Ms Thomas who was able to present a great deal of data, particularly in relation to the amounts received by claimants either from her firm (on a preferential distribution) or the Redundancy Payments Office (“RPO”.) Mrs Samra[6]She has been paid 6 weeks, Ms Thomas tells us, from the RPO for her redundancy payment. She cannot have a basic award for this reason.[7]A compensatory award for unfair dismissal cannot, for reasons we summarise below, extend beyond two weeks. This is covered by the notice award and she is entitled to £400 only for loss of statutory rights.[8]Notice. She had an entitlement to 13 weeks. We understand from Ms Thomas that she has been paid the statutory notice by the RPO at the capped rate for 6 weeks, which is £2,580. She is entitled to claim the contractual balance and this is [(3 x her figure, including bonus, of £4,918.33) less her mitigation], less tax, less £2,580. For the calculation we have put in square brackets above, we are taking a short-cut based on her figures. She started the new job after 2 months exactly, therefore we multiply £4,918.33 by 2 which is £9,836.66. We then look at the third month and she says that she had a weekly continuing loss of £169 which is £735.27 for a month. We add this to the first figure and have loss of £10,571.93. We next reduce for tax and have deducted a notional figure of 20% which produces £8,457.54. Finally we deduct the amount she has received and the total is £5,877.54.[9]Holiday pay. She has received £3,838 from BDO. Her claim is for 19 days and for reasons of technicality we consider that we lack the evidence that permits us, in the light of statute and recent case law, to go beyond her basic weekly earnings of £1,010.00. 19 days is 3.8 weeks and her claim is therefore £3,838, the amount she has received. No award should be made.[10]Wages. She claims 3 days’ wages Her basic daily wage was £202. She has been paid £606 by the RPO and BDO. There is no remaining claim in our view.[11]The protective award is 12.857 x £1,010 as case law stipulates that only basic earnings are taken into account. This is £12,985.57. Mrs Jalota, formerly Handa[12]The protective award is £8,577.16, the weekly gross of £667.12 x 12.857 weeks.[13]The other claim is for notice and this is £6,403.34, the net sum for 3 months, less sums paid (£667.11 and £2,150 from the RPO.) This produces a figure of £3,587.23. Mrs Gorasia, formerly Varsani[14]She claims only the protective award and our figure is a little less than hers because of the correct weekly multiplier. £893.46 x 12.857 is £11,487.22. Ms N Wood[15]She also claims a protective award only and the calculation is £951.77 x 12.857, which is £12,236.91. Jeyes[16]We are told that she has been paid in full for her holidays (by the RPO) and wages entitlements (RPO plus BDO). Her weekly wage is £463.54 x 12.857: protected award is £5,959.73. Ms A Manek[17]Her unfair dismissal claim, as with others, extends for 2 weeks loss and this is overlapped by the notice claim She is entitled to £400 for lost statutory rights.[18]Her notice entitlement was 13 weeks, but her figure is gross, whereas the measure of damages must be net. We estimate the weekly net to be £648 (a marginal tax rate of 27.4%.based on 2012-2013 tax data.) £648 x 13 is £8,424. The RPO have paid £430 which takes the award to £7,994.00.[19]Bonus. Ms Thomas has helpfully shown us that she has been paid £800 by BDO for wages, being 3 days’ normal wages (£501.09) and £384.31 for what are described as other claims. This is exactly the sum claimed for bonus and it has, therefore, already been met.[20]Holiday pay has been paid (by both RPO and BDO) at 5 days x £167.03, £835.15. The Claimant is claiming an extra £11.55 a day. The discrepancy suggests that she has included the annual bonus, but for holiday pay purposes we lack the evidence to take this into account, having regard to recent case law. There is therefore no award to be made.[21]The protective award is 12.857 x the gross daily pay. We are here in difficulty because we must exclude bonus or commission and, although we do not have proper evidence, the evidence given to BDO is that the contractual gross pay was £43,430 pa. This suggests that the remainder was a bonus and we will therefore divide this figure by 52 and again by 5 to produce a daily rate of £167.04. The award is £10,738.07. Mr S Perera[22]He claims a basic award but has received a redundancy payment from the RPO and therefore has no basic award entitlement.[23]He claims a large and capped compensatory award, but this is untenable in our view. Had the employer consulted with him (and others) the same commercial decision would have been made and we refer to the factual findings that detailed the parlous condition the Respondent was in. The only award possible is for that period of time during which reasonable consultation would have taken place and we assess that at 14 days. Only basic pay is taken into account and this is calculated at his figure of £1,101.99 a week and we have applied a marginal rate of tax of 38%, which produces a net figure of £1,366.47. We are prepared to add £400 for lost statutory rights: £1,766.47. Ms G Augustine[24]This Claimant makes various claims. She has received redundancy pay from the RPO. This extinguishes her entitlement to a basic award for unfair dismissal.[25]She had an entitlement to 5 weeks’ notice: £2,761.75. She received £2,150 from the RPO. She is entitled to the balance of £611.75.[26]Any compensatory award for unfair dismissal stops short of 5 weeks and overlaps with the notice claim, therefore no further award is made.[27]No order is made for holiday pay. She has received a net sum from the RPO which is £368.57 gross and a further £390.11 gross from BDO. This amounts to £758.68 gross. (Applying the same marginal rate of tax this more or less equals the net sum claimed.)[28]For wages she has received (for 3 days and not 2 as claimed) £318.16 gross from the RPO and £390.11 gross from BDO, totalling £698.07. No further order is apt.[29]The protective award is £758.69 x 12.857: £9,754.48. Ms C Wooldridge[30]She claims a protective award only. 12.875 x £932.20 is £11,986.58. Ms L Harper[31]On the basis of what Ms Thomas told us, her weekly gross pay was £433.84, some £14 higher than the figure the Claimant’s figure produces. She has calculated the protective award on the erroneous basis of working days in a year. The correct calculation is £433.84 x 12.857: £5,577.88 Ms N Bostock (Now Mrs Ryder)[32]She only claims a protective award and she has also used an incorrect method of calculation. The correct calculation is £815.77 gross weekly x 12.857 which is £10,488.35. Mr Gatehouse[33]Because he worked for just over a year he has no unfair dismissal claim.[34]There is no holiday pay to award. He has been paid £960.51 by the RPO and £1005.99 by BDO, both these being the gross figures (we expect he only received net sums.) These payments extinguish his claim.[35]He has been paid for wages £437 gross by BDO and £218.50 gross by RPO. The daily rate being £218.50, this represents the three days outstanding. We are not satisfied there is any further entitlement and we lack any evidence concerning bonus or fuel expenses.[36]The protective award is £11,237.53, being £874.04 the weekly wage x 12.857. Messrs Gupta and Sandhu[37]Neither has responded to the Order and we are prepared to make protective awards. Mr Gupta’s is 12.857 x £9,403.59: £120,901.69. Mr Sandhu’s is 12.857 x £2324.32: £3,012.65.