Mr W O’Carroll v Will Nixon Construction Group: 2401152/2020
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.REASONS
[1]The claimant complains of unfair dismissal.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore, the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. Regional Employment Judge Parkin Date: 13 May 2020procedure.
[7]An employee is only entitled to a redundancy payment if they have been employed for two years or more at the effective date of termination. In this case the claimant accepted that he did not have sufficient length of service to claim a redundancy payment. His claim for such payment is therefore dismissed. Breach of contract/Notice Pay[8]In the absence of as enhanced contractual notice entitlement the entitlement to notice is the entitlement to statutory minimum notice set out in section 86 of the ERA. In brief, that is not less than one week’s notice if the period of employment is less than two years. The entitlement in this case is therefore for one week’s notice. The claimant was not given notice or paid in lieu of notice. His claim that he was dismissed without notice in breach of contract succeeds. Holiday Pay[9]Under Reg 14(1) and (2) of the Working Time Regulations 1998 a worker is entitled to a payment in lieu where his or her employment is terminated during the course of the leave year, and on the termination date, the proportion of statutory annual leave he or she has taken under Regs 13 and 13A is less than the proportion of the leave year that has expired.[10]I apologise to the parties and the claimant in particular that at the hearing, I said I had decided that the claimant’s holiday pay claim succeeded on the basis that the evidence showed he had 13 days’ untaken holiday at the time of dismissal. In finalising this judgment and reasons for promulgation I have realised that was an error on my part. The accrued but untaken entitlement to 15 days set out in the email from the respondent dated 20 December 2019 would only accrue if the claimant had Case No. 2401152/2020 4 continued to be employed until 31 October 2020. As he was dismissed part way through the holiday year only part of that holiday entitlement had accrued.[11]Had he worked the whole of the holiday year of 1 November 2019 to 31 October 2020 the claimant would have accrued the minimum 5.6 weeks of holiday set out in regulations 13 and 13A of the Working Time Regulations 1998. The claimant worked a 5-day week so 5.6 weeks of leave equates to a total of 28 days. The claimant’s employment ended on 31 January 2020. He therefore worked 13/52 weeks of the holiday year. His accrued entitlement would be 28 days x 13/52 = 7 days. He had taken in excess of that amount (12 days) by the time of his dismissal so had no accrued but untaken holiday leave at that date. On that basis his holiday pay claim fails. I have amended my judgment to reflect the correct position.[12]If the claimant disagrees with my calculation and conclusion then he should apply for a reconsideration of my decision under rule 71 of the Employment Tribunal Rules 2013, giving reasons why the calculation and conclusion set out at paras 10 and 11 is incorrect. That application can be made in writing by email marked for my attention and using the case number in the subject heading. Unlawful deduction from wages[13]The claimant claimed unlawful deduction of wages for the week commencing 20 January 2020 when he worked 27 hours, the week of 27 January 2020 when he worked 45.5 hours and for a week in hand of 45 hours. I am satisfied that the respondent did not pay him for the full hours he worked and that claim succeeds.Remedy
[14]The claimant had provided some documents relating to his pay including a timesheet for the week of 27 January 2020 and a payslip for the week of 17 January 2020. The claimant confirmed that he did have other relevant documents, including his payslips and timesheet for the week of 20 January 2020. He wanted to check what hours he had worked and what he had been paid for 20 January 2020. We also discussed whether there were any consequential financial losses flowing from the unlawful deduction from wages and the need to offset any payments already received form the Insolvency Service.[15]As the claimant was not in a position to confirm those matters or provide supporting evidence at the hearing, I made a case management order that he supply that information to the Tribunal by 21 January 2022. The Tribunal will then decide whether a remedy judgment can be issued based on the papers and without need for a further hearing. Employment Judge McDonald Date: 23 December 2021 Case No. 2401152/2020 5