Mr L Roberts v Logo Design Grp Ltd: 2404024/2017
JUDGMENT
[1]The respondent is ordered to pay to the claimant notice pay of £2,269.24.[2]The respondent is ordered to pay to the claimant a basic award of £13,203.[3]The respondent is ordered to pay to the claimant a compensatory award of £22,670.09[4]The respondent is ordered to pay to the claimant in respect of age discrimination the sum of £172,070.06.[5]The total sum ordered to be paid by the respondent to the claimant is £210,212.19. Case No: 2404024/2017 10.5 Reserved judgment with reasons – rule 62 2REASONS
[1]The Claimant worked for 30 years in the same job, and was a senior designer with the respondent. He was dismissed by the managing director of the respondent on 09 May 2017. He was asked to attend a meeting in a pub after work and told that he was to lose his employment. He was not required to work a notice period, and so his employment ended immediately. The only reason was his age. The purported reason of redundancy was not the reason for the dismissal. The respondent subsequently advertised for someone to do the work he had been doing.[2]The Claimant brought this claim, for age discrimination and for unfair dismissal, but the Respondent did not file any response to it, and on 24 May 2018 at a preliminary hearing judgment was entered for the Claimant, and the date set for the hearing converted to this remedy hearing.[3].The claimant was entitled to 12 weeks notice pay, but was paid for only 8 weeks. On 04 September 2017 he obtained employment with a large car dealership delivering cars. He had tried to get similar work to that with the respondent, but had not found this possible. The industry in which he worked has a problem with age discrimination, and I find that the claimant made all reasonable efforts to mitigate his loss, but that he will now not find it possible to regain his earnings with the respondent of £29,500 a year (£567.31 weekly), and will work at national living wage levels until his retirement age of 67.[4]I award loss of income gross, as it is not possible accurately to assess the tax and NI that would have been deducted from the earnings. It will be for the Claimant to make appropriate returns to HMRC in respect of tax and NI on this sum. The first amounts to be paid are in respect of injury to feelings, and so not subject to tax or national insurance.[5]The claim for notice pay is for 4 weeks pay, he having been paid for 8 weeks instead of the 12 to which he was entitled, having worked in excess of 12 years in his employment. The weekly pay was £567.31, and multiplied by 4 this is £2,269.24.[6]The basic award is for 20 full years, 14 being over the age of 41 and so at 1½ weeks for each of those years (21 weeks’ pay) plus 1 week for each of the earlier years, the week’s pay being subject to a maximum of £489. This is because of S86 of the Employment Rights Act: the basic award is calculated as if the claimant had received the notice to which he was entitled. The pay of the claimant was £567.31 weekly and so above the cap. The basic award is 21 + 6 = 27 weeks’ pay at the maximum of £489. This is £13,203.[7]The compensatory award commences with loss of statutory industrial rights, for which I award the conventional figure of £350. Case No: 2404024/2017 10.5 Reserved judgment with reasons – rule 62 3[8]The loss to date is calculated on the difference between the present earnings and £29,500 a year (£567.31 weekly). He now earns £274.05 weekly, gross, so the weekly shortfall is £293.26.[9]The claimant was dismissed on 09 May 2017. He was paid for 8 weeks, and the next 4 weeks forms the notice pay claim. The period for which he was paid, or is covered by the notice pay claim ends on 01 August 2017. The claimant started his new job on 04 September 2017, and so the period of no income was 5 weeks. 5 x £567.31 = £2,836.55.[10]For the remainder of the period to the date of hearing the loss was at the difference in pay, £293.26. The period is exactly one year: 52 x £293.26 = £15,249.52.[11]I decide to award the future loss as compensation for age discrimination. The compensatory award is therefore £350 + £2,836.55 + £15,249.52 = £18,136.07.[12]I award an uplift of 25% for failure to follow the ACAS code. There was no process followed at all, and the dismissal was age discrimination, and nothing else. 25% of £18,136.07 is £4534.02, making the total compensatory award £22,670.09.[13]The compensation for age discrimination commences with injury to feelings. I agree with the claimant’s solicitor that this is a mid Vento band case. The claimant has a propensity to depression, which he thinks caused by thyroid medication. I take this into account. He was on Citalopram at the date of his dismissal, but was reducing his dosage and anticipating coming off medication completely. The dismissal affected him greatly, and his GP was put on double the standard dose of Venlalic XL Prolonged Release Tablets. This is a powerful medication for prevention of recurrence of major depressive episodes, treatment of generalised anxiety disorder, treatment of social anxiety disorder or treatment of panic disorder, with or without agoraphobia. This gives some idea of the level of effect of this on the claimant. His dosage has now reduced to the standard dose of 75mg. He has now largely come to terms with what happened, though plainly and understandably feels very aggrieved that his career was cut short, at a time when he feels his work was very good. Bearing in mind the value of money, the level of personal injury awards, the need for an amount awarded not to seem so low that public respect for discrimination awards is diminished nor so large as to seem to be unjustified riches, I consider that the sum of £15,000 is appropriate.[14]The claimant has lost income from today until his 67th birthday. His date of birth is 23 August 1962 and so he is now 56. That is 11 years. His loss is £293.26 a week, so £15,249.52 a year. Case law has varied between discount for early receipt and enhancement of the loss as inflation may exceed the return on cautious investment. I award 10 years loss of earnings. The sum is £152,495.20. In addition the claimant would have had the benefit of pension contributions of 3% of that lost salary, £4,574.86, so that the award for age discrimination loss of earnings is £157,070.06.[15]The total award for age discrimination is therefore £172,070.06. Case No: 2404024/2017 10.5 Reserved judgment with reasons – rule 62 4[16]The recoupment regulations do not apply to this decision. The claimant has not claimed any benefit since being dismissed. __________________________________________ Employment Judge Housego _________________________________________ Date 05 September 2018 RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON 28 September 2018 FOR EMPLOYMENT TRIBUNALS Case No: 2404024/2017 10.5 Reserved judgment with reasons – rule 62 5 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2404024/2017 Name of case(s): Mr L Roberts v Logo Design GRP Ltd The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 28 September 2018 "the calculation day" is: 29 September 2018 "the stipulated rate of interest" is: 8% MISS Z KENT For the Employment Tribunal Office Case No: 2404024/2017 10.5 Reserved judgment with reasons – rule 62 6 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE 1. This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/collections/employment-tribunal-forms If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim. 2. The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”. 3. The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged. 4. “Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet). 5. Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal. 6. ‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2404024/2017 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr L Roberts AND Logo Design GRP Limited[1]In this case the respondent seeks an award of costs against the claimant. General Background[3]This matter has a long and rather complicated history. The claimant issued these proceedings on 18 August 2017. His claim was for unfair dismissal, for discrimination on the grounds of his age, for entitlement to a statutory redundancy payment, for breach of contract in respect of his notice pay, for unpaid wages, and for accrued but unpaid holiday pay. The claims were brought against Logo Commercial Creative Partners. No response was received, and the claimant was asked to confirm the exact identity of his employer. By letter dated 24 October 2017 the claimant confirmed that the trading name of his employer had been Logo Commercial Creative Partners, but that he understood that a limited company namely Logo Design GRP Ltd was the limited company trading under that name which had employed him. He applied for this company to be added as a second respondent, and these proceedings were accordingly served on Logo Design GRP Ltd on 2 November 2017.[4]By letter dated 14 November 2017 Mr Wells of Lucas Johnson Ltd wrote to the tribunal to inform the Tribunal that he was the Liquidator of Logo Design Ltd, a company which was now in liquidation and which was the claimant’s previous employer, and that he was in a Case No. 2404024/2017 2 position to process the claimant’s minimum statutory employment claims. He also asserted that the claimant had never been an employee of the respondent Logo Design GRP Limited. The Tribunal responded to the effect that Logo Design Ltd (in liquidation) was not a respondent to the proceedings, and asking for documentary proof of the claimant’s previous employment, for instance by way of a contract of employment or forms P45 or P60. Despite a reminder, the Liquidator failed to reply.[5]The matter then came before me for a case management preliminary hearing by telephone on 24 May 2017. Mr Munro the claimant’s solicitor attended on behalf of the claimant. No one attended on behalf of either of the two named respondents, namely Logo Commercial Creative Partners, and Logo Design GRP Limited. Although the Liquidator Mr Wells subsequently asserted that he had attended by telephone, that was not the case. In any event the company for which he was the Liquidator was not a party to these proceedings.[6]Neither respondent had entered a response. Mr Munro asserted on behalf of the claimant that his employer had been Logo Design GRP Ltd. Accordingly, at that case management hearing I dismissed Logo Commercial Creative Partners as the first respondent because it was not a legal entity, and I entered judgment under Rule 21 against Logo Design GRP Ltd as the sole and remaining respondent. It is also to be noted that the Liquidator of Logo Design Ltd (in liquidation) had still failed to provide any documentary evidence as requested to the effect that it was that company which had employed the claimant.[7]The matter then proceeded to a remedy hearing before Employment Judge Housego. He entered judgment dated 5 September 2018 in the claimant’s favour against the respondent in the total sum of £210,212.19 (“the Remedy Judgment”). It is to be noted that the Liquidator of Logo Design Ltd (in liquidation) had still failed despite requests to provide any supporting documentation to show that it had employed the claimant. In addition, despite the fact that the respondent had been served with the proceedings and subsequent correspondence and notice of hearing, the respondent had taken no part in these proceedings and had not sought reconsideration of the judgment under Rule 21.[8]Mr Wells the Liquidator then sent an email to the Tribunal on 28 September 2018 to the effect that Logo Design Ltd (in liquidation) should be the only respondent to the claim, and that he would “respond in detail next week”. That company had never been a respondent to the claim, and the respondent had still not entered a response, nor had it notified the Tribunal that the Liquidator was authorised to submit a response on its behalf. On 8 October 2018 Mr Wells wrote further to the same effect, but the position remained that Logo Design Ltd (in liquidation) was still not a party to the proceedings, and no authority had been received from the respondent to the effect that Mr Wells was acting for the respondent.[9]On 25 October 2018 I directed that a detailed letter be sent to the claimant, the respondent, and the Liquidator to this effect:(i) Logo Designs Ltd was not a party to the proceedings and that company and/or the Liquidator had no standing in the proceedings;(ii) it remained open for the respondent to make an application for reconsideration of the Rule 21 Judgment and the Remedy judgment, provided that any such application was in accordance with the Tribunal Rules. To that end I directed that any such application should include the following information: (a) that whoever makes the application must confirm that he or she is instructed to do so by the respondent; (b) the grounds for the application in full; (c) why the application had been made outside the 14 day time limit, and what reasons were relied upon for any extension of time; (d) a full detailed written response to the claimant’s originating application; and (e) that it must all be copied to the claimant for potential agreement. I made it clear that in the absence of any successful application for reconsideration, the Rule 21 Judgment and the Remedy Judgment would still stand.[10]Although this Tribunal played no part in the process, the claimant apparently commenced the High Court enforcement process to seek to enforce the Remedy Judgment against the respondent. By letter dated 18 February 2019 Mr Burrage wrote to the Tribunal to the effect that he was the Managing Director of the respondent, that it had never employed the claimant, and that he wished to appeal the Judgment in order to prevent enforcement by the High Court. The Tribunal repeated and confirmed the information which it would need from the respondent if the respondent wished to make a formal application for Case No. 2404024/2017 3 reconsideration of the Remedy Judgment, and/or the Rule 21 judgment, which information or application had still not been received.[11]The respondent then instructed solicitors. By letter dated 20 March 2019 the respondent’s solicitor Ms Whelan wrote to this Tribunal on the respondent’s behalf enclosing a copy of an order of the High Court dated 11 March 2019 which was a stay of execution of the Remedy Judgment. Her letter also made an application to this Tribunal to set aside the Rule 21 Judgment, and to strike out the claimant’s claim. However, there was no application for reconsideration accompanied by the necessary information as earlier directed, and this was confirmed by email from the tribunal on 1 April 2019. The respondent’s solicitor then made that formal application for reconsideration by email dated 17 April 2019 which included the relevant supporting information as directed. The claimant’s solicitor subsequently confirmed that the respondent’s application was opposed.[12]I then listed the matter for a preliminary hearing in person to determine the respondent’s application for reconsideration, and that hearing took place on 9 July 2019. It was clearly essential to determine which limited company had been the claimant’s employer. Surprisingly the claimant failed to attend that hearing, although Mr Munro his solicitor did appear on his behalf. The respondent also attended, with Mr Burrage present to give evidence to the effect that there had been a contract of employment between the claimant and Logo Design Ltd (in liquidation), and no contract of employment with the respondent. Equally surprisingly however the photocopy of the suggested contract of employment between the claimant and Logo Design Ltd (in liquidation) which was produced by the respondent was incomplete, and it was not the case that it proved(i) that the claimant had been employed by Logo Design Ltd (in liquidation), or that(ii) the claimant had never been employed by the respondent. I therefore decided to adjourn that hearing and to list it for a further preliminary hearing in person, in the first place to determine who had been the claimant’s employer, and then subsequently to determine the respondent’s application for reconsideration.[13]I Informed the claimant’s solicitor at that hearing that if the respondent was able to prove at that forthcoming hearing that it had never employed the claimant then any continuing assertions made to that effect by the claimant might subsequently be taken to be unreasonable conduct such as to attract an adverse costs award.[14]That hearing was listed to be heard on 12 September 2019, but was adjourned because of lack of judicial resource. It was relisted to be heard on 18 October 2019. Two days before the hearing by letter dated 16 October 2019 the claimant withdrew his claim as against the respondent, and his claim was subsequently dismissed on withdrawal.[15]It is important to note that as at the time of the claimant’s withdrawal of the claim(i) there had been no judicial determination as to whether or not the claimant had been employed by the respondent (although Employment Judge Housego appears to have been satisfied that this was the case as at the hearing on remedy), and(ii) the Rule 21 Judgment and the Remedy Judgment against the respondent were still valid because the respondent’s application for reconsideration had not yet been determined.[16]In the meantime, there has recently been without prejudice negotiations between the parties with a view to reaching agreement upon which the proceedings might be resolved. The respondent asserts that terms were agreed between the parties, and that there was a settlement agreement (the “Settlement Agreement”). The respondent asserts that one of its terms was that the claimant would contribute the sum of £2,000 towards the respondent’s costs, and that the claimant remains in breach of that agreement. The claimant denies that he is in breach of any Settlement Agreement[17]The Application for Costs[18]During the course of this hearing, it became clear that the respondent does not make an application for its costs in accordance with the Employment Tribunals Rules of Procedure 2013 (“the Rules”), and in particular Rule 76(1) which provides: "a Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or Case No. 2404024/2017 4 the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.”[19]It became clear that the respondent was seeking to enforce the terms of what it asserts to be a concluded and enforceable Settlement Agreement, because it asserts that the claimant is in breach of contract by failing to pay an agreed contribution of £2,000 towards the respondent’s costs (as specifically agreed in the Settlement Agreement).[20]It seems to me that the correct forum for determining that dispute is the County Court. If, as the respondent suggests, there is an enforceable Settlement Agreement, then the respondent can issue proceedings against the claimant in that jurisdiction.[21]In circumstances where there is no application by the respondent for costs before this Tribunal under The Rules I can make no costs award, and I decline to do so.[22]It is to be noted that the claimant denies that there is an enforceable Settlement Agreement, but in any event, there is no application made by the claimant under the Rules as against respondent.[23]I therefore decline to make any order.