Mr D Byrne v Advanced Plant Hire Ltd: 2404367/2023
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made unauthorised deductions from the claimant's wages in the period 13 January 2023 to 10 February 2023, a period of four weeks. The claimant did not receive proper payment of wages during that period. The respondent paid the claimant £200 during that period which is accounted for in the sum below. The claimant’s weekly wages were £649.80.[2]The respondent shall pay the claimant £2599.20 - £200 = £2399.20, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance. Notice Pay[3]The complaint of breach of contract in relation to notice pay is well-founded. The claimant’s employment is found by the Tribunal to have ended on 10 February 2023, which was the last day when the claimant had any contact with the respondent.[4]The respondent shall pay the claimant £1949.40 as damages for breach of contract, representing three weeks’ notice pay at £649.80 per week. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay. Holiday Pay[5]The Tribunal found that in the twelve-month period up to 10 February 2023, the respondent did not allow the claimant to exercise the right to paid annual leave under the Working Time Regulations 1998. The claimant had 28 days or 5.6 weeks accrued but untaken holiday at that date.[6]The respondent shall pay the claimant £649.80 x 5.6 weeks = £3638.88. This is the compensation the Tribunal considers just and equitable in all the circumstances under regulation 30(4). Redundancy Payment[7]The site at which the claimant worked has closed down. The employment offered to the claimant by the respondent was not suitable alternative employment. He was therefore made redundant. Under section 163 Employment Rights Act 1996 it is determined that the claimant is entitled to a redundancy payment of £2569.50. This is based on three years’ service and the claimant being age 60 on the date his employment ended, had he been provided with proper notice of termination of employment. Unfair Dismissal[8]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed. He is awarded the sum of £34,420 subject to the application of the recoupment of benefits provisions set out below.[9]Given the lack of any process or proper notice of termination of employment, the Tribunal has considered the possibility of an uplift for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. However, as the Tribunal’s decision is that the claimant was dismissed by reason of redundancy, this uplift does not apply.[10]The respondent shall pay the claimant the following sums:(a) A basic award of £nil, on the basis that the claimant has been awarded a statutory redundancy payment.(b) A compensatory award of £34,420. This is made up of the following sums:a. Loss of earnings from the date of what should have been the end of the claimant’s notice period (3 March 2023) to the date of the hearing (15 December 2023), 41 weeks, net wages at a calculated sum of £514 per week = £21,074 andb. Future loss of earnings for a period of 6 months from the date of the hearing (to 15 June 2024) of £514 x 26 weeks = £13364[11]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply as the claimant received Universal Credit from April 2023:a. The total monetary award (i.e. the compensatory award plus basic award) payable to the claimant for unfair dismissal is £34,420b. The prescribed element is £21,074.c. The period of the prescribed element is from 3 March 2023 to 15 December 2023.d. The difference between(1) and(2) is £13364.[12]In making payment to the claimant for unfair dismissal, the respondent is to pay the sum for future loss of earnings straight away (£13364) and the remainder of the unfair dismissal award is to be paid subject to the respondent being served with a recoupment notice for any sums of Universal Credit that the Secretary of State seeks to recoup from the rest of the unfair dismissal award. Failure to provide a written statement of employment particulars[13]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the claimant £1299.60. Pension[14]The claimant told the Tribunal that he had been informed by the respondent that he had been registered in a workplace pension but that he had been provided with no further information about this. This issue is not within the Tribunal’s jurisdiction, but is likely within the jurisdiction of the Pensions Ombudsman (enquiries@pensions-ombudsman.org.uk or on 0800 914 4487). Enforcement[15]Information for the claimant on how to apply for payment of this award is provided in an advice leaflet enclosed with this judgment.[16]Once the claimant has taken reasonable steps to recover the payment, if it is not paid and the employer is not insolvent, the claimant can apply to recover the redundancy payment from the National Insurance Fund. If the employer is insolvent, the claimant can apply to recover the redundancy payment and other amounts such as holiday pay and notice pay from the National Insurance Fund. https://www.gov.uk/your-rights-if-your-employer-is-insolvent/your-rights