Mr J Ensby v X Green Clean Ltd: 2405922/2019
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 any 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. ________________________ Employment Judge Franey 22 July 2019 Case No: 2405922/2019claims.
[7]The Employment Judge was reinforced in that view by documents that the respondent disclosed in support of its application , which, frankly it should not have done , because they were actually documents passing between the parties through ACAS, and indeed one of them is actually marked “without prejudice”. Be that as it may, what was clear from that communication is that the respondent in any event admitted that the claimant was entitled to holiday pay. There was a dispute originally about the amount of holiday pay , because the claimant had originally been claiming for some 9.5 days, but after the intervention of an ACAS conciliator and some recalculation , the claimant accepted that he had overcalculated and in fact reduced his claim, as he has before the Tribunal today, to 5.8 days. That calculation is set out in the email communications.[8]It seemed to the Employment Judge, therefore, that there was no defence to the claim for holiday pay because the respondents in fact, subject to a re-calculation, admitted it. Entitlement to pay in lieu of untaken holiday would remain an entitlement whatever the reason for the termination of the employment. The respondents appear, however, to have attempted to use that as some form of leverage to settle, presumably on the basis that if the claimant dropped his notice pay claim they would pay the holiday pay. That is an improper use of the settlement procedure. If a claim is admitted and due it should be paid, and today the claimant has established his entitlement . The respondent has clearly not disputed it, and he is clearly , and always was , entitled to that holiday pay. So there was no reason why the case could not have proceeded on that basis anyway.[9]The only disputed claim therefore that remained was that for notice pay. The claimant’s case is simple. He was entitled statutorily, and perhaps even contractually, to one week’s notice, and he did not get it. The reason he did not get it, the respondent contends, is that his dismissal was for gross misconduct. That may have been so, but the onus is upon the respondent to prove that. On the face of it, a person is entitled to notice unless his employer establishes as a matter of fact and law that the employee was dismissed, and the respondent was entitled to dismiss, without notice. That has always been an issue in the case: it was the response in fact that the respondent put in in the response that was filed at the very beginning. Consequently the Employment Judge is at a loss to understand why, knowing that is what the respondent would have to deal with , regardless of issues of calculation of holiday pay and things like that, the respondent was not in a position to deal with it today. The postponement that was originally granted was expressly on the basis that the claims could not be dealt with in an hour , and consequently three hours was allowed for this hearing. That would have been ample time for the parties to give evidence about what actually happened , and whether the claimant was rightly dismissed without notice, but the respondent has failed to address that issue and has failed to attend today to produce any evidence in support of it.[10]In those circumstances the Employment Judge considers that as the respondent has failed to attend to argue and present any evidence that the claimant was justifiably dismissed without notice, then his claim for notice pay too succeeds. Case No. 2405922/2019 4[11]Consequently, the claimant having confirmed that he did not receive any paid employment during the one week’s notice period , and did not receive any state benefits during that period, there is nothing to come off his notice pay claims and consequently both his claims are well-founded and succeed, and the Tribunal makes the judgment in the sums announced above. Employment Judge Holmes Date: 31 January 2020