Mr R Mackinnon v Mr R Mackinnon and Chiropractic First Group Limited (in liquidation): 2406807/2023

EMPLOYMENT TRIBUNALS

Case No 2406807/2023

Between

Mr R MackinnonClaimant

Mr R Mackinnon and Chiropractic First Group Limited (in liquidation)Respondent

Before

Judge Johnson

Date 4 November 2024

JUDGMENT

AND REMEDY Findings made by the Tribunal(1) Having heard the evidence of the claimant and considered the documentary evidence available within the hearing bundle previously prepared by the respondents for the postponed final hearing on 15 and 16 November 2024, it is determined that the claimant was employed jointly by the respondents from 7 August 2019 until 16 June 2023.

(2) The claimant gave notice of his resignation of employment on 17 April 2023 and with the intention that his 3 month notice period would be worked and would end on 16 July 2023.

(3) He was entitled to resign with immediate effect because of the repudiatory breaches of contract on the part of the respondent where they continuously over many months failed to pay his full contractually agreed wages. The final straw which led to the decision to resign were the several meetings which took place remotely by Zoom and where his employer failed to provide sufficient reassurance that they would honour his contractual payments.

(4) The decision to resign was for the sole or principal reason that his employer had breached the implied term of trust and confidence, and the claimant did not delay unduly before giving notice of his resignation in April 2023. He had good reason to wait until he received his final salary for March 2023 which was paid late and which he knew would have been withheld had he resigned earlier. Given the poor and at times spiteful behaviour of the respondents in the past, it was also reasonable for the claimant to obtain legal advice and borrow additional funds as it was likely he would face litigation from the respondents.

(5) The claimant initially agreed to work his 3 month notice period with the respondent when they accepted his notice of resignation. However, they then suspended him during May 2023 without good reason and without paying him his contractual wages. This was a further breach of trust and confidence on the part of the respondents and the claimant was entitled to abridge his notice period which meant that the effective date of termination of employment was 17 June 2023. This arose from and was caused by the unreasonable behaviour on the part of the respondents and the notice was given only after the respondents had been given an opportunity to allow the claimant to continue working.

(6) The complaint of constructive unfair dismissal was therefore well founded which means it is successful.

(7) The claimant has mitigated his losses since the effective date of termination and has worked continuously as a chiropractor on a self employed basis and has worked hard to reduce the ongoing partial loss of earnings since his employment with the respondent ended.

(8) The claimant also presented a complaint of breach of contract in respect of outstanding payments for his notice pay. This complaint was successful.

(9) The claimant also presented a complaint of unlawful deduction of wages. This complaint was successful.

(10) The claimant has also presented a complaint of unpaid annual leave entitlement. This complaint was successful. Decision made on Remedy

(11) Following the decision made in the Tribunal’s judgment on liability above, the respondents shall pay the claimant the sum of £96,426.83 (Ninety-Six Thousand, Four Hundred and Twenty-Six Pounds 83 Pence only) in full and final settlement of the successful complaints of constructive unfair dismissal, breach of contract/notice pay, unlawful deduction from wages and holiday pay and as discussed in the paragraphs below.

(12) This judgment is calculated on the following basis, applying relevant just and equitable principles under the Employment Rights Act 1996 and subject to the parties’ agreement (where relevant), as applied below: UNFAIR DISMISSAL A. Basic Award Subtotal/Total

[1]Completed years of service at date of effective termination =3 years Weeks’ pay = £643 per week gross

[3]Claimant’s age at effective date of termination: 52 years, (therefore 1 1/2 week’s pay for each completed year)

[4]Calculation for basic award is therefore: (£643 x 3) x 1 ½ = £2893.50 Subtotal (Basic Award) £2893.50 B. Compensatory Award

[1]Past loss of earnings (17 June 2023 until 4 November 2024) = £57,862.00

[2]Plus 25% uplift for respondents’ failure to comply with ACAS Code of Practice = £14,465.50

[3]Future loss of earnings (5 November 2024 until 16 June 2025) = £5,000

[4]Plus 25% uplift for respondents’ failure to comply with ACAS Code of Practice = £1250.00

[5]Loss of Statutory rights (£400) = £400.00 [Subtotal (Compensatory Award)]* [£78,977.50]* *Applying statutory cap £105,707 or 1 year’s gross pay whichever is lower = 1 year’s gross pay is £69,000, therefore reduce compensatory award to £69,000. Therefore Revised Subtotal (Compensatory Award) £69,000.00 C. Breach of Contract/Notice Pay

[1]The respondents agreed that the claimant could work his 3 month notice pay until 16 July 2023 but then suspended him without pay and without following any disciplinary process.

[2]The claimant should be paid his notice pay from which remained unpaid for the period of 17 April 2023 until 16 June 2023 when he formally ceased working for the respondents because of their failure to withdraw his suspension.

[3]The balance of the notice pay which should be paid to the claimant is £8,333.33 Subtotal (breach of contract/notice pay) £8,333.33 D. Unlawful deduction from wages 1. Unpaid salary for April 2023 - £5750.00 2. Outstanding London Commission - £1950.00 3. ‘No New Doctors’ agreement during initial period working in Chester and commission resulting from respondents recruiting a further chiropractor sooner than agreed - £3,000.00 Partially unpaid wages April 2022 - £750.00

[5]Partially unpaid wages February 2023 - £1,500.00 Subtotal (wages claim) £12,950.00 E. Holiday Pay 1. The claimant had 11 days untaken annual leave entitlement for the leave year beginning on 1 January 2023 when his employment ended on 16 June 2023 = £3,250.00 Subtotal (holiday pay) £3,250.00 GRAND TOTAL (Basic Award £2,893.50 + Capped £96,426.83 Compensatory Award £69,000 + breach of contract/notice pay £8,333.33 + unlawful deduction from wages £12,950 + holiday pay £3,250.00) (13) This judgment has taken into account the question of recoupment, although given that the claimant began his new chiropractic partnership with his wife as a result of seeking to mitigate his loss of earnings from 17 June 2023, it is unlikely that any recoupable benefits will apply in this case. (14) However, for completeness, the relevant information for the purposes of recoupment is as follows: a) Prescribed element - £57,862.00 b) Prescribed period – 16 June 2023 being the Effective Date of Termination and 4 November 2024 when liability and remedy were determined. c) Total award - £96,426.83 d) Balance (£96,426.83 - £57,862.00) = £38564.83 .