Mr A Gomes and Mr C Errico v Playworks Ltd T/a Panacea: 2407394/2021 and 2407607/2021
JUDGMENT
Upon hearing the claimants and upon the respondent not attending, the judgment of the Tribunal is that: First claimant[1]The first claimant is permitted to amend his claim to include complaints of; a) Breach of contract; b) Unlawful deduction from wages; and, c) Holiday pay.[2]The first claimant’s complaint of unfair dismissal is well founded, which means that he was unfairly dismissed, and this complaint succeeds.[3]The first claimant’s complaint of breach of contract is well founded, which means that this complaint succeeds. Case No: 2407394/2021 2407607/2021[4]The first claimant’s complaint of unlawful deduction from wages is well founded, which means that this complaint succeeds.[5]The first claimant’s complaint relating to holiday pay is well founded, which means that this complaint succeeds. Second claimant[1]The second claimant’s complaint seeking a redundancy payment is dismissed as insufficient evidence was available to the Tribunal which demonstrated that a redundancy had arisen.[2]The second claimant’s complaint of unfair dismissal is well founded, which means that he was unfairly dismissed, and this complaint succeeds.[3]The second claimant’s complaint of breach of contract is well founded, which means that this complaint succeeds.[4]The second claimant’s complaint relating to holiday pay is well founded, which means that this complaint succeeds. Remedy Hearing (in respect of first and second claimants)[5]The determination of remedy in relation to each of the claimants’ successful complaints will take place before Employment Judge Johnson on Monday 17 January 2022, starting at 10am and with a hearing length of 1 day. The hearing will take place at The Employment Tribunals, Alexandra House, The Parsonage, Manchester and be subject to the case management orders provided in a separate order. EMPLOYMENT TRIBUNALS Claimant Respondent Mr A Gomes(1) v Playworks Limited (trading as ‘Panacea’) Mr C Errico(2) Heard at: Manchester On: 17 January 2022 Before: Employment Judge Johnson Appearances For the Claimants: both appeared in person For the Respondent: did not attend REMEDY HEARING JUDGMENT First claimant 1. The respondent shall pay to the first claimant compensation for his complaints of unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and failure to provide a written statement of particulars in time of £14,764.29 (Fourteen Thousand, Seven Hundred and Sixty-Four Pounds Twenty-Nine Pence) and calculated as follows: Unfair dismissal Subtotal/Total[1]Basic award for 12 years completed service from age of 21 to 33 years and applying an average week’s pay of £240.12, ((1/2 x £240.12 x 1) + (1 x £240.12 x 11)) = £2761.38[2]Immediate loss of earnings from effective date of termination on 5 April 2021 for 6 weeks applying net average pay of £200.16 (6 x £200.16) = £1200.96 Loss of statutory rights = £500.00[4]Uplift to compensatory award of 25% reflecting the respondent’s total failure to comply with the ACAS Code of Practice relating to disciplinary and grievance procedures, (£1200.96 + £425.24 x 25%) = £425.24 Subtotal for unfair dismissal £4887.58 Breach of Contract (Notice Pay)[1]The first claimant was continuously employed by the respondent for 12 completed years of service and his net pay at the effective date of termination was a weekly average of £200.16 plus pension contributions of £4.49 , (12 x (£200.16 + £4.49)) = £2455.80[2]Uplift to award for breach of contract of 25% reflecting the respondent’s total failure to comply with the ACAS Code of Practice relating to disciplinary and grievance procedures, (£2401.92 x 25%) = £613.95 Subtotal for breach of contract £3069.90 Unlawful deduction from wages (unpaid wages) 1. The respondent ceased paying the first claimant furlough payments calculated at his average net weekly pay of £142.34 from 31 July 2020. Accordingly, the first claimant is awarded wages from 1 August 2020 until the effective date of termination on 5 April 2021 which is approximately 35 weeks, (35 x £142.34) = £4981.90 Subtotal for unlawful deduction from wages £4981.90 Holiday Pay 1. The first claimant was entitled to 5.6 weeks annual leave each year and did not take any leave in his final year employed by the respondent, (5.6 x £240.12 being an average week’s pay) = £1344.67 Subtotal for holiday pay £1344.67 Failure to provide the first claimant with a written statement of particulars 1. The respondent did not provide the necessary particulars within 2 months of his date of commencement of employment (5 April 2008 and particulars not provided until 5 December 2008) and it is just and equitable to award the first claimant with 2 week’s pay, (2 x £240.12) = £480.24 Subtotal for statement of particulars complaint £480.24 Grand total £14,764.29 2. The first claimant acknowledged that for an unspecified period of time, he did receive universal credit payments from the Department of Work and Pensions, (‘DWP’). It is not clear whether recoupment is applicable in this case, however, the following figures may be of relevance: a) Prescribed element: £1200.96, (being immediate loss of earnings payable as part of the compensatory award and which must be held until the question of recoupment has been resolved); b) Prescribed period: 28 June 2021, (expiry of notice period of 12 weeks following the effective date of termination on 5 April 2021) until 17 January 2022 (date of remedy hearing). c) Total award: £14,764.29 (see Grand total figure in the table above) d) Balance: £13,563.33 (following the reservation of the prescribed element and payable to the first claimant immediately) Second claimant 1. The respondent shall pay to the second claimant compensation for his complaints of unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and the failure to provide a written statement of particulars in time of £9,796.98 (Nine Thousand, Seven Hundred and Ninety-Six Pounds and Ninety-Eight Pence) and calculated as follows: Unfair dismissal Subtotal/Total[1]Basic award for 5 years completed service from age of 30 to 35 years and applying an average week’s pay of £174.71, (5 x 1 x £174.71) = £873.55[2]Immediate loss of earnings from effective date of termination on 21 August 2020 for 34 weeks until second claimant was notified of his dismissal by HMRC on 12 April 2021 applying net average furlough pay of £135.35 (34 x £135.35) = £4601.90 Loss of statutory rights = £500.00[4]Uplift to compensatory award of 25% reflecting the respondent’s total failure to comply with the ACAS Code of Practice relating to disciplinary and grievance procedures, (£4601.90 + 500.00 x 25%) = £1275.48 Subtotal for unfair dismissal £7250.93 Breach of Contract (Notice Pay)[1]The second claimant was continuously employed by the respondent for 5 completed years of service and his net pay at the effective date of termination was an average of £148.25 plus pension contributions of £5.57, (5 x (£148.25 + £5.57) = £769.10[2]Uplift to award for breach of contract of 25% reflecting the respondent’s total failure to comply with the ACAS Code of Practice relating to disciplinary and grievance procedures, (£769.10 x 25%) = £192.28 Subtotal for breach of contract £961.38 Unlawful deduction from wages (unpaid wages) 1. The respondent ceased paying the second claimant furlough payments calculated at his average net weekly pay of £135.35 from 31 July 2020. Accordingly, the second claimant is awarded wages from 1 August 2020 until the effective date of termination on 21 August 2020 which is approximately 3 weeks, (3 x £135.35) = £406.05 Subtotal for unlawful deduction from wages £406.05 Holiday Pay 1. The second claimant was entitled to 5.6 weeks annual leave each year and did not take any leave in his final year employed by the respondent, (5.6 x £148.25 being an average week’s pay) = £830.20 Subtotal for holiday pay £830.20 Failure to provide the first claimant with a written statement of particulars[1]The respondent did not provide the necessary particulars within 2 months of his date of commencement of employment and it is just and equitable to award the first claimant with 2 week’s pay, (2 x £174.21) = £348.42 Subtotal for statement of particulars complaint £348.42 Grand total £9796.98[2]The second claimant acknowledged that for an unspecified period of time, he did receive universal credit payments from the Department of Work and Pensions, (‘DWP’). It is not clear whether recoupment is applicable in this case, however, the following figures may be of relevance: a) Prescribed element: £4601.90, (being immediate loss of earnings payable as part of the compensatory award and which must be held until the question of recoupment has been resolved); b) Prescribed period: 25 September 2020, (expiry of notice period of 5 weeks following the effective date of termination) until 17 January 2022 (date of remedy hearing). c) Total award: £9796.98 (see Grand total figure in the table above) d) Balance: £5195.08 (following the reservation of the prescribed element and payable to the first claimant immediately)