Mr G Gouthwaite v Viam Infrastructure Asset Management (VIAM) Ltd (in administration) and Secretary of State for BEIS: 2408441/2022 and 2408522/2021
JUDGMENT
[1]The claimant was unfairly dismissed by the first respondent and is awarded compensation as follows: Basic Award: £4,896.00 (based on 6 years of service aged over 40 at the statutory maximum weekly pay of £544.00/week). Compensatory Award: None made (see below)[2]The claimant’s claim for a redundancy payment is not well-founded and is dismissed.[3]The claimant is permitted to amend his claim to include a claim for notice pay. The first respondent wrongfully dismissed the claimant and the claimant is awarded statutory notice pay of £3,880.20 (gross) (based on 6 years of service and a weekly wage of £646.70).REASONS
[1]Mr Gouthwaite was dismissed from his employment with the respondent on 28 April 2021. There was some confusion over bringing his claims – he had not obtained a certificate of early conciliation and presented two claims which were essentially duplicates. The claim forms recorded that Mr Gouthwaite was bringing claims of unfair dismissal and for a redundancy payment.[2]On 1 June 2021 the respondent business went into administration, resulting in large scale redundancies. Mr Gouthwaite’s claims, although unrelated to these events, were further delayed by the need to obtain the permission of the administrators for the claims to proceed and by some confusion arising out of the fact that a large number of other claims were presented as a result of those redundancies.[3]By letter dated 29 September 2021, the administrators gave consent for these claims to proceed. Claim 2408441/21 was served on the second respondent, on the basis that it may give rise to an award which would entitle the claimant to payment from the National Insurance Fund. (Although claim 2408522/21 was not served, I am content that the Secretary of State has had opportunity to respond to the claims raised, as they are repetitions of matters raised in the first claim). The Secretary of State’s response noted that they had been unable to verify that Mr Gouthwaite was an employee of the first respondent, and put him to proof of the same.[4]During the hearing today, Mr Gouthwaite produced P60 forms and payslips evidencing his employment up to 28 April 2021 (this obviously pre-dated the Administration, which may be why it does not correlate with the second respondent’s records). He also gave oral evidence about the dates of his employment and the circumstances of his dismissal.[5]I find that Mr Gouthwaite was continuously employed from September 2014 to his summary dismissal on 28 April 2021. He worked as a driver and machine operator. He was dismissed for using a vehicle on the previous weekend, despite the fact that he had had permission to do so, that it was a common practice to do so (with permission) and that a colleague who was with him was not disciplined. There was a meeting during the day where the matter was discussed with the contracts manager, who informed the claimant he would “have to think about it”. The contract manager telephoned the claimant later that evening and dismissed him summarily.[6]Mr Gouthwaite was subsequently paid for the three days he had worked during the week of his dismissal, and for his accrued holiday pay.[7]I find that the reason for dismissal was Mr Gouthwaite’s conduct, but that the dismissal was procedurally and substantively unfair.[8]I find that Mr Gouthwaite is entitled to a basic award, calculated as set out above. It is not appropriate to reduce the basic award as I accept, on the evidence presented by Mr Gouthwaite, that he was not at fault.[9]Normally, the claimant in these circumstances would also be entitled to a compensatory award. Mr Gouthwaite agreed that this award would be limited as he accepts that he would inevitably have been made redundant around 1 June when the company went into administration. This period is accounted for by his notice pay claim (see below). Further, he recognises that he is highly unlikely to recover any part of any compensatory award I make. Taking all of that into account, Mr Gouthwaite did not ask me to make any compensatory award in this case.[10]There was no separate claim for wrongful dismissal on the face of the pleadings. However, it was evident that Mr Gouthwaite had been dismissed without notice and I considered it appropriate to allow the claim to be amended to include a wrongful dismissal claim. I presume that notice was not paid because the first respondent considered that the matter amounted to gross misconduct. However, they have not defended the claim and, on the evidence I have heard, I find that no gross misconduct took place. I have therefore made an award of notice pay as above.