Mrs S Costello v N Farrar: 2409159/2021
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimant’s claim of unfair dismissal succeeds. The remedy to be awarded in relation to that claim will be determined at a remedy hearing before any Employment Judge sitting alone with a time estimate of three hours.[2]The claimant’s claim of wrongful dismissal (i.e. that she was dismissed without notice in breach of her contract) succeeds. The respondent is ordered to pay the claimant £1416.10 by way of compensation for that breach.[3]The claimant’s claim that the respondent failed to pay her for holiday accrued but untaken at the date of dismissal succeeds. The respondent is ordered to pay the claimant £436.92 holiday pay.[4]A date for the remedy hearing will be notified separately. The respondent will be entitled to participate in that hearing only to the extent permitted by the Employment Judge.[5]Not less than 14 days before the remedy hearing the claimant must have provided to the Tribunal and to the respondent a witness statement setting out the compensation she is claiming for unfair dismissal and an updated Schedule of Loss setting out the financial loss she suffered as a result of the dismissal, giving credit for any other earnings or benefits received.REASONS
[1]A summary of this case is set out in Employment Judge Serr’s case management orders of the 16 February 2022. In brief, the claimant was employed by the respondent as a carer. The Claimant issued a Claim to the Tribunal on 16 August 2021 claiming unfair dismissal, wrongful dismissal, and outstanding holiday pay. Case No: 2409159/2021 4.17 Rule 21 judgment – universal template. September 2017[2]The respondent was required to serve a response to the claim by 15 September 2021 but failed to do so. The respondent is represented by her father. He attended the case management hearing on 16 February 2022. At para 13 of the orders from that hearing Employment Judge Serr ordered that by the 23 February 2022 the respondent should send to the tribunal and the claimant a draft response to the claim with an application under rule 20 of the Employment Tribunal Rules of Procedure 2013 (“the ET Rules”) to extend time for filing a response. On 22 February 2022 Mr Farrar emailed a document setting out a response to the claim in bullet point form. On 16 March 2022 an unless order was issued, requiring the respondent to comply with para 13 of E J Serr’s order in full by sending the tribunal by 30 March 2022 a completed response form and an application for an extension of time for filing that response. The unless order provided that unless para 13 of E J Serr’s order was complied with in full, no further application for an extension of time would be considered.[3]On 30 March 2022, Mr Farrar sent the tribunal a completed response form. There was no application to extend time as required by E J Serr’s order. I am satisfied that the terms of the unless order have not been complied with. The respondent’s response was filed outside the time limit set out in rule 16 of the ET Rules. In the absence of any application under rule 20 of the ET Rules for an extension of time to file the response the draft response sent to the tribunal on 30 March 2022 is rejected under rule 18 of the ET Rules.[4]Rule 21 of the ET Rules provides that where a response has been rejected, an Employment Tribunal Judge shall decide whether on the material available a proper determination of the claim or part of it can be made. I am satisfied that such a determination can be made in relation to the issue of liability for the claims of unfair dismissal, wrongful dismissal and holiday pay. I am also satisfied that a determination of remedy can be made in relation to the wrongful dismissal and holiday pay claims. The amounts set out in my judgment above in relation to those claims were agreed by Mr Farrar at the case management hearing on 16 February 2022 (para 11 of E J Serr’s orders). I am not satisfied that there is enough information in the materials available to enable me to determine the compensation which should be awarded for the claimant’s claim of unfair dismissal. I have directed that there should be a remedy hearing where a judge will decide what compensation should be awarded. The claimant will need at that hearing to provide evidence of the financial losses she suffered as a result of her dismissal. She will need to give credit for any earnings or benefits she received after her dismissal.[5]If the respondent wants to take part in or provide written or documentary information for consideration at that mearing it should write to the Tribunal within 21 days of receiving this judgment setting out what part it wishes to play in the hearing and why allowing it to do so would be in accordance with the overriding objective in rule 2 of the ET Rules. Case No: 2409159/2021 4.17 Rule 21 judgment – universal template. September 2017 Employment Judge McDonald Date: 21 September 2022[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2409159/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mrs S Costello Respondent: Natalie Farrar Heard at: Manchester (by CVP) On: 22 November 2022 Before: Employment Judge McDonald (sitting alone) REPRESENTATION: Claimant: In person Respondent: Mr R Farrar (Father) REMEDY JUDGMENT ON UNFAIR DISMISSAL The judgment of the Tribunal is that: 1. The respondent is ordered to pay the claimant by way of compensation for unfair dismissal:(a) A basic award of £2,040.(b) A compensatory award of £500. 2. The compensatory award and the basic award together amount to £2,540. 3. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply to the unfair dismissal compensatory award. 4. For the avoidance of doubt, the sums award above are in addition to the sums awarded for the successful claims of wrongful dismissal (£1,416.10) and for unpaid holiday pay (£436.92) in my Judgment of 21 September 2022.[1]These are my reasons on the remedy hearing in relation to the unfair dismissal claim brought by the claimant against the respondent. As I explain in my case management order of today’s date, I refused an application by the respondent Case No. 2409159/2021 2 to postpone this hearing. I gave oral reasons for my judgment and they were requested in writing so I provide them with the judgment.[2]By a Judgment under rule 21 of the Employment Tribunal Rules 2013 dated 21 September 2022 I found that the claimant's claim of unfair dismissal (relating to her dismissal on 26 April 2021) succeeded but that a remedy hearing was needed to decide the amount of compensation to be awarded. In that Judgment I also awarded amounts for the claimant's successful wrongful dismissal claim and for accrued but unpaid holiday pay. For the avoidance of doubt, the amounts I am awarding by way of compensation for unfair dismissal are in addition to those amounts.[3]Dealing briefly with the legal position, a successful unfair dismissal gives rise to a claim for two types of award. The first is a basic award which is calculated in accordance with a set formula. Section 122(2) of the Employment Rights Act 1996 provides that a basic award shall be reduced where the Tribunal thinks that it will be just and equitable to do so due to the claimant's conduct. The second kind of award is the compensatory award under section 123 of the Employment Rights Act 1996. Section 123(1) provides that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.[4]There is provision for that award to be reduced for contributory conduct by the claimant. In addition, the case of Polkey provides that compensation should be reduced to reflect the chance that the claimant would have been fairly dismissed in any event.[5]In this particular case the award of notice pay already made means that the relevant period I am considering for the compensatory award is from the end of that notice period i.e. from the middle to end of June 2021 onwards. The claimant has already been compensated up to that point by the wrongful dismissal award.[6]As I have explained in the Case Management Order of today’s date, I allowed Mr Farrar to take part in these proceedings to a limited extent given that the response had been rejected. He gave brief sworn evidence. He told me that the respondent, his daughter Natalie, has been in a Care Home from February 2022, which means that the need for domiciliary care from that point ended. He also said that his daughter had been very distressed by the incident which led to the dismissal.[7]I then heard sworn evidence from the claimant. She told me about the impact of the dismissal on her. In terms of her financial position, she confirmed that she had found other work to make up some of the losses she suffered through losing the job caring for the respondent. I find that the difference between the hours she was working for that job (on average 17 hours at £10 per week) and the job that she found to replace it (12 hours at £10 hours per week) was £50 per week gross. The claimant told me that she had not been in touch with or had any contact with the respondent after her dismissal. However, she confirmed that she had been told by a social worker that respondent no longer wanted to be in contact with her or for her to provide her with care. An email in the file confirms that that was the position as at June 2021.[8]In deciding what compensation it is just and equitable to award, I have to decide what would have happened had there been no unfair dismissal. Based on Case No. 2409159/2021 3 what the claimant told me I find that the relationship with the respondent had according to the respondent’s social worker broken down in the wake of the incident leading to the claimant’s dismissal. Given the evidence about what the social worker told the claimant, I find that the employment would have ended at the latest by the end of the notice period in any event because the respondent, Natalie, no longer wanted the claimant to provide her with care. That does not make the dismissal fair. However, it does have an impact on the compensatory award. I find that the claimant’s employment would have come to an end in any event because the relationship between her and the respondent had broken down. Given the personal nature of the employment the claimant’s employment would not have continued once that relationship had broken down. She could have been fairly dismissed with notice for some other substantial reason. Consequently, I do not award any compensatory award for loss of earnings because I find that the claimant’s job would have come to an end by the end of the notice period in any event. She has already been compensated for the notice period by the wrongful dismissal award in my previous judgment.[9]However, I do recognise that by being unfairly dismissed from a job which she had held for eight years the claimant lost her statutory rights which she had accrued. For example, she had lost the right to claim unfair dismissal which is only accrued after two years of employment. The Tribunal makes, as standard practice, an award of compensation for loss of those statutory rights. I have decided the appropriate amount to award is £500 for that compensation for loss of statutory rights.[10]Turning to the basic award, the calculation of this is based on the following elements. Mrs Costello’s gross pay was £170 per week. She had worked for the respondent, Natalie, for eight full years. During that time the claimant was 41 years of age or older, which means that we multiple the figure by 1.5. That gives a basic award of £2,040. I find that there is no evidence on which I can justify a reduction in that basic award, and I therefore make an award in that amount.[11]For the avoidance of doubt, if I am wrong about the claimant being fairly dismissed because the relationship with Natalie had broken down, I would have found that her employment would have ended in any event in February 2022 when the respondent moved into a Care Home. If the employment had carried on until then, then the financial loss would have been the net equivalent of £1,800 gross (based on 36 weeks’ losses of £50 per week).[12]In summary, the total amount I am awarding is £2,540 which is £2,040 for the basic award and a compensatory award of £500 as compensation for loss of statutory rights.[13]The claimant confirmed that she has not been in receipt of any State Benefits and so the recoupment provisions do not apply. Employment Judge McDonald Date: 22 November 2022 Case No. 2409159/2021 4