Miss L Crabbe and Others v Asel Fashion Ltd (in Creditors Voluntary Liquidation): 2410407/2019 and Others

EMPLOYMENT TRIBUNALS

Case No 2410407/2019

Between

Miss L Crabbe, Miss J Carroll, Mr J Richter, Miss L Hudson, Mr A Johnson, Mr M Davies, Miss N Stenson, Mr R Owen, Ms J Lyle.Claimant

Asel Fashion Limited (in Creditors Voluntary Liquidation)Respondent

Before

Employment Judge Benson

Date 7 February 2020

JUDGMENT

[1]The respondent has breached the each of the claimants’ contracts by not providing notice. The respondent is ordered to pay to the claimants the net sums as set out below as damages: Miss L Crabbe: £55.21 Miss J Carroll: £nil Mr J Richter: £nil (£109.08 less £169.39 received on 7 June 2019; balance of £60.31 to be offset below) Miss L Hudson: £nil (£38.28 less payment of £69.00 received on 7 June 2019; balance of £30.71 offset below) Mr A Johnson: £nil (£145.03 less payment of £206.00 received on 7 June 2019; balance of £60.97 to be offset below). Mr M Davies: £nil (£124.68 less £243.82 received 7 June 2019; balance of £119.12 offset below) Miss N Stenson: £nil (£169.94 less £230.90 received on 7 June 2019. Balance of £60.95 offset below) Mr R Owen: £nil: (£131.19 less £211.40 received on 7 June; balance of £80.21 offset below) ] Ms J Lyle: £5.55 (£68.38 less £62.83 received on 7 June 2019)

[2]The respondent has failed to provide the claimants with a statement of main terms of employment. The respondent is ordered to pay to the claimants an additional award of 4 weeks gross pay as set out below: Miss L Crabbe : £220.84 Miss J Carroll : £831.00 Mr J Richter: £436.33 Miss L Hudson: £151.12 Mr A Johnson: £580.12 Mr M Davies: £498.76 Miss N Stenson: £679.76 Mr R Owen: £524.76 Ms J Lyle: £273.52

[3]The Respondent failed to pay the claimant in lieu of entitlement to annual leave. The respondent is ordered to pay to the claimants the gross sums in lieu of entitlement to annual leave as set out below: Miss L Crabbe: £12.71 (£101.07 less payment of £88.36 received on 7 June 2019) Miss J Carroll: £783.05 Mr J Richter: £10.17 (£70.48 less £60.31 being balance of payment received on 7 June 2019) Miss L Hudson: £109.45 (£140.16 less balance of £30.71 offset) Mr A Johnson: £406.08 Mr M Davies: £95.73 (£214.85 less balance of £119.12 received on 7 June 2019 offset) Miss N Stenson: £84.55 (£91.50 less balance of £60.95 received on 7 June 2019 offset) Mr R Owen: £145.84 (£226.05 less balance of £80.21 received on 7 June 2019 offset) Ms J Lyle: £346.10

[4]The Respondent has made an unauthorised deduction from each of the claimants’ wages in respect of outstanding pay. The respondent is ordered to pay to the claimants the gross sums as set out below: Miss L Crabbe: nil Miss J Carroll: nil Mr J Richter: £65.82 (April and May 2019) Miss L Hudson: £nil Mr A Johnson: £374.78 (February £187.22; March £137.60; April £146.95 with overpayment offset of £96.99) Mr M Davies: £nil Miss N Stenson: £24.62 (April 2019) Mr R Owen: £380.12 (February £15.88; April £327.55; May £57.99; overpayment in March £21.30) Ms J Lyle: £129.45

REASONS

[1]Each of the claimants has provided me with a schedule of their losses. I have also received a helpful summary schedule prepared by the claimants’ representatives together with supporting staff rotas setting out the actual hours worked by each of the claimant during the period 1 February 2019 to 12 May 2019 when the claimants’ employments terminated.

[2]None of the claimants had written contracts of employment. Although there were indications given to the claimants when they started employment of the number of hours they might work in a normal week, I consider that they had no normal working hours or agreed number of contractual hours of work per week.

[3]Their weeks’ pay and losses should therefore be calculated in accordance with sections 224 and 228 of the Employment Rights Act 1996, being based upon their average weekly remuneration in the twelve weeks before their employment ended (or if their employment is for a shorter period, such sum as fairly represents a weeks’ pay). I have relied upon the schedule of hours and national minimum pay rates provided the claimants’ CAB representative and where appropriate cross checked with the rotas and Schedules of loss in my calculations.

[4]I have also noted that many claimants were paid some amounts by the respondent on an intermittent basis but as they had payslips, they did not know what the amount related to. These payment have been deducted from the amounts awarded as proposed by the claimants.

[5]Accrued but unpaid holiday pay has been calculated on the basis of the statutory entitlement of 5.6 weeks per annum. The respondent did not permit the employees to take holidays. In King v Sash Window Workshop and anor

2018 ICR 693

, ECJ, confirmed that an employee whose employer refuses to pay holiday pay, and who therefore does not take his or her full annual leave entitlement, can recover a payment in lieu of unused leave on termination of the employment relationship. None of the claimants had been advised when the respondent’s holiday year commenced. In such circumstances, the individual’s holiday year would run from the individual start dates of their employment in accordance with Regulation 13 of the Working Time Regulations 1998. None of them had worked for the respondent for more than a year and as such all employees were entitled to their full holiday entitlement prorated from the start dates of their employment, details of which are set out below.

[6]For those employees who are entitled to an award in respect of outstanding wages, I have identified the period to which each award relates.

[7]I have set out below the basis of my calculations for each claimant: Miss L Crabbe: employment commenced 12 January 2019. Average gross weeks pay: £55.21; 17/52 x 5.6 weeks accrued holiday: £101.07. Miss J Carroll: employment commenced 7 September 2018. Average weeks pay £207.75; 35/52 x 5.6 weeks accrued holiday: £783.05 Mr J Richter: employment commenced 1 April 2019. Average weeks pay £109.08; 6/52 x 5.6 accrued holiday: £70.48 Miss L Hudson: employment commenced 15 September 2018. average weeks pay £38.28; 34/52 x 5.6 accrued holiday: £140.16 Mr A Johnson: employment commenced October 2018. average weeks pay £145.03; 26/52 x 5.6 accrued holiday £406.08 Mr M Davies: employment commenced 20 January 2019. average weekly pay £124.69; 16/52 x 5.6 accrued holiday pay £214.85 Miss N Stenson: employment commenced 8 April 2019. average weeks pay £169.94; 5/52 x 5.6 accrued holiday pay £91.50 Mr R Owen: employment commenced 20 January 2019. (average weeks pay £131.19; 16/52 x 5.6 accrued holiday pay £226.05 ] Ms J Lyle: employment commenced 15 June 2018. average weeks pay £68.38; 47/52 x 5.6 accrued holiday pay £346.10