Mr N Yousif v Everest Pharmacy Ltd and Sharief Healthcare Ltd: 2410567/2019
JUDGMENT
[1]All complaints against the second respondent Sharief Healthcare Limited are dismissed following a withdrawal by the claimant. The second respondent is removed from the proceedings.[2]The claims against the first respondent will proceed to a case management hearing, the date of which will be notified in due course.REASONS
[1]By a letter dated 10 May 2021 and letter dated 19 July 2021 the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because it has not been actively pursued.[2]The respondent has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The response is therefore struck out.[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge.[1]The complaint of discrimination because of race pursuant to the provisions of section 13 of the Equality Act 2010 (“the 2010 Act”) is not well-founded and is dismissed.[2]The complaint of discrimination because of age pursuant to the provisions of section 13 of the 2010 Act is not well-founded and is dismissed.[3]The claimant is not entitled to a redundancy payment and the claim for a redundancy payment is not well-founded and is dismissed.[4]The complaint in respect of unpaid holiday pay pursuant to regulations 13-17 of the Working Time Regulations 1998 is not well-founded and is dismissed.[5]The complaint in respect of an unauthorised deduction from wages advanced pursuant to the provisions of part II of the Employment Rights Act 1996 (“the 1996 Act”) is not well-founded and is dismissed.[6]The complaint of failure to consult and inform pursuant to Regulation 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 is not well founded and is dismissed.[7]The complaint of unfair dismissal pursuant to sections 94/98 of the 1996 Act is wellfounded and the claimant is entitled to a remedy.[8]The respondent is ordered to pay to the claimant compensation for unfair dismissal totalling £3780.00p made up as follows: Basic award £615.00p Compensatory award £3165.00p. This includes an award of two weeks’ pay pursuant to section 38 of the Employment Act 2002. Total: £3780.00p.[9]The Employment Protection (Recoupment of Benefits) Regulations 1996 (“the Recoupment Regulations”) apply to the award of compensation for unfair dismissal and the details required by Regulation 4(2) are as follows: The monetary element: £3780 The prescribed element: £2255 The dates to which the prescribed element applies:19 August 2019 – 4 November 2019. The amount by which the monetary award exceeds the prescribed element: £1525[10]The complaint of breach of contract in respect of unpaid notice pay is wellfounded and the respondent is ordered to pay to the claimant £410.00 in respect of unpaid notice pay. This is a gross amount and the claimant is to be responsible for the payment to the appropriate authorities of any income tax and national insurance contributions payable is respect of such sum.[11]Subject to the operation of the Recoupment Regulations, the amount due form the respondent to the claimant is £4190.00 and is payable forthwith. NOTES[1]This matter came before me this morning. I had a bundle of papers comprising the claim form filed on 6 August 2019, a response filed by the respondent, an amended response from the respondent, orders made on 7 April 2020, a Judgment dated 6 August 2021 whereby the response of the respondent was struck out because it had not been actively pursued and other correspondence including a request from the respondent dated 2 December 2021 to re-arrange the hearing because “the lady who is dealing with the claim is off due to serious health issue”. I had a witness statement from the claimant and other documents in support of the various complaints advanced.[2]The claimant did not present any satisfactory evidence in respect of the complaints which are dismissed.[3]The application by the respondent for a postponement was not considered as the response had been struck out and the respondent had made no application for a reconsideration of that decision.[4]I was satisfied that the claimant had been unfairly dismissed by the respondent on 5 August 2019 and was entitled to a remedy. The claimant was born on 13 January 1959 and had served the respondent and predecessor employers at dismissal for over two years but less than three years.[5]I was not satisfied that the claimant had mitigated his losses and I concluded that if he had taken reasonable steps to do so he would have obtained employment at the same level of remuneration within 13 weeks of his dismissal. The first two weeks of that period are covered by the award for notice pay and so there is an award of 11 weeks’ pay and that is subject to the Recoupment Regulations. The claimant advised he was in receipt of universal credit after his dismissal but was uncertain as to the dates.[6]I was satisfied that the respondent had failed to provide the claimant with amended terms and conditions of employment after the transfer of undertakings on 1 May 2019 and before the date of his dismissal on 5 August 2019. The claimant had some written terms from previous employers and so I decided that the lower award of two weeks’ pay was appropriate.[7]The claimant advised that his income from the respondent was not subject to income tax. I made an award for unpaid notice pay on the basis that the respondent had not established that the claimant was guilty of gross misconduct. The claimant is to account for any income tax and national insurance contribution due in respect of such sum. EMPLOYMENT JUDGE A M BUCHANAN