Ms J Kelly and others v Almtone Ltd (in Administration): 2413421/2018 and Others
JUDGMENT
Employment Tribunals Rules of Procedure 2013, Rule 21 The respondent having presented a response to the claims, but now in administration and the administrators having given consent to the proceedings and on the information before the Judge, The judgment of the Tribunal is that:[1]The claimants’ complaints under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) of a failure by the respondent to comply with the requirements of section 188 of the 1992 Act are well-founded.[2]The Tribunal orders the respondent by way of protective award under section 189(3) of the 1992 Act to pay to the claimants a payment equivalent to remuneration for the period of 90 days beginning on 12 May 2018.[3]The respondent is advised of the provisions of Regulation 6 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996, such that, within 10 days of the decision in these proceedings being promulgated or as soon as is reasonably practicable, the respondent must comply with the provisions of Regulation 6 of the 1996 Regulations and, in particular, must supply to the Secretary of State the following information in writing: 3.1. the name, address and national insurance number of every employee to whom the award relates; and 3.2. the date of termination of the employment of each such employee.[4]The respondent will not be required to make any payment under the protective awards made until it has received a recoupment notice from the Secretary of State or notification that the Secretary of State does not intend to serve a recoupment notice Case Numbers 2413421/2018 & others (see schedule) Code P 2 having regard to the provisions of Regulation 7(2). The Secretary of State must normally serve such recoupment notice or notification on the employer within 21 days of receipt of the required information from the first respondent.[5]The claimants also claim unlawful deduction from wages contrary to section 13 of the Employment Rights Act 1996, redundancy payment in accordance with section 135 of the Employment Rights Act 1996, notice pay in accordance with section 86 of the Employment Rights Act 1996 - the right to minimum notice, breach of contract and holiday pay in accordance with regulation 14 of the Working Time Regulations 1998. The Tribunal determines all claims are well-founded and makes the following awards of compensation: Paul Barker[6]The respondent has made an unauthorised deduction from Paul Barker's wages and is ordered to pay the gross sum of £691.74.[7]Paul Barker was dismissed by reason of redundancy and is entitled to a redundancy payment of £6917.68.[8]The respondent failed to pay Paul Barker for his notice period and is ordered to pay the gross sum of £5435.32 Lee Collins[9]The respondent has made an unauthorised deduction from Lee Collins’ wages and is ordered to pay the gross sum of £797.44.[10]Lee Collins was dismissed by reason of redundancy and is entitled to a redundancy payment of £11,430.[11]The respondent failed to pay Lee Collins for his notice period and is ordered to pay the gross sum of £6835.32[12]The respondent failed to pay Lee Collins holiday pay on termination of employment and is ordered to pay the gross sum of £1287.30 Barry Gilmore[13]The respondent has made an unauthorised deduction from Barry Gilmore’s wages and is ordered to pay the gross sum of £872.97.[14]Barry Gilmore was dismissed by reason of redundancy and is entitled to a redundancy payment of £10,668.[15]The respondent failed to pay Barry Gilmore for his notice period and is ordered to pay the gross sum of £7482.48 Case Numbers 2413421/2018 & others (see schedule) Code P 3[16]The respondent failed to pay Barry Gilmore holiday pay on termination of employment and is ordered to pay the gross sum of £1035.09 Peter Balmforth[17]The respondent has made an unauthorised deduction from Peter Balmforth’s wages and is ordered to pay the gross sum of £335.09.[18]Peter Balmforth was dismissed by reason of redundancy and is entitled to a redundancy payment of £14,224.[19]The respondent failed to pay Peter Balmforth for his notice period and is ordered to pay the gross sum of £7482.48[20]The respondent failed to pay Peter Balmforth holiday pay on termination of employment and is ordered to pay the gross sum of £1035.09 Paul MacArthur[21]The respondent has made an unauthorised deduction from Paul MacArthur’s wages and is ordered to pay the gross sum of £807.66.[22]Paul MacArthur was dismissed by reason of redundancy and is entitled to a redundancy payment of £3556.[23]The respondent failed to pay Paul MacArthur for his notice period and is ordered to pay the gross sum of £4038.44[24]The respondent failed to pay Paul MacArthur holiday pay on termination of employment and is ordered to pay the gross sum of £2076.84 Joan Kelly[25]The respondent has made an unauthorised deduction from Joan Kelly’s wages and is ordered to pay the gross sum of £552.[26]Joan Kelly was dismissed by reason of redundancy and is entitled to a redundancy payment of £10,350.[27]The respondent failed to pay Joan Kelly for her notice period and is ordered to pay the gross sum of £4140[28]The respondent failed to pay Joan Kelly holiday pay on termination of employment and is ordered to pay the gross sum of £733.80 Thomas Hayes[29]The respondent has made an unauthorised deduction from Thomas Haye’s wages and is ordered to pay the gross sum of £830.76. Case Numbers 2413421/2018 & others (see schedule) Code P 4[30]Thomas Hayes was dismissed by reason of redundancy and is entitled to a redundancy payment of £6350.[31]The respondent failed to pay Thomas Hayes for his notice period and is ordered to pay the gross sum of £5711.53[32]The respondent failed to pay Thomas Hayes holiday pay on termination of employment and is ordered to pay the gross sum of £302.19 Steven Reader[33]The respondent has made an unauthorised deduction from Steven Reader’s wages and is ordered to pay the gross sum of £923.07.[34]Steven Reader was dismissed by reason of redundancy and is entitled to a redundancy payment of £10,992.[35]The respondent failed to pay Steven Reader for his notice period and is ordered to pay the gross sum of £6923.04[36]The respondent failed to pay Steven Reader holiday pay on termination of employment and is ordered to pay the gross sum of £335.75 James Quigley[37]The respondent has made an unauthorised deduction from James Quigley’s wages and is ordered to pay the gross sum of £846.14.[38]James Quigley was dismissed by reason of redundancy and is entitled to a redundancy payment of £6858.[39]The respondent failed to pay James Quigley for his notice period and is ordered to pay the gross sum of £6346.08 Fred McCrea[40]The respondent has made an unauthorised deduction from Fred McCrea’s wages and is ordered to pay the gross sum of £800.[41]The respondent failed to pay Fred McCrea for his notice period and is ordered to pay the gross sum of £500[42]The respondent failed to pay Fred McCrea holiday pay on termination of employment and is ordered to pay the gross sum of £50. Josiah Annan-Junior Case Numbers 2413421/2018 & others (see schedule) Code P 5[43]The respondent has made an unauthorised deduction from Josiah Annan-Junior’s wages and is ordered to pay the gross sum of £790.76.[44]The respondent failed to pay Josiah Annan-Junior for his notice period and is ordered to pay the gross sum of £494.23[45]The respondent failed to pay Josiah Annan-Junior holiday pay on termination of employment and is ordered to pay the gross sum of £49.42 Florian Cicu[46]The respondent has made an unauthorised deduction from Florian Cicu’s wages and is ordered to pay the gross sum of £960.[47]The respondent failed to pay Florian Cicu for his notice period and is ordered to pay the gross sum of £600[48]The respondent failed to pay Florian Cicu holiday pay on termination of employment and is ordered to pay the gross sum of £60 Sarah Crooks[49]The respondent has made an unauthorised deduction from Sarah Crook’s wages and is ordered to pay the gross sum of £676.91.[50]The respondent failed to pay Sarah Crooks for her notice period and is ordered to pay the gross sum of £423.07[51]The respondent failed to pay Sarah Crooks holiday pay on termination of employment and is ordered to pay the gross sum of £42.30 Terry Whittaker[52]The respondent has made an unauthorised deduction from Terry Whittaker’s wages and is ordered to pay the gross sum of £800.[53]The respondent failed to pay Terry Whittaker for his notice period and is ordered to pay the gross sum of £500[54]The respondent failed to pay Terry Whittaker holiday pay on termination of employment and is ordered to pay the gross sum of £50 Jonathan Lynch[55]The respondent has made an unauthorised deduction from Jonathan Lynch’s wages and is ordered to pay the gross sum of £872.97. Case Numbers 2413421/2018 & others (see schedule) Code P 6[56]Jonathan Lynch was dismissed by reason of redundancy and is entitled to a redundancy payment of £2286.[57]The respondent failed to pay Jonathan Lynch for his notice period and is ordered to pay the gross sum of £1870.59[58]The respondent failed to pay Jonathan Lynch holiday pay on termination of employment and is ordered to pay the gross sum of £362.89 Graham Hill[59]The respondent has made an unauthorised deduction from Graham Hill’s wages and is ordered to pay the gross sum of £945.70.[60]Graham Hill was dismissed by reason of redundancy and is entitled to a redundancy payment of £6604.[61]The respondent failed to pay Graham Hill for his notice period and is ordered to pay the gross sum of £6762.50[62]The respondent failed to pay Graham Hill holiday pay on termination of employment and is ordered to pay the gross sum of £270.50REASONS
[1]The claimants all worked for Canute UK Ltd and/or Canute Distribution Ltd. On 11 May 2018 these companies went into administration. On 12 May 2018 the respondent bought these companies.[2]The respondent presented a response in which it contended that the claimants had transferred their employment to other distribution companies, in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006, prior to the respondent’s purchase of the Canute companies.[3]On 18 November 2019 I determined that there was no such transfer and the claimants remained employed by the Canute companies immediately prior to the purchase by the respondent.[4]The respondent went into administration on 21 December 2018. The administrators are not participating or defending the claims and have consented to these proceedings.[5]On a full consideration of the file of proceedings it was possible to issue this Judgment under Rule 21 in respect of the claims without a hearing. Code P under the case number above reflects this. Case Numbers 2413421/2018 & others (see schedule) Code P 7[6]On the information provided, the Tribunal makes the following findings.[7]The respondent employed over 20 employees. The United Road Transport Union was recognised for collective bargaining, consultation and negotiation with the workforce.[8]The claimants were told at a meeting on 8 May 2018 that the Canute companies had lost the Tetrysol contract. On 11 May 2018 the claimants received a letter from the Canute companies purporting to advise them that their employment had transferred to other distribution companies that had taken over the Tetrysol contract.[9]Following the respondent’s purchase of the Canute companies, no proper warning or notice was given to or consultation with the workforce.[10]In these circumstances, the respondent is in breach of the duty under Section 188 of the 1992 Act and the Tribunal makes an award under Section 189 in favour of the claimants for the maximum protected period of 90 days commencing on 12 May 2018.[11]As a result of these findings the Tribunal also determines that the claims of unlawful deduction from wages contrary to section 13 of the Employment Rights Act 1996, redundancy payment in accordance with section 135 of the Employment Rights Act 1996, notice pay in accordance with section 86 of the Employment Rights Act 1996 - the right to minimum notice, breach of contract and holiday pay in accordance with regulation 14 of the Working Time Regulations 1998 are well founded and has made the awards of compensation for the following reasons: Paul Barker[12]Paul Barker received £494.12 gross basic pay per week/£98.82 per day. The respondent unlawfully deducted 7 days pay from Paul Barker.[13]Paul Barker worked for the Canute companies/respondent for 11 years. Paul Barker was born on 29 December 1970. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £494.12 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £494.12 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[14]Paul Barker worked for the Canute companies/respondent for 11 years. Paul Barker is entitled to notice pay at the rate of £494.12 for each completed year of employment. Case Numbers 2413421/2018 & others (see schedule) Code P 8 Lee Collins[15]Lee Collins received £569.61 gross basic pay per week/£113.92 per day. The respondent unlawfully deducted 7 days pay from Lee Collins.[16]Lee Collins worked for the Canute companies/respondent for 19 years. Lee Collins was born on 21 June 1969. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[17]Lee Collins worked for the Canute companies/respondent for 19 years. Lee Collins is entitled to notice pay at the rate of £569.61 for each completed year of employment.[18]Lee Collins had accrued 11.3 days of holiday entitlement on termination of his employment. Lee Collins is entitled to holiday pay at the rate of £113.92 per day. Barry Gilmore[19]Barry Gilmore received £623.54 gross basic pay per week/£124.71 per day. The respondent unlawfully deducted 7 days pay from Barry Gilmore.[20]Barry Gilmore worked for the Canute companies/respondent for 14 years. Barry Gilmore was born on 1 January 1958. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[21]Barry Gilmore worked for the Canute companies/respondent for 14 years. Barry Gilmore is entitled to notice pay at the rate of £623.54 for each completed year of employment.[22]Barry Gilmore had accrued 8.3 days of holiday entitlement on termination of his employment. Barry Gilmore is entitled to holiday pay at the rate of £124.71 per day. Peter Balmforth[23]Peter Balmforth received £623.54 gross basic pay per week/£124.71 per day. The respondent unlawfully deducted 14 days statutory sick pay from Peter Falmouth – 7 days at £30 per day and 7 days at £17.87 per day. Case Numbers 2413421/2018 & others (see schedule) Code P 9[24]Peter Balmforth worked for the Canute companies/respondent for 19 years. Peter Balmforth was born on 12 November 1959. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[25]Peter Balmforth worked for the Canute companies/respondent for 19 years. Barry Gilmore is entitled to notice pay at the rate of £623.54 for each completed year of employment.[26]Peter Balmforth had accrued 8.3 days of holiday entitlement on termination of his employment. Peter Balmforth is entitled to holiday pay at the rate of £124.71 per day. Paul MacArthur[27]Paul MacArthur received £576.92 gross basic pay per week/£115.38 per day. The respondent unlawfully deducted 7 days pay from Paul MacArthur.[28]Paul MacArthur worked for the Canute companies/respondent for 7 years. Paul MacArthur was born on 3 March 1979. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[29]Paul MacArthur worked for Canute companies/respondent for 7 years. Paul MacArthur is entitled to notice pay at the rate of £576.92 for each completed year of employment.[30]Paul MacArthur had accrued 18 days of holiday entitlement on termination of his employment. Paul MacArthur is entitled to holiday pay at the rate of £115.38 per day. Joan Kelly[31]Joan Kelly received £345 gross basic pay per week/£69.00 per day. The respondent unlawfully deducted 8 days pay from Joan Kelly.[32]Joan Kelly worked for the Canute companies/respondent for 22 years. Joan Kelly was born on 25 September 1950. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 she is entitled to one and a half week’s pay for each complete year of employment in which she was not below the age of forty-one Case Numbers 2413421/2018 & others (see schedule) Code P 10 with the respondent at the rate of £345 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[33]Joan Kelly worked for Canute companies/respondent for 22 years. Joan Kelly is entitled to notice pay at the rate of £345 for each completed year of employment up to the maximum of 12 years.[34]Joan Kelly had accrued 10.91 days of holiday entitlement (including basic holiday entitlement carried over from previous leave year of 8 days) on termination of her employment. Joan Kelly is entitled to holiday pay at the rate of £69 per day. Thomas Hayes[35]Thomas Hayes received £519.23 gross basic pay per week/£103.84 per day. The respondent unlawfully deducted 8 days pay from Thomas Hayes.[36]Thomas Hayes worked for the Canute companies/respondent for 11 years. Thomas Hayes was born on 14 September 1973. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[37]Thomas Hayes worked for Canute companies/respondent for 11 years. Thomas Hayes is entitled to notice pay at the rate of £519.23 for each completed year of employment.[38]Thomas Hayes had accrued 2.91 days of holiday entitlement on termination of his employment. Thomas Hayes is entitled to holiday pay at the rate of £103.84 per day. Steven Reader[39]Steven Reader received £576.92 gross basic pay per week/£115.38 per day. The respondent unlawfully deducted 8 days pay from Steven Reader.[40]Steven Reader worked for the Canute companies/respondent for 22 years. Steven Reader was born on 6 January 1966. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two Case Numbers 2413421/2018 & others (see schedule) Code P 11 with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[41]Steven Reader worked for Canute companies/respondent for 22 years. Steven Reader is entitled to notice pay at the rate of £576.92 for each completed year of employment up to the maximum of 12 years.[42]Steven Reader had accrued 2.91 days of holiday entitlement on termination of his employment. Steven Reader is entitled to holiday pay at the rate of £115.38 per day. James Quigley[43]James Quigley received £528.84 gross basic pay per week/£105.76 per day. The respondent unlawfully deducted 8 days pay from James Quigley.[44]James Quigley worked for the Canute companies/respondent for 12 years. James Quigley was born on 27 December 1973. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[45]James Quigley worked for Canute companies/respondent for 12 years. James Quigley is entitled to notice pay at the rate of £528.84 for each completed year of employment up to the maximum of 12 years. Fred McCrea[46]Fred McCrea received £500 gross basic pay per week/£100 per day. The respondent unlawfully deducted 8 days pay from Fred McCrea.[47]Fred McCrea worked for Canute companies/respondent for 1 week. Fred McCrea is entitled to one weeks notice pay.[48]Fred McCrea had accrued 0.5 days of holiday entitlement on termination of his employment. Fred McCrea is entitled to holiday pay at the rate of £100 per day. Josiah Annan-Junior[49]Josiah Annan-Junior received £494.23 gross basic pay per week/£98.84 per day. The respondent unlawfully deducted 8 days pay from Josiah Annan-Junior. Case Numbers 2413421/2018 & others (see schedule) Code P 12[50]Josiah Annan-Junior worked for Canute companies/respondent for 1 week. Josiah Annan-Junior is entitled to one weeks notice pay.[51]Josiah Annan-Junior had accrued 0.5 days of holiday entitlement on termination of his employment. Josiah Annan-Junior is entitled to holiday pay at the rate of £98.84 per day. Florian Cicu[52]Florian Cicu received £600 gross basic pay per week/£120 per day. The respondent unlawfully deducted 8 days pay from Florian Cicu.[53]Florian Cicu worked for Canute companies/respondent for 1 week. Florian Cicu is entitled to one weeks notice pay.[54]Florian Cicu had accrued 0.5 days of holiday entitlement on termination of his employment. Florian Cicu is entitled to holiday pay at the rate of £120 per day. Sarah Crooks[55]Sarah Crooks received £423.07 gross basic pay per week/£84.61 per day. The respondent unlawfully deducted 8 days pay from Sarah Crooks.[56]Sarah Crooks worked for Canute companies/respondent for 1 week. Sarah Crooks is entitled to one weeks notice pay.[57]Sarah Crooks had accrued 0.5 days of holiday entitlement on termination of her employment. Sarah Crooks is entitled to holiday pay at the rate of £84.61 per day. Terry Whittaker[58]Terry Whittaker received £500 gross basic pay per week/ £100 per day. The respondent unlawfully deducted 8 days pay from Terry Whittaker.[59]Terry Whittaker worked for Canute companies/respondent for 1 week. Terry Whittaker is entitled to one weeks notice pay.[60]Terry Whittaker had accrued 0.5 days of holiday entitlement on termination of his employment. Terry Whittaker is entitled to holiday pay at the rate of £100 per day. Graham Hill[61]Graham Hill received £676.25 gross basic pay per week/£135.25 per day. The respondent unlawfully deducted 7 days pay from Graham Hill. Case Numbers 2413421/2018 & others (see schedule) Code P 13[62]Graham Hill worked for the Canute companies/respondent for 10 years. Graham Hill was born on 10 February 1971. Therefore, in accordance with section 162(2)(a) of the Employment Rights Act 1996 he is entitled to one and a half week’s pay for each complete year of employment in which he was not below the age of forty-one with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019. In accordance with section 162(2)(b) of the Employment Rights Act 1996 he is entitled to one week’s pay for each complete year of employment in which he was not below the age of twenty-two with the respondent at the rate of £508 per week in accordance with Employment Rights (Increase of Limits) Order 2019.[63]Graham Hill worked for Canute companies/respondent for 10 years. Graham Hill is entitled to notice pay at the rate of £676.25 for each completed year of employment.[64]Graham Hill had accrued 2 days of holiday entitlement on termination of his employment. Graham Hill is entitled to holiday pay at the rate of £135.25 per day.