Mr J Clough v ABG Couriers Ltd (in administration): 2414214/2021
JUDGMENT
(1) The claimant confirmed that he did not wish to proceed with his complaint of disability discrimination, but because no formal application had been made for permission to include this complaint, there was no need to formally dismiss this complaint upon withdrawal by the claimant as it had never formally been accepted as a complaint to determine at the final hearing.(2) Although the respondent had indicated to the claimant that he was given notice of his dismissal on 31 July 2022, the claimant was not given formal notice of his dismissal until 4 September 2022 when he received a copy of the letter informing him that he had been dismissed.(3) The claimant was summarily dismissed on 4 September 2022, but the employer was not entitled to do so, and the claimant is entitled to statutory notice under section 86 Employment Rights Act 1996.(4) The claimant was entitled to 9 weeks statutory notice based upon his 9 years completed service from 15 October 2011 until 4 September 2021.(5) Consequently, the claimant’s effective date of termination (‘EDT’) is extended until the date when that statutory notice had ended. This means that the EDT was 6 November 2021.(6) The claimant was not paid any salary from the respondent’s asserted EDT of 1 August 2021 until he was notified of his dismissal on 4 September 2021. Accordingly, as this period of the loss of earnings claimed did not form part of post-EDT loss of earnings, the claimant was permitted to amend his claim to include a complaint of unlawful deduction of wages contrary to section 13 Employment Rights Act 1996. This effectively constitutes a ‘relabelling’ of the existing complaints brought and was clearly contemplated within the claim form and the claimant’s schedule of loss. Considering the claimant’s unrepresented status, this decision was in the interests of justice and in accordance with the overriding objective under Rule 2.(7) As a consequence, the complaint of unfair dismissal is well founded and succeeds. This is subject to: a) the compensatory award being limited by reason of the claimant being determined as unfit for work by the DWP and therefore in receipt of Personal Independence Payments (‘PIP’) from 17 September 2021. b) The compensatory award being subject to an uplift of 25% by reason of the failure by the respondent to follow in any real way the code of practice provided by ACAS in relation to disciplinary procedures and contrary to section 207A Trade Union and Labour Relations (Consolidation) Act 1992.(8) The complaint of failure to pay notice pay is well founded and succeeds in that contrary to section 86, the claimant is entitled to statutory notice pay of 9 weeks’ from 4 September 2021.(9) The complaint of unlawful deduction of wages is well founded and succeeds and the claimant is entitled to unpaid wages from 1 August 2021 until 4 September 2021.(10) The complaint of holiday pay is well founded and succeeds and the claimant is entitled to unpaid holiday pay in respect of 5.6 weeks pay.(11) The respondent shall pay to the claimant compensation in respect of her successful complaint in the sum of £15,378.45 (Fifteen Thousand, Three Hundred and Seventy-Eight Pounds Forty-Five Pence) and calculated as follows: Unfair dismissal Subtotal/Total Basic award[1]Completed years of service at date of effective termination = 9 years Weeks pay = £449.50[3]Years of completed service where the claimant was aged 41 years or over = 9 (therefore 1 ½ weeks pay for each completed year)[4]Calculation for redundancy payment is therefore: (£449.50 x 9) x 1 ½ = £6068.25 £6068.25 Compensatory award[1]The claimant was declared to be unfit for work by DWP and in receipt of PIPs from 17 September 2021, (until a review in 2024).[2]As the EDT was 6 November 2021, the claimant would not have been fit to work from this date and was in receipt of relevant benefits.[3]Accordingly, no compensatory award is payable in respect of immediate loss of earnings as the claimant remains unfit for work.[4]The claimant is entitled to an award for loss of statutory rights and this is calculated at £400[5]Taking into account the 25% uplift for the respondent’s failure to comply with ACAS guidance, this is increased to £500 £500.00 Unpaid wages[1]The claimant was not paid his wages from 1 August 2021 until the date when he was informed of his dismissal by letter on 4 September 2021.[2]His gross weekly pay was £449.50. 3. 5 weeks x £449.50 = £2247.50 £2247.50 Notice Pay[1]The claimant did not receive his statutory notice pay of 9 weeks from 4 September 2021 until 6 November 2021.[2]His gross weekly pay was £449.50 3. 9 weeks x £449.50 = £4045.50 £4045.50 Holiday Pay[1]The claimant was entitled to 5.6 weeks’ paid holiday in the most recent leave year before the EDT.[2]The claimant had not taken any of this leave entitlement by the EDT.[3]His gross weekly pay was £449.50 4. 5.6 weeks x £449.50 = £2517.20 Subtotal £15,378.45 Grand total £15,378.45 Recoupment Prescribed Element – nil (no relevant award made in respect of the period between the EDT and the date of today’s hearing. Prescribed Period – 6 November 2021 (EDT) to 28 September 2022 (final hearing) Total Award - £15,378.45 Balance – nil (the prescribed element being nil) Note 1: The claimant confirmed that he has been in receipt of benefits from the DWP, including PIP payments and confirmed to me that he understands that he may need to discuss the question of recoupment of benefits with the DWP regardless of the information provided above concerning recoupment. Note 2: At the date of the hearing, the Tribunal noted that the respondent company’s administrators have applied to Companies House on 9 August 2022, made an application to proceed from administration to dissolution of the company. The Companies House record does not indicate that any further steps have been taken with this administration, but it is understood that the claimant will contact the administrator to discuss this judgment as soon as possible. suspended following an application made by the claimant on 16 February 2022. It is understood that this suspension will remain in place for a period of 6 months until August 2022, and it will then be lifted or extended should the claimant or another make an appropriate application.