Employment Judge MalikClaimant attended via CVP link for claimantNot represented for respondentDate 12 April 2022
JUDGMENT
[1]It was not reasonably practicable for the claim to have been presented within three months of the effective date of termination and unauthorised deduction and it was presented within a further period which was reasonable. The Tribunal has jurisdiction to deal with it.[2]Upon hearing the claimant and upon the respondent not attending, the judgment of the Tribunal is that:a. The complaint of unfair dismissal is well founded and succeeds;b. The complaint relating to outstanding holiday pay on termination of employment is well founded and succeeds;c. The complaint seeking a redundancy payment was dismissed upon withdrawal by the claimant.[3]Further information is required on the amounts claimed and a determination of remedy in relation to each of the claimant’s successful complaints will be considered by
REASONS
Preliminary matters and Issues for the tribunal to decide[1]The claim was issued in the Manchester Employment Tribunals on 9 November 2021. The respondent has failed to present a valid response on time. I have decided that a determination can properly be made of the claim in accordance with rule 21 of the Rules of Procedure.[2]The claimant brings claims of unfair dismissal and unpaid holiday pay. The claimant withdrew the claim seeking a redundancy payment at the outset of the hearing.[3]The claimant was employed by the respondent as barback (a bartender’s assistant) on a zero hour contract. His employment with the respondent began on 17 July 2009 and ended on 5 April 2021.[4]The claimant was not made aware of his employment being terminated until September 2021 following numerous attempts to contact his manager. He only became aware of the termination following a discussion with HMRC in September 2021.[5]Once aware, the claimant presented his claim within 3 months of the date of his knowledge. ACAS Early Conciliation was commenced on 29 October 2021 and ended with the issue of the ACAS certificate on 8 November 2021. The claim form was presented on 9 November 2021.[6]The Tribunal is satisfied that it was not reasonably practicable for the claim to have been presented within 3 months of the deduction/dismissal and that it was presented within a further period which was reasonable. Procedure, Hearing & Evidence[7]The claimant attended the hearing via CVP link.[8]The respondent did not attend. Correspondence was received from their representative on 14 March 2022 confirming that the respondent had not traded since the pandemic and that it did not have anyone in a position to attend the hearing.[9]The respondent is still listed as an active company on Companies House.[10]The only papers before the Tribunal were the ET1 Claim Form and an attached letter from the claimant purporting to be his witness statement and accepted as such.[11]The claimant gave evidence on affirmation and answered questions from the Tribunal. 2 of 5
Issues
[12]To determine the claims I need to consider the following issues: Unfair Dismissal[13]In dealing with the claim of unfair dismissal:a. Is claimant an employee as defined in section 230 of the Employment Rights Act 1996?b. Was the claimant continuously employed for not less than 2 years at the effective date of termination as required by Section 108 of the Employment Rights Act 1996?c. Was there a dismissal?d. If so, when did the claimant’s employment terminate?e. If so, what was the principal reason for the dismissal and was it a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996? Holiday Pay[14]In dealing with the issue of unpaid holiday pay:a. Was the Claimant entitled to leave?b. What was the relevant leave year?c. How much leave taken? Findings of Fact The claimant’s contract
Findings of Fact
[15]The respondent business is a bar/restaurant. The claimant started to work for the respondent as a barback in July 2009 on a zero hours contract. He later progressed to the role of a bartender. He had a written contract of employment and was defined as an employee in accordance with section 230 of the Employment Rights Act. 3 of 5[16]The claimant had been continuously employed for a period of more than 2 years at the time of the effective date of termination as required by section 108 of the Employment Rights Act.[17]In the immediate months prior to March 2020, the claimant was averaging 4.75 hours a week at a rate of £8.50 per hour.[18]Following the announcement of the national lockdown in March 2020 the respondent stopped trading and did not reopen their doors.[19]The respondent paid the claimant furlough pay up to 31 July 2020. The dismissal[20]In the period from 22 March 2020 onwards the claimant made numerous attempts to contact management to ascertain the position on his employment. These proved futile.[21]In/around September 2020, the claimant was informed by other colleagues that HMRC had notified them that their employment had been terminated.[22]The claimant contacted HMRC in September 2021 and was told that his contract had been terminated on 5 April 2021. The dismissal in these circumstances falls under section 95 (1)(a) of the Employment Rights Act 1996 whereby the employer terminated the contact without notice.[23]The respondent did not inform the claimant that his employment had been terminated and no procedure or process was followed. Holiday pay[24]The contract of employment confirmed that the claimant was entitled to 5.6 weeks holiday leave per year.[25]The leave period for holiday ran from 1st February to 31st January.[26]The claimant did not take any holiday in this time period.[27]The claimant was entitled to be paid in lieu of accrued but untaken holiday on termination of employment.
Conclusions
[28]The respondent did not give notice to the claimant to terminate employment and no reason was provided for the dismissal pursuant to Sections 95 and 98 of the Employment Rights Act 1996. The dismissal was unfair.[29]The respondent made an unlawful deduction from wages in failing to pay the claimant for accrued but untaken holidays. 4 of 5 EMPLOYMENT TRIBUNALS Claimant: Respondent: Mr E Horta v Playworks Limited Heard at: Manchester On: 7 June 2022 (paper only) Before: Employment Judge Malik REMEDY HEARING JUDGMENT
Conclusions
[1]Following a hearing on liability on 16 March 2022 the case was listed on 7 June for a paper only remedy hearing.[2]The claimant provided the Tribunal with further information (in writing) in response to a Case Management Order dated 12 April 2022.[3]On review of the additional papers, the judgment of the Tribunal is that the respondent shall pay to the claimant compensation for his complaints of unfair dismissal and holiday pay in the total sum of £2232.74 calculated as follows: Unfair dismissala. Basic award for 11 years completed service from age of 25 to 37 years and applying an average week’s pay of £72.54 (1 x £72.54 x11) = £797.94b. Immediate loss of earnings from effective date of termination on 5 April 2021 for 6 weeks applying net average pay of £53.81 (6 x £53.81) = £322.86c. Loss of statutory rights = £500d. Uplift to compensatory award of 25% reflecting respondent’s total failure to comply with the ACAS Code of Practice relating to disciplinary and grievance procedures (£322.86 + £500 x 25%) = £205.72e. Total for compensatory award is the sum of 3b, 3c and 3d = £1028.58. 1 of 3f. Subtotal for unfair dismissal = (Basic award £797.94 plus total of Compensatory award £1028.58) = £1826.52 Holiday Payg. The claimant was entitled to 5.6 weeks annual leave each year and did not take any leave in his final year employed by the respondent, (5.6 x £72.54 being an average week’s pay) = £406.22h. Subtotal for holiday pay = £ 406.22 Total of unfair dismissal and holiday payi. Total of Unfair dismissal and holiday is £2232.74 The Recoupment Regulations do not apply to this judgment and award of compensation. Employment Judge Malik 26 July 202227 July 2022 2 of 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number: 2414439/2021 Name of case: Mr E Horta v Playworks Ltd The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant judgment day" is: 27 July 2022 "the calculation day" is: 28 July 2022 "the stipulated rate of interest" is: 8% For the Employment Tribunal Office 3 of 3