Mr O Ahmed v Create Construction Ltd (in Administration) and Secretary of State for Business, Energy and Industrial Strategy: 2414485/2021
JUDGMENT
[1]The claimant’s claim of unpaid wages against the first respondent is wellfounded. The claimant was entitled to the gross sum of £5,205.48 in respect of unpaid salary and the gross sum of £20,000.00 in respect of an unpaid contractual bonus payment. The claimant has received the sum of £1,504.00 from the Insolvency Service. The first respondent is ordered to pay the claimant the balance of £23,701.48.[2]The claimant’s claim of breach of contract (unpaid notice pay) against the first respondent is well-founded. The claimant is entitled to the gross sum of £19,000. The claimant has received the sum of £784.00 from the Insolvency Service. The first respondent is ordered to pay the claimant the balance of £18,216.00.[3]The claimant’s claim in respect of payment for annual leave accrued but untaken at the date of termination of employment against the first respondent is well-founded. The claimant is entitled to the gross sum of £409.23. The claimant has received the sum of £170.05 from the Insolvency Service. The first respondent is ordered to pay the claimant the balance of £239.18.[4]The claimant’s claim in respect of breach of contract (unpaid expenses) against the first respondent is well-founded. The first respondent is ordered to pay the claimant the sum of £213.52.REASONS
[1]The claimant was dismissed by reason of redundancy on 25 October 2021 due to the collapse of the first respondent, which subsequently entered administration on 27 October 2021.[2]The claimant was not paid his wages for the work he had done in October, nor was he paid notice pay, nor outstanding accrued holiday pay.[3]The claimant brought claims for these sums by way of a claim form presented to the Tribunal on 12 November 2021. He also brought a claim for a Protective Award under s.189 Trade Union and Labour Relations (Consolidation) Act 1992. The Tribunal received numerous claims from other former employees in similar circumstances.[4]By a letter dated 29 November 2021, the Administrators gave their consent for the claimant’s Tribunal claim to proceed. That consent was not limited (as is often the case) to the claim for the Protective Award.[5]The Protective Award claims were dealt with first, and, following a hearing on 30 August 2022, a Judgment was issued making a Protective Award in respect of a group of claimants, including Mr Ahmed. The Tribunal then wrote to those claimants who had other claims (and had the Administrators’ consent to pursue those claims) to confirm if they wished to do so.[6]This hearing was listed following Mr Ahmed’s indication that he wished to pursue his remaining claims against the respondent. Mr Ahmed gave evidence as to his employment and the circumstances of its termination, including the date of termination. I accept he was dismissed by an email sent, and received, on 25 October 2021, notwithstanding that the letter of dismissal attached to that email was dated 21 October 2021.[7]Mr Ahmed gave evidence about the £20,000 bonus payment he says he was due. This is expressly acknowledged in the dismissal latter which stated that he was entitled to “payment of your outstanding bonus for the completion of Discovery Quay 1 Salford, which when calculated using your contractual bonus clause gives an overdue entitlement of £20,000.” I find that Mr Ahmed’s entitlement to this bonus was contractual, not discretionary, and that his claim is for a quantified sum of £20,000.00.[8]Mr Ahmed also gave evidence about the period for which he did not receive wages, his contractual notice entitlement and his holiday pay entitlement. He produced calculations for these amounts which I was satisfied were accurate, save in respect of holiday where I was satisfied that the calculation was not in accordance with the formula set out at Regulation 14(b) Working Time Regulations 1998. I applied the formula and agreed with Mr Ahmed a slightly reduced figure set out above.[9]Accordingly, I am satisfied on the basis of Mr Ahmed’s uncontested evidence that the sums set out in the Judgment are sums owed by the first respondent. Mr Ahmed had kept a record of the sums he has received from the Insolvency Service, and these have been deducted from the sums ordered to be paid by the first respondent, so as to avoid any double recovery.[10]I have explained to Mr Ahmed that the fact that he now has a Judgment does not mean that he will be able to recover those sums in full out of the Administration. The extent to which he will actually receive payment is a matter between him and the Administrators.[11]The second respondent did not employ Mr Ahmed. It is a party to the claim in its capacity as statutory guarantor. For the avoidance of doubt, this Judgment does not purport to place any additional liability on the second respondent.