S El-Fargali v M Brown: 2415291/2021
JUDGMENT
The complaint of unfair dismissal is struck out.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than 2 years’ service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than 2 years. Therefore, the claimant is not entitled to bring a complaint of unfair dismissal.[4]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[5]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaint is not affected by this judgment and shall proceed to a hearing on 9 June 2022. _____________________________ Employment Judge Batten Date: 1 June 2022[1]The respondent did not make an unauthorised deduction from wages in relation to wages due for November 20211.[2]The respondent made unauthorised deductions from wages by failing to pay the claimant in lieu of accrued but untaken annual leave on termination of employment and is ordered to pay to the claimant the sum of £1753.26, being the gross sum due. 1 In oral judgment the figure of £2404.48 was wrongly given for gross salary due to the Clamant for 1-23 November 2022 (inclusive). The correct figure is £2,462.13, calculated using the following formulation based on the agreed gross annual rate of pay, £39,073.08 / 365 x 23 =£2,462.13. A net salary payment of £2000 was made to the claimant for this period, grossed up for 20% basic rate of tax alone, as the claimant had already exhausted her tax free allowance, (2000/80 x 100=£2500) this would exceed £2462.13 gross due. Case No: 2415291/2021 2[3]The respondent was in breach of contract by dismissing the claimant without the six weeks’ notice to which she was entitled, and the respondent is ordered to pay the claimant damages of £4,508.40 for that breach, being the gross sum. The award is for net loss but damages has been calculated using agreed gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay.[4]The Respondent is ordered to pay the claimant additional compensation of £10882 (that being two week’s pay subject to the relevant statutory cap of £544 per week) pursuant to section 38 Employment Act 2002 for failure to provide the claimant with a written statement of employment particulars.