Mr D Gibbons and others v Lunar Automotives Ltd: 2418207/2020 and 2401024/2021
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 and Rule 60 Judgments having already been issued for some of the claims brought by some of these claimants, upon the claimants having provided further information, judgment is given in relation to some or all of their remaining claims on the basis of no response having been presented or on the basis of admissions in the response, as follows: Mr S Ashby[1]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on 6 days (10 April 2020, 13 April 2020, 8 May 2020, 25 May 2020, 31 August 2020 and 1 November 2020). The respondent is ordered to pay damages to the claimant in the sum of £90.23. This is a net sum but is based on the claimant’s gross pay because no net figure has been provided and the difference between the gross and net sum is likely to be very small, if any. Note on amount of damages: no figure was provided by the claimant for the amount of damages claimed, but 10 days’ holiday at 100% full pay was stated to be £751.92, so one day’s full pay was £75.19. £90.23 is 20% of 6 x £75.19. Mr L Conroy-Phillips[2]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on 7 days in the period from 10 April 2020 until termination of employment. The respondent is ordered to pay damages to the claimant in the sum of £128.31. This is a net sum but is based on the claimant’s gross pay because no Case Numbers: 2418207/2020 and others (see schedule) net figure has been provided and the difference between the gross and net sum is likely to be very small, if any. Note on amount of damages: no figure was provided by the claimant for the amount of damages claimed, but 10 days’ holiday at 100% full pay was stated to be £916.50, so one day’s full pay was £91.65. £128.31 is 20% of 7 x £91.65. Mr D Gibbons[3]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on 5 days (10 April 2020, 13 April 2020, 8 May 2020, 25 May 2020, 31 August 2020). The respondent is ordered to pay damages to the claimant in the sum of £115.38. This is a net sum but is based on the claimant’s gross pay because no net figure has been provided and the difference between the gross and net sum is likely to be very small, if any.[4]Mr Gibbons’ complaints of constructive unfair dismissal and for failure to pay in lieu of accrued but untaken holiday on termination of employment will be determined at a final hearing. Ms D J Hilliard[5]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 1 September 2020 to 23 November 2020 inclusive and is ordered to pay the claimant the gross sum of £7270.[6]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on 5 days (10 April 2020, 13 April 2020, 8 May 2020, 25 May 2020, 31 August 2020). The respondent is ordered to pay damages to the claimant in the sum of £104.90.[7]The respondent has made an unauthorised deduction from the claimant's wages by failing to pay the claimant in lieu of accrued but untaken holiday entitlement and is ordered to pay the claimant the gross sum of £1,653.80.[8]Ms Hilliard’s complaint of constructive unfair dismissal will be determined at a final hearing. Mr J Kilshaw[9]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on 5 days (10 April 2020, 13 April 2020, 8 May 2020, 25 May 2020 and 31 August 2020). The respondent is ordered to pay damages to the claimant in the sum of £93.44. This is a net sum but is based on the claimant’s gross pay because no net figure has been provided and the difference between the gross and net sum is likely to be very small, if any. Case Numbers: 2418207/2020 and others (see schedule) Note on amount of damages: no figure was provided by the claimant for the amount of damages claimed, but 9 days’ holiday at 100% full pay was stated to be £840.96, so one day’s full pay was £93.44. £93.44 is 20% of 5 x £93.44.[10]Mr Kilshaw’s complaint of constructive unfair dismissal will be determined by a further judgment under rule 21 or at a final hearing. Mr K Lowe[11]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 1 September 2020 to 16 November 2020 inclusive and is ordered to pay the claimant the gross sum of £2,553.12.[12]The respondent was in breach of contract by not paying the claimant (at the rate of 100% of normal pay) during his 12 weeks’ notice period and the respondent is ordered to pay damages to the claimant in the sum of £3546.72. This is a net sum but is based on the claimant’s gross pay because it is likely that upon receipt the claimant will have to pay tax on this amount.[13]The claimant was dismissed by reason of redundancy and is entitled to a redundancy payment of £8,866.80.[14]The respondent has made an unauthorised deduction from the claimant's wages by failing to pay the claimant in lieu of accrued but untaken holiday entitlement and is ordered to pay the claimant the gross sum of £1004.87.[15]The complaint about underpayment for holiday taken during furlough will be the subject of a further judgment on paper or will be determined at a final hearing. Mr C McCulloch[16]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 1 September 2020 to 10 December 2020 inclusive and is ordered to pay the claimant the gross sum of £6,420.10.[17]The complaint about underpayment for holiday taken during furlough will be the subject of a further judgment on paper or will be determined at a final hearing. Mr W Roxburgh[18]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 1 September 2020 to 4 December 2020 inclusive and is ordered to pay the claimant the gross sum of £6,063.42. Case Numbers: 2418207/2020 and others (see schedule)[19]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 5 December 2020 to 4 April 2021 inclusive and is ordered to pay the claimant the gross sum of £7,579.28.[20]The respondent was in breach of contract by constructively dismissing the claimant without notice and the respondent is ordered to pay damages to the claimant in the sum of £6,687.60. This is a net sum but is based on the claimant’s gross pay because it is likely that upon receipt the claimant will have to pay tax on this amount.[21]The claimant was constructively dismissed by reason of redundancy and is entitled to a redundancy payment of £16,140.[22]The respondent was in breach of contract by paying the claimant at the rate of 80% rather than 100% of normal pay for holiday taken on the following bank holidays: 25 December 2020, 28 December 2020, 1 January 2021, 2 April 2021 and 5 April 2021. The respondent is ordered to pay damages to the claimant in the sum of £156.04.[23]The respondent has made an unauthorised deduction from the claimant's wages by failing to pay the claimant in lieu of accrued but untaken holiday entitlement and is ordered to pay the claimant the gross sum of £2,151,18.[24]The claimant was constructively unfairly dismissed. No award of compensation is made since the claimant is entitled to be paid a statutory redundancy payment and no basic award is, therefore, payable, and the claimant does not claim a compensatory award.[25]The complaint about underpayment for holiday taken in the period 10 April to 31 August 2020 will be the subject of a further judgment on paper or will be determined at a final hearing. Mr P Shelley[26]The respondent has made an unauthorised deduction from the claimant's wages by not paying wages to the claimant (at the rate of 80% of normal pay) in the period 1 September 2020 to 3 December 2020 inclusive and is ordered to pay the claimant the gross sum of £10,272.44.[27]The complaint in relation to employee pension contributions is dismissed since the claimant was not a member of the pension scheme.[28]The complaint about underpayment for holiday taken will be the subject of a further judgment on paper or will be determined at a final hearing. Mr D Unsworth[29]The respondent has made unauthorised deductions from the claimant’s wages by deducting amounts described as being for employee pension contributions but which were not paid to Case Numbers: 2418207/2020 and others (see schedule) the pension scheme in the period 22 August 2019 to 21 August 2020 inclusive and the respondent is ordered to pay the claimant the gross sum of £1449.24.[30]The complaint about underpayment for holiday taken will be the subject of a further judgment on paper or will be determined at a final hearing. Complaints in relation to employee pension contributions[31]The complaints of the following claimants in relation to employee pension contributions are stayed in accordance with separate case management orders: Mr S Ashby, Miss C Cookson, Mr C Dzydzan, Mr P Frazer, Mr R Gilfoyle, Mr D Gibbons, Ms D Hilliard, Mr J Kilshaw, Mr K Lowe, Mr C McCulloch, Mr J McGrath, Mr I Roe, Mr W Roxburgh, Mr D Shelley.REASONS
[1]The claims were dismissed by a judgment sent to the parties on 21 May 2024 on the grounds that they had not actively been pursued.[2]By a letter dated 29 May 2024, the claimants applied for reconsideration of the judgment on the grounds that no strike out warning had been sent before the claims were struck out and asking for a further period of time for the claimants to consider their options in respect of pursuing the litigation further.[3]The judgment referred to a number of letters sent to the claimants. Whilst the letter of 1 February 2023 did contain a strike out warning, the subsequent letter of 2 April 2024 informed the claimants (amongst other claimants) that failure to respond to that letter within the required time period would result in a strike out warning, rather than saying that the claims may be struck out. In the circumstances, I consider it in the interests of justice to revoke the judgment and give the claimants a further opportunity to say why their claims should not be struck out as being actively pursued in response to a separate letter to be sent to the claimants.