Miss R Dicocco v Greenbrow Social Club Ltd (In Administration) and The Secretary of State for Business, Energy and Industrial Strategy: 2420720/2020
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The first respondent has indicated in its response that it does not resist the claimant’s claims. The Employment Judge has decided that a determination can properly be made of the claims, as set out below, under rule 21 of the Rules of Procedure.[2]Following the postponement of the hearing on 12 October 2022, the Tribunal has received, on 18 October 2022, consent from the Joint Administrator of the first respondent to the claims of this claimant proceeding. References to the bundle are to the bundle prepared for the postponed hearing on 12 October 2022. The claimant has since provided the Tribunal, by email of 9 November 2022, with answers to the questions that it raised, and supporting documentation.[3]The claimant was employed by the first respondent from 29 October 2015 until 3 November 2020. Her date of birth is 9 February 1989, making her 31 at the date of her dismissal. All her years of service were therefore over the age of 21.[4]Whilst she has stated that her weekly pay was £130.00, evidence from the wages clerk that the claimant has included with her email of 9 November 2022 shows that it was actually £130.80.[5]The claimant complains of unfair dismissal, which claim succeeds. The claimant is entitled to a basic award. She had 5 completed years of service at the date of her dismissal, so her entitlement is to 5 weeks’ pay by way of a basic award of : 5 x £130.80 = £654.00 The basic award is the same as a statutory redundancy payment, and the claimant cannot recover both. The Tribunal will make the award as a basic award for unfair dismissal.[6]Further this claimant has ticked the box for notice pay, and would be entitled to 5 weeks’ notice (that being her statutory entitlement, unless he had any greater contractual entitlement). That too, would be £654.00, but would be payable net (although it is unlikely there would be any tax liability), and would be subject to deductions for any sums earned in the notice period, or any benefits received during it, and paid to her because of the dismissal. The claimant has confirmed that she did not receive any benefits.[7]The claimant, however, in her document at page 26 of the bundle, in which she sets out her claim (which she sent to the respondent) also seeks compensation of one week’s pay for every week between the date of her dismissal, and the date of the original hearing on 17 August 2021. The first respondent, however, went into Administration on 21 July 2021 and the Tribunal accordingly considers that it is more likely than not that the claimant’s employment would have ended then in any event. That is a period of 37 weeks from the date of dismissal.[8]The claimant has provided further information by email of 9 November 2022, in which she explains that she did not obtain alternative employment in the period after her dismissal up to the date of the Administration, as she had another job, nor did she claim benefits.[9]Her losses therefore are the earnings she would have received between 3 November 2020 and 21 July 2021, after the initial 5 weeks notice period, as the claimant cannot claim twice in respect of the same period.[10]Based on weekly earnings of £130.80 per week, her compensatory award for loss of earnings is accordingly: 32 weeks x £130.80 = £4185.60[11]The Tribunal, given that the claimant’s employment would have ended in any event upon the Administration, does not consider it just and equitable to make any award in respect of loss of statutory rights.[12]Finally, the claimant makes a claim for holiday pay, which in her document at page 26 she calculates at £478.73, based on 3.66 weeks untaken holiday entitlement. This is the sum that has been notified to her by the wages clerk.[13]To summarise, therefore, the awards of the Tribunal for Miss Dicocco are Basic Award for Unfair Dismissal £654.00 Compensatory Award for Unfair Dismissal £4185.60 Notice pay £654.00 Holiday Pay £ 478.73 Total: £5972.33 which sums the respondent is ordered to pay the claimant.[14]The recoupment regulations do not apply, and all payments are to be made in the gross sums where awarded, the claimant remaining liable to account to HMRC for any tax and national insurance contributions due upon them.[15]No judgment is made against the second respondent at this stage. If the claimant does not notify the Tribunal within 3 months that she wishes to pursue any claims against the second respondent, the Tribunal will close its file.[16]Whilst the claims by Miss H Grogan were combined, there are issues in her case that require further enquiry , and her claims cannot yet be finalised. A separate judgment will be issued in respect of her claims.