Miss J Morris v 55th Club Preston Ltd: 2424272/2017
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The time for presenting a response having expired and no valid response having been presented, it is the judgment of the tribunal that:[1]The claimant’s complaint of unfair dismissal is well founded and succeeds. The claimant is entitled to a basic award. She had 23 years of continuous service, and was 57 at the date of her dismissal. Her weekly wage was £135.00 Basic Award : 28 x £135.00 £3,780.00 Whilst the claimant has also claimed a redundancy payment, and it seems likely she was redundant, in the absence of the respondent advancing this potentially fair reason for dismissal, the Tribunal makes a finding of unfair dismissal, and dismisses the claim for a redundancy payment.[2]In relation to the compensatory award, the claimant will receive a notice pay award as set out below, in respect of 12 weeks notice. Whilst the claimant has sought compensation based on losses to the date of hearing , and beyond, it seems likely that the respondent ceased trading on, or shortly after, the claimant’s dismissal, and that her employment would have ended in any event during the notice period. The Tribunal accordingly does not propose to award any further sum in respect of loss of earnings, given that the claimant will receive 12 weeks’ pay which will be co-terminous with the first 12 weeks of her loss of earnings for the purposes of any compensatory award. For the same reasons the Tribunal does not propose to make any award for loss of statutory rights or loss of long notice. If, however, the claimant wishes to pursue such claims, she is to notify the Tribunal within 14 days of receipt of this judgment and seek a remedy hearing.[3]The claimant’s complaint of failure to pay to the claimant an amount due to the claimant under regulation 14 (2) or regulation 16 (1) of the Working Time Regulations 1998 is well-founded and the respondent shall pay to the claimant the sum of 540.00 in respect of 72 hours untaken, at £7.50 per hour, but accrued holiday (holiday pay). This 5.9 is a gross sum, from which the appropriate deductions for tax and national insurance should be made.[4]The claimant’s complaint of breach of contract is well – founded and she entitled to twelve week’s pay in respect of notice, the claimant having confirmed that she received no earnings during the notice period. Her notice pay entitlement ios therefore 12 x £135 , £1,620.00. She did, however, receive benefits in the total sum of £620.04 . The respondent is ordered to pay her the sum of £999.96, as damages for breach of contract. This is a gross sum, from which the appropriate deductions for tax and national insurance should be made.[6]The recoupment regulations do not apply.[7]The hearing on 25 April 2018 is cancelled. P C Holmes[1]The claimant’s claim for a redundancy payment is well founded and succeeds. The claimant is entitled to a redundancy payment. She had 23 years of continuous service, and was 57 at the date of her dismissal. Her weekly wage was £135.00 Redundancy Payment : 28 x £135.00 £3,780.00 Whilst the claimant has also claimed unfair dismissal, the Tribunal dismisses the same on withdrawal by the claimant..[2]The claimant’s complaint of failure to pay to the claimant an amount due to the claimant under regulation 14 (2) or regulation 16 (1) of the Working Time Regulations 1998 is well-founded and the respondent shall pay to the claimant the sum of 540.00 in respect of 72 hours untaken, at £7.50 per hour, but accrued holiday (holiday pay). This is a gross sum, from which the appropriate deductions for tax and national insurance should be made.[4]The claimant’s complaint of breach of contract is well – founded and she entitled to twelve week’s pay in respect of notice, the claimant having confirmed that she received no earnings during the notice period. Her notice pay entitlement ios therefore 12 x £135 , £1,620.00. She did, however, receive benefits in the total sum of £620.04 . The respondent is ordered to pay her the sum of £999.96, as damages for breach of contract. This is a gross sum, from which the appropriate deductions for tax and national insurance should be made. 5.9[5]The hearing on 25 April 2018 is cancelled.REASONS
[1]By a judgment sent to the parties on 9 February 2018, the Tribunal entered judgment for the claimant , the respondent having served no response, on claims that she had presented for unfair dismissal, a redundancy payment, breach of contract, and unpaid holiday pay.[2]The claimant’s representatives had supplied the Tribunal with a Schedule of Loss, setting out what sums were being claimed. As that document clearly proposed that the Tribunal make awards for unfair dismissal, referring as it did to a “basic” award and a “compensatory” award, under which additional sums were sought, the Tribunal proceeded on the basis that the claimant sought awards for unfair dismissal, and , in addition to the awards for notice pay and unpaid holiday pay, made such awards , dismissing the claim for a redundancy payment.[3]By letter of 14 February 2018 the claimant’s representatives, however, asked the Tribunal to reconsider its judgment in relation to the unfair dismissal claim, seeking instead a redundancy payment, it being the claimant’s case that she was actually dismissed for redundancy, and she wishes to seek a redundancy payment, which she can thereafter pursue through the Insolvency Service.[4]Under rule 70 of the 2013 rules of procedure, the only ground for reconsideration is that it would be in the interests of justice to grant a reconsideration. In this instance, it clearly would be. As observed, the Tribunal has already found that the claimant was in fact redundant, and declined to award her by way of compensatory award anything over and above the notice pay for the notice period to which she was in any event entitled. To the extent that the claimant no longer seeks an award for unfair dismissal, that claim will be dismissed upon withdrawal by her.[5]The Tribunal would, however, add this. There is some suggestion in the claimant’s representative’s letter that the Tribunal ought to have sought further information before dismissing the claim for a redundancy payment. The Tribunal would politely point out that when a represented party, having been asked for details of the claims for the purposes of a Rule 21 judgment , provides a Schedule of Loss in which details of the awards sought are set out consistent only with an award for unfair dismissal (even including recoupment details) the Tribunal can hardly be criticised for proceeding on that basis. Given that the basic award and a redundancy payment are mutually exclusive, and in the absence of the anything in the Schedule , or the covering e-mail of 29 January 2018, to suggest that the claimant in fact wanted the award of a redundancy payment , and not an award for unfair dismissal , the Tribunal rejects the implicit contention that the Tribunal was at fault for making the awards that it did. If parties , or, more particularly, their representatives, do not make clear what awards they seek in Rule 21 judgments, the Tribunal will have to hold hearings to ensure that no errors are made. 5.9[6]Be that as it may, on this occasion the Tribunal is pleased to be able to provide the claimant with what she now requires. . P C Holmes EMPLOYMENT JUDGE Dated: 15 February 2018 ......................................................................