Mr P Humphrey v Auto Executive Cars Ltd: 2500326/2020
EMPLOYMENT TRIBUNALS
Case No 2500326/2020
Between
Mr P HumphreyClaimantAuto Executive Cars Limited THE RESPONDENT having failed to present a response and on the information available to the Employment Judge. DEFAULTJUDGMENTRespondent
Before
Employment Judge JohnsonDate 16 April 2020
REASONS
[1]By a form presented on 19 February 2020, the claimant brought claims of unfair dismissal and, under Working Time Regulations 1998, for pay in respect of accrued but untaken holiday due under regulation 14(2). The respondent did not present a response. An Employment Judge was required by Rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material whether a determination could be made and, if so, issue a judgment. A judgment on liability only was made on 16 April 2020 by Employment Judge Johnson and a remedy hearing listed to take place on 22 June 2020. However, due to the Covid19 pandemic restrictions it was postponed and a telephone case management hearing listed in its place.[2]The claimant failed to attend that hearing as did the respondent. Employment Judge Sweeney directed a remedy hearing be listed following provision by the claimant of further information. If the respondent wished to respond to any of that information it was given permission to send any comments or submissions in writing to the Tribunal with a copy to the claimant within 14 days of the date on which the information was sent by the claimant.It was also invited to this hearing.[3]The claimant was born on 3 January 1971. He started work for the respondent in early October 2016. He provided most of the information in manuscript and by enclosing various documents, Case Number: 2500326/20(A) 2 of 3 mainly payslips. He was dismissed for no given reason but had regularly not been paid on time. The business continues to trade. He did not give a precise date on which his employment was terminated but said today in was about 20 October 2019. His average weekly gross pay prior to the date of termination is best calculated from the cumulative total for the tax year to April 2019. It was, including employer pension contributions, £323.71. His weekly deductions for tax and National insurance were £39.86 so his weekly net was £283.85.[4]The law relating to unfair dismissal is in Part 10 of the Employment Rights Act 1996. Section 118 says compensation consists of a basic award and a compensatory award . The basic award is 1.5 weeks pay, he being over 41 years old throughout, for each year of continuous employment of which he had three. £323.71 x 4.5 = £1456.70[5]The compensatory award is explained in s 123 which includes (1) ... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales .. Scope-v-Thornett held though speculation is involved, a Tribunal should try to predict what may have happened.[6]His loss of pay for the 3 week notice period he was not given will be taxed so I award it gross £971.13. His loss of net income between then and the date on which he started new employment on 15 December 2019 spanned approximately 5 weeks at net pay £283.85. = £1419.25. He says he claimed no benefits so recoupment does not apply,[7]Since then he has earned weekly a fluctuating amount but the payslips in his new employment up to April 2020 show net weekly average income of about £137.50. From 15 December 2019 to today is 45 weeks over which his income has been at least £145 less than it would have been so his loss to date is £6525. He expects a difference in income of about £150 per week to continue for three to six months. I think 20 weeks is a realistic estimate. Thus his future loss is £3000. Added to the losses emboldened above are an award for Loss of Statutory Rights at £450.00. The total compensatory award so far is £ 12365.38 .[8]Section 207A of the Trade Union and Labour Relations ( Consolidation) Act 1992 includes(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that— (a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies, (b) the employer has failed to comply with that Code in relation to that matter, and (c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%. Case Number: 2500326/20(A) 3 of 3[9]The ACAS Code on Disciplinary and Grievance Procedures did apply and the respondent totally disregarded it by not giving him any chance to contest his dismissal and not even giving him a reason for it . A maximum increase is merited of £3091.34 . The total compensatory award becomes £ 15456.72[10]Section 124 imposes limits on the amount of a compensatory award calculated in accordance with section 123. In this case the 52 week’s pay cap applies . The amount must include the value of employer pension contributions as well as basic pay, Drossou-v-University of Sunderland. The cap is therefore 52x £ 323.71 = £ 16832.92 and the award within it.[11]In terms of his holiday pay claim, the claimant was entitled to 19 paid days in the holiday year more than had he taken but his employer pension contribution were, or should have been, paid throughout, His untaken holiday converts to at least £1197 as best I can calculate it[12]The claimant says the respondent while still shown on the Companies House website as active owes money to many creditors. If it enters liquidation receivership company voluntary arrangement or administration his basic award, holiday and notice pay may be payable by the Secretary of State . The Tribunal has no powers to enforce its award but this judgment can be enforced by the claimant through his local County Court. EMPLOYMENT JUDGE T M GARNON