Ms L Pinkerton v Secretary of State for Justice: 2500738/2016
EMPLOYMENT TRIBUNALS
Case No 2500738/2016
Between
Ms L PinkertonClaimantSecretary of State for JusticeRespondent
Before
Employment Judge A M BuchananMr Mugliston (instructed by Counsel) for claimantMr Royle (instructed by Counsel) for respondentDate 23 January 2018
JUDGMENT
ON REMEDY It is the judgment of the Tribunal that:-[1]The respondent do pay to the claimant the sum of £4029.97p compensation for wrongful dismissal.[2]The respondent do pay to the claimant the sum of £22885.80p compensation for unfair dismissal.[3]The Employment Protection (Recoupment of Benefits) Regulations 1996 (“the 1996 Regulations”) do not apply to this award.[4]The total sum due from the respondent to the claimant is £26915.77p
REASONS
1.1This matter came before me to deal with a remedy arising out of a finding that the claimant was both wrongfully and unfairly dismissed by the respondent. RESERVED JUDGMENT Case Number: 2500738/2016 1.2 The decision on liability was communicated to the parties in January 2017 and the respondent subsequently indicated an intention to appeal that decision. 1.3 The question of remedy was stayed pending the sift taking place at the Employment Appeal Tribunal (“EAT”). At the hearing it was confirmed that the only ground of appeal against the finding of wrongful dismissal was one rejected by the EAT on preliminary review. That matter was to be the subject of an oral hearing in late August 2017. If that application to the EAT fails then the appeal against the finding of wrongful dismissal will fall away. In those circumstances I was advised by Mr Royle that any award for wrongful dismissal which I might make would be discharged by the respondent without delay. Clearly payment of any award in respect of unfair dismissal will have to await the outcome of the appeal to the EAT. Both parties accepted that this was the position. 1.4 I remind myself that in the Judgment on Liability there is a finding of contributory conduct to the extent of 35%. Any question of a reduction in relation to the decision in A E Dayton Services –v- Polkey [1988] ICR 142 remained an issue to be determined at the remedy hearing.
The Hearing
[2]I heard evidence from the claimant who was cross examined. I had a bundle of documents before me extending to 80 pages. Any reference in this Judgment to a page number is a reference to the corresponding page in the bundle prepared for the remedy hearing. Submissions Claimant[3]On behalf of the claimant Mr Mugliston made oral submissions which I summarise briefly:-3.1 The annual gross salary of the claimant was £20,977.80p. If there is added to this sum 20.9% gross contribution to pension by the respondent pursuant to the decision in University of Sunderland –v- Drossou UKEAT/0341/16/RN the gross annual salary becomes £25,362.15p. Tis would be the cap on any compensatory award pursuant to section 124(1ZA) of the Employment Rights Act 1996 (“the 1996 Act”).3.2 It is accepted that the basic award and compensatory award for unfair dismissal will be reduced by 35%.3.3 In relation to Polkey it is the claimant’s position that there should be no deduction at all because the unfairness in this case is so substantial that it would be impossible to assess any percentage chance of a fair dismissal. Effectively this would be creating a past which never happened. Whilst this may be appropriate in a redundancy type case, it is not appropriate in a case of this nature. If the matters which render a dismissal unfair are not mere procedural points then it is very difficult to apply the doctrine in Polkey.
Findings of fact
[4]Having considered both the written and oral evidence from the claimant and having taken account of the matters put to the claimant in cross examination and having considered the documents to which I was referred, I make the following findings of fact in relation to remedy on the balance of probabilities: 4.1 The claimant began work for the respondent on 3 November 2003 and was dismissed effectively from 5 November 2015. She was aged 47 at that time and had completed 12 years’ service. The claimant is a single parent and lives with her daughter who is aged 12 years. Whilst in the employment of the respondent, the claimant worked for 28 hours each week which commitment enabled her also to take care of her daughter. The claimant worked so called family friendly shifts which enabled her to be at home some of the time when her daughter was not at school. When the claimant could not be at home, she used child minders to look after her daughter and also had help from her father.
Conclusions
[7]I calculate that the compensation due to the claimant as follows: Wrongful dismissal 13 weeks x £333.69£ 4,337.97 Less JSA £ 308.00 Award £ 4029.97(a) (A) Unfair dismissal Basic award 15 x £475£7125.00 Less 35% contributory fault £2493.73 Award £4631.25(b) (B) Compensatory award Earnings 3.2.16-6.8.17 78 weeks x £333.69£26027.82 Less: Kelly Park £1497.96 Lambton Grange £11591.00£13088.96£12938.86 Add: Earnings – Future Loss 6.8.17.- 5.8.18 52 X £333.69£17351.88 Less: Durham CC £11924.00£ 5427.88£18366.74 Less 35% Contribution £ 6428.35 Award £ 11938.38(c) (C) Pension Loss Figure from above £9367.18 Less 35% Contribution £3278.51 Award £6088.67(d) (D) Loss of statutory rights Gross award £ 350.00 Less 35% Contribution £ 122.50 Award £ 227.50(e) (E) RESERVED JUDGMENT Case Number: 2500738/2016 SUMMARY Wrongful Dismissal £4029.97 (A) Basic Award £4631.25 (B) Compensatory Award £18254.55 (C D E) Grand Total £26915.77 Final Matters8.1 In light of the amount of compensation awarded, it is not necessary to gross up the award as I conclude that the first £30000 compensation will be exempt from income tax by reason of the provisions of Section 401 of the Income Tax (Earnings and Pensions) Act 2003.8.2 The amount of the compensatory award does not exceed the statutory cap set out in section 124(1ZA)(b) of the 1996 Act.8.3 For the avoidance of any doubt, Tribunal records indicate that the claimant was granted remission of all fees payable in respect of these claims. EMPLOYMENT JUDGE A M BUCHANAN