Mr Kevin Wildsmith and Ms Michelle Southern v Gateshead Railway Club & Institute Ltd: 2500752/2018 and 2500753/2018
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 THE TIME for presenting a response having expired and no valid response having been presented, and on the basis of the information before the Employment Judge[1]The following complaints is are well-founded and succeed1.1 Unfair dismissal1.2 Wrongful dismissal1.3 Unpaid holiday pay.[2]So that the Tribunal can consider making an Order for remedies without a Hearing, the claimants are ordered to provide to the Tribunal and copy to the respondent by 22 June 2018 a schedule of loss setting out the amounts claimed by each for the basic and compensatory awards for unfair dismissal and or wrongful dismissal, and the amount of holiday pay claimed, and the means by which the amounts are calculated.[3]The Hearing listed on 28 August 2018 is converted to a hearing for remedies with a time estimate of 1 hour commencing at 9.45 am. Consideration will be given to its cancellation on compliance with the Order in paragraph 2 hereof.[1]The respondent is ordered to pay to the first claimant the sum of £3847.00p as compensation for unfair dismissal comprising £3447.00p by way of a basic award and £400.00p by way of a compensatory award.[2]The respondent is ordered to pay to the first claimant the sum of £2180.00p (10 x £218 net per week) as damages for breach of contract in respect of unpaid notice pay.[3]The claim of unpaid holiday pay advanced by the first claimant is wellfounded and the respondent is ordered to pay to the first claimant the sum of £203.28 in respect of unpaid holiday pay. This is a net amount and the respondent shall account to the appropriate authorities in respect of any income tax and employee national insurance contributions due in respect of such sum.[4]The total sum due to the first claimant from the respondent of £6230.28p is payable forthwith.[5]The Remedy Hearing set for 28 August 2018 is cancelled. Combined Proceedings Case Numbers: 2500752/2018 2500753/2018 Claim Number 2500753/2018: the second claimant - Miss Michelle Southern[1]The respondent is ordered to pay to the second claimant the sum of £4153.40p as compensation for unfair dismissal comprising £3753.40p by way of a basic award and £400.00p by way of a compensatory award.[2]The respondent is ordered to pay to the second claimant the sum of £2736.00p (12 x £228 net per week) as damages for breach of contract in respect of unpaid notice pay.[3]The respondent is ordered to pay to the second claimant the sum of £213.20 in respect of unpaid holiday pay. This is a net amount and the respondent shall account to the appropriate authorities in respect of any income tax and employee national insurance contributions due in respect of such sum.[4]The total sum due to the second claimant from the respondent of £7102.60p is payable forthwith.[5]The Remedy Hearing set for 28 August 2018 is cancelled.REASONS
[2]On 7 March 2019 I was authorised by Regional Employment Judge Robertson to reconsider the above-mentioned Judgment on Liability pursuant to Rule 72(3) of the 2013 Rules of Procedure referred to above.[3]On 30 January 2019 the claimants applied for the Judgment on Liability to be reconsidered and I have received no objection to me undertaking Combined Proceedings Case Numbers: 2500752/2018 that review on paper without a hearing pursuant to Rule 72(1) of the 2013 Rules of Procedure.[4]The claim form filed by the claimants on 10 April 2018 included a claim for a redundancy payment at section 8.1 but the Judgment on Liability failed to make mention of that claim. The narrative in the claim form describes how the claimants went to work as usual on 2 March 2018 to find the respondent club had closed as its (public) liability insurance had expired. The club ceased to trade forthwith and the claimants were clearly redundant within the definition contained in section 139 of the Employment Rights Act 1996 (“the 1996 Act”). In any event the presumption contained in section 163(2) of the 1996 Act applies and the claimants were dismissed by reason of redundancy.[5]I am satisfied that the interests of justice require that the claim for a redundancy payment be dealt with in the Judgment on Liability and on reconsideration I vary that judgment as set out above. Judgment on Remedy dated 3 August 2018 and promulgated on 14 August 2018[6]It is in the interests of justice to reconsider my above-mentioned Judgment on Remedy and to revoke it and to take it again in the following terms: Claim Number 2500752/2018: the first claimant – Mr Kevin Wildsmith[1]The first claimant is entitled to a redundancy payment from the respondent in the sum of £3447.00p (15 weeks at £229.80 gross per week based on 10 years’ service and being aged 64 at dismissal)[2]The respondent is ordered to pay to the first claimant the sum of £400.00p as a compensatory award for unfair dismissal and being an award for loss of statutory rights. It is not appropriate to make a basic award of compensation as the first claimant is entitled to a redundancy payment.[3]The respondent is ordered to pay to the first claimant the sum of £2180.00p (10 x £218 net per week) as damages for breach of contract in respect of unpaid notice pay.[4]The claim of unpaid holiday pay advanced by the first claimant is wellfounded and the respondent is ordered to pay to the first claimant the sum of £203.28 in respect of unpaid holiday pay. This is a net amount and the respondent shall account to the appropriate authorities in respect of any income tax and employee national insurance contributions due in respect of such sum. Combined Proceedings Case Numbers: 2500752/2018[5]The total sum due to the first claimant from the respondent of £6230.28p is payable forthwith.[6]The Remedy Hearing set for 28 August 2018 is cancelled. Claim Number 2500753/2018: the second claimant - Miss Michelle Southern[1]The second claimant is entitled to a redundancy payment from the respondent in the sum of £3887.45p. (14.5 weeks at £268.10 per week based on 12 years’ service and being aged 46 at dismissal).[2]The respondent is ordered to pay to the second claimant the sum of £400.00p as a compensatory award for unfair dismissal and being an award for loss of statutory rights. It is not appropriate to make a basic award of compensation as the second claimant is entitled to a redundancy payment.[3]The respondent is ordered to pay to the second claimant the sum of £2736.00p (12 x £228 net per week) as damages for breach of contract in respect of unpaid notice pay.[4]The respondent is ordered to pay to the second claimant the sum of £213.20 in respect of unpaid holiday pay. This is a net amount and the respondent shall account to the appropriate authorities in respect of any income tax and employee national insurance contributions due in respect of such sum.[5]The total sum due to the second claimant from the respondent of £7236.65p is payable forthwith.[6]The Remedy Hearing set for 28 August 2018 is cancelled.[1]On 30 January 2019 the claimants applied for my Judgment on Remedy to be reconsidered and I have received no objection to me undertaking that review on paper without a hearing pursuant to Rule 72(1) of the 2013 Rules of Procedure.[2]The Judgment on Remedy did not deal with the question of a redundancy payment as that matter was not referred to in the preceding Judgment on Liability.[3]I am satisfied that the claimants were dismissed by reason of redundancy and that fact should be reflected in the Judgment on Remedy. Combined Proceedings Case Numbers: 2500752/2018[4]In the circumstances, and absent objection from any party, it is in the interest of justice to reconsider and retake the Judgment on Remedy in the above-mentioned terms.[5]The redundancy payment payable to the second claimant is slightly more than the amount awarded for a basic award in the original Judgment on Remedy.