Ms C Hepple-Brooks v The Committee of Prudhoe and Mickley Unionist Club: 2501995/2020
EMPLOYMENT TRIBUNALS
Case No 2501995/2020
Between
Ms C Hepple-BrooksClaimantThe Committee of Prudhoe and Mickley Unionist ClubRespondent
Before
Employment Judge GarnonDate 26 January 2021
JUDGMENT
[1]The name of the respondent is amended to that shown above without the need for reservice.[2]The claim for compensation for untaken annual leave is well founded. I order the respondent to pay compensation of £2148.79 gross of tax and National Insurance (NI)[3]The claim of unlawful deduction from wages is well founded . I order the respondent to repay to the claimant £ 7529.85 gross of tax and NI[4]The claim of breach of contract succeeds I order the respondent to pay to the claimant damages of £1003 .98 gross of tax and NI[5]The claimant is entitled to a redundancy payment of £1505.97 payable by the respondent[6]I make an additional award under s 38 of the Employment Act 2002 (the 2002 Act) that the respondent pay to the claimant 4 weeks pay being £2007.96. The total payable to the claimant under this judgment is £14196.55
REASONS
[1]The claim was presented on 29 October 2020 following Early Conciliation (EC) from 8 to 27 October 2019 against a respondent described on the claim form and EC Certificate as “Prudhoe and Mickley Unionist Club”. The address given was “42 West Road, Prudhoe, Northumberland, NE42 6HR”. The claim was served by post to that address on 12 November 2020. A response was due by 10 December. None were received. All letters from the Tribunal have stamped on them the title “Employment Tribunal “and a return address in case of non delivery. No letter has been returned by Royal Mail.[2]People employed by an unincorporated association, ie not a company registered at Companies House, are employed, not by all the members, but by its management committee at the time: Affleck-v-Newcastle Mind 1999 IRLR 405. The correct respondents are, therefore, the members of the committee at the time the right to claim arose. In Nazir-v-Asim and Nottinghamshire Black Partnership 2010 ICR 1225, His Honour Judge Richardson held, unlike the position in the civil courts, an unincorporated association could be sued in its own name in Employment Tribunals. His reasons included (i) employees will generally have been employed in the name of the association,(ii) undue formality is to be avoided in Tribunals, and (iii) employees generally cannot be expected to know about the special legal position of unincorporated associations.[3]Company number 00089286 named “Prudhoe and Mickley Unionist Club Ltd” was incorporated on 27 June 1906. Its current registered office is 1 Wylam Hills Farm Cottages, Holeyn Hall Road, Wylam, Northumberland, NE41 8BA. It does not appear to be trading and its stated type of business is not the running of licenced premises but the letting of premises. I guessed it may own the building where the Club operated I asked the claimant if she recognised the names of its directors and she did. She believed they were shareholders and the company part owned the Club building paying some rent to the Company. I find it is highly unlikely to have been her employer.[4]A claim may be validly served on the last known place of business . In Zietsman and Du Toit t/a Berkshire Orthodontics-v-Stubbington His Honour Judge Peter Clark held if a respondent leaves its place of business and does not make arrangements for post to be forwarded, service to that address is valid. The person who dealt with the claimant, and whom she understood to be the Club Secretary was Mr David Westgarth. He signed the dismissal letter which shows the address in West Road was the respondent’s place of business.[5]No response was received. The file was reviewed by an Employment Judge who felt it was not possible to issue a Rule 21 judgment without more clarity as to the loss under various headings so ordered this hearing to remain listed to afford an opportunity to clarify that .The respondent has been given notice of the hearing and may have participated on remedy. The respondent did not connect. I am satisfied no injustice is done dealing with the hearing its absence[6]The claimant gave evidence and produced a small bundle of documents. She was furloughed on 5 April 2020. She was paid for that month and for May. Then all payments into her bank stopped but payslips were still received. An undated letter signed by Mr Westgarth confirmed the Club had applied to the Government under the Coronavirus Job Retention Scheme (CJRS) in April 2020. Another letter said the club could not reopen and her employment was terminated on 13 September 2020. The amount of the claimant’s week’s pay calculated in accordance with Chapter 2 of Part 14 of of the Employment Rights Act 1996 (“the Act”) was £501.99 gross.[7]The law relating to unlawful deduction of wages is in section 13 of the Act which deems an underpayment to be a deduction. The remedy is set out in s 24 and includes an order the employer pay the amount of any deduction. She was unpaid for 15 weeks x £501.99 = £7529.85[8]The failure to give notice of termination is a breach of contract and the remedy is pay for the notice period. The claimant was entitled to two weeks notice. She earned nothing in that period. Her damages are £1003 .98 9.The law in relation to annual leave is contained in the Working Time Regulations 1998. Regulation 14 says where a worker's employment is terminated during the course of a leave year and on the date on which the termination takes effect ("the termination date"), the proportion she has taken of the leave to which she is entitled in the leave year under regulation 13 and regulation 13A differs from the proportion of the leave year which has expired she is entitled to a payment in lieu. In the absence of a relevant agreement, her leave year starts on the anniversary of her appointment which was 10 December 2017. She had no paid leave in the last year. Calculating by the formula set out in Regulation 14, 5.6 weeks leave = £2811.14. Divided by 365 and multiplied by the 279 days expired in the leave year = £2148.79[10]The law relating to redundancy payments is in Part XI of the Act. A claimant is entitled to 1.5 weeks pay for every complete year of continuous employment during the whole of which she was over the age of 41, which claimant was throughout her continuous employment of 2 years. The number of weeks pay to which she is entitled is 3. Her redundancy payment is £1505.97.[11]Section 1 of the Act requires every employee to be given within two months of starting a written statement of terms and conditions of employment, which includes the name of the employer. The claimant was never given such a statement. Section 38 of the 2002 Act applies to these claims and says: (3) If in the case of proceedings to which this section applies—(a) the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and(b) when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996, the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3)— (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay. I find the higher amount is appropriate. Had the respondent complied with its obligations there would have been no doubt as to the proper identity of the employer, the claimant would have been saved time and expense, as would the Tribunal service. 4 weeks pay is £2007.96.. Employment Judge T.M. Garnon Judgment authorised by the