Ms C Oxnard v London Gold Bullion Ltd: 2503224/2018
EMPLOYMENT TRIBUNALS
Case No 2503224/2018Venue NORTH SHIELDSHearing 2 January 2019
Between
Ms C OxnardClaimantLondon Gold Bullion LtdRespondent
Before
Employment Judge GarnonDate 2 January 2019
JUDGMENT
[1]The claims of wrongful dismissal (breach of contract), unlawful deduction of wages, failure to pay compensation for untaken annual leave and for a redundancy payment are well founded.[2]On the claim of wrongful dismissal, I order the respondent to pay to the claimant damages of £ 2427.18 on which no tax is payable.[3]On the claim of unlawful deduction of wages, I order the respondent to re-pay to the claimant the sum of £2820.52 gross of tax and national insurance[4]On the complaint of failure to pay compensation for untaken annual leave, I order the respondent to pay compensation of £865 gross of tax and national insurance[5]The claimant is entitled to a redundancy payment of £ 1016 on which no tax is payable.
REASONS
[1]The claimant, born 26 March 1987, presented two claims online on 4 October 2018 . The first named as respondent “London Gold Bullion” at an address in Mayfair London but gave a place of work in Newcastle. It showed a start date of employment as 1/9/2016 and a net salary of £1753 per month with an added benefit of the claimant’s mobile phone bill being paid up to a maximum ( the latter element was rightly not pursued as it is too difficult to quantify) . It claimed a redundancy payment , notice pay, arrears of pay and compensation for untaken annual leave. It intimated the respondent had ceased to trade .The second claim form named “ Harry Watling London Gold Bullion”. The ACAS Early Conciliation (EC) Certficate showed the prospective respondent as “London Gold Bullion Limited ” at the address in Mayfair. The second claim was accepted, and, on e-mail clarification from the claimant, the name of the respondent amended to “London Gold Bullion Limited ” but the service address given was a different London address in Battersea Park Road.[2]It was served on 6 November on that address but returned by Royal Mail on 14 November. “London Gold Bullion Limited ”, Company Number 10398572, which remains “active “ has its registered office at the Mayfair address, as checked today by a Companies House search. A claim may be validly served on a limited company either at its registered office or its place of business. Employment Judge Shepherd ordered it be re-sent to the registered office, which it was on 21 November. The address in Battersea Park Road is that of McLaren’s Chartered Accountants who, according to the search, may have acted as Company Secretary. On 26 November McLarens sent a helpful reply saying they were no longer acting as such and gave a contact name for a director, Mr Blackett .[3]A response was due by 4 December 2018 but none was received. An Employment Judge is required by rule 21 of the Employment Tribunals Rules of Procedure 2013 (the Rules) to decide on the available material whether a determination can be made. I was convinced the claim has been validly served. I had insufficient information to enable me to find the claims proved and determine the sums to be awarded. As I am empowered by the Rules, I sent written questions to the claimant in the form of a standard letter.[4]On 12 December McLarens emailed saying Mr Blackett had died and was the only person who knew all the details of the claimant’s employment. They added her employment had to the best of their knowledge terminated due to lack of funds and the company would now probably have to go into liquidation.[5]On 13 December the claimant replied to the standard letter saying her gross pay had been £ 528.85 per week i.e. £27500 p.a. but she said her net weekly pay was £ 300.96 which did not correspond to her earlier declared £ 1753 per month = £404.53 per week. She confirmed today the lower figure was an arithmetic error. I ordered the claim to remain listed so I could obtain the missing information.[6]I did not have a precise end date for her employment . For all material purposes the Employment Rights Act 1996 ( the Act) provides an employee is “dismissed “ if she “terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” An employee is “entitled” so to terminate the contract only if the employer has committed a fundamental breach of contract see Western Excavating (ECC) Ltd v Sharpe [1978] IRLR 27. Failure to pay wages is such a breach . On 7 September 2018 the claimant told Mr Blackett she was terminating for that reason . The reason for dismissal is in such a case the reason for the breach of contract in response to which she resigned . That was cessation or contraction of business due to lack of funds which comes within the definition of redundancy in s 139.[7]She had a contractual entitlement to two months notice but obtained other, better paid, employment on 22 October , six weeks later. The common law provides a contract of employment may be brought to an end by reasonable notice. Dismissal without such notice is termed ”wrongful” and damages are the net pay the claimant would have received during the notice period less any sums received in mitigation of loss. The claimant’s net weekly pay was £404.53. Her loss is £404.53 multiplied by 6 weeks during which she earned nothing and received no benefits which equals £2427.18.[8]In reply to my questions about untaken annual leave, she confirmed the leave year was 1 January to 31 December and in the year her employment ended she had taken inclusive of bank holidays 2.2 weeks. Her proportionate entitlement to termination of the annual leave to which she was entitled under the Working Time Regulations 1998 was 3.83 weeks and the difference of 1.63 weeks which converts to £865.[9]The law covering her wages claim is in Part II of the Act. Her unpaid wages for August were £2291.67 and for one week of September £ 528.85 = £2820.22[10]The law of redundancy payments is in Part XI of the Act. The amount is a calculation based on date of birth and length of service. She is entitled to one week’s pay for each year of continuous employment during the whole of which she was over the age of 22 and under 41. Section 227 provides there is a cap of £508 gross on the amount of a week’s pay . She is entitled to 2 weeks gross pay which comes to £1016[11]I explained to the claimant the insolvency provisions regarding redundancy payments and those in Part XII of the Act regarding unpaid wages , holiday pay and notice pay. The redundancy payment is payable by the Secretary of State without the company having to be put into liquidation, receivership , administration or voluntary arrangement, but the other sums under Part XII are not. If neither the respondent itself nor any other creditor places the company into formal insolvency, the claimant may do so. A rough estimate of the sums she could then recover from the Secretary of State under Part XII would be £3500. TM Garnon