Mr G Oakes v Renaissance Records Ltd (in voluntary liquidation): 2602085/2023
JUDGMENT
On the Employment Judge’s own initiative, the Judgment dated the 6 September 2024 is reconsidered and varied as follows: - The Judgment of the Tribunal is as follows: Wrongful Dismissal for failure to pay Notice Pay, failure to pay Holiday Pay and Wages[1]The complaint of breach of contract in relation to notice pay is well-founded. This figure has been calculated using gross pay.[2]The Respondent is liable to pay the Claimant £18,411.00 (12 weeks x gross weekly pay of £1534.25) as damages for breach of contract.[3]The complaint of failure to pay holiday pay in breach of contract is wellfounded. This figure has been calculated using gross pay.[4]The Respondent is liable to pay the Claimant £3846.12 (£307.69 gross daily pay for 12.5 days) as damages for breach of contract.[5]The complaint of failure to pay wages in breach of contract is well-founded. This figure has been calculated using gross pay.[6]The Respondent is liable to pay the Claimant £6782.68 as damages for breach of contract.[7]The total of the sums set out at paragraphs 1,2, 3, and 4 above amounted to £29,039.80. With credit given for the sum of £3360.14 received from the Secretary of State this results in a sum of £25,679.66 due to the Claimant from the Respondent. The limit for compensation for breach of contract in the Employment Tribunal amounts to £25,000.00.[8]The Respondent shall therefore pay to the Claimant the total sum of £25,000.00 as damages for breach of contract for the sums set out at paragraphs 1 - 4 above. The Claimant will be liable for payment of any tax due on the sum. Unfair Dismissal[9]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.[10]There is a nil chance that the Claimant would have been fairly dismissed in any event.[11]The Respondent shall pay the Claimant the following sums:(a) A basic award of £1929.00 (paying the Claimant 1.5 times his gross weekly pay of £643.00 x 2).(b) An award of past loss of earnings of £51,321.44.(c) An award for future loss of earnings of £11,397.30.(d) An award for loss of statutory rights of £500.00.(e) An award for loss of pension of £3000.00 (£2100.00 past, £900.00 future).(f) The above results in a total award of £68,147.74.(g) ACAS uplift of 25% - £17,036.94.(h) Total award after uplift is in the sum of £85,184.68. i) Less notice pay of £18411 to avoid double recovery, as awarded under breach of contract – making total £66,773.68 j) Plus grossing up at 20% i.e. £13,354.74 (accepting that the Claimant is likely to pay the higher tax rate on some of this judgment, but mindful of the statutory cap on the compensatory award) k) Total after grossing up is £80,128.42 (subject to statutory cap) i) Therefore compensatory award is £80,000.00. l) Deduction needs to be made for Universal Credit recoupment of £1915.72. m) Total is therefore £78,084.28 Note that these are actually the sums payable to the Claimant after any deductions or uplifts have been applied.[12]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply:a. The total monetary award (i.e. the compensatory award) payable to the Claimant for unfair dismissal is £80,000.00.b. The prescribed element is £1915.72.c. The period of the prescribed element is from 14 July 2023 to the 7 August 2024.d. The difference between (a) and (b) is £78,084.28.[13]The total sums awarded set out above amounts to £105,013.28. Non-compliance with ACAS Code[14]The Respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the Claimant by 25 % in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.REASONS
[15]Following the hearing it became clear to me that when working through the figures at the hearing we had double counted the notice pay period and the same period during which the Claimant had been awarded compensation for loss of earnings without crediting the amount.[16]Coincidentally I then received an email from Counsel for the Claimant making the same point and asking me to amend my Judgment under the Slip Rule, and in particular she said as follows:- Dear Judge Brown, With apologies, on typing up my notes of yesterday’s judgment it appears that there is a risk of double recovery in the award made, in that the payment for the Claimant’s notice period under breach of contract is not credited in the compensatory award for unfair dismissal. My sincere apologies for not spotting this at the end of the hearing. I would propose that this can be amended under the slip rule at rule 69 of the Employment Tribunal regulations. I have included below my summary of the amounts recorded yesterday, and below that my proposed correction. It would take the compensatory award back under the statutory cap, which would make grossing up relevant. I have proposed, I hope, a relatively straightforward way of dealing with it (and which comes to the same final award). Kind Regards, Jessica Sharratt[17]However as I was changing the sums awarded to the Claimant I had already considered this error and concluded it should be done by way of reconsideration of my Judgment given orally at the hearing and corrected by way of Reconsideration.[18]As pointed out and as set out above it did not change the total sums awarded to the Claimant in any event and my amended sums set out above are underlined to show the new calculations which added in an element of grossing up.[19]In addition to the above after I directed the Tribunal to invite the parties to comment on my proposal to deal with this matter by way of consideration on the papers and without a hearing I was also forwarded an email from the Respondent claiming to be unaware of the hearing. I deal with this correspondence in this Judgment for completeness.[20]In particular it said that:- Dear Madam and Sir, We have not been notified of any hearing or tribunal claim at all. How could there be a hearing and a judgment when we have not been notified of any claim? I refer this to Mr. Tim Russel as copied above. Yours in music, Scott[21]In response the Claimant pointed out that: Dear Judge Brown / East Midlands Employment Tribunal The Claimant agrees that this can be dealt with without a hearing. It is not understood on what basis the Respondent (Renaissance Records Limited (in voluntary liquidation)) can be said not to have known about this hearing, nor why Scott Rudmann is emailing on behalf of the Respondent. The company is in voluntary liquidation and the liquidators have been acting on behalf of the Respondent in this case. The Respondent (at that point not yet in voluntary liquidation) knew about this claim and provided an ET3 form in response to this case (Case number 2602085/2023). On 13 March 2024 Scott Rudmann replied to an email sent by MidlandsEastET@justice.gov.uk providing details of the preliminary hearing. Scott’s email read: Dear Sirs, This company is in liquidation, such the liquidator is copied above for further action. Yours in music Be well, Scott This email was at page 29 of the final hearing bundle, and Paul Appleton was copied in. On 14 March 2024 James Allen, representing the liquidators, emailed the Midlands East Employment Tribunal, with Scott Rudmann, Paul Appleton and myself (the Claimant) copied in. That email read: Dear Sirs I refer to the above matter and to the email correspondence below. As you will be aware, the Company is in liquidation and Paul Appleton and Adam Shama of this firm are the Joint Liquidators. I can confirm that the Liquidators will not be participating in the Employment Tribunal. Kind regards James Allen For Paul Appleton – Joint Liquidator This email was at page 28 of the final hearing bundle. In accordance with the above email, the liquidators did not attend the preliminary hearing. The date of the final hearing was set at the preliminary hearing of 19 April 2024. In accordance with the orders made during that preliminary hearing, I (the Claimant) sent to the tribunal and the liquidators the following documents. All were confirmed received by the liquidators, as set out below. Document Date sent Date of email acknowledgement from sent liquidators Schedule of 15 May 2024 16 May 2024 loss Final Bundle 7 June 2024 7 June 2024 Witness 9 July 2024 15 July 2024 Statement Skeleton 6 August 2024 6 August 2024 argument The liquidators, again, did not attend the hearing. They had however had full notice of it, by way of the above. As such there has been a hearing and a judgment, with the liquidators acting on behalf of the insolvent Respondent. Kind Regards, Geoff[22]I was therefore satisfied that the Respondent who was insolvent was aware at all times of these proceedings through its liquidators and who confirmed they would not be attending the preliminary hearing and did not attend the final hearing.