Mr T Zovko v The Hungry Canary Ltd: 3201532/2021
JUDGMENT
The Tribunal has arrived at the following determinations:[1]The claim for automatically unfair dismissal is well-founded.[2]The claim in respect of holiday pay is well-founded.[3]The claim for an unauthorised deduction from wages is upheld.[4]The claim that there was a failure to give statement of employment particulars is upheld.[5]The claim that there was a failure to provide a statement of changes to employment particulars is upheld. REMEDY[1]The Claimant is awarded the amount of £2,112 in respect of his claim for automatically unfair dismissal, calculated as follows. No basic award is payable. Compensatory award of £2,112: The Claimant found alternative employment 15 weeks after the date of his dismissal, from when he no longer incurred any further financial loss. Case Number: 3201532/2021 80% (to reflect the terms of the Coronavirus Job Retention Scheme) of 15 weeks’ pay between date of dismissal and starting new job. 15 weeks’ pay = 15 x £176 (gross weekly pay, which, given applicable tax allowances, is also to be regarded as the net weekly pay) = £2,640. 80% of £2,640 = £2,112[2]The Claimant is awarded the amount of £1,172.16 in respect of his claims for holiday pay and unauthorised deductions from wages, calculated as follows. Duration 05/08/2021 – 06/09/2021 07/09/2021 – 13/01/2021 (18.3 weeks including PILON) Wage NMW of £6.45/hour £5.50 Hours 106 hours 32/week Gross wage £683.70 £3,115.20 Holiday pay £82.53 £388.74 GROSS £4,270.17 LESS amount that Claimant was paid to date £3,098.27 = £1,172.16[3]The Claimant is awarded the amount of £341.85 in respect of his claim for failure to give a statement of employment particulars, calculated as follows. 2 weeks’ pay (26.5 hours @ £6.45) = £341.85[4]The Claimant is awarded the amount of £352 in respect of his claim for failure to give a statement of changes to employment particulars, calculated as follows. 2 weeks’ pay (32 hours @ £5.50) = £352 Grand total award The grand total sum of £3,978.01 is payable to the Claimant by the Respondent forthwith.REASONS
[1]Section 38 of the Employment Act 2002 provides for an award to be made where there is a breach of the duty to provide a written statement of particulars of employment or a breach of the duty to provide a written statement of changes to particulars of employment.[2]The Tribunal finds it appropriate to make an award in the case at hand in respect of the failure to provide a written statement of changes to particulars of employment. Having regard to the fact that the Claimant did, at least, have sight of the variations to the contractual agreement in the documents that he signed on 1 September 2020, I find that the appropriate award in respect of the failure to provide a statement of changes to employment particulars should be 32 hours at £5.50 by 2 weeks, as follows: 11.12 Judgment on reconsideration – no hearing - rules 70 and 73 Case Number: 3201532/2021 2 weeks’ pay (32 hours @ £5.50) = £352[3]Therefore, making the appropriate variation to the grand total sum in the judgment of 14 February 2023, the grand total sum of £3,636.16 is payable to the Claimant by the Respondent forthwith. This is expressed as a gross figure. If necessary, it is for the Claimant to pay any relevant tax and national insurance contributions from that sum to the relevant authorities.[1]On its own initiative, the Tribunal has varied the judgment of 14 February 2023 in the manner set out in the separately issued Reconsideration Judgment of 8 March 2023. The variation is unrelated to any of the points raised by the Respondent in its application of 23 February 2023.[2]There is no reasonable prospect of the varied judgment being further varied or revoked.[3]When the Reasons of 8 March 2023 and the Reconsideration Judgment of 8 March 2023 are read together, all of the points raised by the Respondent in its application of 23 February 2023 are addressed; in that regard, the following is to be noted:a. Queries as to whether awards are gross or net are clarified and it is clarified that it is the Claimant who is to pay any relevant deductions to relevant authorities;b. The query regarding the calculation of the award for failure to provide written particulars of employment falls away as a result of the variation made in the Reconsideration Judgment of 8 March 2023;c. Arguments about whether the varied contractual arrangement between the Claimant and the Respondent entailed a 30-hour working week or a 32-hour working week are an attempt to reopen findings of fact set out in the Reasons;d. Arguments about the reasons for the Claimant’s dismissal are an attempt to reopen findings of fact set out in the Reasons;e. Arguments that the Claimant was paid more by the Respondent than found to be the case in the judgment are an attempt to reopen findings of fact set out in the Reasons, which, in relation to the point at hand, were rooted in the evidence actually given by the Respondent at the hearing (paragraph 37, 11.6R Judgment – Reconsideration refused – respondent - rule 72 Case Number: 3201532/2021 Reasons).