H Joshi v British Telecommunications plc (BT): 3203279/2022
JUDGMENT
[2]A Polkey deduction of 75% will be made to the compensatory award. A remedy hearing is listed for 4 May 2023.[4]Remedy is to be assessed if not agreed. The parties should liaise to seek to agree remedy. If the parties agree remedy, they should notify the Tribunal forthwith so the hearing can be vacated. REMEDY JUDGMENT 1. The Respondent shall pay the Claimant the sum of £45,767.78, which is broken down as set out below. Basic Award 30 weeks x £544.00 £16,320.00 Compensatory Award Losses to date of Tribunal Hearing Loss of basic salary to date of Tribunal £49,369.72 63.8 weeks x £773.82 Loss of statutory rights £450.00 Loss of bonus £4,053.96 Loss of pension benefit £8,575.75 63.8 weeks x £134.42 Employee salary pension contribution £19,724.00 63.8 weeks x £309.15 Loss of BT benefits (Broadband etc.) £938.49 63.8 weeks x £14.71 Less sums obtained by mitigation -£641.44 JSA Total losses to date of Tribunal: £82,470.48 Future Losses Future loss of earnings £7,738.20 10 weeks x £773.82 Future loss of pension £4,435.70 10 weeks x £443.57 Future loss of BT benefits £147.10 10 weeks x £14.71 Total future losses: Losses in relation to shares The Claimant benefited from three share schemes: Save as you earn (Share Save) scheme Direct Save scheme[3]You Shares scheme Lost Share Save benefit (2018): £8,121.50• The Claimant joined the Respondent’s Share Save scheme in 2018.• This scheme would mature after 5 years• The Claimant paid £100 a month into this scheme.• On maturity, the Claimant had the option to purchase 3,529 shares at a price of 170p per share.• This is a speculative assessment of the loss of value of this benefit since the value of the shares at the end of the saving period cannot be known.• The current share price as of 12 April 2023 is 156p.• No profit loss. Lost Share Save benefit (2020):• The Claimant joined the Respondent’s Share Save scheme in 2020.• This scheme would mature after 5 years• The Claimant paid £150 a month into this scheme.• On maturity, the Claimant had the option to purchase 10,975 shares at a price of 82p per share.• This is a speculative assessment of the loss of value of this benefit since the value of the shares at the end of the saving period cannot be known.• The current share price as of 12 April 2023 is 156p.• The current share price of 156p less the price the Claimant could purchase the shares at 82p equals a profit for each share of 74p.• The lost profit is therefore 74p x 10,975 = £8,121.50 Loss of DirectSave shares sold to cover Tax £3,365.09 and National Insurance liability following dismissal. The Claimant sold 1944 shares at a share price of £1.74. Net sale proceeds totalled £3,365.09 Loss of You Shares: £1,001.19 677 shares forfeited as a result of the Claimant’s employment being terminated. June 2020: 430 shares with a market value of £1.164 per share (as at June 2022) = £500.52 June 2021: 247 shares with a market value of £2.027 per share (as at June 2022) = £500.67 Total losses from shares: £12,487.78 Polkey reduction on compensatory award Polkey – 75% £82,470.48 + £12,321.00 + £12,487.78 = £107,279.26 £107,279.26 x 75% = £80,459.45 £107,279.26 - £80,459.45 = £26,819.82 Compensatory Award Grand Total: £26,819.82 Grossing Up Calculation £30,000.00 (tax free allowance) - £16,320.00 (basic award) = £13,680.00 £26,819.82 - £13,680.00 = £13,139.82 (which is subject to tax) Tax rate 20% £13,139.82 x 20% = £2,627.96 £26,819.82 + £2,627.96 = £29,447.78 Total: £29,447.78 TOTALS Unfair dismissal basic award: £16,320.00 Compensatory award: £29,447.78 TOTAL AWARD: £45,767.78 Recoupment a) Grand total £45,767.78 b) Prescribed element £12,342.43 c) Prescribed period From: 12 February 2022 To: 4 May 2023 d) Excess of grand total over prescribed element £33,425.35REASONS
[1]The Claimant as applied, under Rule 71 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”), for a reconsideration of the Remedy Judgment dated 10 March 2023 and which was sent to the parties on 9 April 2023.[2]The Claimant’s application was made by an email dated 22 May 2023.[3]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received outside the relevant time limit.[4]Under Rule 5, however, the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[5]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[6]The Tribunal finds that it is in the interests of justice to correct the errors contained within the original Remedy Judgment. Not to do so would leave the Claimant in an unfair position and would defeat the purpose and intention of the original Remedy Judgment.[7]The Tribunal is satisfied that this application can be determined on the papers and without the need for a hearing.[8]The Tribunal is satisfied that making the order requested would be in accordance with the overriding objective of the Tribunal to deal with cases fairly and justly, in particular dealing with cases in a proportionate manner and saving expense[9]The Remedy Judgment of 10 March ordered the Respondent to pay compensation to the Claimant in the sum of £45,767.78 made up of the following: Basic Award £16,320.00 Compensatory Award (after Polkey reduction of 75%) £26,819.82 Grossing up £2,627.96 Claimant’s award: £45,767.78[10]The Claimant says that it is necessary for the Judgment to be reconsidered for the following reasons: a) the Claimant’s Job Seekers Allowance has been deducted from the Compensatory Award; and b) the grossing up calculation is incorrect.[11]The parties have now received recoupment notice from the Secretary of Statement and they seek to recoup £657.03. As the sums have already been deducted from the Compensatory Award, this results in the JSA sums being deducted twice from the Claimant, leaving the Claimant in an unfair position.[12]The Tribunal agrees that this would leave the Claimant in an unfair position. The Compensatory Award is therefore reconsidered and adjusted to include the sum of £657.03 (which is then subject to recoupment as per the notice from DWP). Therefore, the total Compensatory Award (after the Polkey reduction of 75%) is ordered as: £83,127.51 + £12,321.00 + £12,487.78 = £107,936.29 £107,936.29 x 75% = £80,952.22 £107,936.29 - £80,952.22 = £26,984.07 Compensatory Award: £26,984.07[13]The grossing up element of the Compensatory Award appears to have been calculated incorrectly. The Tribunal agrees that this would leave the Claimant in an unfair position.[14]The Tribunal accepts that the correct calculation should be to add 20% onto the award so that when 20% is deducted for tax it would come out with the net figure. The Tribunal accepts that this would leave the Claimant in an unfair position. The Tribunal has reconsidered grossing up calculation, and orders that the correct grossing up calculation is as follows: Grossing Up Calculation: £30,000.00 (tax free allowance) - £16,320.00 (Basic Award) = £13,680.00 £26,984.07- £13,680.00 = £13,304.07 (which is subject to tax) £13,304.07/6 x 10 = £22,173.45 £13,680 + £22,173.45 = £35,853.45 Total Grossed Up Compensatory Award: £35,853.45 Total Grossed Up Award (including Basic Award): £52,173.45 .