Mr J Singh v The Baker’s Best Ltd: 3305606/2024
JUDGMENT
[1]The claimant was unfairly dismissed and is entitled to a basic award of £15,576.97.[2]The claimant was wrongfully dismissed and is entitled to be paid £8,307.42 in respect of the net wages he would have received in what would have been his notice period of 12 weeks.[3]The respondent failed to pay the claimant for the period 1 to 21 February 2024 and must pay him the net sum of £2,076.92 by way of wages for that period.REASONS
[1]The claimant was employed by the respondent from 28 October 2008 to 21 February 2024 when he was summarily dismissed. He appealed that dismissal which appeal was rejected on 17 April 2024. That date is sometimes referred to as the date upon which the employment ended, but I have decided that the employment in fact ended on 21 February when he was originally dismissed.[2]By a claim form presented on 3 June 2024, the claimant claims:2.1 Unfair dismissal.2.2 Notice pay, being 12 weeks wages.2.3 Arrears of pay, being three weeks pay for the weeks up to his summary dismissal for which he was not paid.[3]Standard form directions were given by the tribunal so as to facilitate the claim being heard on 14 and 15 May 2025.[4]The claimant sought to strike out the response which had been submitted and the respondent sought to adjourn the hearing. Both applications came before an Employment Judge shortly prior to the May hearing and it was ordered that those applications should be dealt with at its commencement.[5]In preliminary discussions before hearing submissions on those two applications it became clear that:5.1 The respondent ran a small bakery. The claimant was the baker, and the business was run by a Mrs Nandha, who was the effective owner of the business via shares in the respondent.5.2 The bakery had ceased to trade in about January 2024 and the respondent is in the course of being placed into administration. This is a matter being discussed with HMRC a principal secured creditor.5.3 The bakery business has negligible assets.5.4 Mrs Nandha has suffered from both physical and mental ill-health for some time. She would be the principal witness for the respondent. The conversation during which it is said that the claimant acted in a manner amounting to gross misconduct was with her. Part was overheard by her sister, but she is also a lady in poor health.5.5 Mrs Nandha is currently in hospital having recently had major surgery. The prognosis is uncertain and the recovery period to be measured in months.5.6 The lack of preparation for the case by the respondent is explained by Mrs Nandha’s state of health. She is a lady of limited means and the solicitors who initially helped with the case came off the record many months ago. It is that lack of preparation and the failure to engage with the claimant’s solicitors that triggered the making of the strike out application.5.7 Mrs Nandha, and hence the respondent, is now represented by her son. He recognised that whilst the respondent considers that it had a defence to the claims, this would require Mrs Nandha and her sister to give evidence and it was uncertain when this might be possible. The existence of the case was a strain on his mother and, furthermore, defending the case appeared pointless as the respondent has no assets and is in course of being placed into administration.5.8 I noted, and Mr Lee for the claimant accepted, that on the information now provided as to the state of health of Mrs Nandha, the prospects of success of the strike out application were somewhat diminished and if that application did not succeed it seemed likely that the case would have to be adjourned for a substantial period.5.9 Having been given time to consider the position, and if appropriate to discuss the same with Mrs Nandha, Mr Nandha wrote to the tribunal withdrawing the ET3. He expressly recognised that this would lead to a judgment being entered against the respondent under Rule 22 of the 2024 Rules of Procedure.[6]In those circumstances I give judgment in favour of the claimant. Rule 22(2) is drafted on the basis that a response has not been received or that a response which has been received has been rejected. I consider that once a response is withdrawn the position is the same as if no response had ever been submitted. In the alternative, judgment is also to be given under that rule where the respondent has stated that it does not contest any part of the claim. That is certainly now the case here.[7]I am satisfied that the claimant received a monthly net wage of £3,000. That equates to a weekly net wage of £692.31.[8]As regards the unfair dismissal claim, the claimant seeks only a basic award. He has 15 complete years of service. For each he was above the age of 41 having been born in October 1966. He therefore turned 41 before his employment with the respondent began.[9]Hence, his basic award is to be calculated by multiplying the net weekly sum by 1.5 and then by 15. That gives a sum of £15,576.97.[10]His notice period, using the statutory minimum period, is 12 weeks. Hence, he is owed £8,307.42 being the net wages that he would have received during his notice period had he been dismissed on notice as he ought to have been. He did not work during that period.[11]The claimant was only paid up to 31 January 2024. He was dismissed on 21 February. He was not paid for the three weeks of February during which he remained an employee. He is entitled to be paid for that period and his net loss is £2,076.92. That is recoverable as an unlawful deduction from wages under Part II of the Employment Rights Act 1996.[12]Hence, each of the three aspects of the claim succeeds and the claimant is entitled to be paid the sums set out above, namely:12.1 A basic award of £15,576.97.12.2 £8,307.42 as damages for wrongful dismissal being the sum that he would have received during his notice period.12.3 £2,076.92 being his net wages for the last three weeks of his employment. Approved by: