Mr J H Quiquijana Titirico v Small and Beautiful Ltd and S Syka: 3306795/2021
JUDGMENT
[1]The claimant’s claim of automatic unfair dismissal pursuant to s.104(1)(b) of the Employment Rights Act 1996 (“ERA”) against the First Respondent is well-founded and succeeds.[2]The claimant’s claim of automatic unfair dismissal pursuant to s.104(a) ERA 1996 against the First Respondent is unfounded and does not succeed.[3]The claimant’s claim of a detriment for a minimum wage reason contrary to s.23 NMWA 1998 against the First Respondent is well-founded and succeeds.[4]The claimant’s claim of direct race discrimination contrary to s.13 Equality Act 2010 (“EQA”) against the First and Second Respondents is wellfounded and succeeds.[5]The claimant’s claim of victimisation contrary to s.27 EQA 2010 is not founded.[6]The claimant’s claim of unlawful deduction is well-founded and succeeds.[7]The claimant’s claim of wrongful dismissal is well-founded and succeeds.[8]The claimant’s claim in respect of unpaid holiday pay well- founded and succeeds. Case Number: 3306795/2021 2[9]The claim in respect of failure to provide written particulars or itemised pay statements well-founded and succeeds.[10]The claimant’s claim for compensation in accordance with s.11(2)(b) of NMWA 1998 against the First Respondent well-founded and succeeds.[11]The First Respondent is found to have acted unreasonably in failing to comply with its obligations in respect of the Acas Code and the claimant’s award is subject to an uplift of 25%. _____________________________ Employment Judge Forde Date: 7 November 2022 Sent to the parties on: 7 November 2022 For the Tribunal Office . Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Case No: 3306795/2021 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: José Hector Quiquijana Titirico Respondent:(1) Small and Beautiful Limited(2) Skender Syka Heard at: Watford Employment Tribunal On: 7 July 2022 Before: Employment Judge Forde Representation Claimant: Mr D Rommer, Solicitor Respondent: First and Second Respondents did not attend and were not represented. Remedy Judgment[1]The tribunal finds that the Claimant is successful in his claim and is awarded the sum of £17,021.79.[2]Of the award set out at 1. above, the First Respondent is responsible for the payment of the compensatory award, namely £9,742.24.[3]The First Respondent is responsible for payment of the compensation award including statutory rights, assessed in the sum of £11,346.72.[4]The First and Second Respondents are jointly and separately liable for payment to the Claimant in the sum of £5,675.07 awarded in respect of non-financial loss.REASONS
Following the tribunal’s finding in respect of liability, the tribunal makes the following findings: The Claimant’s D.O.B. is 19/03/1972 which means he was 48 when he was employed by the first respondent. The date upon which the Claimant started employment his employment with the first respondent was 29/10/2020. The Case No: 3306795/2021 10.2 Judgment - rule 61 February 2018 effective date of termination (EDT) was 11/01/2021. The tribunal finds on the balance of probabilities that the claimant started equivalent work or was expected to have started work by 01/04/2021. For the purposes of the remedy calculations the tribunal found the following:[1]That the claimant did not have a written contract and therefor he was entitled to statutory notice of Notice 1 week.[2]The claimant’s net weekly pay at EDT was £342.80.[3]The claimant’s gross weekly pay at EDT was £401.12. Based upon the these findings the tribunal calculated remedy in the following way: Compensatory Award Loss of net earnings – 11.4 weeks x net weekly pay (£342.80): £3,907.92 Plus loss of statutory rights: £500.00 Less sums obtained, or should have been obtained through mitigation: minus £48.97 Total: £4,358.95 Holiday pay: £308.64 Unlawful deductions: £2,292.48 Failure to produce pay records – 80 hours gross pay at £8.91 per hour: £712.80 Total: £3,313.92 Compensatory award before adjustments: £9,742.24 Adjustments to Total Compensatory Award[4]Failure by employer to follow statutory procedures at 25%: £1,662.86 Plus interest (compensatory award) @ 8% for 308 days: £406.51 Total compensatory award with adjustments: 9,742.24 Failure to Provide Written Particulars Number of weeks (4) x gross weekly pay (£401.12): £1,604.48 Case No: 3306795/2021 10.2 Judgment - rule 61 February 2018 Non-Financial Losses Injury to feelings: £5,000.00 Plus interest @ 8% for 616 days: £675.07 Total non-financial award: £5,675.07 Summary Totals Compensation award including statutory rights: £11,346.72 Non-financial loss: £5,675.07 TOTAL: £17,021.79