Mr R Branigan v JDS 64 Ltd (in creditors’ voluntary liquidation): 3309081/2024
JUDGMENT
[1]The name of the respondent is amended from “JDS 64 Limited” to “JDS 64 Limited (in creditors’ voluntary liquidation)”.[2]On 15 July 2024 a relevant transfer, within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), took place from the former second respondent (AUK Realisations 2024 Ltd, formerly called Amscan International Ltd) to this respondent (JDS 64 Limited). The claimant (Mr Branigan) was employed by the transferor and assigned to the organised grouping of resources or employees that was subject to the relevant transfer.[3]On 16 July 2024 the claimant was dismissed by the respondent.[4]The complaint that the respondent is liable for the failure to comply with a requirement under TUPE reg 13 or 14 is well founded. The respondent is ordered to pay the claimant compensation of £ 29999.97, being 13 weeks’ wages. This figure was calculated on a gross basis and so the claimant is responsible for the payment of any tax or National Insurance.[5]The complaint in respect of holiday pay is well-founded. The respondent failed to pay the claimant £ 4,724.74, being 10.25 days’ wages, in accordance with the Working Time Regulations 1998. The respondent shall pay the claimant £ 3479.74. 1 of 4 The claimant is responsible for paying any tax or National Insurance. This figure has been calculated as follows: 5.1. £ 4,724.74 (gross), less £ 1245 (which was the gross basis for an award for holiday pay already made to the claimant by the Secretary of State).[6]The complaint of unauthorised deductions from wages is well-founded. The respondent shall pay the claimant £ 461.53. The claimant is responsible for the payment of any tax or National Insurance. This figure has been calculated as follows: 6.1. The respondent should have paid the claimant for 12 days’ work. 6.2. The claimant has received payment for 11 of those days from the secretary of state. 6.3. The respondent must therefore pay the claimant one day’s wages (gross).[7]The complaint of breach of contract in relation to notice pay is well-founded. The respondent shall pay the claimant £ 9941.60 as damages for breach of contract. This figure has been calculated on a net basis as follows: 7.1. The contractual notice period was 12 weeks. 7.2. 12 weeks’ net wages is £ 16621.92. 7.3. From this was deducted the payment of £ 6280.32 for notice pay made to the claimant by the Secretary of State.[8]The complaint of unfair dismissal is well-founded. The dismissal was automatically unfair as the claimant was dismissed because of the TUPE transfer.[9]For unfairly dismissing the claimant, the respondent must pay the claimant a basic award of £ 14,700. This figure has been calculated as follows: 9.1. £ 700 capped weekly pay, multiplied by 14 multiplied by 1.5, since the claimant was employed for 14 years in which he was aged over 41. 9.2. Despite the Secretary of State having awarded the claimant the sum of £ 14,700 by way of a redundancy payment, in the circumstances the Tribunal did not have the power to reduce the basic award.[10]For unfairly dismissing the claimant, the respondent must pay the claimant a compensatory award of £ 24437.33. This figure has been calculated as follows: 10.1. Net loss £ 16805.76 as follows: 10.1.1. 7 weeks’ net pay £ 9696.12 10.1.2. Pension loss: £2,904.00 10.1.3. Loss of private Healthcare: £ 947.64 (12 weeks, i.e the notice period) 2 of 4 10.1.4. Loss of car allowance Car £ 3,258 (3 months) 10.2. Grossing up 10.2.1. Total award potentially subject to tax = notice pay + basic award + compensatory award = 9941.6 + 14,700 + 16805.76 = £ 41447.36 10.2.2. Total award subject to tax (deducting the £ 30,000 tax-free part): 11447.36 10.2.3. The part of the compensatory award not subject to tax: 16805.76 - 11447.36 = £ 5358.4 10.2.4. Grossing up the part of the compensatory award subject to tax: 10.2.4.1. Marginal tax rate based on claimant’s income this year will be 40%. 10.2.4.2. 11447.36/(1-0.4) = £ 19078.933 10.2.5. Grossed up compensatory award 10.2.5.1. (grossed up part + part not subject to tax) = 10.2.5.2. 19078.93 + 5358.40 = £ 24437.33[11]The recoupment regulations do not apply to this award. Approved by: