Miss J Coles v Mr P Thind and Mr P S Fernandes T/a Britains: 3320751/2019
EMPLOYMENT TRIBUNALS
Case No 3320751/2019
Between
Miss J ColesClaimant1. Mr Paramjeet Thind 2.Mr Paulo Sousa Fernandes t/a BritainsRespondent
Before
Employment Judge PalmerDate 22 September 2021
JUDGMENT
The response is struck out.
REASONS
Background
[1]By a letter dated 17 May 2021 the Tribunal gave the respondent an opportunity to make representations or to request a hearing, as to why the response should not be struck out because the respondent had not complied with the Order of the Tribunal dated 29th March 2021. it has not been actively pursued.[2]The respondent has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The response is therefore struck out.[3]The respondent will be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge.[1]All claims against the first respondent fail and are dismissed.[2]The claims for unfair dismissal, damages for failure to give notice, sick pay, and unpaid holiday pay against the second respondent succeed.[3]The claims for unpaid wages and a redundancy payment against the second respondent fail and are dismissed.[4]Remedy is to be determined at a hearing on 13 October 2021 at 2pm.[1]The Claimant brought claims for: 1.1.Unfair dismissal; 1.2 Redundancy payment; 1.3 Notice pay; 1.4 Sick pay; 1.5 Unpaid wages; and 1.6 Unpaid holiday pay[2]The issues to be determined were identified by EJ Palmer at a preliminary hearing on 24 February 2020. These were:2.1 Who was C employed by between 2 February 2015 and 28 February 2019? Was it Mr P Thind or was it The Boundary Plaice (dissolved)?2.2 Was there a transfer of an undertaking under the TUPE Regulations and was the Claimant thereby transferred to the transferee (Britain’s/ Britain’s Best/ Brittain’s Best/ Paolo/ Mario) at a point of transfer on 28 February 2019?2.3 If there was no transfer, was C dismissed by her employer the Boundary Plaice Limited or Mr Thind on 28 February 2019?2.4 If there was a transfer was C then dismissed by the transferee at about, or shortly after, 28 February 2019?2.5 Who should be responsible for liability in respect of any claims C has which may be successful, including her claims for unfair dismissal, a redundancy payment, damages for failure to give notice, sick pay, unpaid wages, and unpaid holiday pay? Procedure, documents, and evidence heard[3]Although neither Respondent attended, the first respondent - Mr Thind - had previously submitted an ET3 in response to the Claimant’s ET1. This provided some useful information.[4]The Claimant had not provided a written witness statement, so was asked to verify the contents of her ET1 and gave sworn oral evidence in response to my questions.[5]The Claimant had not provided any of the documentation she intended to rely on in advance of the hearing as she had expected a face-to-face hearing, only became aware of that the hearing would be via CVP the day before, and by her own admission is not good with technology (she appeared via her smartphone).[6]I adjourned the hearing for a short time to allow the Claimant to try to provide the documentation by email to the Tribunal, even if this was only possible by taking photographs with her smartphone. After multiple failed attempts, and a much longer than anticipated adjournment, I decided to proceed as far as possible without copies of the documents.
Findings of fact
[7]The Claimant worked at Boundary Plaice fish and chip shop as a manager and fryer, from 2 February 2015. The first respondent was the owner and sole director Boundary Plaice Ltd, who employed the claimant – the claimant confirmed that Boundary Plaice was recorded as the employer on her pay slips.[8]The claimant worked 25 hours per week, and received £250 gross pay each week (£231 net).[9]The claimant was off sick from work from 21 January 2019 with a swelling of the temporal artery. She provided the first respondent with sicknotes regularly – every 2 or 3 weeks – and received Statutory Sick Pay (“SSP”). The last payment was made on 2 March 2019.[10]Shortly before 28 February 2019, the first respondent informed the claimant that he was selling the business, and that her employment would transfer to the new owners. He assured her that her wages and holiday would stay the same, and advised that the new owners would be responsible for her SSP from 1 March 2019. At that time, the first respondent didn’t give the claimant any information about who her ne employers would be.[11]In his response to the claims, the first respondent – in his ET3 - submits that: “4. On 28th February 2019, the business of the Boundary Plaice was sold to The Brittain’s of 147 Harrowden Road Bedford 5. The sale included physical assets, goodwill and the transfer of staff to the new owner 6. Mr Thind retained personal ownership of the building and agreed a lease with the owners of The Brittain’s for the premises”[12]Shortly after 28 February 2019, the claimant went into the chip shop to introduce herself to the new owners, and to provide sicknotes. She was told to speak to Paolo, who she now knows is Mr Fernandes - the second respondent - but his brother, Mario, took the lead. The claimant says they didn’t seem very interested, but accepted the sicknotes she provided.[13]The claimant didn’t receive any SSP from the second respondent - she raised it with them after about 4 weeks, and was told that they had rent to pay so weren’t going to pay her SSP. Despite this, the claimant continued to provide sicknotes to the second respondent.[14]The claimant tried to contact the first respondent during this time, but he didn’t want to talk and said it wasn't any of his concern.[15]The last sicknote the claimant provided to the second respondent covered the period 9 May 2019 to 8 June 2019, after which she advised that she was able to return to work. At this point, the second respondent informed her that there wasn’t a job for her. The claimant asked why they had continued to accept her sicknotes – they had no explanation, but stated that the first respondent should have made a redundancy payment to the claimant.[16]The claimant sought help from HMRC in relation to her situation. On 6 June 2019, HMRC sent her a letter which said (as no copy was available to the Tribunal, then claimant read out the contents of the letter): “You asked us about SSP as you’ve been sick since 15/01/19. I understand you had received SSP from Boundary Plaice up to 01/03/19 when your employment with them ended. I can confirm HMRC has received electronic information from Boundary Plaice which advises your employment with them ended on 01/03/19 and you were last paid SSP on 02/03/19. You have told me your previous employer Boundary Plaice said you had been transferred to Britain’s Best at 147 Harrowden Road Bedford MK42 0RU under TUPE. You have told us you have us you have not received any SSP from Britain’s Best, and RTI confirms no payments were made to you after 02/03/19 We took this case on to investigate entitlement to SSP and sent you and your employer forms for completion. You returned your form to us, however we did not receive a reply from Boundary Plaice or Britain’s Best. As there is insufficient evidence to suggest transfer of undertakings took place we have closed your case and suggest you contact ACAS to see if TUPE does apply. At this time it means you are not entitled to SSP after 02/03/19 and should try to make a claim to benefits as you were/are still sick. We hope any claim could be backdated as it appears you may have been misled. This letter can be used as a replacement for the SSP1 form and can be used to help with any claim for benefits you may make.”[17]When the claimant made a claim for benefits, she was initially told by the Department for Work and Pensions (“DWP”) that she had made insufficient National Insurance (“NI”) contributions. She provided documents, including P60s issued to her at the end of each financial year, to prove that the first respondent had deducted NI from her wages.[18]The claimant was eventually paid Employment and Support Allowance (“ESA”) - a benefit for people who have limited capability for work – this was backdated to 12 March 2019 and paid up until 8 June 2019. ESA stopped after the claimant was assessed by a healthcare professional for the DWP who determined that the claimant did not have limited capability for work. ESA was paid at a rate of £73.10 per week in 2019.[19]Following this, the claimant received Job Seekers Allowance (“JSA”) for a period of 6 months until December 2019. In order to receive this benefit, the claimant would have had to satisfy conditions including looking for work, keeping records of job searched and work, and making herself available for work. JSA was paid at a rate of £73.10 per week in 2019.[20]The claimant then had a short period with no income, before starting a new job in February 2020.[21]The claimant’s annual leave year ran from 2 February each year, this being the date her employment started. She says she got 21 days plus bank holidays - I find that is more likely than not that she was entitled to the minimum of 5.6 weeks (28 days) annual leave entitlement provided for by the Working Time Regulations. The claimant states that she had 5 days of leave entitlement left from the holiday year ending 1 February 2019 that the first respondent had allowed her to carry over into the holiday year starting 2 February 2019.
The law
[22]The principal UK statutory provisions that are relevant to the issues in this case are to be found in Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) and are as follows: “A relevant transfer 3. —(1) These Regulations apply to — (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity; (b) a service provision change, that is a situation in which — (i)activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”); (ii)activities cease to be carried out by a contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person (“a subsequent contractor”) on the client’s behalf; or (iii)activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied.(2) In this regulation “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary. (2A) References in paragraph (1)(b) to activities being carried out instead by another person (including the client) are to activities which are fundamentally the same as the activities carried out by the person who has ceased to carry them out.(3) The conditions referred to in paragraph (1)(b) are that — (a) immediately before the service provision change — (i)there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client; (ii)the client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and (b) the activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.” “Effect of relevant transfer on contracts of employment 4.— (1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer— (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee. (3) Any reference in paragraph (1) to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to a relevant transfer, is a reference to a person so employed immediately before the transfer, or who would have been so employed if he had not been dismissed in the circumstances described in regulation 7(1), including, where the transfer is effected by a series of two or more transactions, a person so employed and assigned or who would have been so employed and assigned immediately before any of those transactions.”[23]Regulation 7(1) provides that: “where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee is to be treated… as unfairly dismissed if the sole or principal reason for the dismissal is the transfer’.[24]However, Reg 7(2) and (3) then goes on to stipulate that where the sole or principal reason for the dismissal is an economic, technical or organisational reason entailing changes in the workforce (‘an ETO reason’) of either the transferor or the transferee before or after a relevant transfer, Reg 7(1) ‘does not apply’ and the fairness of dismissal is to be judged by reference to S.98(4) of the Employment Rights Act 1996 (ERA), which sets out the standard ‘reasonableness test’ that applies to ordinary unfair dismissal.[25]Reg 7(3)(b) specifically states that a so-called ‘ETO dismissal’ will be deemed to be either for ‘redundancy’ (assuming it meets the statutory definition of redundancy) or for ‘a substantial reason of a kind justifying the dismissal of an employee holding the position which that employee held’ (SOSR).[26]The onus is on the dismissing employer to establish that a reason that appears to be connected to the relevant transfer is in fact an ETO reason — see Litster and ors v Forth Dry Dock and Engineering Co Ltd (in receivership) and anor 1989 ICR 341, HL.[27]Also of relevance is the case law, which can be found in abundance in relation to the TUPE regulations and the Acquired Rights Directive of the EU Council, No. 2001/23. I first note the following in respect of a business transfer under regulation 3(1)(a) of TUPE. In Cheeseman v R Brewer Contracts Ltd [2001] IRLR 144, the EAT approved the approach set out in Whitewater Leisure Management Limited v. Barnes [2000] ICR 1049 that it was “quite plain that there are two questions to be asked and answered” as follows: "whether or not there was an identifiable business entity constituting an undertaking within the meaning of the Regulations; and, secondly, assuming such could be determined, whether or not there was a relevant transfer"[28]Addressing the first of those questions, economic entity is defined in regulation 3(2) as set out above. In that regard, having considered relevant decisions of both the UK courts and the ECJ, the EAT in Cheeseman set out the following principles with regard to whether an economic entity exists:28.1 “As to whether there is an undertaking, there needs to be found a stable economic entity whose activity is not limited to performing one specific works contract, an organised grouping of persons and of assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective”; (it being noted that the reference to "one specific works contract" is to be restricted to a contract for building works).”28.2 “In order to be such an undertaking it must be sufficiently structured and autonomous but will not necessarily have significant assets, tangible or intangible.”28.3 “In certain sectors such as cleaning and surveillance the assets are often reduced to their most basic and the activity is essentially based on manpower.”28.4 An organised grouping of wage-earners who are specifically and permanently assigned to a common task may in the absence of other factors of production, amount to an economic entity.”28.5 An activity of itself is not an entity; the identity of an entity emerges from other factors such as its workforce, management staff, the way in which its work is organised, its operating methods and, where appropriate, the operational resources available to it.”[29]As for whether there has been a transfer, the EAT set out the following principles:29.1 “As to whether there is any relevant sense a transfer, the decisive criterion for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated, inter alia, by the fact that its operation is actually continued or resumed”.29.2 “In a labour intensive sector it is to be recognised that an entity is capable of maintaining its identity after it has been transferred where the new employer does not merely pursue the activity in question but also takes over a major part, in terms of their numbers and skills, of the employees specially assigned by his predecessors to that task. That follows from the fact that in certain labour intensive sectors a group of workers engaged in the joint activity on a permanent basis may constitute an economic entity”.29.3 “In considering whether the conditions for existence of a transfer are met it is necessary to consider all the factors characterising the transaction in question but each is a single factor and none is to be considered in isolation”.29.4 “Amongst the matters thus falling for consideration are the type of undertaking, whether or not its tangible assets are transferred, the value of its intangible assets at the time of transfer, whether or not the majority of its employees are taken over by the new company, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, in which they are suspended”.29.5 “In determining whether or not there has been a transfer, account has to be taken, inter alia, of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on”.29.6 “Where an economic entity is able to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction being examined cannot logically depend on the transfer of such assets.”29.7 “Even where assets are owned and are required to run the undertaking, the fact that they do not pass does not preclude a transfer.”29.8 “Where maintenance work is carried out by a cleaning firm and then next by the owner of the premises concerned, that mere fact does not justify the conclusion that there has been a transfer.”29.9 “More broadly, the mere fact that the service provided by the old and new undertaking providing a contracted-out service or the old and new contract-holder are similar does not justify the conclusion that there has been a transfer of an economic entity between predecessor and successor.”29.10 “The absence of any contractual link between transferor and transferee may be evidence that there has been no relevant transfer but it is certainly not conclusive as there is no need for any such direct contractual relationship.”29.11 When no employees are transferred, the reasons why that is the case can be relevant as to whether or not there was a transfer.”29.12 The fact that the work is performed continuously with no interruption or change in the manner or performance is a normal feature of transfers of undertakings but there is no particular importance to be attached to a gap between the end of the work by one sub−contractor and the start by the successor.”[30]Also of relevance to the question of when an economic entity retains its identity is the guidance in the decision of the ECJ in Spijkers v Gebrobroeders Benedik Abattoir C.V. [1986] ECR 1119 in which (in what has been described as a “multifactorial approach”) it was said that “it is necessary to take account of all the factual circumstances of the transaction in question” including the following:30.1 the type of business or undertaking;30.2 the transfer or otherwise of tangible assets;30.3 the value of intangible assets at the date of transfer;30.4 whether the majority of the staff are taken over by the employer;30.5 the transfer or otherwise of customers;30.6 the degree of similarity of activities before and after the transfer; and30.7 the duration of any interruption in these activities. That said, the ECJ made clear that these are merely factors in an overall assessment and cannot be considered in isolation; thus suggesting that not all the factors need to be satisfied in order for regulation 3(1)(a) to apply.[31]Finally, and more generally, in Cheeseman, the EAT provided additional guidance including as follows:31.1 “The necessary factual appraisal is to be made by the National Court.”31.2 The directive applies where, following the transfer, there is a change in the natural person responsible for the carrying on of the business who, by virtue of that fact, incurs the obligation of an employer vis−a−vis the employees of the undertaking, regardless of whether or not ownership of the undertaking is transferred.”31.3 The aim of the Directive is to ensure continuity of employment relationships within the economic entity irrespective of any change of ownership …. And our domestic law illustrates how readily the Courts will adopt a purposive construction to counter avoidance.”[32]I have set out ‘the Cheeseman guidelines’ above in relation to whether an economic entity exists and whether it retains its identity following a putative transfer. There are, however, two other questions arising from regulation 3(1)(a) of TUPE: namely, whether the entity is “situated immediately before the transfer” in the UK and whether there was a transfer “to another person”.[33]In this case, the answer to the first question is self-evident and nothing more needs to be added. In answering the second question the Courts have taken a purposive approach. It is established, for example, that TUPE can apply to the granting, terminating, surrendering or assigning of a lease of property where a business is intrinsically linked to such property and where as a result the business changes hands and continues to be run as essentially the same business. TUPE can also apply to the conferring of a franchise, licence or concession and where, for example, a licensee enters into a contractual arrangement to carry out a business activity, the fact that certain key tangible and intangible assets of the business continue to be owned by the person conferring the licence will not necessarily prevent the operation of the regulations.
Conclusions
[34]In Foreningen af Arbejdsledere i Danmark v Daddy’s Dance Hall A/S [1988] IRLR 315, the ECJ restated its approach in Landsorganisationen i Danmark v Ny Mølle Kro [1989] ICR 330 that the Directive “applies as soon as there is a change of the natural or legal person responsible for operating the undertaking who, consequently, enters into obligations as an employer towards the employees working in the undertaking, and it is of no importance to know whether the ownership of the undertaking has been transferred”. I also note from the first of these decisions that it is irrelevant that there is no contractual or other direct relationship between the transferor and the transferee so long as the undertaking in question retains its identity. Unfair Dismissal – Employment Rights Act 1996[35]Section 94. The right. (1) An employee has the right not to be unfairly dismissed by his employer.[36]Section 98. General.(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or if more than one the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it- ... (c) is that the employee was redundant … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[37]Section 139. Redundancy. (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to – (a) … (b) The fact that the requirements of the business – (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.[38]The question of whether a dismissal is rendered automatically unfair by reason of the transfer is primarily one of causation - was the transfer the sole or principal reason for dismissal? A number of issues may be relevant to ascertaining the answer to that question, depending on the circumstances of the particular case. These include:• the timing of the dismissal• the reason for dismissal, i.e. the factors operating on the employer’s mind; and• whether the specific transferee had been identified by the time the dismissal took place.[39]Notice – Employment Rights Act 1996 Rights of employer and employee to minimum notice. 86 -(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a) is not less than one week's notice if his period of continuous employment is less than two years, (b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to subsections (1) and (2); but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice. Conclusions Who was C employed by between 2 February 2015 and 28 February 2019? Was it Mr P Thind or was it The Boundary Plaice (dissolved)?[40]The claimant was employed by The Boundary Plaice (dissolved) from 2 February 2015, until 28 February 2019, as confirmed by the first respondent. Was there a transfer of an undertaking under the TUPE Regulations and was the Claimant thereby transferred to the transferee (Britain’s/ Britain’s Best/ Brittain’s Best/ Paolo/ Mario) at a point of transfer on 28 February 2019?[41]Applying the legal tests, set out in detail above, to the facts I conclude that:41.1 There was a stable economic entity because:41.1.1 the business was sufficiently structured with some tangible assets, as detailed by the first respondent41.1.2 there was an organised grouping of wage-earners, specifically and permanently assigned to the activities of the business. It is irrelevant whether the claimant was the sole employee at the time of the transfer.41.2 The economic entity retained its identity because:41.2.1 the assets required to operate the business of a fish and chip shop were transferred from the first respondent to the second respondent41.2.2 it is more likely than not that the customers who had previously visited Boundary Plaice continued to frequent Britain’s, at least in the short term41.2.3 the second respondent continued to conduct entirely similar activities after the transfer, namely selling fish and chips (and possibly other food items)41.2.4 there was no interruption to the activities of the business – the claimant attended the business address shortly after the transfer took place, the shop was open and the second respondent was there41.3 The economic entity was situated in the UK immediately before the transfer - this is self-evident in this case.41.4 There was a transfer to another person because: 41.4.1 It is irrelevant that there is no contractual or other direct relationship between the transferor and the transferee so long as the undertaking in question retains its identity. Whilst the letter of 6 June 2019 from HMRC to the claimant suggested that she may have been misled in relation to the transfer, that statement was based on there being insufficient evidence so I do not consider it to be conclusive. The second respondent, when attending the previous hearing, confirmed that they had taken over the business from the first respondent.[42]Following the conclusions above, I have determined that there was a relevant transfer from the first respondent to the second respondent on 28 Febriary 2019. If there was no transfer, was C dismissed by her employer the Boundary Plaice Limited or Mr Thind on 28 February 2019?[43]There was a transfer from the first respondent to the second respondent. If there was a transfer was C then dismissed by the transferee at about, or shortly after, 28 February 2019?[44]As there was a relevant business transfer, the transferee – the second respondent – the claimant’s contract of employment transferred to them on the same terms and conditions, and with her continuity of service. The claimant was then dismissed by the transferee, the second respondent following the transfer.[45]In considering the reason for dismissal, I considered whether the sole or principal reason for the dismissal was an economic, technical or organisational reason entailing changes in the workforce (‘an ETO reason’). As the onus is on the dismissing employer to establish that a reason that appears to be connected to the relevant transfer is in fact an ETO reason, and the second respondent has not engaged with the proceedings beyond attending the on 6 April 2020 when this case was previously listed for a full merits hearing, and confirming his identity, I have no information to determine that an ETO reason existed.[46]Turning to the reason for dismissal, I have to determine what the sole and principal reason was – was it the transfer?46.1 Timing of dismissal I have given a lot of consideration to timing of the dismissal – did it occur in June 2019 when the second respondent expressly told the claimant that there wasn’t a job for her, or at an earlier point in time following the transfer? It is clear that the claimant still considered herself to be in employment, with an obligation to provide the second respondent with sick notes. The second respondent accepted these, but when they failed to pay the claimant, she would have been entitled to consider herself as dismissed at that point. The DWP determined that the claimant was too unwell to work from 12 March 2019 as they backdated her ESA claim to that date - in order to qualify for ESA she would have either been unemployed, or employed for less than 16 hours per week. I therefore conclude that the claimant was dismissed by the second respondent on 11 March 2019.46.2 Reason for dismissal I cannot determine what was in the employer’s mind in relation to dismissal, as the second respondent has not engaged with these proceedings in any meaningful way.46.3 Identity of specific transferee at time of dismissal This is self-evident in this case. Although the claimant was not aware of the full details of the transferee until these proceedings, there was no issue as to their identity – she spoke to them on more than one occasion at the business premises.[47]In the absence of any intervening change in circumstances, the reason for a dismissal that takes place shortly after the transfer is likely to be found to be linked to the transfer itself. There is no evidence before the Tribunal of any intervening act between the transfer and the claimant’s dismissal. Here, the transferee has failed to appreciate the employee’s rights under the TUPE Regulations and the effect this had on the preservation of her contractual terms following the relevant transfer. It may be that they had no knowledge of any existing staff to be transferred from the first respondent, so had no thought about dismissal, but that is not relevant. Who should be responsible for liability in respect of any claims C has which may be successful, including her claims for unfair dismissal, a redundancy payment, damages for failure to give notice, sick pay, unpaid wages, and unpaid holiday pay?[48]As a consequence of the conclusions above, liability for any claims lies with the second respondent. I will deal with each in turn. Unfair dismissal[49]Having concluded that the reason for the claimant’s dismissal was the transfer, the dismissal is therefore automatically unfair.[50]The claimant is entitled to a basic award and a compensatory award – the details of this are to be determined at the remedy hearing on 13 October 2021. Notice pay[51]The claimant was not given any notice of the termination of her contract by the second respondent. Having been in employment for 4 full years, she is entitled to 1 week pay for each year of service. Holiday pay[52]The claimant carried over 5 days of annual leave entitlement from the holiday year ending 1 February 2019 – she did not use this entitlement and was not paid in lieu of this. The claimant also accrued annual leave entitlement from 2 February 2019 until the date of termination of the contract, equivalent to 0.47 days per month.[53]The claimant has set out this aspect of her claim for 20 days – in a schedule of loss received by the Tribunal on 22 October 2019 - it is unclear what the basis of this is, and so the total amount of holiday pay remains to be determined at the remedy hearing. Sick pay[54]Having acquired the claimant’s employment contract with the business transfer, the second respondent was liable to pay her SSP from 1 March until the termination of her contract. Redundancy payment[55]Having determined that the reason for dismissal was the transfer, and not redundancy, this claim is not well founded and is dismissed. Unpaid wages[56]Having concluded that the second respondent is liable to pay the claimant’s sick pay from 1 March 2019 until termination of the contract, I have been unable to identify any other wages that remain unpaid. Therefore, this claim is not well founded and is dismissed.[1]A merits hearing took place on 21 July 2021. The Respondent did not attend, their response having been struck out on 16 June 2021, for not being actively pursued. In a reserved judgment dated 22 September 2021, I determined that the Claimant’s dismissal was unfair. The remedy hearing was scheduled for 13 October 2021.[2]On 11 October 2021 the Respondent applied for reconsideration of the judgment. The Respondent was then directed to provide further information. Pending receipt and consideration of this, the remedy hearing was postponed.[3]No further correspondence was received from the Respondent, and a remedy hearing was listed for 4 August 2022. On the morning of that day, the Claimant requested an adjournment which was granted.[4]The remedy hearing was relisted for 8 September 2022, but no Notice of Hearing was sent to parties, so a further adjournment was necessary. The case remedy hearing was relisted for 10 February 2023.[5]The Respondent attended on 10 February 2023 and applied for the remedy hearing to be converted to a hearing to consider the application for reconsideration. I was persuaded that the reconsideration application was still outstanding, but there was insufficient time to deal with it in the remaining court time. A hearing to deal with the reconsideration application was therefore scheduled for 30 May 2023.[6]On that date I reconsidered the judgment, and upheld it, save for a change to the date on which the Claimant had been dismissed. In that regard, 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. However, I will set out a summary of the facts and conclusions as far as it is relevant and necessary for the remedy judgment.[7]A remedy hearing was listed for 14 August 2023. That morning, the Claimant emailed to say she could not attend because her granddaughter had been in an accident sustaining life-threatening injuries. She had requested that the hearing go ahead without her, but there was insufficient available evidence without further oral evidence from the Claimant.[8]The hearing was rescheduled for 27 October 2023. Unfortunately, the Notice of Hearing was not sent, and the Claimant was not aware so could not attend because of work commitments. The hearing was rescheduled for 12 December 2023.[9]On 6 December 2023, the Tribunal sent the parties correspondence stating: “The parties are reminded that ahead of the remedy hearing on 12th December, they are to provide the Tribunal (and each other) with the following: Claimant Full details of social security benefits received after dismissal from the Respondent (DWP statements/bank statements) Full details of job searches/applications/interviews after dismissal from the Respondent Details of employment since dismissal, including hours and salary, and copies of payslips Records of annual leave entitlement claimed to be accrued & untaken Records of holiday dates taken in the 2 years preceding dismissal Any other documentation relating to the amount of compensation being claimed Respondent Any records obtained from the transferor in relation to annual leave entitlement and holiday dates taken by the Claimant in the 2 years preceding dismissal Any other documentation relevant to remedy”[10]On 12 December 2023, no Portuguese interpreter was available in person, but one attended remotely via CVP. Procedure, documents, and evidence heard[11]I had available to me all documentation provided throughout the proceedings, including: 11.1. The bundle provided by the Respondent’s representatives; 11.2. Bank statements from the Claimant 11.3. Statements from the Respondent dated 10 February 2023 and 14 May 2023; 11.4. A statement from the Melissa Jayne Heath dated 14 May 2023;[12]The Respondent gave oral evidence at the hearings 30 May 2023 and 12 December 2023 and submissions, which are detailed below, were made on his behalf.[13]The Claimant gave oral evidence at the hearings on 21 July 2021, 30 May 2023 and 12 December 2023 (along with submissions which are detailed below), and was cross-examined by the Respondent. Relevant facts[14]The Claimant was employed by the Respondent from 2 February 2015, including the period prior to a TUPE transfer that took effect on 28 February 2019.[15]The Claimant was off sick from January 2019, provided fit notes to the previous owner Mr. Thind, and received SSP of £92.05 each week. After the transfer, she continued to provide notes to the Respondent.[16]On 30 May 2023, I determined that the dismissal was unfair. The following aspects of the final hearing and judgment are relevant for the purposes of deciding the appropriate remedy: 16.1. The Respondent had previously indicated to the transferor that he did not want the Claimant’s employment to transfer to him; 16.2. The Respondent accepted the Claimant’s sick notes; 16.3. Her last note was due to expire on 8 June 2019. Ahead of this, she attended the shop on 9 May 2019, when she was ultimately dismissed. 16.4. On that date the Claimant was simply informed there was no work for her in her former role; 16.5. The Respondent/another party present made a passing comment about other potential work, doing cleaning, which the Claimant interpreted as being “tongue-in-cheek" 16.6. No process to end the Claimant’s employment was followed 16.7. Passing reference to possibly finding other work for the Claimant was not sufficient to amount to a genuine offer or start of a consultation process.[17]The Claimant was aged 58 and therefore had 4 full years of qualifying service when she was over 41 years of age.[18]The Claimant’s claim form states that she was paid £250 gross (£231.82 net) per week and worked 25 hours per week [7].[19]The Claimant received income-related Employment and Support Allowance (ESA) between 12 March 2019 and 8 June 2019, at a rate of £73.10 per week. Thereafter, until December 2019 she received Job Seeker’s Allowance, also at £73.10 per week. This is 42 weeks of state benefits.[20]Between March and December 2019, the Claimant therefore received a total of £3070.20 in benefits.[21]In mid-January 2020 the Claimant got a new job working for Golden Years Catering. She was working on average 30 hours per week and was paid £11 per hour. This exceeded her income at the respondent company, which equated to £10 per hour. On that basis, the Respondent’s liability ends at the point where the Claimant secured the better paying job.[22]I also determined that the Respondent was liable to pay the Claimant for the holiday entitlement that had accrued but not been taken. Neither party had a written record of holidays requested/taken when the company was under previous ownership. Having dealt with the Claimant over a number of hearings, I had found her to be consistent and reliable in her evidence. Having preferred her evidence in relation to other matters, I had no reason to depart from that in relation to this issue. The relevant facts are therefore: 22.1. The Claimant was entitled to a total of 28 days holiday each year, pro rata, and therefore accrued 0.47 days holiday each month 22.2. The Claimant carried over the equivalent of 5 days from the previous leave year; 22.3. The Claimant clearly did not take any holiday from January 2019 to dismissal as she was off sick; 22.4. The Claimant is entitled to holiday pay until the termination date.[23]The evidence in relation to the start/end of each leave year was inconsistent. In the earlier hearing it was said to be from February each year (this would be in Iine with when the Claimant’s employment started). In the most recent hearing, it was expressed as possibly December to December, but the Claimant was unsure. I prefer the evidence that was closer in time to the claim, so will use February as the start date for each leave year. Law[24]Employment Rights Act 1996 24.1. Section 112 “The remedies: orders and compensation. ... (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee.” 24.2. Section 118 “(1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of—(a) a basic award (calculated in accordance with sections 119 to 122 and 126), and(b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 126).” 24.3. Section 119 “Basic award (1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and(c) allowing the appropriate amount for each of those years of employment. (2) In subsection (1)(c) “the appropriate amount” means— (a)one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b)one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c)half a week’s pay for a year of employment not within paragraph (a) or (b).” 24.4. Section 122 “Basic award: reductions ... (2)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” 24.5. Section 123 “Compensatory award. (1)Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2)The loss referred to in subsection (1) shall be taken to include— (a)any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b)subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. ... (4)In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. ... (6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[25]Polkey v AE Dayton Services Ltd 1988 ICR 142, HL When assessing the compensatory award for unfair dismissal, Tribunals are entitled to consider whether a reduction should be made on the ground that the lack of a fair procedure made no practical difference to the decision to dismiss.[26]Nelson v BBC (No.2) 1980 ICR 110, CA, The Court of Appeal said that three factors must be satisfied if the tribunal is to find contributory conduct: the conduct must be culpable or blameworthy The conduct must have actually caused or contributed to the dismissal, and it must be just and equitable to reduce the award by the proportion specified.[27]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 27.1. Regulation 3 “Application to payments and proceedings(1) Subject to paragraph (2) below these Regulations apply - (a) to the payments described in column 1 of the table contained in the Schedule to these Regulations, being, in each case, payments which are the subject of industrial tribunal proceedings of the kind described in the corresponding entry in column 2 and the prescribed element in relation to each such payment is so much of the relevant monetary award as is attributable to the matter described in the corresponding entry in column 3; and (b)to payments of remuneration in pursuance of a protective award.(2) The payments to which these Regulations apply by virtue of paragraph (1)(a) above include payments in proceedings under section 192 of the 1992 Act and, accordingly, where an order is made on an employee’s complaint under that section, the relevant protective award shall, as respects that employee and to the appropriate extent, be taken to be subsumed in the order made under section 192 so that the provisions of these Regulations relating to monetary awards shall apply to payments under that order to the exclusion of the provisions relating to protective awards, but without prejudice to anything done under the latter in connection with the relevant protective award before the making of the order under section 192. Duties of the industrial tribunals and of the Secretary of the Tribunals in respect of monetary awards (1) Where these Regulations apply, no regard shall be had, in assessing the amount of a monetary award, to the amount of any jobseeker’s allowance or any income support which may have been paid to or claimed by the employee for a period which coincides with any part of a period to which the prescribed element is attributable. (2) Where the industrial tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.(3) Subject to the following provisions of this Regulation it shall be the duty of the industrial tribunal to set out in any decision which includes a monetary award the following particulars - (a)the monetary award; (b)the amount of the prescribed element, if any; (c)the dates of the period to which the prescribed element is attributable; (d)the amount, if any, by which the monetary award exceeds the prescribed element.(4) Where the industrial tribunal at the hearing announces to the parties the effect of a decision which includes a monetary award it shall inform those parties at the same time of the amount of any prescribed element included in the monetary award and shall explain the effect of Regulations 7 and 8 below in relation to the prescribed element.(5) Where the industrial tribunal has made such an announcement as is described in paragraph (4) above the Secretary of the Tribunals shall forthwith notify the Secretary of State that the tribunal has decided to make a monetary award including a prescribed element and shall notify him of the particulars set out in paragraph (3) above.(6) As soon as reasonably practicable after the Secretary of the Tribunals has sent a copy of a decision containing the particulars set out in paragraph (3) above to the parties he shall send a copy of that decision to the Secretary of State.(7) In addition to containing the particulars required under paragraph (3) above, any such decision as is mentioned in that paragraph shall contain a statement explaining the effect of Regulations 7 and 8 below in relation to the prescribed element.(8) The requirements of paragraphs (3) to (7) above do not apply where the tribunal is satisfied that in respect of each day falling within the period to which the prescribed element relates the employee has neither received nor claimed jobseeker’s allowance or income support.” 27.2. Schedule – table relating to monetary awards “Column 1 Payment ... Payments under an award of compensation for unfair dismissal in cases falling under section 112(4) (cases where no order for reinstatement or reengagement has been made). ...” 27.3. Regulation 8 “Recoupment of Benefit (1) Recoupment shall be initiated by the Secretary of State serving on the employer a recoupment notice claiming by way of total or partial recoupment of jobseeker's allowance, income-related employment and support allowance, universal credit or income support the appropriate amount, computed, as the case may require, under paragraph (2) or (3) below. (2) In the case of monetary awards the appropriate amount shall be whichever is the less of the following two sums— (a) the amount of the prescribed element (less any tax or social security contributions which fall to be deducted therefrom by the employer); or (b) (i) the amount paid by way of or paid as on account of jobseeker's allowance, income-related employment and support allowance or income support to the employee for any period which coincides with any part of the period to which the prescribed element is attributable, or (ii) in the case of an employee entitled to an award of universal credit for any period (“the UC period”) which coincides with any part of the period to which the prescribed element is attributable, any amount paid by way of or on account of universal credit for the UC period that would not have been paid if the person's earned income for that period was the same as immediately before the period to which the prescribed element is attributable. ... (4) A recoupment notice shall be served on the employer by post or otherwise and copies shall likewise be sent to the employee and, if requested, to the Secretary of the Tribunals. (5) The Secretary of State shall serve a recoupment notice on the employer, or notify the employer that he does not intend to serve such a notice, within the period applicable, as the case may require, under paragraph (6) or (7) below, or as soon as practicable thereafter. (6) In the case of a monetary award the period shall be— (a) in any case in which the tribunal at the hearing announces to the parties the effect of its decision as described in Regulation 4(4) above, the period ending 21 days after the conclusion of the hearing or the period ending 9 days after the decision has been sent to the parties, whichever is the later; or (b) in any other case, the period ending 21 days after the decision has been sent to the parties. ... (8) A recoupment notice served on an employer shall operate as an instruction to the employer to pay, by way of deduction out of the sum due under the award, the recoupable amount to the Secretary of State and it shall be the duty of the employer to comply with the notice. The employer's duty under this paragraph shall not affect his obligation to pay any balance that may be due to the employee under the relevant award.(9) The duty imposed on the employer by service of the recoupment notice shall not be discharged by payment of the recoupable amount to the employee during the postponement period or thereafter if a recoupment notice is served on the employer during the said period.(10) Payment by the employer to the Secretary of State under this Regulation shall be a complete discharge in favour of the employer as against the employee in respect of any sum so paid but without prejudice to any rights of the employee under Regulation 10 below.(11) The recoupable amount shall be recoverable by the Secretary of State from the employer as a debt.(12) For the purposes of paragraphs (2)(b)(ii) and (3)(b)(ii), “earned income” has the meaning given in regulation 52 of the Universal Credit Regulations 2013.” 27.4. Regulation 10 “Provisions relating to determination of amount paid by way of or paid as on account of benefit (1) Without prejudice to the right of the Secretary of State to recover from an employer the recoupable benefit, an employee on whom a copy of a recoupment notice has been served in accordance with Regulation 8 above may, within 21 days of the date on which such notice was served on him or within such further time as the Secretary of State may for special reasons allow, give notice in writing to the Secretary of State that he does not accept that the amount specified in the recoupment notice in respect of jobseeker's allowance, incomerelated employment and support allowance, universal credit or income support is correct. (2) Where an employee has given notice in writing to the Secretary of State under paragraph (1) above that he does not accept that an amount specified in the recoupment notice is correct, the Secretary of State shall make a decision as to the amount of jobseeker's allowance, income-related employment and support allowance, universal credit or, as the case may be, income support paid in respect of the period to which the prescribed element is attributable or, as appropriate, in respect of so much of the protected period as falls before the date on which the employer complies with Regulation 6 above. (2A) The Secretary of State may revise either upon application made for the purpose or on his own initiative a decision under paragraph (2) above. (2B) The employee shall have a right of appeal to [the First-tier Tribunal]4 against a decision of the Secretary of State whether as originally made under paragraph (2) or as revised under paragraph (2A) above. (2C) The Social Security and Child Support (Decisions and Appeals) Regulations 1999 shall apply for the purposes of paragraphs (2A) and (2B) above as though a decision of the Secretary of State under paragraph (2A) above were made under section 9 of the 1998 Act and any appeal from such a decision were made under section 12 of that Act. (2D) In this Regulation “the 1998 Act” means the Social Security Act 1998. (3) Where the Secretary of State recovers too much money from an employer under these Regulations the Secretary of State shall pay to the employee an amount equal to the excess. (4) In any case where, after the Secretary of State has recovered from an employer any amount by way of recoupment of benefit, the decision given by the employment tribunal in consequence of which such recoupment took place is set aside or varied on appeal or on a re-hearing by the employment tribunal, the Secretary of State shall make such repayment to the employer or payment to the employee of the whole or part of the amount recovered as he is satisfied should properly be made having regard to the decision given on appeal or re-hearing.” Submissions[28]The parties made oral submissions, which are summarised as follows: Respondent[29]The Claimant was not dismissed on 9 May 2019, it was actually a resignation effective 8 June 2019; 29.1. The Claimant can only have known she was ready to work again in June; 29.2. The Claimant’s evidence has changed in this respect; invite the Tribunal to prefer the Respondent’s evidence[30]In the alternative it was a dismissal for Some Other Substantial Reason due to breakdown in the relationship;[31]Polkey – the Claimant would have been dismissed in any event; 100% deduction should apply[32]Contributory fault - 100% deduction for Claimant conduct; No submissions on holiday pay
Conclusions
[34]Applying the facts to the law, I make the following conclusions: SSP[35]The Claimant would have continued to be entitled to SSP until her fit note expired on 8 June 2019.[36]She received state benefits during that period that amounted to £18.95 less each week than the SSP entitlement. The Respondent is liable to pay her this amount for each of the 14 weeks in this period.[37]The total amount of this element is £265.30. Unfair dismissal Basic award[38]As the Claimant was aged over 41 for each of the four full years he was employed by the Respondent, she is entitled to 1.5 weeks’ pay for each of those years. Compensatory award[39]As the remedy hearing took place more than 1 year after the dismissal, there is no separation between immediate and future loss. The maximum the Claimant would be entitled to is 52 weeks' pay.[40]The Claimant obtained a new job in mid-January 2020, which paid more than her previous job. The compensatory award is therefore limited to 15 January 2020.[41]Additionally, as the Claimant was already receiving SSP at the point of the transfer, and would have continued to receive it until expiry of her sicknote, she cannot begin to be entitled to the full compensatory amount until she would have returned to work. Adjustments[42]The following categories of potential adjustment apply 42.1. Mitigation of losses: 42.1.1. Earnings 42.1.1.1. The Claimant had no earnings until January 2020. She then secured a better paying job, and the Respondent’s liability ended. Therefore, no deduction to the compensatory award is appropriate. 42.1.1.2. The Claimant mitigated her losses as far as possible, and therefore no deduction to the compensatory award is appropriate. 42.2. Polkey: If a fair process had occurred, would it have affected when the claimant would have been dismissed? 42.2.1. The fair process would have required some degree of a redundancy process. That would clearly have affected the termination date. 42.2.2. However, it was not a complex case and there were less than 20 employees, so this should not have had any significant effect on the dismissal date. What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal? 42.2.3. I note that Mr. Fernandes had always indicated he had no desire to take over Mr. Thind's staff. 42.2.4. However, his evidence to the Tribunal was that he had offered to find some sort of work, specifically cleaning, for the Claimant. Had this been a meaningful offer, it would have formed part of a redundancy consultation, but that did not occur. 42.2.5. In any event, the Claimant interpreted this as tongue-in-cheek. Given her work history and the work she went on to do in catering, it is unlikely that she would have remained with the Respondent in a role such as cleaner that was far removed from the role she had held. 42.2.6. Taking everything into account, I determine that there is a 50% chance that the Claimant would still have been dismissed if a fair process had been followed. The compensatory award will therefore be reduced by that percentage. 42.3. ACAS uplift 42.3.1. The Respondent failed to follow any sort of process in relation to the Claimant. This was unreasonable given that information is easily accessible online, for example on the ACAS website. I take account of the fact that English is not his first language, but there are translation tools available, and he has managed sufficiently to purchase a business. 42.3.2. Having said this, I have no reason to believe that the failure was intentional, and he was clearly inexperienced. 42.3.3. Taking everything into account, the appropriate uplift is therefore 10%. 42.4. Contributory conduct 42.4.1. Culpable or blameworthy conduct 42.4.2. No conduct was identified, save for not engaging in a conversation about cleaning work. 42.4.3. Just and equitable reduction 42.4.3.1. As there is some overlap between the factors here and for the Polkey deduction, I have carefully considered if a deduction for contributory conduct is just and equitable. 42.4.3.2. Taking account of the nature of the alleged contributory conduct, it is not just and equitable to reduce the compensatory award. Recoupment[43]As the Claimant received JSA and income-related ESA, the compensatory award would usually be subject to recoupment. However, as the period for which the Claimant received those benefits was within a period where she would have been in receipt of SSP, and this has been calculated as a separate award, the compensatory award does not fall within the prescribed period. Calculation[44]Basic award A weeks’ gross pay = £250 x 1.5 weeks = £375 x 4 years as over 41 = £1500[45]Compensatory award A week’s net pay = £231.82 Loss of earnings = 32 weeks’ (10 June 2019 – 17 January 2020) pay x £231.82 = £7,418.24 Deductionsa. Earnings = £0b. Polkey deduction = 30% (£2,225.47) = £5,192.77c. ACAS uplift = 10% (£519.28) = £5,712.05d. Contributory conduct deduction = 0 = £5,712.05[46]Recoupment The Recoupment Regulations do not apply. Holiday pay Carried over holiday[47]As the Claimant’s worked 25 hours per week, this is 0.625 pro rata of a full-time role. As a fulltime worker would be entitled to 28 days (5.6 weeks) leave, the Claimant’s entitlement would equate to 17.5 days (3.5 weeks) per holiday year. 48. 5 days is 29% of 17.5 days.[49]In order to calculate the holiday pay rate, it is necessary to use the hours worked rather than days, using the usual rate of 12.07% of the hours worked in a pay period.[50]Hourly this would mean that the Claimant’s 3.5 weeks = 87.5 hours; 29% of this is 25.38 hours. 51. 25.38 x £10 per hour = £253.80 Accrued holiday[52]In order to calculate the holiday pay rate, it is necessary to use the hours worked rather than days, using the usual rate of 12.07% of the hours worked in a pay period. 25 hours x 12.07% / 100 = 3.02 = 3 hours accrued per pay period In the period February 2019 – 9 May 2019, there are 3.35 pay periods 3.25 x 3 hours = 9.75 hours 9.75 hours x £10 per hours = £97.50[53]In total, the Claimant is owed £351.30 in unpaid holiday. Summary[54]The Respondent is ordered to pay the Claimant the following sums: 54.1. £265.30 gross sum in relation to unpaid SSP; 54.2. £1,500 gross in respect of the basic award for unfair dismissal; 54.3. £5,712.05 net in respect of the compensatory award for unfair dismissal; 54.4. £351.30 gross, in relation to accrued holiday pay[55]Finally, I am aware that the Regional Employment Judge has written to the parties in general terms about the delay in this judgment being completed. I would like to take this opportunity to apologise to the parties and their representatives for the time that this has taken. I am grateful for the patience of all involved. The delay has been caused by my ill health, and I have finalised and promulgated the judgment as soon practicable.