Mrs J L Elder v Campbell Connon Solicitors and Others: 4100506/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100506/2023Venue AberdeenHearing 4 December 2023
Between
Mrs J L ElderClaimantCampbell Connon Solicitors and OthersRespondent
Before
Employment Judge N M HosieDate 6 December 2023
JUDGMENT
[1]the respondent shall pay to the claimant the sum of Thirteen Thousand, Seven Hundred and Twelve Pounds and Seventy-Eight Pence (£13,712.78), as a redundancy payment;[2]the claim under s.23 of the Employment Rights Act is well-founded and the respondent shall pay to the claimant the sum of One Thousand, Three E.T. Z4 (WR) Hundred and Fifty-Four Pounds and Thirty-Four Pence (£1,354.34), as unlawful deductions from wages:[3]the claim under Regulation 30(1)(b) of the Working Time Regulations 1998 is well-founded and the respondent shall pay to the claimant the sum of Seven Hundred and Ninety Pounds and Sixteen Pence (£790.16), as a payment in lieu of annual leave;[4]the respondent shall pay to the claimant the sum of Four Thousand, Seven Hundred and Forty Pounds and Ninety-Six Pence (£4,740.96), as damages for breach of contract (failure to give notice of termination of employment); and;[5]the respondent shall pay to the claimant the sum of Nine Hundred and Sixty- Two Pounds and Thirty Pence (£962.30), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.
REASONS
[1]The claimant, Jacqueline Elder, brought various claims following the termination of her employment on 24 October 2022, because of the appointment of a Judicial Factor to her employer, the firm of Campbell Connon, and the closure of its business. The respondent had not submitted an ET3 Response Form. The case proceeded on an undefended basis.
The evidence
[2]I heard evidence from Mrs Elder at the Hearing. She was represented by a solicitor, Ms Neukirch. She had submitted a number of documents (P). Mrs Elder gave her evidence in a measured, convincing manner, entirely consistent with the documentary productions. She presented as credible and reliable.
The facts
[3]Having heard Mrs Elder’s evidence and considered the documentary productions, I was able to make the following findings in fact. Mrs Elder commenced her employment with the respondent, Campbell Connon, as a Cashier on 4 March 2002. She was not provided with a written statement of particulars of employment. On 24 October 2022, Mrs Elder was not at work. She received a telephone call from David Morrison, one of the respondent’s partners, to inform her that a Judicial Factor, Morna Grandison, and her team had arrived at the respondent’s office in Aberdeen. He asked her to come into the office to assist the Judicial Factor which she did. She was then asked by the Judicial Factor to surrender all work-related property and belongings and go home. She was instructed not to return to work and was advised that the Judicial Factor would be in touch.[4]On 31 October 2022, the Judicial Factor informed Mrs Elder by telephone that she had been made redundant with her termination date being 24 October 2022.[5]On 2 November 2022, Mrs Eider received a letter from the Judicial Factor to confirm her appointment and to advise that “Campbell Connon can no longer trade” (P.26/27). She also said this in her letter.-“Our investigations to date indicate that there is no money within the former firm to settle any claim which may be due for outstanding salary, accrued holiday pay, payment in lieu of notice or redundancy”[6]The claimant has not received any payments since her dismissal. Redundancy payment[7]This was dearly a genuine redundancy situation as Campbell Connon ceased to trade.[8]So far as the redundancy payment is concerned, at the time of her dismissal Mrs Eider was 58 years of age and had 20 complete years’ service. She earned £2,085 gross per month, which equates to £481.15 per week. She is entitled to 28.5 weeks’ pay. Accordingly, she is entitled to a statutory redundancy payment of £13,712.78 (£481.15 x 28.5 weeks). Unpaid wages[9]Mrs Elder did not receive her wages for October. However, she received a wage slip from the Judicial Factor which showed that she was entitled to net pay of £1,354.34 (P25). This sum also requires to be paid by the respondent to her. Accrued annual leave[10]Mrs Elder was entitled to 21 days paid annual leave. She had taken 14 days holidays in the holiday year. At the time of her dismissal, therefore, she had accrued 7 days, annual leave. She earned £112.88 per day. Accordingly, she is entitled to a payment in respect of accrued annual leave of £790.16 (£112.88x7). Notice[11]Mrs Elder was summarily dismissed. As she had 20 years’ service, she was entitled to 12 weeks’ notice. The respondent was in breach of contract and is liable to pay damages for that breach. This is calculated based on net pay which in Mrs Elder’s case was £395.08 per week. Accordingly, the respondent is required to pay her the sum of £4,740.96 (£395.08 x 12) in this regard. Written particulars of employment[12]Mrs Elder was not provided with a written statement of particulars of employment as she should have been, in terms of s.1 of the Employment Rights Act 1996.[13]Tribunals must award compensation to an employee whereupon a successful claim being made under any of the Tribunal jurisdictions listed in Schedule 5 of the Employment Act 2002, it becomes evidence that the employer was in breach of its duty to provide full and accurate written particulars. Her successful claims are all listed in Schedule 5. Amount of award[14]A Tribunal must award a “minimum amount” of two weeks’ pay in respect of this failure, in addition to the other awards. Accordingly, she is entitled to a payment of £962.30 (£481.15 x 2), in this regard. Respondent’s insolvency[15]As I understand that the claimant is likely to make a claim for payment of the sums due to her to the Insolvency Service, I wish to record my view that the respondent is insolvent. I arrived at this view having regard to all the circumstances and Mrs Elder’s evidence and, in particular, in view of the comments of the Judicial Factor, Ms Grandison. As I recorded above, in her letter of 2 November 2022 to Mrs Elder (P.26/27) she advised that there was “no money within the former firm to settle any claim”.[16]On 1 November 2023, the Tribunal also received a letter from Mrs Grandison which was in the following terms (P36-38):- ‘We are satisfied that the partnership of Campbell Connon is insolvent although there has been no formal insolvency as yet. We were notified that Mr Morrison, one of the partners of the former firm, was sequestrated on 5 October 2022, and a copy of the extract from the website from the Accountant in Bankruptcy is enclosed. Mr Hendry, the other partner, has said that he is taking advice and will be in touch with us shortly. We think it likely that he will also be sequestrated."[17]Significantly, no payments have been made to Mrs Elder by the Judicial Factor. She advised Mrs Elder, by letter dated 1 December 2022, that there were, “no funds” and that it was, “unlikely I will ever be in a position to settle any claim as the information I have to date suggests the company is insolvent." (P.34/35).