Miss C M J Innes v Campbell Connon, Solicitors and Others: 4100508/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100508/2023Venue AberdeenHearing 4 December 2023
Between
Miss Carol Mary Jean InnesClaimantCampbell Connon, Solicitors and OthersRespondent
Before
Employment Judge N M HosieDate 11 December 2023
JUDGMENT
[1]the respondent shall pay to the claimant the sum of Six Thousand, Five Hundred and Forty-Two Pounds and Thirty-Four Pence (£6,542.34), 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 Eight Hundred and Forty- E.T. Z4 (WR) Seven Pounds and Eighty-Three Pence (£847.83), as unlawful deductions from wages;[3]the claim under Regulation 30(1)(b) of the Working Time Regulations 1998 is well-founded and the respondents shall pay to the claimant the sum of One Thousand, Eight Hundred and Ninety Pounds (£1,890.00), as a payment in lieu of annual leave;[4]the respondent shall pay to the claimant the sum of Three Thousand, One Hundred and Twenty-Three Pounds and Seventy-Two Pence (£3,123.72) 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 Six Hundred and Twenty- Three Pounds and Eight Pence (£623.08) in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.
REASONS
[1]The claimant, Carol Innes, brought various claims following the termination of her employment on 24 October 2022, due to the appointment of a Judicial Factor to her employer, the legal 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 Miss Innes at the Hearing. She was represented by a solicitor, Miss Neukirch, who had submitted a number of documents (“P”). Miss Innes 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 Miss Innes’ evidence and considered the documentary productions, I was able to make the following findings in fact. Miss Innes commenced her employment with the respondent on 1 June 2008. She was employed as an Executry Assistant, She worked part-time at the respondent’s Aberdeen office.[4]On 24 October 2022, she received a telephone call from David Morrison, one of the respondent’s partners, to advise that a Judicial Factor’s Team had arrived at the respondent’s office. He asked her to come to the office to assist the Judicial Factor which she did. She was then asked by the Judicial Factor’s team to surrender all work-related property and belongings. She was instructed not to return to work and was advised that the Judicial Factor would be in touch.[5]On or about 31 October 2022, the Judicial Factor informed Miss Innes by telephone that she had been made redundant with her termination date being 24 October 2022 and that a letter with further information would follow.[6]On 2 November 2022, Miss Innes received a letter from the Judicial Factor (P.26/27). The letter explained that Morna Grandison had been appointed as Judicial Factor to the respondent by the Law Society of Scotland on 20 October 2022. She was further advised:- 11Our investigations today indicate 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 ” Redundancy payment[7]This was dear a redundancy situation as Campbell Connon has ceased to trade. '5[8]So far as the redundancy payment is concerned, at the time of her dismissal Ms Innes was 70 years of age and had 14 years’ service. She earned £1,350 gross per month which equates to £311.54 per week Her entitlement is 21 weeks. Accordingly, she is entitled, therefore, to a statutory redundancy payment of £6,542.34 (£311.54 x 21). Unpaid wages[9]Miss Innes did not receive her wages for October. She received a wage slip from the Judicial Factor to advise that she should have received a net payment of £847.83 (P25). Accordingly, this sum also requires to be paid by the respondent to her. Accrued annual leave[10]Miss Innes was entitled to 27 days’ paid annual leave each year. In the holiday year in question she had taken 13 days’ paid holidays. She had accrued 14 days, therefore, when she was dismissed. She earned £135 per day. Accordingly, she is entitled to a payment of £1,890 in this regard. Notice[11]Miss Innes was summarily dismissed. As she had 14 years’ service, she was entitled to 12 weeks’ statutory notice. The respondent was in breach of contract in this regard and is liable to pay damages for that breach. This is calculated on the basis of net pay, which in Miss Innes’ case was £260.31 per week. Accordingly, the respondent shall pay to her the sum of £3,123.72 (£260.31x 12), by way of damages for breach of contract. Written particulars of employment[12]Miss Innes 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 where, upon a successful claim being made under any of the Tribunal jurisdictions listed in Schedule 5 of the Employment Act 2002, it becomes evident that the employer was in breach of its duty to provide full and accurate written particulars. All her successful claims are listed in Schedule 5. Amount of award[14]A Tribunal must award a “minimum amount” of 2 weeks' pay in respect of this failure, in addition to the other awards. Accordingly, she is entitled to a payment of £623.08 (£311.54 x 2), in this regard. Respondent’s insolvency[15]As I understand it, Miss Innes 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 Miss Innes' evidence and, in particular, in view of the comments of the Judicial Factor Ms Grandison. In her letter to Miss Innes dated 2 November 2022 (P.26-27), which I referred to above, she advised that there was “no money” to settle her claims. Further, on 1 November 2023 the Judicial Factor wrote to the Tribunal to advise as follows (P34):- “l/l/e 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 2023, and a copy of the extract from the website of the Account in Bankruptcy is enclosed (P35-36). 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.”[16]Significantly, no payments have been made to Miss Innes by the Judicial Factor. She has advised her that there are “no funds”.