Mrs M H Cruickshank v Campbell Connon, Solicitors and Others: 4100510/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100510/2023Venue AberdeenHearing 4 December 2023
Between
Mrs M H CruickshankClaimantCampbell Connon, Solicitors, &Respondent
Before
Employment Judge N M HosieDate 11 December 2023
JUDGMENT
[1]the respondent shall pay to the claimant the sum of Five Thousand, Four Hundred and Eighty-Three Pounds and Sixteen Pence (£5,483.16), as a redundancy payment;[2]the claim under s.23 of the Employment Rights Act 1996 is well-founded and the respondent shall pay to the claimant the sum of Six Hundred and Twenty Pounds (£620), as unlawful deductions from wages; E.T. Z4 (WR)[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 Two Hundred and Three Pounds and Ten Pence (£203.10), as accrued annual leave;[4]the respondent shall pay to the claimant the sum of Two Thousand, Four Hundred and Thirty-Six Pounds and Ninety-Six Pence (£2,436.96), 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 Four Hundred and Six Pounds and Sixteen Pence (£406.16), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.
REASONS
[1]The claimant, Mandy Cruickshank, 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 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 Cruickshank at the Hearing. She was represented by a solicitor, Ms Neukirch, who had submitted a bundle of documents (“P”). Mrs Cruickshank 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 Cruickshank’s evidence and considered the documentary productions, I was able to make the following findings in fact. Mrs Cruickshank commenced her employment with the respondent, Campbell Connon, as a Legal Secretary on 3 April 2003. She worked at the respondent’s Aboyne office. She was not provided with a written statement of particulars of employment[4]On 24 October 2022, a Judicial Factor’s team arrived at the respondent’s office in Aboyne. Mrs Cruickshank was asked to surrender all work-related property and belongings and to go home. 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 Mrs Cruickshank 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]The Judicial Factor wrote to Mrs Cruickshank on 2 November 2022 (P.26/27) to confirm her appointment and that, “Campbell Connon can no longer trade". She further advised that, “Our investigations to date 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]There was clearly a redundancy situation as Campbel! Connon has ceased to trade.[8]So far as the redundancy payment is concerned, at the time of her dismissal Mrs Cruickshank was 57 years of age and had 19 years’ service. She earned £880 gross per month, which equates to £203.08 per week. Her entitlement is 27 weeks. Accordingly, she is entitled to a statutory redundancy payment of £5,483.16 (£203.08 x 27). Unpaid wages[9]Mrs Cruickshank did not receive her salary for October. She received a wage statement from the Judicial Factor for that month to advise that she was entitled to a net payment of £620 (P.25). Accordingly, the respondent is required to pay that sum to the claimant, by way of unlawful deduction from wages. Accrued annual leave[10]I was satisfied that Mrs Cruickshank was entitled, contractually, to 33 days’ paid annual leave each year, in the holiday year in question she had taken 28 days which meant that at the time of her dismissal she had accrued 5 days’ annual leave. On the basis of her earnings of £40.62 per day, she is entitled to a payment of £203.10 in this regard (£40.62 x 5). Notice[11]Mrs Cruickshank was summarily dismissed. As she had 19 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 Mrs Cruickshank’s case, was £203.08. Accordingly, the respondent shall pay to her the sum of £2,436.96 (£203.08 x 12), by way of damages for breach of contract. Written particulars of employment[12]Mrs Cruickshank 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 become 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 two weeks’ pay in respect of this failure, in addition to the other awards. Accordingly, she is entitled to a payment of £406.16 (£203.08 x. 2), in this regard. Respondent’s insolvency[15]As I understand that Mrs Cruickshank 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 along with Mrs Cruickshank’s evidence, and, in particular, in view of the comments of the Judicial Factor, Ms Grandison. As I recorded above, she wrote to Mrs Cruickshank on 2 November 2022 (P.26/27) to advise that there was, “no money” to settle any claim. She also wrote to the Employment Tribunal on 1 November 2023 as follows (P36):- “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 2023, and a copy of the extract from the website of the Account in Bankruptcy is enclosed (P37-38). 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 Mrs Cruickshank by the Judicial Factor. She advised Mrs Cruickshank that there were, “no funds”.