Mr K Davidson v Monarch Legal Ltd and Others: 4100642/2025 and Others
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100642/2025, 4100643/2025, 4100644/2025
Between
Mr K DavidsonClaimantMonarch Legal Ltd and OthersRespondent
Before
Employment Judge A JonesDate 2 May 2025
JUDGMENT
[1]The claims against the second and third respondents are dismissed.[2]The first respondent is ordered to pay to the claimant the gross sum of £17,654.55 in respect of notice pay and benefits during that notice period and pension contribution for December 2024.[3]The first respondent is orders to pay to the claimant a gross sum of £2909.07 in respect of December pay and unpaid commission from which tax and national insurance should be deducted at the appropriate rates.
REASONS
[1]The claimant lodged a claim against the first respondent on 28 January 2025, complaining that he was entitled to notice pay, holiday pay, arrears of pay and commission pay. The claimant subsequently made an application to amend his claim to include the second and third respondents. A combining order was issued on 11 April. Correspondence to the respondents has been sent by the Tribunal at their registered address. The claimant has communicated with the respondents by email and letter. No response has been submitted by any of the respondents to the claimant’s claim. As further information was required from the claimant in order to determine what compensation he might be entitled to, a remedy hearing was listed. The respondents were informed of the hearing by letter from the Tribunal dated 27 March.[2]After close of business on the day before the remedy hearing an application for a postponement of this hearing was made on behalf of the first respondent. No draft grounds of resistance were provided with the application and the application was refused. A representative appeared at the remedy hearing on behalf of the first respondent, but he was advised that he would not be permitted to take any active part in the hearing. Ms Shields (the second respondent) also joined the hearing by telephone during the course of the hearing and she was advised that while she could continue to be present at the hearing, she could not take an active part in the hearing.[3]The claimant suggested that the individual respondents should be liable for the compensation he sought. However, liability for the compensation he sought, by way of breach of contract and unlawful deduction from wages can only lie with an employer. The claimant sought to rely on Timis and anor v Osipov 2019 ICR 655 and suggested that as the individual respondents had acted in bad faith, they could be liable for compensation. However, Timis is a case involving individual liability in a claim relating to a protected disclosure. It is not authority for the proposition that an individual might be liable for notice pay or wages.[4]Therefore, I did not accept the claimant’s submission that the individual respondents could be liable for the compensation sought by him and they are dismissed from the proceedings.[5]The claimant also sought to argue that there should be an uplift to the compensation to be awarded against him because of the respondent’s failure to comply with the ACAS code of practice on grievance and discipline. While the claim related to wrongful dismissal and unpaid wages, I was not satisfied that it would be just and equitable to apply any uplift. The claimant raised a grievance but this was not in relation to the failure to pay notice pay or other payments. In any event, in the particular circumstances of this case, I was not satisfied that it would be just and equitable to apply any uplift to the compensation to be awarded to the claimant.[6]The claimant was wrongfully dismissed. He is contractually entitled to three months’ notice pay. There was no provision in the claimant’s contract allowing the respondent to pay that notice pay in lieu of notice.[7]The claimant is entitled to be paid notice pay of three months. The claimant’s average monthly pay over the 8-month tax period in 2024 was £4791.58 gross. He is therefore entitled to be paid notice pay of £14,374.74 gross.[8]The claimant is also entitled to a pension contribution in respect of his notice period which is a sum of £1724.64 on the basis that the respondent made an average monthly contribution to the claimant’s pension of £574.88 during the tax year commencing April 2024.[9]The claimant was not paid in December 2024. He worked from 1 to 16 December 2024 although he was on pre-arranged leave for three days during that period. Taking into account his leave (calculated on the basis of 7 hours at an hourly rate of £35.71 gross, which is a daily rate of £250) and a total number of hours worked in the period of 44.58, he is entitled to be paid a total of £1592.07 for the hours worked and £750 for the three days holiday, being a total sum of £2342.07 gross. He is also entitled to employer pension contributions for those hours of £180.17[10]The claimant was not paid the commission he was contractually entitled to in relation to two transactions and this is calculated by the claimant as amounting to a sum of £567 gross.[11]The claimant had taken all the holidays to which he was entitled during 2024, and no further payment is due to him in that regard. The claimant’s contract provided that he was entitled to be paid in lieu of unused holiday entitled on termination of employment. The claimant had accrued 22 days leave during 2024, having worked a pro rata full time equivalent of 88%. On that basis he would have accrued 5.5 days’ leave during his notice period and is entitled to be paid in lieu of that sum, which on a daily rate of £250 is £1375.[12]The Tribunal was satisfied that the claimant had taken all reasonable steps to mitigate his losses and that he had provided sufficient documentary evidence on which to calculate this award.[13]Therefore, in total the claimant is entitled to be paid gross payments of Notice pay of 3 months £14,374.74 Pension contribution during notice £1724.64 Accrued Holiday pay during notice £1375 Pension contribution December 2024 £180.17£17,654.55[14]The claimant should also be paid outstanding pay for December 2024 in the gross sum of £2342.07 and unpaid commission of £567 being a total gross sum of £2909.07 from which tax and national insurance should be deducted at the appropriate rate.