Mrs P Fascia v Gordon MacNeil Solicitor: 4101308/2025
JUDGMENT
(i) The respondent made unlawful deductions from the wages of the claimant under section 13 of the Employment Rights Act 1996 “the Act”) and she is awarded the sum of ONE THOUSAND ONE HUNDRED AND THIRTY FOUR POUNDS SIXTY TWO PENCE (£1,134.62) payable by the respondent.(ii) The claimant is awarded damages for breach of contract by the respondent in a failure to give notice of termination of employment, in the sum of TWO THOUSAND FOUR HUNDRED AND THREE POUNDS EIGHTY FIVE PENCE (£2,403.85) payable by the respondent. E.T. Z4 (WR)(iii) The sums awarded at (i) and (ii) above are payable subject to any necessary statutory deductions. In the event of such deductions being made the respondent shall provide details of the same to the claimant in writing at the time of doing so and evidence of payment of those sums to His Majesty’s Revenue and Customs.(iv) The claimant is awarded a redundancy payment under section 135 of the Act in the sum of FOURTEEN THOUSAND EIGHT HUNDRED AND SEVEN POUNDS SEVENTY SIX PENCE (£14,807.76) payable by the respondent without statutory deduction.(v) The claimant was unfairly dismissed by the respondent under section 94 of the Act and she is awarded a compensatory award of £500 payable by the respondent without statutory deduction.(vi) The claimant is awarded compensation for the respondent not providing her with a statement of particulars of employment, required under section 1 of the Act, in the sum of TWO THOUSAND SIX HUNDRED AND NINETY TWO POUNDS THIRTY TWO PENCE (£2,692.32) payable by the respondent without statutory deduction.REASONS
[1]This is an undefended claim arising from the redundancy of the claimant.[2]The respondent was represented by his son, who had applied for the postponement of the hearing which for reasons addressed separately was refused. The respondent was permitted to ask questions of the claimant who gave evidence, and to make comments on matters more widely, which he did, under Rule 22 of the Employment Tribunal Procedure Rules 2024.[3]Although this was a hearing on remedy only I considered whether it was appropriate under the overriding objective in Rule 3 not to issue this Judgment as the respondent had had a judicial factor appointed, and it was argued on his behalf that the claim and documents ought to have been sent to that judicial factor. I did not consider however that that was correct. The claimant was employed in the business of the respondent, who was a sole practitioner. The appointment of a judicial factor to that business does not, from the information available to me, make the judicial factor liable for any sums, which remains the liability of the respondent. The judicial factor was entitled to operate the business of the respondent from the time of appointment. As the business was closed, I consider that the claimant acted properly when sending him the documents for this hearing to the respondent’s home address. I have therefore continued to make the Judgment.[4]In the event that the respondent or his son as his representative considers that the position is otherwise an application can be made for reconsideration under the 2024 Rules.[5]There having been no timeous Response Form this hearing was fixed for remedy only.Claims
[6]The claims are for:(i) unauthorised deductions from wages, firstly in respect of unpaid wages and secondly for accrued holiday pay said to be due, under section 13 of the Employment Rights Act 1996 (“the Act”);(ii) A statutory redundancy payment under section 135 of the Act;(iii) Damages for breach of contract in relation to notice;(iv) Unfair dismissal under section 94 of the Act;(v) Compensation for the lack of a statement of particulars of employment; and(vi) Interest.Evidence
[7]The claimant gave evidence and spoke to documents she had prepared.Facts
[8]I found the following facts, material to the issues before me, to have been established:[9]The claimant is Mrs Pamela Fascia[10]Her date of birth is 8 September 1995[11]The respondent is Mr Gordon MacNeill[12]The respondent operated a business as a solicitor. He was a sole practitioner. He employed the claimant as a Legal Secretary from 1 April 2007.[13]The claimant was paid a gross salary of £34,999.92 per annum. That is the equivalent of £673.08 per week. Her pay was paid monthly, and was in the sum of £2,389.56 per month net.[14]On 5 June 2025 the claimant was informed by a Judicial Factor appointed to the business of the respondent that her employment was terminated summarily on grounds of redundancy. The Judicial Factor had been appointed shortly beforehand by the Court of Session.[15]The claimant had not been warned of the possibility of dismissal for redundancy nor was she consulted in relation to it.[16]After the termination of her employment she assisted the Judicial Factor, without remuneration, in arranging for the client files for work that was ongoing to be passed to other solicitors.[17]The claimant found new employment with a law firm with effect from 1 July 2025. Her first pay from that was received on or around 29 July 2025. She was paid at a higher rate than with the respondent.[18]The claimant was paid by the respondent for her wages due to 27 May 2025. She was not paid wages from then to 5 June 2025. She did not receive any payment in lieu of notice.[19]The holiday year was the calendar year. In the period to 5 June 2025 the claimant took 10 days holidays. She worked 5 days per week.[20]At no stage did the respondent provide the claimant with a statement of particulars of employment.[21]The claimant has not been paid any redundancy payment.The law
[22]There is a right not to suffer unauthorised deductions from wages provided for in Part II of the Employment Rights Act 1996, initially in section 13. Wages are defined in section 27 and include wages and holiday pay.[23]The right to holiday pay is provided for in the Working Time Regulations 1998. It is to 28 days per annum for those working a five day week, as provided in Regulation 13 and 13A. Regulation 14 has provisions for accrued entitlement where employment terminates with a form of pro rata calculation dependent on the period of the employment. The calculation of what sum is due is made under Regulation 16.[24]A person made redundant has the right to a redundancy payment under the terms of sections 135 and 136 of the Act. It is calculated in accordance with section 162.[25]A person whose employment is terminated has the right to a minimum period of notice under section 86 of the Act.[26]A person unfairly dismissed under section 94 of the Act is entitled to seek a basic award calculated under section 119 and a compensatory award calculated under section 123 of the Act.[27]An employee is entitled to a statement of particulars of employment under section 1 of the Act. In the event that that is not provided there is a right to between two and four weeks’ compensation under section 38 of the Employment Act 2002.Discussion
[28]I was entirely satisfied that the claimant was a credible and reliable witness. I have made the factual findings above. I did not have sight of a document evidencing the appointment of a Judicial Factor, but was satisfied that the claimant had been informed by that person of her immediate termination of employment on the ground of redundancy, and that the Judicial Factor had authority to take that decision such that it lawfully terminated the employment of the claimant on that date.[29]The first claims are for unauthorised deductions from wages. The claimant is entitled to pay for the period 28 May to 5 June 2025. That is to a total of 9 days pay, which I calculate gross to be £865.39. There is an entitlement to holiday pay for the period accrued to date of termination on a pro rata basis. I calculate the total entitlement at 12 days, with 2 working days therefore outstanding. I calculate that to be £269.23. These sums total £1,134.62 and are subject to any statutory deductions.[30]The claimant is entitled to a minimum period of notice of 12 weeks. The award is damages for breach of contract. That involves a duty to mitigate, and the claimant did so by obtaining new employment from 1 July 2025. I consider that although it would have been good practice for payment in lieu of notice to have been paid that I must calculate the award on the basis of the loss sustained, which is for the period from 5 June to 1 July 2025. That is for 25 days in total. I calculate that to be £2,403.85. It is payable subject to any statutory deductions.[31]The provision for such deductions on the first two awards above is as the payments are calculated gross and are subject to income tax at least.[32]The claimant is entitled to a statutory redundancy payment. In light of her age, years of continuous service and pay, I calculate that to be £14,807.76 It is payable without statutory deduction.[33]The failure to warn and consult the claimant renders the dismissal unfair under section 94 of the Act. There is no basic award payable because of the payment of the statutory redundancy payment. As there is an award for the period of loss to the start date of her new employment after which she earned a higher wage her only loss which I can make an award for is loss of statutory rights which I assess in the sum of £500.[34]The respondent did not provide the necessary statement of particulars. As the respondent was a solicitor when employing the claimant he ought to have known of that requirement, and in light of the failure to do so I award four weeks pay in compensation. It is payable without statutory deduction, and is in the sum of £2,692.32.[35]The claimant also sought interest, but that is payable under the Employment Tribunals (Interest) Order 1990, and is from a date 14 days after the date of this Judgment.