[1]the respondent shall pay to the claimant the sum of Eight Thousand, Two Hundred and Eighty-Five Pounds and Forty-Nine Pence (£8,285.49), 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 Hundred and Fifty-Four Pounds and Eighty-Five Pence (£1,354.85), subject E.T. Z4 (WR) to the appropriate deductions for Income Tax and National Insurance, as unlawful deductions from wages;[3]the claim under Regulation 30(1 )(b) of the Working Time Regulations 1 998 is well-founded and the respondent shall pay to the claimant the sum of Seven Hundred and Fifty Pounds and Thirty-Six Pence (£750.36), subject to the appropriate deductions for Income Tax and National Insurance, as a payment in lieu of annual leave;[4]the respondent shall pay to the claimant the sum of Three Thousand, Three Hundred and Eighty-One Pounds and Eighty-Four Pence (£3,381.84), 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- Five Pounds and Thirty-Two Pence (£625.32), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.
REASONS
[1]The claimant, Mrs Jacqueline Butler, brought various claims, following the termination of her employment on 2 November 2022, as a consequence of the appointment of a Judicial Factor to the firm of Campbell Connon and the closure of its business. The respondent had not submitted an ET3 Response Form and the case proceeded on an undefended case basis.
The hearing
[2]I conducted a hearing by video conference, using the Cloud Video Platform (“CVP”) on 25 October 2023.
The evidence
[3]I heard evidence from Mrs Butler at the hearing. Prior to the hearing, she had submitted a number of documents (“P”). She gave her evidence in a measured and convincing manner, entirely consistent with the documentary productions. She presented as credible and reliable.
The facts
[4]Having heard Mrs Butler’s evidence and considered the documentary productions, I was able to make the following findings in fact. Mrs Butler commenced her employment with the respondent, Campbell Connon, as a Legal Secretary, on 6 September 1993. She was not provided with a written statement of particulars of employment. Latterly, she worked for David Morrison, one of the partners of the firm.[5]Mrs Butler had been working from home, “shielding”, due to the Covid Pandemic. Mr Morrison had been bringing work to her. On 25 October 2022, she had not heard from Mr Morrison which was unusual. As there was no response when she telephoned, she went down to the respondent’s offices. The lights were on but she was unable to gain access using her key. Mr Morrison then appeared. He was distraught. He advised Mrs Butler that a Judicial Factor had been appointed and had taken occupation of the offices. He arranged with the Judicial Factor for Mrs Butler to gain access to collect her personal belongings. Judicial Factor[6]On 2 November 2022, Morna Grandison wrote to the claimant to advise her that on 20 October 2022 she had been appointed Judicial Factor ad interim to the firm of Campbell Connon by petition of the Law Society of Scotland. She further advised that, “Campbell Connon can no longer trade” and that, “Our investigations to date indicate that there is no money within the firm to settle any claim which may be due for outstanding salary, accrued holiday pay, payment in lieu of notice or redundancy” (P.58/59). Effective date of termination of employment[7]Campbell Connon’s offices were closed permanently and the firm did not trade thereafter. I am satisfied that the effective date of termination of Mrs Butler’s employment was 2 November 2022 when Ms Grandison communicated this information in writing to her. Redundancy payment[8]Mrs Butler submitted her claim form to the Employment Tribunal on 10 March 2023. It was timeous, therefore, so far as her claim for a redundancy payment was concerned, as there is a 6 month time limit for making such claims.[9]This was clearly a genuine redundancy situation as Campbell Connon ceased to trade.[10]So far as the redundancy payment is concerned, at the time of her dismissal Mrs Butler was 54 years of age and had 29 years’ service. According to the payslips which she submitted (P.13 for example), she earned £1,354.85 per month which equates to £312.66 per week. Her entitlement is 26.5 weeks. Accordingly, she is entitled to a statutory redundancy payment of £8,285.49 (£312.66x26.5). Time-bar (the other claims)[11]Mrs Butler also brought claims for unpaid wages, accrued annual leave and notice pay. Her effective date of termination of employment was 2 November 2022. According to the ACAS Early Conciliation Certificate, she gave notice of her intention to bring an employment tribunal claim on 12 January 2023 and the ACAS Certificate was issued on 18 January 2023.[12]Her notification to ACAS was timeous, within the three months’ time limit, and that notification had the effect of stopping the running of the time limit. However, in terms of the Early Conciliation Rules she effectively had one month from the date she received the certificate to present her employment tribunal claim form but this she failed to do as the claim form was not presented until 10 March 2023. These claims, therefore, were out of time.[13]I had to consider, therefore, whether Mrs Butler could avail herself of the socalled “escape clause” by establishing that it had not been “reasonably practicable” for these claims to be presented in time and that they had been presented within a reasonable further period.[14]Mrs Butler had no prior experience of employment tribunals and she did not have the benefit of advice. The circumstances of her summary dismissal caused her great distress, particularly as she had worked for the respondent for 29 years. Also, her mother passed away shortly thereafter on 17 November and Mrs Butler was much occupied with the funeral arrangements and dealing with her mother’s affairs. Following so soon after her dismissal, this caused her even more stress and affected her health adversely. Mrs Butler suffers from Functional Neurological Disorder for which she receives PIP and that was exacerbated by the manner of her dismissal and the death of her mother. She was able to notify ACAS in time, but, having obtained the ACAS Certificate, she spent a considerable amount of time corresponding with the Judicial Factor, trying to establish whether the Judicial Factor would be able to deal with her claims.[15]In all these circumstances, I was satisfied that it had not been reasonably practicable for Mrs Butler to submit her claim form in time and that she had submitted the claim form within a reasonable period thereafter. Accordingly, I decided, that the Tribunal did have jurisdiction to consider these claims. Unpaid wages[16]Mrs Butler did not receive her wages for October. Accordingly, the respondent is required to pay her the sum of £1,354.85, (her normal monthly wage), under the deduction of the appropriate sums for Income Tax and National Insurance Accrued annual leave[17]The respondent's annual leave period was from January to December. As Mrs Butler worked a 5-day week, she was entitled to 28 days’ annual leave, under the Working Time Regulations 1993. She had accrued 24 days’ annual leave (10/12 x 28), therefore. She had taken 12 days’ paid leave that year which meant that at the time of her dismissal she was due a payment in respect of 12 days’ accrued annual leave. She earned, £62.53 per day. Accordingly, she is entitled to a payment in respect of accrued annual leave of £750.36 (£62.52 x 12), under deduction of the appropriate amounts for Income Tax and National Insurance. Notice[18]Mrs Butler was summarily dismissed. As she had 29 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 Butler’s case was £281.82 per week. Accordingly, the respondent shall pay to her the sum of £3,381.84 (£281.82 x 12), by way of damages for breach of contract. Written particulars of employment[19]Mrs Butler 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.[20]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. Her claims are all listed in Schedule 5. Amount of award[21]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 £625.32 (£312.66 x 2) in this regard. Respondent’s insolvency[22]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 Butler’s evidence, and, in particular, in view of the comments of the Judicial Factor, Ms Grandison. In her letter to Mrs Butler dated 2 November 2022 she said this:- “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 of lieu of notice or redundancy” (P.58-59).[23]She also said this in her letter of 18 August 2023 to the Employment Tribunal (P.56/57):- “Mrs Grandison now has control of the client and firm accounts of Campbell Connon, Solicitors as well as any personal assets held in the name of John Hendry and David Morrison. While it is too early to form a definitive view on the solvency of the respective estates, we are satisfied the firm is insolvent and our view is that the estates of both former partners are also likely to be insolvent."[24]Significantly, no payments have been made to Mrs Butler by the Judicial Factor. She has advised Mrs Butler that there are “no funds".