Mrs K M Hendriksen v Campbell Connon Solicitors and Others: 4107299/2022
JUDGMENT
[1]the respondent shall pay to the claimant the sum of Two Thousand, One Hundred Pounds (£2,100), as a redundancy payment; E.T. Z4 (WR)[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 Nine Hundred and Fifty-Two Pounds (£952),. as unlawful deductions from wages;[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 Seventy-Five Pounds (£75), as a payment in lieu of annual leave; and[4]the respondent shall pay to the claimant the sum of Six Hundred Pounds (£600), as damages for breach of contract (failure to give notice of termination of employment).REASONS
[1]The claimant, Kerry Hendriksen, brought various claims following the termination of her employment on 24 October 2022, because of 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 ET Response Form. The case proceeded on an undefended basis. Final Hearing[2]I conducted a Final Hearing at the Aberdeen Employment Tribunal office on 1 December 2023.The evidence
[3]I heard evidence from Mrs Hendriksen at the Hearing. Prior to the Hearing, she had submitted several documents (“C”). She gave her evidence in a measured, convincing manner, entirely consistent with the documentary productions. She presented as credible and reliable.The facts
[4]Having heard Mrs Hendriksen’s evidence and considered the documentary r productions, I was able to make the following findings in fact. Mrs Hendriksen commenced her employment with the respondent, Campbel! Connon, as a “Private Client/Executry Assistant” on 30 May 2016. She worked at the respondent’s Aboyne office.[5]On 24 October 2022, the Judicial Factor arrived at the Aboyne office and took over. Mrs Hendriksen was asked to leave. I was satisfied that 24 October 2022 was the effective date of termination of her employment. Judicial Factor[6]On 2 November 2022, Morna Grandison wrote to Mrs Hendriksen 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 (C6). 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.” Redundancy payment[7]This was clearly a genuine redundancy situation as Campbell Connon ceased to trade.[8]So far as the redundancy payment is concerned, at the time of her dismissal Mrs Hendriksen was 43 years of age and had 6 complete years of service. She earned £300 per week. She is entitled to a statutory redundancy payment, therefore, of £2,100 (£300 x 7). Unpaid wages[9]Mrs Hendriksen produced a wage slip which she had received from the Judicial Factor, in respect of wages due to her for October 2022 (C12). The net pay was £952. That sum has not been paid to her and now requires to be paid by the respondent. Accrued annual leave[10]I was satisfied that Mrs Hendriksen had one day’s accrued annual leave when her employment ended. She is entitled to a payment in this regard of £75. Notice[11]Mrs Hendriksen was summarily dismissed. She was entitled to 6 weeks’ statutory notice. However, she was able to secure alternative employment 2 weeks after her employment ended. She is entitled to a payment in this regard, therefore, of 2 weeks’ pay by way of damages for breach of contract, which amounts to £600. Respondent’s insolvency[12]As I understand it, 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 Hendriksen’s evidence, and, in particular, in view of the comments of the Judicial Factor, Ms Grandison. In her letter to Mrs Hendriksen of 2 November 2022 (C6) 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 any outstanding salary, accrued holiday pay, payment in lieu of notice or redundancy.'’[13]She said this in her letter of 21 December 2022 to the Employment Tribunal “While it is too early to form a definitive view on the insolvency of the former firm, early indications suggest it was insolvent. As a result, the Judicial Factor has no funds to enable her to enter Tribunal process"[14]She also said this in a letter to the Employment Tribunal dated 1 November 2023 in relation Mrs J M Butler (Case No. 4102136/2023), a former colleague of Mrs Hendriksen (C13):- ‘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 Accountant in Bankruptcy is enclosed. (C1 4/15) 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.”[15]Significantly, no payments have been made to Mrs Hendriksen by the Judicial Factor. She advised Mrs Hendriksen that there are “no funds”.