Dr D Mcintosh As Executor of the Estate Of the late Mrs E M McIntosh v Campbell Connon Solicitors and others: 4107472/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107472/2022Venue AberdeenHearing 21 December 2023
Between
Dr David McintoshClaimantCampbell Connon, Solicitors, &Respondent
Before
Employment Judge N M HosieDate 22 December 2023
JUDGMENT
[1]the respondent shall pay to the claimant the sum of Fourteen Thousand, Four Hundred and Thirty Pounds (£14,430), as a redundancy payment; E.T. Z4 (WR)[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 One Thousand, Five Hundred and Forty Pounds (£1,540), 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 Two Thousand, Four Hundred and Five Pounds (£2,405), as accrued annual leave;[4]the respondent shall pay to the claimant the sum of Four Thousand, Three Hundred and Eight Pounds (£4,308), 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 Nine Hundred and Sixty- Two Pounds (£962), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment.
REASONS
[1]Mrs Elizabeth McIntosh submitted a claim form on 13 December 2022, 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. Sadly, Mrs McIntosh passed away on 14 September 2023. The claim is now being conducted, therefore, by her Executor, Dr David McIntosh. The respondent had not submitted an ET3 Response Form. The case proceeded on an undefended basis.
The evidence
[2]I heard evidence from Dr. McIntosh at the Hearing. He gave his evidence in a measured, convincing manner, which significantly was entirely consistent with the bundle of documentary productions which he had submitted (“P”). He presented as credible and reliable.
The facts
[3]Having heard Dr. McIntosh’s evidence and considered the documentary productions, I was able to make the following findings in fact. I was also mindful that I had conducted a number of similar hearings involving claims by other former employees of Campbell Connon. Mrs McIntosh was employed by the respondent as a Legal Secretary. She had continuous employment since 1987. She was not provided with a written statement of particulars of employment.[4]Mrs McIntosh’s employment came to an end on 24 October 2022 due to the appointment of a Judicial Factor, Morna Grandison, who had been appointed to assess the financial position of Campbell Connon.[5]In correspondence with Mrs McIntosh’s former colleagues at Campbell Connon the Judicial Factor advised that: “Campbell Connon can no longer trade”. She further advised that, “our investigations today 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[6]There was clearly a redundancy situation as Campbell Connon has ceased to trade.[7]So far as the redundancy payment is concerned, at the time of her dismissal, Mrs McIntosh was 83 years of age and had 35 years’ complete service. Helpfully, Dr. McIntosh produced “Details of Sums Claimed” (P.8). I am satisfied, on the basis of his calculations, that Mrs McIntosh’s average normal week’s pay was £481. Her entitlement is 30 weeks. Accordingly, she is entitled to a statutory redundancy payment of £14,430 (£481 x 30). Unpaid wages[8]Mrs McIntosh did not receive payment of her wages for the period from 1 October 2022 to 24 October 2022. I am satisfied, again on the basis of Dr McIntosh’s calculations (P.8), that she is due a payment of £1,540 in this regard. The respondent is required to pay this sum to the claimant, by way of unlawful deduction from wages. Accrued annual leave[9]Mrs McIntosh was entitled to 5 weeks’ accrued annual leave when her employment ended. She is entitled to a payment of £2,405 in this regard (£481 x 5). Notice[10]Mrs McIntosh was summarily dismissed. As she had 35 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 weekly pay. Payslips were included with the documentary productions (P.7). I am satisfied that these were representative of Mrs McIntosh’s normal pay. Her average net monthly pay was £1,553.80, which equates to £359 per week. Accordingly, the respondent shall pay to her the sum of £4,308 (£359 x 12), by way of damages for breach of contract. Written particulars of employment[11]Mrs McIntosh was not provided with a written statement of her particulars of io employment, as she should have been, in terms of s.1 of the Employment Rights Act 1996.[12]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. All Mrs McIntosh’s successful claims are listed in Schedule 5. Amount of award[13]A Tribunal must award a “minimum amount”, of two weeks’ pay in respect of this failure, in addition to the other awards. Mrs McIntosh is entitled to a payment of £962 (£481 x 2) in this regard. Respondent’s insolvency[14]As I understand that Dr. McIntosh, as Executor of his late Mother’s estate, is likely to make a claim for payment of the sums due to the Insolvency Service, I wish to record my view that the respondent is insolvent. I arrived at this view 30 in light of the circumstances of a number of other claims which I have heard by former employees of Campbell Connon, the evidence of Dr. McIntosh in this case, along with the documentary productions and, in particular, in view of the comments of the Judicial Factor, Mrs Grandison. As I recorded above, she issued a letter on 15 November 2022 to advise that there was 11no money’ to settle any claim by the former employees of Campbell Connon. She also wrote to the Employment Tribunal on 1 November 2023 as follows (P.8):- “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. 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 the estate of the late Mrs McIntosh by the Judicial Factor. She has advised that there are “No funds”.