Mr A Patrick v Bathgate Massage Clinic and others: 8000252/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000252/2025
Between
Mr A PatrickClaimantBathgate Massage Clinic and othersRespondent
Before
Employment Judge J G d’InvernoDate 18 August 2025
JUDGMENT
The judgment of the Employment Tribunal is:- (First) That the claimant’s former employer and the person in law against whom he was entitled to direct his complaints, as at the date of his dismissal, on 2 September 2024 was Chamblah Ltd with Company Number SC746139 formerly having a place of business and carrying on business at 48h, North Bridge Street, Bathgate, Scotland, EH48 4PP, which company was dissolved on 19 November 2024. (Second) The claimant, whose date of birth is 4 August 1975, was employed by Chamblah Ltd from 19 September 2019 until 2 September 2024 on which latter date he was summarily dismissed for reason of redundancy. (Third) As at the date of his dismissal the claimant, who was 49 years of age, and had accrued 4 complete years of service, had an entitlement in law to receive from Chamblah Ltd a statutory redundancy payment , under section 135 of the Employment Rights Act 1996. (Fourth) In the period between the date of his dismissal and the date of on which date Chamblah Ltd was struck from the Register of Companies and dissolved, and in the period thereafter up to and including the date of hearing, 12 August 2025, the claimant took all reasonable steps other than, and subsequently including, legal proceedings, to recover the statutory redundancy payment from Chamblah Ltd which payment Chamblah Ltd refused or failed to make, such as to satisfy the requirements of section 166(1)(a) of the Employment Rights Act 1996. (Fifth) As at the date of dismissal, 2 September 2024, Chamblah Ltd had made an unauthorised deduction from the claimant’s wages, contrary to the provisions of section 13 of the Employment Rights Act 1996 in respect of the failure to pay to him his wages for the month of August and for 1 and 2 September 2024, and the claimant had entitlement in law to receive from Chamblah Ltd a payment in an amount equivalent to the unauthorised deduction, in respect of arrears of wages for the months of August and September, both 2024. (Sixth) As at the date of his dismissal the claimant who was contracted by Chamblah Ltd to work a 26 hour week at a gross rate of pay of £15 per hour and whose holiday year ran from 1 January to 31 December, had accrued a proportionate but untaken paid annual leave entitlement of 12.25 days for which he was entitled in law to be compensated by Chamblah Ltd. (Seventh) The claimant has no Title in Law to direct his claim for compensation for having been “treated unfairly” against the Secretary of State for Business and Trade and the claimant’s claim, insofar as so directed is dismissed for want of Title to Sue. (Eighth) Chamblah Ltd having been struck from the Register of Companies and dissolved on 19 November 2024, the Employment Tribunal lacks Jurisdiction to enter a judgment against Chamblah Ltd in respect of the claimant’s claims, which claims in the absence of the restoration of Chamblah Ltd to the Register, will fall to be dismissed for want of Jurisdiction. (Ninth) The current proceedings will be sisted for a period of 6 months following the promulgation of this judgment to allow the claimant, if he so determines, to take action to restore the company to the Register and separately, to allow the Secretary of State to consider of new the claimant’s claims in the light of the terms of this judgment and of the Findings in Fact appended to it. (Tenth) As at the date of its dissolution, 19 November 2024, Chamblah Ltd was not insolvent within one of the definitions contained in section 166(5) of the Employment Rights Act 1996 (see section 166(1)), but was “Vergens ad Inopiam” , that is verging on insolvency.
REASONS
[1]This case called on the Cloud Based Video Platform (“CVP”), for a Final Hearing on liability only on 12 August 2025 at 10 am.[2]The claimant was in attendance at 10 am. There was no appearance by or on behalf of the 2nd named respondent Chamblah 3. Ltd, a company which had been dissolved and struck off from the Register of Companies on 19 November 2024. There was no appearance by or on behalf of the 3rd named respondent, the 4. Secretary of State for Business and Trade, on whose behalf a Form ET3 had been lodged resisting the claims and whose representative had advised the Tribunal in advance of the hearing that while they wished the submissions made in their Grounds of Resistance to be taken account of at the hearing, pursuant to rule 42 of the Employment Tribunals Rules of Procedure 2024, they did not intend to be represented at the hearing.[5]While Chamblah Ltd being a former (now dissolved) company had no locus to appear or engage in proceedings, its former Director, in the capacity of amicus curiae (“a friend of the court”), had submitted a Form ET3 providing information intended to be helpful to the Tribunal in dealing with the claimant’s claims. There being some expectation that the 2nd respondent’s former Director might appear in that same capacity at the hearing, the Employment Judge waited until 10.15 before commencing the hearing.[6]At approximately 10.55 Ms Sally Chamness a former Director of the now dissolved company joined the hearing confirming that she did so in the capacity of friend of the court. Sources of Evidence[7]The claimant gave oral evidence on oath and answered questions put by the Tribunal. Ms Chamness, in her capacity of friend of the court, gave evidence on affirmation and answered questions put by the Tribunal.[8]No documentary evidence was placed before the Tribunal although the claimant read into evidence the terms of the email dated 2 September in terms of which his former employer Chamblah Ltd gave him notice of cessation of trading and termination of his employment effective as at that date.
Findings
[9]On the evidence presented, the Tribunal made the following essential and material Findings in Fact and Law.[10]The claimant is Andrew Patrick of 16 Ramsay Crescent, Burntisland, KY3 9JL.[11]The claimant’s date of birth is 4 August 1975.[12]The claimant was employed by Chamblah Ltd (SC746139), a company incorporated under the Companies Act with Company Number (SC746139) and which formerly carried on business under the trading name “Bathgate Massage Clinic” from 48h, North Bridge Street, Bathgate, Scotland, EH48 4PP. The claimant was employed by Chamblah Ltd in the capacity of a Sports Therapist from 19 September 2019 until 2 September 2024.[13]On 2 September 2024 the claimant was summarily dismissed with immediate effect by email of that date, for reason of redundancy in terms of section 139 of the Employment Rights Act 1996.[14]The Effective Date of Termination of the claimant’s employment was 2 September 2024.[15]As at the Effective Date of Termination of his employment the claimant was 49 years of age and had accrued 4 complete years of service.[16]The claimant was contracted to work a 26 hour week at a gross rate of pay of £15 per hour.[17]The claimant’s gross and net wages for the purposes of his complaints, as at the Effective Date of Termination of his Employment were, respectively(a)£1,690 gross, and £1,419.80 net, per month; and,(b)£390 gross and £328 net per week.[18]As at the Effective Date of Termination of his employment the claimant had entitlement to receive from Chamblah Ltd a statutory redundancy payment in terms of section 135 and 138 of the Employment Rights Act 1996.[19]The claimant’s holiday year ran from 1 January to 31 December.[20]As at the Effective Date of Termination of his employment the claimant had accrued a proportionate but, as at that date, untaken entitlement to 12.25 days of paid annual leave.[21]As at the date of his dismissal the claimant was entitled to receive from Chamblah Ltd compensation in respect of 12.25 days accrued but untaken paid annual leave entitlement.[22]The claimant continued to be employed by Chamblah Ltd throughout the month of August 2024 and on 1 and 2 September 2024, on which latter date he was summarily dismissed for reason of redundancy.[23]The claimant had an entitlement in law to receive wages from Chamblah Ltd in the month of August at his gross and net monthly rates of £1,690 and £1,419.80 and proportionately for the period 1 and 2 September, both 2024.[24]Chamblah Ltd failed to make payment to the claimant in respect of his wages for the month of August and proportionately of and for September 2024.[25]In so retaining the claimant’s wages, Chamblah Ltd made an Unauthorised Deduction from the claimant’s wages in the period 1 August to 2 September 2024 inclusive, contrary to the provisions of section 13 of the ERA and in respect of which the claimant was and is entitled to be compensated.[26]Chamblah Ltd (SC746139) ceased trading on 31 August 2024 and commenced voluntary insolvency proceedings at or about that time through the agency of “Rob Advisory” Insolvency Practitioners.[27]On 19 November 2024, a date by which the insolvency process had not been completed, Chamblah Ltd was struck off the Register of Companies at the instance of HMRC and formally dissolved in respect of non payment of Value Added Tax. The dissolution of the company was published in the Edinburgh Gazette and is registered at Companies House.[28]As at the date of its dissolution, 19 November 2024, Chamblah Ltd although not yet formally in insolvency within the definitions of section 166(5) (section 166(1)(b)) of the Employment Rights Act 1996 Chamblah Ltd was vergens ad inopiam (“on the verge of insolvency”), the company was unable to pay its debts, its assets were insufficient to cover its liabilities, it was at risk of trading while insolvent.[29]In the period between the date of his dismissal and the date of on which date Chamblah Ltd was struck from the Register of Companies and dissolved, and in the period thereafter up to and including the date of hearing, 12 August 2025, the claimant took all reasonable steps other than, and subsequently including, legal proceedings, to recover the statutory redundancy payment from Chamblah Ltd which payment Chamblah Ltd refused or failed to make, such as to satisfy the requirements of section 166(1)(a) of the Employment Rights Act 1996. The claimant made contact with and sought payment from Chamblah’s then Director. He made contact with and sought payment from the Insolvency practitioners who wer e advising Chamblah Ltd at that time and to whom he was referred.[30]As at the date of the hearing, 12 August 2025, Chamblah Ltd remains a company which has been dissolved and “struck off the Register”.[31]The Employment Tribunal has no jurisdiction to enter a judgment against Chamblah Ltd in respect of the sums which it has found the claimant was entitled to as at the date of his dismissal in relation to:-(a) Statutory redundancy payment(b) Unauthorised deduction (arrears) of wages(c) Compensation in respect of accrued but untaken paid annual leave entitlement(d) Absent the former company’s restoration to the Register of Companies[32]The Secretary of State for Business and Trade is invited, in light of the Findings in Fact made to reconsider his position in relation to the claimant’s claims under each of the above headings.[33]The claims insofar as directed against Chamblah Ltd, a now dissolved company in its own name and as against Chamblah Ltd under its trading name “Bathgate Massage Clinic” will fall to be dismissed in the event that no action is taken to restore the now dissolved company to the Register.[34]In the circumstances the case will be sisted for a period of 6 months from the date of promulgation of this judgment to allow to the claimant a period during which action to restore the company to the Register may be taken, if so desired, and during which the Secretary of State may consider, of new, the claimant’s claims in light of the Findings in Fact which the Tribunal has made.[35]The claimant lacks Title in Law to direct his claims, other than those relating to redundancy payment, arrears of pay and holiday pay against the Secretary of State for Business and Trade and the claimant’s claims for compensation in respect of unfair treatment insofar as directed against the Secretary of State are dismissed for want of Title to Sue. 18 August 2025