Miss De Villiers v Astellon Investment Services Ltd: 2207208/2017
| Judgment Date | 07 February 2018 |
| Citation | 2207208/2017 |
| Published date | 27 March 2018 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
Case no. 2207208/2017
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EMPLOYMENT TRIBUNALS
Claimant Respondent
MISS DE VILLIERS v
ASTELLON INVESTMENT SERVICES LTD
Heard at: London Central On: 31 January and 1 February 2018
Before: Employment Judge Mason
Representation
For the Claimant: Mr. N. De Silva, counsel
For the Respondent: Ms. L. Bone, counsel .
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The Claimant was dismissed for some other substantial reason. That dismissal was
unfair but the Compensatory Award is limited to her actual financial loss of earnings
following dismissal of £770.76 and the sum of £500 for loss of statutory rights.
Having already received the equivalent of a Statutory Redundancy Payment, this
extinguishes any Basic Award. The Claimant is therefore awarded the total sum of
£1,270.76.
2. The Claimant’s claim for breach of contract fails and is dismissed.
REASONS
BACKGROUND
1. Miss De Villiers (“the Claimant”), commenced employment with Astellon Investment
Services Limited (“the Respondent”) on 3 March 2014. Her employment with the
Respondent terminated on 2 May 2017.
2. The Claimant claims (i) compensation for unfair dismissal and (ii) damages for
breach of contract. The Respondent denies the Claimant was unfairly dismissed and
says the Claimant was dismissed for a fair reason, namely redundancy and/or some
other substantial reason, and that in all the circumstances of the case it acted fairly
and reasonably and dismissal was within the range of reasonable responses. The
Respondent also denies that it breached the Claimant’s contract.
3. The Claimant was represented by Mr. De Silva and the Respondent by Miss Bone.
As I expressed at the Hearing, I am grateful to both counsel for their measured and
courteous conduct throughout.
Case no. 2207208/2017
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4. The Claimant gave evidence. Mr. Bernd Ondruch and Mr. Brian Coldrey gave
evidence on behalf of the Respondent. I have referred to individuals other than Mr.
Ondruch, Mr. Coldrey and the Claimant by their initials.
5. A large bundle of agreed documents was provided (pages 1-512) (“the Bundle”). I
have considered only those documents to which the parties referred to either in their
statements or during the course of giving oral evidence. Any reference to page
numbers in this judgement and reasons are to page numbers in the bundle.
6. The Hearing took place on 31 January and 1 February 2018. At the start of the
Hearing, I identified with the representatives the issues and the relevant documents; I
then retired to read the witness statements and any documents referred to in those
statements. Mr. Ondrich gave evidence on the 1st day and on the 2nd day, Mr.
Coldrey and the Claimant gave evidence. The representatives then made oral
submissions which I have paid heed to together with their written submissions and
case law provided. I was provided with copies of the decisions in Duffy v Yeomans
& Partners Ltd [1995] CA; Reda and another v Flag Ltd [2002] UKPC 38;
Rawlinson v Brightside Group Ltd UKEAT/0142/17/DA; Takacs v Barclays
Services Jersey Ltd [2006] IRLR 877; Patural v DG Services (UK) Ltd [2015]
EWHC 3659 (QB); Commerzbank AG v Keen [2006] EWCA Civ 1536; Braganza v
BP Shipping Ltd [2015] UKSC 17; Adrian Faieta v ICAP Management Services
Ltd [2017] EWHC 2995; IBM v Dalgleish and others [2017] EWCA Civ 1212.
ISSUES
7. The parties had prepared and agreed a list of issues as follows:
7.1 Unfair Dismissal:
(i) Was the reason for the Claimant’s dismissal a potentially fair reason (s98(2)
Employment Rights Act (“ERA”)?
(ii) Alternatively, was the dismissal for some other substantial reason, namely business
reorganisation?
(iii) Was the dismissal fair in all the circumstances of the case, having regard to the
Respondent’s size and resources? (s98(4) ERA).
(iv) If the dismissal was unfair, what compensation is the Claimant entitled to? If is is
found that the Claimant would have been dismissed in any event the Respondent
asserts that Polkey applies to extend the Claimant’s employment by 1-2 weeks, so
that the Claimant’s compensation is limited to this period. The Claimant asserts that
there should be no Polkey reduction, alternatively that a fair procedure would have
extended her employment by at least 1 month.
7.2 Bonus claim
(i) Has the Respondent breached the implied term of trust and confidence by allegedly
fabricating the reason for giving the Claimant notice of termination and seeking to
rely on clause 6.3 of the Employment Contract when the Claimant had worked the
entire bonus year on the assumption she would be eligible to be considered for a
bonus for 2016?
(ii) If so, what loss if any flows from that breach?
(iii) Alternatively, did the Claimant have any entitlement to bonus, given clause 6.2 of the
Employment Contract? If so, has the Respondent breached the implied term of trust
and confidence by exercising its discretion unfairly, irrationally and capriciously not to
award the Claimant a bonus for 2016?
(iv) If so, what bonus if any should the Claimant be awarded?
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