Mr E Cadden v New Forest Communications: 4105618/2016
| Judgment Date | 09 October 2018 |
| Citation | 4105618/2016 |
| Published date | 28 November 2018 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4105618/2016
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Held in Glasgow on 17 18 19 and 20th September 2018
Employment Judge: Laura Doherty
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Mr E Cadden Claimant
Represented by:
Mr R Turnbull -
Solicitor
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New Forest Communications Respondent
Represented by:
Mr. Walker
Director
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Employment Tribunal is;
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(1) The claimants claim of unfair dismissal succeeds, and the Respondents
are ordered to pay the claimant a Monetary Award of Fifteen Thousand
Six Hundred and Eighty-Two Pounds and Fifty Pence (£15,682.50).
(2) The claim of unauthorised deduction of wages contrary to Section 13 of
the Employment Rights Act 1996 (the ERA) succeeds and the
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respondents are Ordered to pay the claimant the sum of Seven
Thousand Pounds (£7,000).
(3) The claimants claim of Breach of Contract succeeds and the
Respondents are ordered to pay the claimant the sum of One
4105618/2016 Page 2
Thousand, Five Hundred and Fourteen Pounds and Fourteen
Pence (£1,514.14).
(4) The claim of under Regulation 14 of the Working Time Regulations 1998
( the Regulations) succeeds and the respondents are ordered to pay the
claimant the sum of One Thousand, Three Hundred and Seventy-
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Two Pounds, and Seventy-Five Pence (£1,372.75) in respect of leave
accrued but not taken at termination of employment.
REASONS
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1 The claimant presented a claim on 25 November 2016 claiming unfair
dismissal, breach of contract, failure to pay holiday pay, and unauthorised
deduction of wages. All claims were resisted by the respondents. The final
version of the amended response was lodged in December 2017.
2 The claimant was represented by his solicitor, Mr Turnbull, and the
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respondents were represented by their Managing Director, Mr Walker.
Preliminary issue
3 There is a preliminary issue as to the identity of the claimant’s employer. The
Respondents position is that the claimant was not employed by them, but by
another company, Pointshift Ltd.
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Unfair Dismissal
4 The issue in this claim is whether the claimant was constructively unfairly
dismissed in terms of Section 95 (1) (c) of the Employment Rights Act 1996
(the ERA)
5 The term of the claimant’s contract which is said to have been breached is the
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obligation to pay wages. It is accepted that the claimant tendered his
resignation on 28th July 2016 giving 3 months’ notice, and thereafter, during
that notice period he resigned with immediate effect on 20 September,
bringing the contract and end on that date.
4105618/2016 Page 3
6 The Respondents position is that there was no breach of the claimant’s
contract, in that all sums due to him had been paid. It is also said that the
claimant resigned from his own the reasons and not in response to a breach
of contract.
7 In the event that the Tribunal finds that the claimant was constructively unfairly
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dismissed it will have to consider the issue of remedy. This will include
considering if compensation should be reduced on the grounds of failure to
mitigate loss, contributory conduct, and whether the principles to be derived
from the case of Polkey v A E Dayton Services should be applied.
Unauthorised deduction of wages
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8 The issue is whether the claimant is due to be paid salary for the months of
August and September 2016, and if so, in what amount.
Holiday pay in respect of leave accrued but not taken on the termination of
employment.
9 The issue is whether the claimant is due to be paid for any leave accrued but
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not been taken on the termination of his employment.
Breach of Contract.
10 This claim relates to payment of expenses which the claimant says are due in
respect of a period during which he worked away from home. The issue is
whether the claimant is contractually entitled to recover expenses, and if so
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in what amount.
Preliminary Application
11 At the commencement of the hearing the Tribunal dealt with an application for
strikeout of the response under Rule 37 (1) (a) and (c) of the Employment
Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules).
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The Tribunal refused the application and give reasons for this orally.
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