Mr K Tailor v Outstanding Branding Ltd (in Liquidation) and Sandy Branding Ltd: 2303340/2021 and others
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 2023 |
| Citation | 2303340/2021 and others |
| Date | 10 July 2023 |
| Court | Employment Tribunal |
| Published date | 18 October 2023 |
| Subject Matter | Breach of Contract |
Case Numbers 2303340/2021, 2303522/2021, 2301529/2022
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EMPLOYMENT TRIBUNALS
Heard at: London South On: 20 June 2023
Claimant: Mr Kunil Tailor
Respondents: (1) Outstanding Branding Limited (in liquidation)
(2) Sandy Branding Limited
Before: Employment Judge Ramsden
Representation:
Claimant Mr James Wynne, Counsel
Respondent Not in attendance
RESERVED JUDGMENT
1. The Claimant’s complaint of unlawful deduction from wages against the First
Respondent is upheld. The First Respondent is Ordered to pay the Claimant the
sum of £4,504.50 gross.
2. Each of the Claimant’s complaints of unfair and wrongful dismissal against the
First Respondent fail.
3. The Claimant’s complaint of unlawful deduction from wages against the Second
Respondent is upheld. The Second Respondent is Ordered to pay the Claimant
the sum of £5,544 gross.
4. Each of the Claimant’s complaints of unfair and wrongful dismissal against the
Second Respondent are upheld. The Second Respondent is Ordered to pay the
Claimant:
a) £1,453.84 gross by way of statutory redundancy payment (being four
weeks’ wages at £363.46 per week in light of the fact that he was 28 years
old when dismissed, and should be treated as having worked for the
Second Respondent for a period of four years);
b) £2,596.16 gross in respect of the unfair dismissal claim (comprising by way
of basic award of £0 and £2,596.16 by way of compensatory award); and
c) £1,453.84 gross in respect of the wrongful dismissal claim.
Case Numbers 2303340/2021, 2303522/2021, 2301529/2022
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5. The Claimant’s complaint of unlawful deduction from his wages in respect of his
accrued but untaken holiday at the date of his dismissal is upheld. The Second
Respondent is Ordered to pay the Claimant the sum of £331.56 gross.
6. Each of the Claimant’s complaints against the Second Respondent of:
a) Harassment related to his race;
b) Direct race discrimination;
c) Failure to give the Claimant the opportunity to elect a representative under
Regulation 14 of the Transfer of Undertakings (Protection of Employment)
Regulations 2006 (TUPE);
d) Failure to give the Claimant the required information under Regulation 13
of TUPE; and
e) Failure to consult with elected representatives or affected employees
under TUPE,
fail.
REASONS
Factual Background
Summary
7. The business of the First Respondent was, and the Second Respondent is,
concerned with supplying promotional gifts and branding merchandise.
8. The Claimant was engaged by the First Respondent on 12 May 2017.
9. Following the financial difficulties encountered by the First Respondent, the
directors of the First Respondent incorporated the Second Respondent on 10
March 2021.
10. The Claimant claims that his employment transferred to the Second Respondent
on or around 31 May 2021, and that that employment only terminated when he
accepted its repudiatory breach (of not paying him) on 5 June 2022. He contends
that the Second Respondent:
a) owes him various sums (in arrears of pay and holiday pay) relating to his
employment with that Second Respondent from 1 June 2021 onwards;
b) is liable for race-related harassment and direct race discrimination that
occurred while he was employed by the First Respondent; and
c) failed to inform and consult with elected representatives or with affected
employees (including him) pursuant to TUPE, and
if the Tribunal finds that the Claimant was dismissed by the Second Respondent
earlier than 5 June 2022, the Claimant avers that:
Case Numbers 2303340/2021, 2303522/2021, 2301529/2022
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d) that dismissal was unfair; and
e) that dismissal was wrongful.
11. No Response to any of the claims made by the Claimant has been filed by either
Respondent, and so the Tribunal’s understanding of the facts comes from the
evidence provided by the Claimant, the correspondence between the parties and
the Tribunal, and information publicly available on Companies House.
More detailed chronology
12. The First Respondent was incorporated on 18 June 2009. It had two statutory
directors, Andrew Thorne and Sarah Massey, each of whom owned half of the
First Respondent’s issued shares. That remained the position (save for the
allotment and redemption of a few additional shares to and from Mr Thorne and
Ms Massey) over the next few years.
13. The Claimant began working for the First Respondent as a Finance Assistant
from 12 May 2017. His contract of employment provided (among other things)
that:
a) he was entitled to four weeks’ notice from the First Respondent to
terminate his employment; and
b) the Claimant was entitled to 22 days’ leave per calendar year, together
with eight additional days for Bank and public holidays, and “a further three
days’ concessional days, as detailed in the employee handbook and may
vary from year to year at the Company’s discretion”.
14. The Claimant says that, at some time in or prior to March 2020 (i.e., when he was
still performing work for the First Respondent), Mr Thorne referred to the
Claimant, who is Asian, as a “terrorist” as part of office “banter” on a number of
occasions (the Racial Banter Incidents).
15. On 1 April 2020, the Claimant was furloughed by the First Respondent, pursuant
to the Coronavirus Job Retention Scheme (CJRS), and he never returned to
work. The Claimant was paid 80% of his salary by the First Respondent for the
period 1 April 2020 until 28 February 2021, and he agrees that no sums are owed
to him by the First Respondent in respect of that period.
16. By letter dated “3rd November” (which must be 3 November 2020, given the
context, as the CJRS finished in September 2021), the First Respondent
extended the furlough arrangements applicable to the Claimant for a further
period. That letter stated:
“In the event that the disruption to our business is still continuing when the
furlough arrangements end and/or there is any reduction in our requirements for
work of the kind you are employed to do at that stage, we reserve the right to lay
you off (without pay except statutory guaranteed payments), and/or to reduce
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