Mr R Smits v David Phillips Furniture Ltd: 3200069/2018

JurisdictionEngland & Wales
Judgment Date01 June 2018
Citation3200069/2018
Published date15 June 2018
CourtEmployment Tribunal
Case Number: 3200069/2018 MF EMPLOYMENT TRIBUNALS Claimant Mr R Smits Respondent: David Phillips Furniture Ltd Heard at: East London Hearing Centre On: 25th May 2018 Before: Employment Judge Reid (sitting alone) Appearances: For the Claimant: In person For the Respondent: Did not attend RESERVED JUDGMENT The judgment of the Tribunal is that:1. The Claimant was unfairly (constructively) dismissed by the Respondent contrary to s94(1) Employment Rights Act 1996. 2. The Claimant was wrongfully dismissed by the Respondent. 3. The Claimant’s claim for breach of contract is dismissed. 4. The Claimant’s application for a preparation time order is refused. Compensation A. Basic award 3 complete years of service aged under 41 3 x £489 = £1,467 Less reduction under s122(2) Employment Rights Act 1996 at 50% (£733.50) 1 Case Number: 3200069/2018 = £733.50 B. Compensatory award 26 weeks x £393.92 = £10,241.92 Plus pension 26 weeks x £10.53 = £273.78 Plus loss of statutory rights £350 = £10,865.70 Less reduction for failure to comply with ACAS Code of Practice at 15% (£1,629.85) = £9,235.85 Less reduction under s123(6) Employment Rights Act 1996 at 50% (£4,617.92) = £4,617.92 Total compensation A+B = £5,351.42 REASONS Background 1. The Claimant brought claims for unfair dismissal, for wrongful dismissal (notice pay) and for breach of contract by a claim form presented on 14th January 2018. 2. The Claimant was employed as Project Site Manager by the Respondent from 15th July 2014 to 12th October 2017 when he resigned. Issues 3. The Claimant’s case was that he had in effect been forced to resign by the Respondent because the Respondent told him that he had two options, either resignation or demotion, when the Claimant had returned to work after a period of unauthorised absence. The Claimant’s case was that he had been unable to return on time from his trip to Lithuania (an authorised holiday) because his girlfriend, who was undergoing medical treatment in Lithuania, had stayed in hospital longer than had been anticipated and he had extended his stay for this reason. The first issue was therefore whether if the Respondent did give the Claimant those two options, this amounted to a constructive dismissal because the Respondent had breached a term of the Claimant’s contract of employment. If it did, the next issue was whether that breach played a part in the reason why the Claimant resigned and whether the Claimant delayed in resigning and thereby affirmed the contract. The burden of proof 2 Case Number: 3200069/2018 was on the Claimant to show that there was a constructive dismissal by the Respondent. 4. Because he was not represented I explained the basis of a breach of contract claim to the Claimant because he was claiming £25,000 for multiple claimed losses (bundle page 6). He agreed that this was not a situation where the Respondent had ever contractually agreed to pay for these items such that the Respondent had breached a term of his employment contract. However if he won his unfair dismissal claim I identified that some of these claimed losses (eg loss of bonus or expenses of looking for work) might be recoverable as part of his unfair dismissal compensation. 5. The Claimant also included a claim for 35 hours preparation time undertaken by his friend Mr Koczyk in preparing the claim and for the hearing. 6. The Claimant attended the hearing accompanied by his friend Mr Koczyk. He had prepared the bundle and also provided a copy of his August 2017 payslip. The Respondent did not attend the hearing. A telephone call was made to Ms Zariffis (HR) of the Respondent when no-one had arrived and she explained that she had received the Tribunal’s letter dated 2nd May 2018 but had misunderstood it, thinking it meant that as there had as yet been no decision on the Respondent’s application for an extension of time to submit its response (ET3), the hearing would not go ahead until that decision had been made. She confirmed that the only person who would have attended in any event would have been herself and no other witnesses. I considered delaying the start of the hearing to enable her to attend but she said she was around 3 hours’ drive away at another site. I considered that the letter dated 2nd May 2018 when read in conjunction with the notice of hearing dated 23rd January 2018 was clear ie that the hearing would go ahead on 25th May 2018 but that the first issue the Tribunal would have to decide was the Respondent’s application for an extension of time. I decided to proceed in the absence of the Respondent taking this into account under Rule 47 of the Tribunal Rules 2013. The Claimant gave oral evidence to clarify some matters in his witness statement and about his claimed losses. I allowed the Claimant extra time to prepare the submissions he wanted to make at the end of the hearing. Respondent’s application dated 29th March 2018 for an extension of time to submit response (ET3) 7. Because the Respondent had not attended so that further questions could not be asked, the only explanation I had for the late submission of the Respondent’s ET3 was the email from Ms Zariffis dated 29th March 2018.The Respondent’s ET3 was due on or before 20th February 2018 and was not received by the Tribunal until 6th March 2018, at that point without explanation for its lateness. 8. At the hearing I refused the Respondent’s application for the following reasons under Rule 20 of the Tribunal Rules 2013. Firstly the explanation from Ms Zariffis said that the ET3 had been ready for submission but that she was absent on 19th February 2018 due to illness. She did not suggest that she was also then absent on 20th February 2018 or thereafter until 6th March 2018 when it was submitted, around 2 weeks late. In the absence of any further explanation I therefore decided that the ET3 could have been submitted on 20th February 2018 (a working day) when she was back at work, taking into account it was ready. Her email to the Claimant and the 3 Case Number: 3200069/2018 Tribunal dated 6th March 2018 was in any event inconsistent with that explanation because it suggested that Ms Zariffis thought she had already sent the ET3 to the Tribunal on 18th February 2018 such that her subsequent explanation for the lateness was an attempt to deal with the fact that she thought she had submitted the ET3 but in fact hadn’t. Secondly I considered the balance of prejudice as between the parties but considered that whilst if refusing the application the Respondent would be unable to rely on its defence that the Claimant had voluntarily resigned, the burden of proof was still on the Claimant in any event because this is a constructive dismissal claim. Thirdly I considered the merits of the Respondent’s proposed defence, namely that the Claimant had voluntarily resigned and that any discussions about a more junior role were after he resigned, in the context of possible future jobs if he re-joined the Respondent at a later stage. Weighing all this up I decided that the prejudice to the Respondent was outweighed by its failure to provide a good reason for the lateness and the fact that even without an ET3 the burden of proof was still on the...

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