Claimant v Smaczek (Wrexham) Ltd and Zabka Wrexham Ltd — 2018

The tribunal dealt separately with each remedy after the liability decision, and said the main evidential dispute at remedy was mitigation. On the TUPE consultation issue, it found the first respondent's failure to consult was deliberate and complete, aggravated by a false statement in December 2016 that he was not selling the business. It also found that Mr Muradi, the second respondent's owner, knew of TUPE and had visited the shop around 10 January 2017, but failed inexcusable to check what the first respondent had done or to consult the staff. Applying the authorities it cited, the tribunal made a protective award of 13 weeks' gross pay to each of the six affected employees, being the four claimants and two colleagues, Magdalena and Gosia.

It awarded Ms D Fudala £166 for two days' unpaid wages, and made awards for failure to provide written particulars of employment under s.1 ERA 1996 and s.38 Employment Act 2002. Mrs I Fudala received two weeks' pay of £770.40, Ms A Woznicka received two weeks' pay of £961.74, and Ms B Kowalczyk received two weeks' pay of £696.90. Ms D Fudala received four weeks' pay of £1,956.00 because the tribunal found the failure repeated on both her initial employment and her later promotion to manager.

On annual leave, the tribunal accepted that the holiday year began on 1 April and that each employee had 28 days' entitlement less the two fixed closure days at Christmas and New Year. It accepted Ms B Kowalczyk's calculations for 2015/16 and 2016/17 and awarded £3,126.20. It accepted Ms A Woznicka's claim for untaken leave over 2014/15, 2015/16 and 2016/17 and awarded £5,903.37. It made no award to Ms D Fudala or Mrs I Fudala because it found they had taken paid leave in 2016/17 and any earlier holiday claims were out of time under the Working Time Regulations.

On unfair dismissal, the tribunal accepted that the second respondent would have reduced staff hours after the transfer and that the claimants' weekly pay would have fallen under the new regime. It found Ms D Fudala had not mitigated her loss after she stopped making herself available for weekend work and awarded her a compensatory loss of £5,148.70, plus a basic award of £1,467.00 and £350 for loss of statutory rights. Mrs I Fudala received a basic award of £1,155.00 and a compensatory award of £2,773.07, plus £350 for loss of statutory rights. Ms A Woznicka was found to have mitigated her loss and received a basic award of £961.74, a compensatory award of £8,433.52, and £350 for loss of statutory rights. No future loss award was made for any of the successful claimants.