Mrs Parmjit Badesha v Milverton House School: 1300034/2019

EMPLOYMENT TRIBUNALS

Case No 1300034/2019

Between

Mrs Parmjit BadeshaClaimant

Milverton House SchoolRespondent

Before

Employment Judge Camp

In person for claimant

Date 12 June 2019

JUDGMENT

[1]The claimant was not overpaid any money by the respondent and the respondent made an unauthorised deduction from the claimant’s wages when it failed to pay her a gross sum of £975 in August 2018. The claimant is awarded and the respondent must pay her a sum of £975 gross.

[2]When these proceedings were begun, the respondent was in breach of its duty under section 4(1) of the Employment Rights Act 1996 and the claimant is awarded an additional sum of £897.58, being four weeks’ pay, in accordance with section 38 of the Employment Act 2002.

[3]The respondent must also pay the claimant a sum of £37 in expenses, pursuant to rules 75(1)(c) and 78(1)(d).

[4]Taking all of the above into account, the respondent must pay the claimant a total sum of £1,909.58.

[5]This Judgment was made and took effect on 7 May 2019.

REASONS

[1]This is the written version of the reasons given orally on the day for the Judgment of 7 May 2019, written reasons having been requested by the claimant.

[2]This is an unauthorised deductions case, under sections 13 and 23 of the Employment Rights Act 1996.

[3]The claimant worked for a number of years for the respondent school (“School”). For whatever reason, she decided in 2018 that she didn’t want to work at the School anymore and her contract came to an end. She left at the end of the summer term and, as far as she was concerned, was entitled under her contract of employment to be paid up to the end of August 2018. The respondent’s representative, Ms Cubitt, who is a trustee (governor-equivalent) of the School, confirmed that the respondent accepts the claimant was, subject to an overpayment point which I shall come on to in a moment, entitled to be paid up to the end of August 2018, and that the claimant was entitled to an additional £975 over and above what she was paid.

[4]The claimant would have been paid that £975 on the last day, or the last Thursday, of August 2018. She went through ACAS early conciliation between 15 November and 15 December 2018 and presented her claim form on 4 January 2019. Because the payment should have been made at the end of August, that means her claim is in time, as she went to ACAS within 3 months of that payment date and then presented her claim form within one month of the end of the ACAS early conciliation period.

[5]The claim boils down to one point, and one point only: the overpayment point. It was confirmed by both the claimant and the respondent’s representative that this was the sole point in the case.

[6]The claimant produced evidence in accordance with case management orders that were made. The respondent did not. I was not asked for permission by Ms Cubitt, the respondent’s representative, for her to give evidence. Anyway, it appeared to me that she was not, really, in a very good position to give evidence because she was largely able only to report what she had been told by the school’s headmaster [at the relevant time]. The person who should have been here to give evidence and should certainly have produced a statement, but for whatever reason wasn’t and didn’t, is the headmaster.

[7]The claimant only ever had one contract of employment or set of employment particulars. It appears that the respondent was in breach of its obligations under the Employment Rights Act [1996] in that respect.

[8]The claimant’s initial contract of employment dated from September 2007 had her hours of work at 20 per week. The hours of work section of that contract states: Your normal working hours are Tuesday, Wednesday and Thursday, starting 30 minutes before the commencement of a lesson and remaining in school for at least 30 minutes after the completion of school upon the same day.

[9]The rate of pay at that stage was £12,000 gross per year.

[10]Apparently, there were a number of changes in terms of days worked and hours worked. In particular, there was change in 2009, where the claimant’s working days were reduced from (I think it was) 3 per week to 2 ½ per week. The second important change, the change from which this whole dispute has arisen, was in 2016.

[11]As I have already mentioned, the respondent accepts the claim, subject to the point about an overpayment. After the claimant left, the respondent didn’t pay her the monies that she would otherwise have been due at the end of August 2018, suggesting that an overpayment of wages had previously been made to her. If there had indeed been an overpayment, this would give the respondent a defence to the claim.

[12]The alleged overpayment arises in the following way:12.1 within the hours that a teacher is expected to work is what’s called, or referred to (at least at the School) as, “PPA”, which stands for something like “personal, preparation and administration”. It consists of things like marking time, lesson preparation, and so on – all familiar and necessary parts of teachers’ work outside of actual teaching;

12.2 within the claimant’s contract of employment, there is, as far as I am aware, no reference to PPA, but it is clearly envisaged that the teacher will do PPA;

12.3 the claimant had a set number of hours per week, and that was the basis on which she was paid;

12.4 prior to the change in 2016, the claimant’s set hours were 2 ½ days per week, for all of which she was expected to be present in the School;

12.5 the claimant had been doing her PPA – approximately half a day’s worth – within those 2 ½ days per week;

12.6 there was no statement of changes pursuant to section 4 of the Employment Rights Acts [1996] in 2009, nor in 2016 either;

12.7 there is no dispute that what happened in 2016 was that, at the headteacher’s request, the claimant’s work pattern changed so that she was in school on just 2 days per week and her PPA time was shunted to another, separate half-day. So, on 2 days per week, the claimant was doing all of her teaching which had previously been spread out over 2 ½ days, and on the third half-day, she did all her PPA;

12.8 what changed in 2016, was not, then, the amount of teaching time she had, nor the amount of PPA she did, nor the amount of work she was expected to do more generally. What changed was that 2 ½ days, incorporating a mix of teaching and PPA, all spent at the School, was separated into 2 days purely of teaching at the School and half a day purely of PPA carried out by the claimant elsewhere;

12.9 the respondent’s case is that the change in 2016 means the claimant should from then on have been paid for the 2 days per week she was physically present in the School, and therefore that she has been overpaid by half a day’s-worth of pay per week from the date of the change in 2016 onwards.

[13]I am not satisfied as to the respondent’s case. If the arrangement was to be that the claimant, who was doing the same amount of work before and after this change, would suddenly stop being paid for the time she spent doing PPA, I would expect to see something in writing from the respondent at the time of the change. If an employee is going to be paid less for doing the same amount of work, there ought to be some good reason for it. If all she is doing is organising her work differently, so as to assist the School, then one would not normally, absent an express agreement to that effect, expect that to result in a reduction in her pay.

[14]Ms Cubitt, for the respondent, has suggested that at the School, staff are only ever paid for hours during which they are [physically present] in School. It doesn’t say that in the claimant’s contract of employment, though. It says that the claimant would be paid a particular amount of money, and would do particular hours of work. It doesn’t say anything about PPA at all. She was to be paid a salary for doing a certain amount of work. Why, because the same amount of work is suddenly organised over different days, should the salary go down, in the absence of anything explicitly agreed, in writing or otherwise, between the respondent and the claimant?

[15]Moreover, the claimant continued to be paid in the same way; there was no reduction in the claimant’s wages until 2018. The respondent alleges that that was just a mistake. But it was a ‘mistake’ that continued for 2 years. If a supposed mistake continues for 2 years, I require some convincing that it was actually a mistake at all, particularly given that there was nothing in writing about the claimant’s pay changing.

[16]In the absence of clear evidence from the respondents to the effect that it was actually a mistake and that the whole intention of reducing the claimant’s days in school from 2 ½ to 2 was that it would pay her less money, my assumption, in all the circumstances, is that the claimant continued to be paid the same amount of money because she was expected to do the same amount of work. To put it another way: why should there be any reduction to her pay, given that the amount of work did not decrease?

[17]All the evidence and the circumstances points to there being no express or implied agreement for a reduction in pay.

[18]Another factor supporting the claimant’s claim is her unchallenged evidence to the effect that the work pattern of one of her colleagues – a French teacher – changed in a similar way to the way the claimant’s did and that that French teacher’s pay was never reduced.

[19]In conclusion, there was no overpayment to the claimant. The respondent was and is not entitled to recover that ‘overpayment’ in this or in any other forum. As the respondent’s only defence to the claim for £975 is the allegation of overpayment, the claim succeeds: there have been unauthorised deductions from the claimant’s wages to the tune of £975.

[20]I note there has also been a failure – an admitted failure – on the part of the respondent to provide a statement of changes to employment particulars. Pursuant to section 38 of the Employment Act 2002, the claimant is entitled to an additional award, whether she has made a claim for it or not. I am obliged to award her at least 2 weeks’ pay and I will now have submissions on whether it should be 4 weeks’ pay. [submissions were made]

[21]I have now had submissions on whether it should be 2 weeks’ pay or 4 weeks’ pay under section 38 of the Employment Act [2002].

[22]This is fairly finely balanced. This is a small employer. It appears to have been careless rather than one that knew what the obligation was and just couldn’t be bothered to comply. That suggests this is a 2 weeks’ pay case.

[23]The fact that the person responsible, the headteacher at the time, has left (which is one of the things mentioned by Ms Cubitt) seems to me to be neither here nor there. I am afraid that the employer is stuck with the defects of its previous headmaster. It [providing the statements of changes] wasn’t done. The fact that the school may since have improved doesn’t really help the respondent; it does not excuse its past failings.

[24]On balance, I think it should be 4 weeks’ pay. The two most important factors in making it 4 weeks’ rather than 2 weeks’ worth are:24.1 first, this failure to provide a statement of changes happened at least twice;

24.2 secondly, and more importantly to my mind, these entire proceedings have arisen because of the failure to provide a statement of changes in 2016. If this change in 2016 had been documented then everyone would have known where they stood. If there was an argument to be had, it would have been had in 2016, and the claimant could have chosen at that stage to say that she was not continuing to work for the School if she was only going to be paid for 2 days a week. We would have avoided all of this.

[25]For those two reasons I think this is a 4 weeks’ pay case rather than a 2 weeks’ pay case, and I therefore award an additional sum of 4 weeks’ pay under section 38 of the Employment Act 2002. Signed by: