E Dorosz v Poppys Entertainment Ltd and Scotts Restaurant: 1309544/2020

EMPLOYMENT TRIBUNALS

Case No 1309544/2020

Between

Ewelina DoroszClaimant

Poppys Entertainment Ltd and Scotts Restaurant Held at: Midlands West On 11th January 2021Respondent

Before

Employment Judge Steward

Date 11 January 2020

JUDGMENT

[1]The name of the Respondent is amended to RHD Midland Ltd

[2]The Claimant was an employee of the Respondent.

[3]The Respondent made unauthorised deductions from wages by failing to pay the claimant in lieu of accrued but untaken annual leave on termination of employment and is ordered to pay the Claimant the sum of £843.04 being the gross sum due.

[4]The respondent was in breach of contract by dismissing the claimant without notice and the respondent is ordered to pay to the claimant damages of ££479 for that breach.

REASONS

[5]The Claimant had named the Respondent on the claim form as max westowner Poppys Entertainment Ltd. The Respondent stated in his response that the Claimant had never worked for Poppys Entertainment Ltd. Essentially the claim should be struck out as she has the wrong company.

[6]I applied the principles in Selkent Bus Company Limited v Moore

[1996] ICR 836

in deciding whether to allow the amendment to the name of the respondent, taking into account all the circumstances and balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The respondent had received the claim form and had responded to the claim. The Claimant worked as a manager at Scotts Restaurant. This Restaurant was described as PoppysEntertainment ltd and Scotts restaurant on facebook. Both PoppysEntertainment ltd and Scotts Restaurant have the same address. This is the same address as pleaded by the Claimant. Correspondence from the respondent during the currency of this claim has come from RHD Midland. This is a company where the director is Max West. This is the name pleaded by the Claimant. Max West made it clear to me today that the claimant worked for RHD Midland Ltd was paid by them and was on the pay roll. I was provided with a draft contract during the course of the hearing. This contract was unsigned however it was a contract purporting to be between PoppyEntertainmentLtd and the claimant. She was a Restaurant Manager earning £23,000 per year commencing on the 4.3.2020. I have come to the conclusion That PoppyEntertainment and Scotts Restaurant are the same and that they are owned by Max West. I also concluded that RHD Midland Ltd was owned by Max West and was the principle company.I concluded that there was no hardship or injustice to the respondent in allowing the claimant to amend the name of the respondent whereas, if the amendment was not allowed, the claimant would lose the opportunity to pursue her claims and, if successful, be given a remedy. I considered that the balance of injustice and hardship lay in favour of allowing the amendment. I ordered that the name of the respondent be amended to RHD Midland Ltd and the claim be allowed to proceed against that respondent. Claims and issues

[7]The claimant claimed breach of contract, in relation to not being given the notice of termination of employment to which she was entitled, and unauthorised deductions from wages in relation to a payment in lieu of accrued but untaken holiday. Though not pleaded a further issue is the failure of the Respondent to provide the Claimant with written contract of employment pursuant to S.38 Employment Act 2020.

[8]The Respondent denied that the Claimant worked for PoppysEntertainment Ltd suggested she had got the wrong company. Therefore the claim should not proceed.

[9]The issues for the Tribunal to consider were discussed and agreed from the outset. The first issue is whether the Claimant worked for PoppysEntertainment ltd Scotts Restaurant or RHD Midland Ltd.After considering the filed evidence and oral evidence i accepted that the correct respondent was RHD Midland Ltd.The second issue was whether the claimant was an employee of the respondent or a worker within the definitions in the Employment Rights Act 1996. The claimant was only entitled to bring complaints of unauthorised deductions from wages and was only entitled to leave under the provisions of the Working Time Regulations 1998 if she was a worker (which includes being an employee). She was only entitled to bring a complaint of breach of contract and to be provided with a written statement of employment particulars if she was an employee.

[10]Both the Claimant and the Respondent had been ordered to provide full written statements of evidence and the witnesses they intended to rely on pursuant to the order of Employment Judge Hughes on the 15th October 2020. They have filed no written evidence to assist the Tribunal. The Claimant has sent to the tribunal as series of emails and text messages (purporting to be between herself and a representative of RHD Ltd). The Respondent has filed nothing to support his response document. The Claimant has also sent to the tribunal a PAYE tax summary April 2020 to April 2021 which would seem to show a sum of £5307.

[11]The Claimant speaks Polish as a first language. She has not requested an interpreter prior to the hearing. She has corresponded in English. I asked her at the outset whether she required an interpreter? She indicated she did not need one. My assessment of her was that she understood English well.

[12]There was no agreed bundle of documents. Both the Claimant and Respondent had the opportunity to comply with directions issued on the 15th October 2020. They had not done so. I took the view that the matter should proceed today when considering the evidence i had and the overriding interest to deal with matters justly and proportionately. Ii asked both parties whether they had any further documents for me to consider. The claimant produced an unsigned contract of employment. She told me this was a copy of the actual contract she signed. The Respondent had not seen this before today.

[13]I also heard oral evidence from both the Claimant and the Respondent. They addressed me at length and also made submissions at the end of the evidence. They both assisted me. Fact Findings

[14]I heard oral evidence from both the Claimant and the Respondent Where the evidence differed i preferred the evidence of the claimant.

[15]The Respondent operated a business called PoppysEntertainment ltd and Scotts Restaurant. He is also a director of RHD Midland ltd. this company corresponded with the tribunal for the purpose of this claim. The owner and director of these companies is Mr Max West. He is also referred to on the Claimants claim form.

[16]The Claimant states she worked for Scotts Restaurant from the 4.3.20 until the 1.8.20. She was a Restaurant Manager. She states as a result of a family bereavement in Poland she went back to Poland for the funeral at the start of July and could not return as she was ill. She was not paid statutory sick pay and was then dismissed without notice on the 1.8.2020. I have seen a series of texts between the Claimant and RHD Midland Ltd where the claimant on the 3.7.20 asks whether Max has been informed? This was confirmed by the Claimant as the message to ensure her boss knew she was going to be absent. It is responded to by Alison Yorke in the affirmative. The respondent denied he had seen the text messages and said she went to Poland in June and never returned. She had only worked for a few days before the country went into furlough. She had all her furlough money and was owed nothing more. He also gave the Claimant £200 and never received this back.

[17]I have also seen a series of text messages from RHD Midland informing the Claimant that she will be paid at the end of the week? Paid up to the end of April. A further message from RHD Midland says that the claimant would be paid weekly but that they have monthly and weekly on the payroll.

[18]I prefer the evidence of the Claimant. I accept she worked for RHD Midland Ltd and was employed from the 4.3.20 until the 1.8 20 when she was dismissed without notice. I accept factually what she told the Tribunal about her return to Poland in July. There seems little doubt that she worked from the 4.3.2020 until the 1.8.20. It is agreed she was paid £479 a week gross and worked for 48 hour weekly shifts. She was on the weekly payroll and as per the text exchange in May with RHD Midland Ltd.

[19]The Claimant produced an unsigned contract today.

Law

[20]An “employee” is defined by section 230(1) Employment Rights Act 1996 (ERA) as being “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.” “Contract of employment” is defined as meaning a contract of service or apprenticeship. Whether an individual works under a contract of service is determined according to various tests established by case law. A tribunal must consider relevant factors in considering whether someone is an employee. An irreducible minimum to be an employee will involve control, mutuality of obligation and personal performance, but other relevant factors will also need to be considered.

[21]A ”worker” is defined by section 230(3) ERA as being: “an individual who has entered into or works under (or, where the employment has ceased, worked under)—(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

[22]The Working Time Regulations 1998 provide for minimum periods of annual leave and for payment to be made in lieu of any leave accrued but not taken in the leave year in which the employment ends. The Regulations provide for 5.6 weeks leave per annum. The leave year begins on the start date of the claimant’s employment in the first year and, in subsequent years, on the anniversary of the start of the claimant’s employment, unless a written relevant agreement between the employee and employer provides for a different leave year. There will be an unauthorised deduction from wages if the employer fails to pay the claimant on termination of employment in lieu of any accrued but untaken leave.

[23]A worker is entitled to be paid a week’s pay for each week of leave. A week’s pay is calculated in accordance with the provisions in sections 221-224 Employment Rights Act 1996, with some modifications. There is no statutory cap on a week’s pay for this purpose.

[24]If there is no expressly agreed period of contractual notice, there is an implied contractual right to reasonable notice of termination. This must not be less than the statutory minimum period of notice set out in section 86 ERA. For someone who has been employed at least one month but less than two years, this is one week’s notice.

[25]An employer is entitled to terminate an employee’s employment without notice if the employee is in fundamental breach of contract. This will be the case if the employee commits an act of gross misconduct. If the employee was not in fundamental breach of contract, the contract can only lawfully be terminated by the giving of notice in accordance with the contract or, if the contract so provides, by a payment in lieu of notice.

[26]A claim of breach of contract must be presented within 3 months beginning with the effective date of termination (subject to any extension because of the effect of early conciliation) unless it was not reasonable practicable to do so, in which case it must be submitted within what the Tribunal considers to be a reasonable period thereafter.

[27]Where a Tribunal finds in favour of an employee in a complaint of unlawful deductions from wages and breach of contract, and the Tribunal finds that the employer has failed to provide the employee with a written statement of employment particulars, the Tribunal must award the employee an additional two weeks’ pay, unless there are exceptional circumstances which would make that unjust or inequitable, and may, if it considers it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay. Conclusions Employment or worker status?

Conclusions

[28]The claimant can only claim unauthorised deductions from wages and holiday pay if she was an employee or worker. She can only claim breach of contract and an additional award under section 38 Employment Act 2002 if she was an employee.

[29]The Claimant worked as a Restaurant Manager. She was paid weekly. I ascertained form the oral evidence she worked on a rota and had specified hours. She took her instruction from Carl Chadwick. He was an associate of Max West. She was on the payroll. There was an agreement what her pay would be. Having regard to all the circumstances i conclude she was an employee.

[30]Since I have found that the claimant was an employee she was also a worker and I do not need to consider any other part of the test of worker. As an employee, the claimant is entitled to pursue all her complaints. Holiday Pay

[31]There was no contractual agreement as to holiday entitlement. The claim relies on the claimant’s right to annual leave under the Working Time Regulations 1998. Under these regulations, the claimant was entitled to 5.6 weeks’ holiday per holiday year. Since there was no relevant agreement giving a different holiday year, the claimant’s holiday year began on the start date of his employment, which was 3 March 2020. I found that the claimant was employed until 1 August 2020. The claimant was entitled to be paid, on termination of his employment, in lieu of leave which he had accrued but not taken in the period 4 March 2020 to 1 August 2020. I found that the claimant had taken 5 days holiday when she went to Poland in July. I conclude that the respondent made an unauthorised deduction from wages by not paying her in lieu of accrued leave. The calculation is as follows. The Claimant worked 21 weeks. She has accrued therefore 21/52 x 5.6 weeks which is 2.26 weeks. However she took 5 days holiday. Therefore 1.76 weeks. The Claimant worked 48 hours per week and was paid £479 per week gross. She is entitled to 1.76 x £479=£843.04 as her pay in lieu of accrued but untaken holiday. Breach of Contract

[32]The claimant was entitled to notice of termination unless she was guilty of gross misconduct. The respondent asserted that the claimant had been dismissed because of redundancy. I have found that the claimant did not commit gross misconduct. She was, therefore, entitled to notice of termination if dismissed. I conclude that the claimant was dismissed on 1 August 2020.

[33]There was no period of notice expressly agreed. The claimant is entitled to reasonable notice, which must not be less than the statutory minimum notice. I conclude that reasonable notice would be the same as statutory minimum notice for the claimant in her position as a Restaurant Manager. I conclude that she was entitled to one week’s notice and the respondent was in breach of contract by not giving her this notice of termination.

[34]I conclude that the claimant should be paid damages equivalent to one week’s Gross pay namely £479. The claimant will be responsible for any income tax or employee national insurance contributions which may become due on these damages.

[35]The claimant has succeeded in her other claims. An award of additional pay under section 38 Employment Act 2002 for failure to provide a written statement of employment particulars is, therefore, possible.

[36]I concluded that the claimant was an employee of the respondent. She was, therefore, entitled under section 1 ERA to be provided with a written statement of employment particulars by not later than 2 months after the start of her employment i.e. by 4 May 202. I found that the claimant was given a written statement of employment particulars as per her own evidence. Therefore there is no award under S.38 of the Employment Act 2002. Signed