Ms Y N L Lamptey v Gloucester Care Services Ltd T/a Caremark Cheltenham Gloucester and Tewkesbury: 1400318/2025
JUDGMENT
[1]The claims for unfair dismissal, arrears of pay, breach of contract and other payments succeed.[2]The Tribunal makes an award under section 38 Employment Act 2002[3]The Respondent must pay the Claimant £12737.41 by 17/9/25.REASONS
[1]Box 9.1 of the ET1 stated that the claims were for(i) (constructive) unfair dismissal(ii) holiday pay(iii) arrears of pay and(iv) “other payments”. The document attached to the ET1 as particulars of claim (POC) referred to “non-payment of the national minimum wage” which is in substance an argument in support of the arrears of pay claim, and to “fundamental breach of contract” in support of the constructive unfair dismissal claim.[2]The POC also included a reference to the amount which was paid the Claimant as a mileage allowance and to a sum which the Claimant paid the Respondent as purported immigration fees. All these matters are properly before me.[3]In a schedule of loss (SOL) produced for the final hearing the Claimant introduced a new claim for “unpaid bonus and DBS refund in the sum of £280”. This is a minor matter closely related to the claim for the arrear wages, which I considered could be dealt with fairly during the Final Hearing, so I have granted the Claimant permission to amend her claim to include it, and I have considered that also.[4]The SOL also claimed “Data Collation Costs” which are time charges which the Claimant says she and a Data Analyst have spent working on her claim in order to quantify and present it. This type of claim can only be made in the ET as a claim for a preparation time order and is not a claim for compensation arising out of a cause of action within the ETs jurisdiction.[5]The SOL also claimed “compensation for failure to provide pay and hours breakdown”. This appears to be a claim which, if it was to be brought at all in the ET, should have been brought as a reference under section 11 ERA 1996 for failure to provide any or any adequate itemized pay statements. No such claim was made in the ET1 and it would require considerable additional time and evidence before I could consider it, so I refused to allow any amendment to include such a claim.[6]The SOL also claimed “Compensation – “Breach of Working Time Regulations””. Mr Bonney-Quist explained that this related to the Claimant allegedly having been forced by the Respondent to work in excess of the maximum hours of work permitted by the WTRs. There is no such claim in the ET1 and in any event the WTRs do not provide for general damages or similar compensation to be awarded for excessive working. Hence, I did not consider that claim.[7]The SOL also claimed “Compensation – Financial Distress – £3,000.00”. There is no such claim available in the ET.[8]The ET1 did not include a claim for notice pay but the SOL claimed “Wrongful Dismissal Unpaid Notice Pay…” This is a claim for wages arising out of the confused circumstances of the termination of the Claimants employment. It can be dealt with without prejudice to the Respondent as part of the claim for arrears, so I have allowed the Claimant to amend her claim to include it.[9]I heard evidence from the Claimant’s husband Mr Bonney-Quist and then from the Claimant and her witness Mr D Kataria; and then from the Respondent’s witnesses Mr and Mrs Folkes (owners of the Respondent) and I read a statement from Ms E Perrett (supervisor). The documents were in a bundle of 414 Pages (Claimant) and 130 pages (Respondent). I was also referred to lists of issues from each side, a Respondent’s skeleton argument, and the authority HMRC V Taylors Services Ltd and Others 2025 EWCA 956.[10]The final hearing was listed for only two days. We had 6 witness statements although only 5 were called and hundreds of pages of documents. I had to case-manage to ensure we got through the hearing. The Claimant was given about 2 hours to cross-examine the Respondent’s main witness Mr Folkes and about 45 minutes to cross-examine Mrs Folkes, which times, in aggregate, exceeded the time spent by the Respondent’s Counsel with the Claimant and her witnesses. Mr Bonney-Quist complained that this was unfair etc and asked for four hours cross-examination time which if allowed would have meant that I would have been unable to complete the hearing within the allotted time, which no-one had asked to be extended before it started, and in any event any such extension would have been disproportionate having regard to the nature of the claims and the quantum.[11]Also in his cross-examination of Mrs Folkes the Claimant became quite rude in my opinion, and also told me, even before I had announced my judgment, that he intended to appeal one aspect of the case. I asked him to stop being rude and to accord to others the courtesy which had been shown to him, but assured him that I would continue to determine the claims on the facts and law, as I have done. On the whole however the hearing proceeded smoothly and all parties, including Mr Bonney-Quist, acted reasonably and pleasantly.Background
[12]The Claimant was employed by the Respondent from 6/9/22 in the role of Domiciliary Care Assistant.[13]The Claimant submitted her resignation on 4/11/24 and gave notice in an ambiguous fashion.[14]She worked for the Respondent until 17/11/24 and started work for another employer (the NHS) in mid-December 2024, which she had arranged before resigning.[15]The Claimant’s role with the Respondent involved providing care services to individual clients in their homes in Stroud and Gloucester, with each visit lasting between 30 to 60 minutes. The Claimant also drove between client locations during each shift, using her own car to do so.[16]The Respondent controlled the start and end times of each client visit through a rota system, which was tracked using the Respondent’s mobile applications installed on the Claimant’s phone.[17]As the Claimant was employed on a Health and Care Worker Visa, the Claimant’s minimum hourly wage, minimum weekly working hours, and permitted deductions for immigrationrelated costs were regulated by UK Home Office sponsorship rules. Findings of fact and decisions about the various claims: Arrears of pay. Getting to and from work[18]It is agreed that the Claimant was not paid for her time in driving from her home to the home of her first client and then from the home of her last client back to her home. I refer to this time as “getting to and from work” The Claimant claims that she was working when she was driving on these journeys and should have been paid for them.[19]On 7/11/2022, just over two months after the Claimant started working for the Respondent, Ms J Lambert (a Respondent manager) sent the Claimant a draft employment contract. Various versions of the employment contract appear in the bundles but none of them explain clearly what driving time will or will not be regarded as working time for which the Claimant would be paid.[20]The version she was sent on 7/11/22 is probably the same or broadly similar to the version which appears in RB50 onwards. It states that the Claimant would be paid £10.10 per hour for the work done by her monthly in arrears but did not refer at all to what working time was or how and if the Claimant would be compensated for driving her own car during working time.[21]The Claimant on the same day sent a reply as follows: “Many thanks Joanne. I have read the sample contract of employment and JD and I'm happy with all the terms. However the following was not addressed and will be grateful if you confirm : 1. Please confirm if all hours of work including driving in between client calls will be paid at the same rate of £10.10 per hour. 2. Please confirm if mileage ( fuel and car maintenance ) will be reimbursed at £0.45 per mile. 3. How will the total miles driven in a day be tracked. Will the company provide an App to track the total miles driven so I'm paid accordingly? 4. Please confirm if fuel consumed will be reimbursed as part of my salary on a monthly basis and paid at the same time as my salary. 5. Please confirm if my hours of work will be calculated from arrival time at first client to departure time at last client including driving time : eg. Will my working hours in a day that i arrive at first client ,7am and depart at last Client at 9pm be 12 hours (excluding 2 hours break).’[22]Ms Lambert replied as follows. “Travel time is paid at the same rate. The current mileage rate is 45p per mile, this will fluctuate as the price of fuel fluctuates. Our planning system people planner works out your mileage based on geographic location of each client and works out the distance between them based on Google maps. Mileage is paid as an expense along with your salary. You are paid for contact time with each client, travel time between clients and for your mileage. There is no mileage from home to first client, or to home from last client. Essentially getting to and from work. Any questions let me know.”[23]This exchange shows that although the contract was silent about it, the Claimant, who had worked as a carer before, for at least one previous employer, was well aware, even before she sent her email, that she would not be paid for her time getting to and from work. Ms Lambert’s email could have been more clearly written but the only reasonable interpretation of it, is confirmation of this.[24]The Claimant refers to a “Totality of Agreement” clause 26 in the contract, to exclude the effect of the email exchange. That does not assist the Claimant because even without the email exchange, the contract does not provide for travelling to and from work time to be treated as working time.[25]I regard the email exchange as evidence of how the parties understood and interpreted the contract which was ambiguous in that regard.[26]Furthermore, I am entitled to look at the custom and practice in the industry. I accept Ms Folkes’ evidence that “Care workers are paid for contact time with customers, based on planned visit durations, even if they do not stay for the full duration. We also pay for travel time between customer visits, excluding the first and last journey of the day, YL has based her analysis of NMW including her travel time for the first and last journey of the day. Mileage is reimbursed as an expense. This pay structure is standard across the domiciliary care sector and aligns with industry norms, as recognised by the Homecare Association, the leading body representing homecare providers in the UK.”[27]I do not accept that the Claimant was employed as a driver. She was employed as a carer. She needed a car to get to and from work but the same is true for millions of employees who are not employed to drive and who are not paid for travel time to and from work.[28]I find that the Claimant did not have any entitlement to be paid for her time getting to and from work, so that aspect of her case fails. I believe this is in accordance with the Taylor decision. Calculation of her pay for working time[29]It is agreed that the Claimant was entitled to be paid for her contact time with clients and her travel time between clients. The Claimant claims that the Respondent’s calculation of that time was inaccurate.[30]The Claimant relies on the evidence of Mr Bonney-Quist about this the relevant part of which is as follows: “I have assisted the Claimant in analysing the Respondent’s gross pay advice to determine her total hours worked in line with the national minimum wage regulations. I have worked as a Cost Engineer for many years and have professional experience of working with large datasets and reconciling complex records, and I applied this experience to the Claimant’s case….Due to the volume of data covering the pay reference periods between September 2022 and November 2024, the Claimant asked me to assist in reconciling her working hours. I also worked alongside a data analyst at EY, who provided technical support in preparing and validating the calculations. The source data for the calculations was the Respondent’s Gross Pay Advice (Bundle items 97.1– 97.25, pp.257–400). These documents contain, for each pay reference period, the claimants start and end times for each client call. The Claimant tracked her driving hours and miles using the MileIQ App driving logs. These confirmed the hours she worked and the driving time on those dates. My task was to translate the Respondent’s Gross Pay Advice from PDF format into an Excel dataset, allowing me to calculate and verify the total hours worked for each pay reference period. I adopted the same method the Respondent itself had used to calculate the hours worked for some shifts based on request by Gloucestershire County Council to calculate the hours worked from the start time to the end time in each shift. Breaks periods were excluded from my calculations. The recalculated totals were then compared against the “care time” and “travel time” figures on the Gross Pay Advice. In every pay reference period except in June 2023 and March 2024, there was a consistent shortfall between the actual hours worked and the hours the Respondent recorded or paid. Even without including the Claimant’s driving time from home to the first client and from the last client back home, she was still paid at an effective hourly rate below the National Minimum Wage for most pay reference period.”[31]Mr Bonney Quist produced a table of his calculations showing amongst other things £41291.52 as the total gross pay which the Claimant should have been paid for her working time (not including getting to and from work) throughout her employment and £37159.62 as being the actual wages paid. The difference namely £4131.90 is the claimed shortfall.[32]The Respondent’s claim that their accounting system is robust and that they paid the Claimant for all her working time. Mr Folkes’ additional witness statement explained how the Respondent uses a system called “Access People Planner” which records start times and geo-locations and is verified by Gloucester County Council.[33]I was taken to a page which Mr Folkes claimed showed that having cross-checked the Claimant’s pay against a system maintained by the Council, the Claimant was paid at least the NMW. Even if I regarded that as reliable evidence, which I do not, it would not dispose of the claim which is not only that the Claimant was not paid the NMW but also that she was not paid at the agreed rate for her time on shift between first and last clients.[34]Mr Bonney-Quist challenged the Respondent’s figures on the basis that although the Access People Planner may be a robust and widely-used system, the Respondent must have programmed it in a manner adverse to the Claimant, because his analysis shows that she worked more hours that she was paid.[35]I am impressed with Mr Bonney Quist’s careful and detailed analysis and study of the detail of the Claimant’s actual work pattern.[36]The Respondent’s defence is not at the same level of detail and relies rather on generalised assertions that they have relied on a robust system etc.[37]When the Respondent’s figures were examined in detail they did not bear out and contradicted other aspects of the Respondent’s case, for example the Respondent maintained strenuously that it had a policy not to pay mileage for getting to work and back. In cross-examination of Mrs Folkes it was shown that in numerous instances the Respondent had made such payments.[38]I am troubled by several other aspects of the evidence relating to the Respondent:[39]Only when pressed to produce the documentary evidence, did the Respondent admit that it has owed the Claimant £560 for an Immigration fee it received from her but did not pay to a third party.[40]Only when challenged through the trial process has the Respondent admitted that although the Claimant worked for it on 15-17 November 2024 it has not paid her.[41]The contracts supplied in various inconsistent forms failed to explain the basics such as how working time starts only with the first client and ends with the last client and how the Respondent deducts or rather does not pay for notional waiting time which it assumes its employees will spend during shifts.[42]On several occasions during the evidence Mr and Mrs Folkes said that they were willing to consider errors in their system but it was up to the employees to point these out to them. I find this alarming as the calculation of pay is not transparent and would be very difficult for many of the Respondents employees to identify and point out errors.[43]Mr Kataria (a care worker employed by the Respondent for 30 months) gave detailed evidence, which he defended under cross-examination, about his opinion, based on recent first-hand experience, that the Respondent exploits and underpays its employees most of whom are vulnerable migrants dependent on the Respondent for sponsorship in order to remain legally in the UK, and therefore who are mostly unwilling to complain because they are fearful of retribution.[44]I was taken to an email sent by Mrs Folkes on 27/1/25 after the Claimant had left the Respondents employment, to the Dorset NHS “For your information this worker hasn't been sponsored by us since 17/11/24 and therefore doesn't have right to work in the UK from our sponsorship. It may be worth re-checking her right to work online”. I am not convinced that there was any reason for this other than to punish the Claimant or create problems for her in pursuing her proposed ET claim, which by then she had already indicated by contacting ACAS (which she had done in December 24).[45]These aspects of the evidence paint a picture for me which is broadly consistent with the Claimants complaint that the Respondent has power over large numbers (over 50) vulnerable migrant workers who are left in a state of confusion about their entitlements, who are not always paid what they should be and who find it very difficult to assert their rights.[46]For these reasons I do not trust the Respondent’s figures and I prefer the Claimant’s and her husband’s analysis that the Claimant’s work time was under-recorded by the Respondent. This aspect of the Claimant’s pay claim succeeds in the sum of £4131.90[47]The Claimant also claims that although she worked until 17/11/24 she was paid only until 14/11/24. This was conceded by the Respondent in the sum of £276.07 plus £28.40 mileage = £304.47.[48]The Claimant claims as notice pay her pay from 17/11/24 when she stopped working until the expiry of her notice period.[49]On 4/11/24 she sent a resignation email including the following “I am writing to formally resign from my position as Care Assistant with Caremark Cheltenham & Tewkesbury, as discussed earlier with Joanne. I will continue to work until November 17, 2024, after which I will utilize my accumulated terminal annual leave of three weeks, which includes the leave days I accrued from the previous year….”[50]Thus, she did not state in her notice of resignation clearly by reference to a specific date how long she was giving notice for. She stated in oral evidence that she intended to give notice until 8 December 24, which was when the period of three weeks after 17/11/24 would expire.[51]However, it was not up to the Claimant how and when she was able to take accumulated leave entitlement. I have not seen any communication from the Respondent agreeing that the Claimant would be permitted to carry on in employment after 17/11/24 but not working but rather taking leave.[52]On 11/11/24 Mrs Folkes wrote to the Claimant..”I will inform the Home Office we are no longer sponsoring you wef 17.11.24. you will then have 60 days to find a new sponsor”, thus indicating that the Respondent was treating the employment as ending from that date.[53]The Claimant resigned but did so in an ambiguous or invalid manner in respect of any period after 17/1124. The Respondent was not obliged to extend the notice period while the Claimant took leave. She did not work after 17/11/24 and is not entitled to be paid for that period as wages or notice pay. Holiday pay[54]The Claimant’s average weekly wage (excluding time travelling to and from work) is agreed by the parties at £480.17 per week.[55]The Claimant pointed out that although she was entitled to holiday of 5.6 weeks in 2023 she was paid only £675.42 for that whole holiday year. She claimed that the Respondent made it very difficult or impossible to take her full holiday entitlement, because even when adequate notice was given, the request would be refused with a statement that there was “insufficient capacity”. Mr Kataria gave very similar evidence and told me that he was employed by the Respondent for 30 months but was allowed paid holiday of only 30 days during the entire period. I accept this evidence.[56]I find that over the whole period of her employment the Claimant should have been paid 11.2 weeks holiday pay at the rate of £480.17 which would total £5377.90. The Claimant’s analysis shows she was paid £3068.68, leaving a shortfall of £2309.22. I accept these figures and find that the Respondent either failed to pay for holidays or in lieu of holidays and/or did so at the wrong rate. Fuel Car Maintenance and Insurance[57]The contract was silent about mileage and did not provide for the Claimant to be paid any mileage.[58]The email exchange with Ms Lambert did suggest that the the Claimant would be paid a mileage rate of 0.45 per mile travelled between clients but not for getting to and from work, subject to the proviso that “this will fluctuate as the price of fuel fluctuates”. The rate did fluctuate because the Respondent reduced it in April 2023 to 0.35 per mile.[59]The practice seems to have varied with the Respondent sometimes paying the rate for travel getting to work and back and sometimes not.[60]I am unable to find that this was an enforceable legal entitlement but, if it was, the Respondent was entitled to unilateral reduce it as stated by Ms Lambert.[61]There was also no entitlement on the part of the Claimant to be paid for the costs of insurance or car maintenance in addition to or in excess of any £0.45/0.35 per mile payments.[62]The Claimant has not proved this aspect of her claims and they fail. Visa fee[63]The Claimant paid £2747 to the Respondent by January 2023. She had been told by Mr and Mrs Folkes that she needed to get immigration advice from a third party called Softlink, run by a person called Tom, (with which they appear to have some business relationship) and that she could not apply for her visa herself. She felt compelled to pay the money to the Respondent as this was the way in which she could get her Certificate of Sponsorship but not otherwise. She included within the £2747 a fee of £500 which she was told would result in an expedited application.[64]I have been shown documents (by way of late disclosure which I called for during the trial) that the Respondent paid only £2187.00 to the immigration advisor and that no expedited service was provided. Hence the Respondent received money from the Claimant for a third party, but did not pay £560 of that money over to the third party, did not ensure that she got the service which she had paid for, and did not refund her. It now admits that it should have done so. I considered awarding the whole sum of £2747 against the Respondent as I deplore this type of abuse of vulnerable employees, but finally decided to limit the award to the refund due namely £560. Unpaid bonus and DBS refund[65]The Claimant claims that “I was offered the role and required to pay £30 for my DBS check, refundable after 300 care hours, and offered a £250 probationary bonus. Neither payment lore this was ever made “. This is supported by CB117 which is an extract for a recruitment agent’s (The Job Guru Ltd “TJG”) document which includes the following “There is a probationary induction period of 12 weeks, but you can set your own pace and completion can be done sooner if you wish. After successful completion, you will receive a £250 bonus. The company will pay half of your DBS, but you will need to pay £30 towards it. You will be refunded this after 300 care hours. …”[66]Mr Folkes claimed that £250 of this money was in fact paid to the Claimant on 24/11/22. He said in evidence “the £250 bonus was added to our system ..that’s it”. He was unable to take me to any payslip or other document showing this and I am not satisfied that it was paid. The Respondent was obliged to make good this promise made by its agent. It has not shown that it did so. This claim succeeds in the sum of £280.[67]All the sums I have awarded above are recoverable either as part of a series of unauthorised deductions or as a breach of contract outstanding on termination. Unfair dismissal[68]The Claimant was not paid properly for the hours she was worked. She complained about this. It is agreed that there was a meeting between Mr Folkes and the Claimant on 1/11/24 about this but the matter was not resolved by the time of her resignation on 4/11/24. Not paying an employee properly for the work they have done is, without more, a fundamental breach of contract. I find that the Claimant’s long standing and unresolved concerns about her short pay was a material cause of her resignation. She was looking for other jobs in the months running up to her resignation but her concerns about her short pay were also of long duration. I have considered the terms of her resignation email which does not refer to her reasons for resignation but I accept her evidence that she was fearful of repercussions (including the Respondent seeking to interfere with her new employment with other employees) as the reason for this. The unfair constructive dismissal claim succeeds.[69]The Claimant is entitled to a basic award calculated £480.17 × 1.5 × 2 years. = £1440.51 plus loss of statutory rights £350.[70]The Claimant referred to hotel and child-care costs incurred during the period 17/11/24 to mid-December 24 when she started a new job. She has not produced any documentary evidence to support these items and I do not award them.[71]She also claims loss of earnings from 17/11/24 to 8/12/24 only. I award this (3 weeks x £480.17 = £1440.51) as I regard it as just and equitable to do so.[72]Section 1 of the Employment Rights Act 1996 requires employers to provide to employees statements of initial employment particulars in a single document which includes amongst other things “the scale or rate of remuneration or the method of calculating remuneration; any terms and conditions relating to hours of work, …and any other benefits.’ The Respondent’s contract/s failed to inform the Claimant that her “getting to and from work” time in her own car would not be counted as work time, that her work time would start only when she arrived at the first client and end when she left the last client, that the Respondent would apply to this the Access People Planner, that it would not pay her for all her shift time but for some other lesser periods, and that she would be paid a mileage rate for her car use between clients. The contract/s provided are all silent about these basic remuneration matters.[73]The confusion which this caused can be seen by the Claimants email dated 7/11/22 referred to above. This shortcoming was not rectified by the time the Claimant presented her claim.[74]As relevant claims have succeeded, section 38 of the Employment Act 2002 requires me to award at least 2 weeks’ pay and I may award 4 weeks’ pay (in addition to any other compensation) if I find it just and equitable to do so. I award the latter sum because of the difficulties this has caused to vulnerable workers.[75]Also it appears that during the Claimant’s employment various unauthorised and unilateral amendments to the purported record of the employment contract were made by the Respondent, including the late introduction of a clause 11.3 which had not appeared before which purported to provide “Should you terminate your employment before your sponsorship is complete you are liable for an admin and training charge of £3000”.[76]According I award 4 x £480.17 = £1920.8 under this head. Summary of sums payable by Respondent to Claimant Wages £4131.90 £304.47 Holiday pay £2309.22. Visa refund £560 Bonus DBS refund £280 Unfair dismissal Basic award £1440.51 LOSR £350 UD Compensatory award £1440.51 Section 38 EA 2002 £1920.80 TOTAL £12737.41[77]The wages and holiday pay sums are potentially taxable in the tax year ending 5/4/25. They must be paid gross to the Claimant but she must account to the HMRC for any tax or NI contributions she may be liable on them. J S Burns