Ms N Ruban v British Study Centres Ltd and Secretary of State for Business, Energy and Industrial Strategy: 1400618/2020
EMPLOYMENT TRIBUNALS
Case No 1400618/2020
Between
Ms N RubanClaimantBritish Study Centres Ltd and Secretary of State for Business, Energy and Industrial StrategyRespondent
Before
Employment Judge LiveseyIn person for claimantNot represented for respondentDate 2 October 2020
JUDGMENT
[1]The Claimant’s claim of breach of contract and unpaid holiday pay succeed and she is entitled to the following compensation from the First Respondent;(i) Breach of contract; £3,000.00;(ii) Holiday pay; £461.54.[2]The Claimant’s compliant of unlawful deductions from wages relating to unpaid overtime is dismissed.[3]The claims against the Second Respondent are dismissed.
REASONS
[1]The claim1.1 By a claim form dated 31 January 2020, the Claimant brought the following complaints;1.1.1 Unpaid holiday pay under the Working Time Regulations 1998;1.1.2 Breach of contract under the Extension of Jurisdiction Order 1994;1.1.3 Unlawful deductions from wages under the Employment Rights Act 1996;1.1.4 A failure to comply with a statutory request to undergo training under s. 63D Employment Rights Act 1996.1.2 On 8 September 2020, the Second Respondent was joined to the proceedings.[2]The issues2.1 The following issues were clarified at the start of the hearing;2.2 The Claimant’s complaint of unpaid holiday pay concerned 4 days of unpaid and untaken holiday entitlement which she had at the conclusion of her employment. The claim had been included in her assessment of her claim of unlawful deductions from wages (see below).2.3 The breach of contract claim concerned a bonus of £3,000, liability for which the First Respondent had conceded.2.4 The complaint of unlawful deductions from wages (also brought as a further breach of contract claim) which concerned extra work that the Claimant had undertaken which had earned her TOIL (time off in lieu) and which she had not had the chance to take as TOIL by the end of her employment. She claimed that she was entitled to recover the financial sum to reflect the hours owed under the Act and/or the Order. She claimed 19 weeks of TOIL, being £11,875.2.5 The First Respondent was in voluntary liquidation. It had warned of its financial position by an email dated 12 July 2020 and it then indicated that it would not seek to actively defend the claim by further email on 21 September 2020.2.6 The Second Respondent should not have been joined because it would only become liable if a subsequent claim to it was either unpaid or underpaid (s. 188 of the Act). Accordingly, the claim against it was dismissed (see paragraph 3 of the Judgment of 2 October 2020).[3]The facts3.1 The Claimant gave evidence in support of her case and produced a number of documents. The Judge took into account the contents of the remaining Respondent’s Response. The following factual findings were reached on a balance of probabilities and were limited to matters which were necessary for a determination of the issues in the case.3.2 The Respondent is an educational establishment which provides training for foreign language students and teachers. The Claimant was employed between 13 May 2010 and 31 October 2019 as the Head of Administration at its Swindon office. Mr Simmonite was her line manager.3.3 The Claimant had a contract of employment which was provided to her in 2010. It included the following relevant provisions; “Hours of Work As a full-time employee your normal hours of work will be 37.5 hours per week… You may be required to work hours in addition to your normal 37.5 hours per week if instructed to do so by your manager on reasonable notice or whenever necessary to meet the needs of the business. You will not receive any additional payment for hours worked in excess of your normal hours of work but you will be permitted to take an equivalent amount of time off in lieu… Variation The Organisation reserves the right to make reasonable changes to any of your terms and conditions of employment. You will be notified of minor changes of detail by way of general notice to all employees, and any such changes take effect from the date of the notice. Where any change affects or alters any of the information contained in this document you will be given individual written notice of such changes at least 4 weeks before the change takes effect.”3.4 According to the Claimant, there had been a proposal to replace the contract with another one in 2019, but no new contract did ever replace the 2010 version. The Claimant confirmed that she never signed or agreed any new terms. HR had sent her a new draft but she had had issues with it.3.5 In January 2019, the Claimant alleged that she was promised training which would have led to a CELTA qualification (Certificate of Training English to Speakers of Other Languages). Such training never came to fruition.3.6 Also in 16 January 2019, the Claimant received a text to say that she would be awarded a £3,000 bonus in September if she stayed with the Respondent until then (Mr Simmonite’s text was part of the documentation which the Claimant relied upon at the hearing). As stated previously, this element of the claim was accepted by the Respondent (paragraph 12 of its Response). Bonus/TOIL3.7 The Claimant complained that the owners of the business had attempted to introduce a new IT system called ‘Schoolworks’. She alleged that the system was flawed and caused her to undertake a significant amount of additional work in 2019. She asserted that she had attempted to resign in May, but she had been persuaded not to do so. Between March and 10 August, she undertook 95 additional days of work which were recorded as TOIL (95.09 days according to the Claimant’s TOIL timesheet). In previous years, she had had a habit of working overtime during the busiest part of the Respondent’s year between March and September and she then took time off in lieu when the business was quieter. She often took her TOIL by returning to her native Ukraine, although she continued to undertake some work there.3.8 The Claimant sent emails about of overtime to Ms Harris, the Chief Operating Officer, and Mr Simmonite in 2019. Nothing was done. On 5 September 2019, she then raised a grievance about issues of bonus and the TOIL which she had accumulated. The Respondent responded on 7 October, saying that the Claimant had worked additional hours and that her role sometimes required such work.3.9 On 10 October 2019, the Claimant was informed that she was at risk of redundancy. A week later, she was informed of the closure of the Swindon office and her dismissal was confirmed on the 30th of that month.[4]Conclusions Unpaid holiday pay4.1 The Respondent did not present evidence to refute the Claimant’s in respect of her outstanding holiday pay. An award was made in her favour in that respect. Breach of contract4.2 The Claimant was entitled to the agreed sum of £3,000. Unlawful deductions from wages4.3 The Respondent’s case in respect of the claim for TOIL was set out between paragraphs 3 and 8 of its Response. It agreed that, in the past, with the natural ebb and flow of work during the year, staff were expected to work longer hours during the busier times and would be allowed to ‘take back time’ when it was quieter. That broadly accorded with the Claimant’s evidence.4.4 The Respondent alleged that, in early 2019, it introduced a new overtime/TOIL policy which allegedly stated that all overtime had to be approved by a line manager in advance. That policy was not produced in evidence or proved by the Respondent.4.5 Nevertheless, it was still entitled to rely upon the contractual terms which had been agreed between the parties at the start of the Claimant’s employment, as set out above. That contract provided for overtime to have been worked upon a manager’s instruction on reasonable notice or whenever there was a business need. Accordingly, management approval was not a prerequisite for overtime to have been worked under the contract. But if it was worked in the case of business need, what were the consequences? Did the employee receive pay?4.6 The contract specifically excluded the right for the Claimant to have received additional payment for any overtime hours worked. The only benefit gained under the contract was an ability to take TOIL; “an equivalent amount of time off in lieu.”4.7 Accordingly, on a simple interpretation of the contract, there was no entitlement to a financial equivalent to TOIL. The Claimant could not therefore argue that, by not paying her for TOIL at the end of her employment, she suffered an unlawful deduction from her wages either.4.8 Case law supported the position. In Ali-v-Christian Salvesen Food Services Ltd [1997] ICR 25, CA, the Court had to consider the position of an employee who worked a 40 hour week but whose contract allowed him to be paid for overtime once he had worked over 1,824 hours in a year. The contract was silent in respect of the position if his employment was terminated part through a year. The Claimant argued that he was entitled to receive a payment for overtime because, on a pro rata basis, he had worked more than the proportion of 1,824 hours over the period of the year which had passed. The Court of Appeal rejected the argument; the contract contained express terms which were not capable of being subjected to variation through implication. Similarly, in Vision Events (UK)-vPaterson EATS 0015/13, the Employment Appeal Tribunal in Scotland held that there was no implied right to the payment for accrued overtime on termination. Detriment following a request for time to train4.9 This part of the case was simply not developed in evidence by the Claimant and there was insufficient evidence upon which the Tribunal could find that she had made an application which complied with s 63D (3) and (5) and/or that she was covered by sub-section (6) and was not excluded under sub-section (7). Although it seemed clear that the Respondent was not an exempted ‘small employer’ under the Apprenticeships, Skills, Children and Learning Act 2009 (less than 250 employees) because its Response referred to a workforce of 280 (box 2.7), this was not a complaint that the employer had failed to consider an application for training under ss. 63D and 63IE, or had failed to consider it properly. Rather, it was a complaint that training which was approved/granted was not actually provided (see paragraph 6 of the Claim Form). The complaint under s. 63D therefore failed.[1]The Claimant has applied for a reconsideration of the Judgment dated 2 October 2020 in respect of which Reasons were sent to the parties on 17 November 2020. The grounds are set out in her application of 17 November 2020.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received inside the relevant time limit.[3]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. The earlier case law suggested that the ‘interests of justice’ ground should be construed restrictively. The Employment Appeal Tribunal in Trimble-v-Supertravel Ltd [1982] ICR 440 decided that, if a matter had been ventilated and argued at the hearing, any error of law fell to be corrected on appeal and not by review. In addition, in Fforde-v-Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. More recent case law has suggested that the test should not be construed as restrictively as it was prior to the introduction of the overriding objective (which is now set out in rule 2) in order to ensure that cases are dealt with fairly and justly. As confirmed in Williams-v-Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the ‘interests of justice’ ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council-v-Marsden [2010] IRLR 743, the EAT stated that the requirement to deal with cases justly included the need for there to be finality in litigation, which was in the interest of both parties.[4]The Claimant’s application appears to concern paragraph 2 of the Judgment of 2 October 2020 and, specifically, the dismissal of her complaint of unlawful deductions from wages relating to unpaid overtime and/or TOIL.[5]In paragraph 3.3 of the Reasons, the operative parts of the Claimant’s contract of employment were cited. Conclusions in relation to the complaint of unlawful deductions from wages were set out between paragraphs 4.3 and 4.8; the claim failed because the contract did not allow the Claimant to recover any additional payment for hours worked in excess of her normal hours. It merely provided for an ability to take time off equivalent to that which had been worked in excess. The contractual position was supported by case law (paragraph 4.8).[6]The Claimant now asserts that she signed a new contract in March 2019 which contained different provisions. That contract has only come to light, she says, because it was uploaded as part of her mother’s application for a UK visitors’ Visa. She has also alleged that colleagues and her team were either “paid or granted time off in lieu”.[7]In relation to the experience of her colleagues, it would not have been surprising if they had been allowed to take time off in lieu of overtime worked. That was what the Claimant’s 2010 contract provided for. It might have been surprising if they had been paid for that time instead, but they may have worked under different contractual terms, the 2019 contract perhaps.[8]What was important to here was the contract which the Claimant worked under. Despite referring to the existence of a signed contract, the Claimant has not produced it. Further and more significantly, the Claimant gave specific evidence at the hearing on 2 October that, although a new contract was sent to her in 2019, she did not sign it because “she had issues with it”.[9]Accordingly, the application for reconsideration pursuant to rule 72 (1) is refused because there is no reasonable prospect of the Judgment being varied or revoked on the basis of the Claimant’s application of 17 November 2020.