Employment Judge HastieIn person for claimantDate 8 October 2023
JUDGMENT
[1]The claim for unpaid Holiday pay is dismissed on withdrawal.[2]The claim for unpaid Notice pay is dismissed on withdrawal.[3]The claims for unlawful deductions from wages partially succeed as follows,[4]The Respondent made the following unlawful deductions from the Claimants wages, a) Replacement van key £160 b) Replacement padlock £55.29 c) Dallas Key £7 d) Replacement depot locks £205.43 e) Deep clean of van £40 f) Compensation for sideboard £100 g) Recruitment costs £39.10[5]The Respondent is ordered to pay to the Claimant the gross sum of £606.82[6]The following claims for unlawful deductions from wages are not well founded and are dismissed. - Missing Stepladders £90 - Missing Hoover £120 - Missing transformer £74.99 - Damaged wing mirror £27.68 - Incorrect measurement of unit £94.06
REASONS
[1]In this case, the Claimant, Mr Witts, brings claims for unpaid holiday pay, unpaid notice pay, and unlawful deductions from wages, against his former employer, Martindales Ltd. The Respondent denies the claims.[2]The hearing took place by remote platform which was consented to by the parties. The form of remote hearing was by video hearing service (VHS). A face to face hearing was not held because no one requested the same and all issues could be determined in a remote hearing. The Claimant was present via video link and supported by his wife, Ms Winter. The hearing was put back briefly so that the video hearings officer could assist the Claimant with his connection. The issue was quickly resolved, and no further technical issues arose. The Respondent was represented by Ms Martin, the Respondent’s HR & Payroll Manager. The documents that I was referred to are in a bundle of approximately 77 pages.[3]At the start of the hearing, the Claimant confirmed that he wanted to withdraw the claims for unpaid holiday and notice pay as these had been settled. The claims were dismissed upon withdrawal.[4]The claim for unlawful deductions from wages remained. The tribunal judge discussed and agreed that the issues were, Whether the Respondent was entitled to make the following twelve deductions from the Claimants final pay, a) Replacement Van Key - £160 b) Van Padlock £55.29 c) Dallas Key £7 d) Replacement locks at Gloucester depot £205.43 e) Van Deep Clean £40 f) Missing Transformer £74.99 g) Missing Stepladders £90 h) Missing Hoover £120 i) Repair to wing mirror £27.68 j) Compensation to customer (sideboard damage) £100 k) Incorrect survey of glazed unit £94.06 l) Recruitment costs £39.10[5]The total sum deducted from the Claimants pay is therefore £1013.55
The Facts
[6]I heard from Mr Butler and Mr Bolton for the Respondent. I heard from the Claimant. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to any factual and legal submissions made by and on behalf of the respective parties.[7]The Respondent, Martindales Ltd, is a double glazing company based in Gloucester. The Claimant was employed as a window fitter and surveyor from 1 May 2022.[8]The Claimant signed a form headed ‘Deductions from Wages’ on or about 11 April 2022. The parts of that form which are relevant to this claim state, The Company has a right to deduct from your pay, a) If you are a surveyor, your negligence in measuring incorrectly products which as a consequence are made up to be the wrong size. b) If you are a product fitter, your negligence damaging a product during installation. c) If you are a vehicle driver, for the first £750 of any damage or claim caused by your negligence. d) If you resign from your position within 12 months of the date of joining, the cost of checks undertaken as part of the recruitment formalities will be deducted from your final pay.[9]The Claimant signed a form headed ‘Van Checks’ on or about 11 April 2022. The form states ‘It is the fitters/trainees in control of the van’s responsibility to ensure that all tools supplied for tor the vans are in the van at all times.’[10]The ‘Van Checks’ form requires fitters/trainees to carry out a weekly van check to verify all tools are present on the van. The form states that, ‘any tools which are lost will be replaced by the company at the cost of the fitter/trainee’.[11]On 22 November 2022, the Claimant gave notice of his resignation. The Claimant offered to work beyond his 7 days’ notice but received no formal response to his resignation from the Respondent. The Claimant’s last working day was 28 November 2022.[12]During his employment, the Claimant had the use of a van belonging to the Respondent. Once the Claimants employment with the Respondent had ceased, the Claimant secured the van and parked it near his home in Topsham, Devon. The Respondent requested the return of the van keys and depot keys on 1 December 2022. The Claimant confirmed with the Respondent on 1 December 2022 that the the keys could be collected.[13]The Respondent retrieved the van from Topsham on 30 November 2022 using the spare keys. The Claimant was not at home and his set of keys could not be retrieved by the Respondent. The van was driven back to the Respondents Gloucester depot by a member of the Respondent’s staff.[14]On 30 November 2022 the Respondent cut the padlock from the back of the van as they had no spare key. The Respondent states that the Hoover, stepladders, and transformer were missing.[15]The Respondent took the view that the state of the van was unacceptable and arranged for it to be deep cleaned.[16]The wing mirror of the van was damaged when it was recovered from Topsham. The Respondent had the damage repaired.[17]On 1 December 2022, the Respondent engaged a locksmith to change the locks at the Gloucester depot.[18]Mr Butler, the Branch Manager for the Respondent, travelled to Topsham on 2 December 2022. The Claimant had not at that stage informed the Respondent that the keys were in the shoe cupboard in the porch/communal hallway of his property. No prior arrangement had been made between the Claimant and the Respondent to meet in Topsham to handover the keys. The Claimant was not at home. Mr Butler was not aware the keys were in the porch/hallway. Mr Butler did not enter the Claimant’s property and he left Topsham at approximately 1.30pm.[19]The Claimant informed the Respondent by text at 2.05pm on 2 December 2022 that the keys were in a shoe cupboard in the porch/hallway of his property.[20]On 5 December 2022, the Claimant sent the Respondent a photograph of the keys in the shoe cupboard.[21]There was no evidence to show that the Respondent took any further action to retrieve the keys.[22]On 11 November 2022 the Respondent compensated a customer £100 for damage to a sideboard.[23]On 22 November 2022 a glazed unit was incorrectly measured. This cost the respondent £94.06 to rectify.[24]The Respondent made the twelve deductions from the Claimants final pay. The Law and submissions[25]Part 2 of Employment Rights Act 1996 (ERA) makes provisions with respect to deductions from pay. In broad terms, the worker has the right not to suffer “unlawful deductions” except in limited circumstances. 26. .Section 13 of the Employment Rights Act 1996 states that: “(1) An employer shall not make a deduction from wages of a worker employed by him unless –(a) The deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction… (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions) the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[27]An employment tribunal shall not consider a complaint unless it is made within three months of the deduction, unless it finds it was not reasonably practicable for the complaint to be made in time. Section 23 Employment Rights Act 1996.[28]The Respondent submitted that it was entitled to make the deductions from the Claimants wages on the basis of the Deductions from Wages form and the Van Checks form signed in April 2022. The Respondent maintained that they did all they could to retrieve the keys. As they were unable to do so, they had little option but to have the depot locks changed in order to secure the site.[29]The Claimant submitted that, a) He communicated with the Respondent between 1 December and 5 December 2022 about the collection of the keys. This communication was sometimes delayed by a lack of mobile phone signal in Cornwall where he was working. He did not withhold the keys from the Respondent and was not negligent in his efforts to return the keys to the Respondent. b) The stepladders and the 110v Power Breaker were on the vehicle when he secured it in Topsham on 28 November 2022. There was no reference to a transformer on the weekly checklist. c) The Hoover had previously been left at the Gloucester depot as it was broken. d) The Dallas key was in the footwell of the van when the Respondent recovered it on 30 November 2022. e) There was nothing extraordinary in the state of the van in circumstances where the Claimant drove up to 2000 miles per week, had nowhere to store equipment local to his home until just before he resigned, and he only returned to the depot in Gloucester once per week to drop off and collect supplies. f) There was no damage to the wing mirror when he secured the vehicle. g) He was not responsible for any damage to a customer’s sideboard. h) He was not the person who incorrectly measured the glazed unit.
Conclusions
[30]The Claimant’s ET1 was received by the Tribunal on 19 February 2023. The claims are therefore brought within the time limit and the Tribunal has jurisdiction to hear them.[31]I was not referred to the Claimants contract of employment. In resisting the claims, the Respondent relied on the Deductions from Wages form and the Van Checks form, both signed by the Claimant in April 2022.[32]Van Key, Padlock, Dallas Key and replacement of the depot locks. The Claimant’s complaint of unlawful deductions from wages with respect to the keys, padlock and replacement locks succeeds. The Respondent asserts that the Deductions from Wages form provided the Claimant’s consent to the deductions for the keys and replacement locks. The form states ‘If you are a vehicle driver, for the first £750 of any damage or claim caused by your negligence. The Claimant communicated with the Respondent between 1 December and 5 December 2022 about the collection of the keys. The van was recovered by using the spare key on 30 November 2022. The padlock was broken off the van door on 30 November 2022. The locks at the depot were changed on 1 December 2022. There was ongoing communication between the parties in the days after 1 December. I was not referred to any evidence to show that the Respondent had arranged with the Claimant to collect the keys on 2 December. The Claimant did not withhold the keys from the Respondent. The Respondent did not make a clear arrangement for retrieval of the keys, whether for collection, or by requesting that the Claimant return the keys in another manner, such as by post. I was not referred to any evidence that the Respondent contacted the Claimant in the days after his notice was given on 22 November 2022 to arrange return of the Respondents property. I do not find that the Clamant was negligent in respect of the keys or the depot locks, and he did not consent to the deductions for these items.[33]Deep clean of van The Claimants compliant of unlawful deductions from wages with respect to the deep clean of the van succeeds. There was a reference by Mr Butler about glue in the cab, and the bundle contained photographs of the interior of the van. The evidence did not establish that the state of the van was due to the Claimant’s negligence. The Claimant was mainly based in the far southwest of England, covering up to 2000 miles per week in the van, and only returning to the Gloucester depot once a week to collect supplies. The Claimant was not provided with a local ‘lock up’ facility for storage purposes until just prior to his resignation. I was not referred to the Claimants contract. The deductions from wages form states, ‘If you are a vehicle driver, for the first £750 of any damage or claim caused by your negligence. I do not find that the state of the van was such that it was caused by the Claimants negligence.[34]The missing stepladders, Hoover, and transformer. The Claimant’s complaint of unlawful deductions from wages with respect to the missing items is not well founded and is dismissed. On the Claimant’s own evidence, the van was secured in Topsham on 28 November and a padlock attached to the back of the van. The padlock was broken off by the Respondent on 30 November. There is a weekly checklist dated 24 November 2022 that confirms the items were on the van. The Claimant said that the trainee had completed the checklist. I accept the Respondent’s evidence that the Claimant was responsible for supervising the trainee, and ensuring the items were on the van, even if the trainee completed the form. The Claimant said that he had left the Hoover at the Gloucester depot as it was broken. There is no evidence to support this assertion by the Claimant and I accept the completed weekly checklist form as showing that the Hoover was on the van on 24 November 2022. There is no reference to a transformer on the weekly checklist. I accept the evidence of Mr Butler that the ‘110v Power Breaker’ referred to on the weekly checklist is a transformer and it is this item that was missing from the van on 30 November 2022. The Van Checks form signed by the claimant in April 2022 states that lost items will be replaced by the company at the cost to the fitter/trainee.[35]Repair of wing mirror The Claimants complaint of unlawful deductions from wages with respect to the repair of the wing mirror is not well founded and is dismissed. The photograph dated 30 November 2022 shows a damaged wing mirror. The receipt for repairing the damaged wing mirror is dated 1 December 2022. The Deductions from Wages form states ‘If you are a vehicle driver, for the first £750 of any damage or claim caused by your negligence’. The Claimant had the van in his control until it was recovered by the Respondent. I accept the evidence of the Respondent that the mirror was already damaged when it was recovered. The Claimant said he folded the mirrors in when he secured the van on 28 November. I find that the damage to the mirror had occurred on or prior to the 28 November the Claimant was responsible for the damage.[36]Compensation for sideboard damage The Claimant’s complaint of unlawful deductions from wages with respect to the compensation succeeds. There was no evidence that the Claimant had damaged the sideboard or how the damage was caused. The Claimant accepted that he had been at the property but stated he did not enter. I do not find that the Claimant was responsible for the damage, and he is therefore not responsible for the compensation. The Deductions from Wages form states ‘ If you are a product fitter, your negligence damaging a product during installation. I find this provision to be ambiguous and likely refers to products belonging to the Respondent rather than possessions belonging to customers. The Deductions from Wages form states, ‘If you are a vehicle driver, for the first £750 of any damage or claim caused by your negligence’. The Claimant was a vehicle driver and arguably this provision could apply to damage not relating to the vehicle. I find that this provision ambiguous and likely relates to the Respondent’s vehicle and any negligent acts pertaining to the use of the vehicle. I do not find that this provision applies to damage to the sideboard. In any event, I do not find that the Claimant caused the damage.[37]Compensation for incorrectly measured glazed unit The Claimants complaint of unlawful deductions from wages in respect of compensation for the glazed unit is not well founded and is dismissed. The Deductions from Wages form states, ‘If you are a surveyor, your negligence in measuring incorrectly products which as a consequence are made up to be the wrong size’. I accept the Respondent’s evidence that the Claimant was responsible for the measuring on 22 November 2022 and that an error had to be rectified by the Respondent. The Claimant does not assert that the calculations were correct but states that the measuring App was faulty. I accept the evidence of the Respondent that the Claimant was responsible for the miscalculation.[38]Recruitment costs The Claimants complaint of unlawful deductions of wages in respect of recruitment costs succeeds. The Deductions from Wages form states ‘ If you resign from your position within 12 months of the date of joining, the cost of checks undertaken as part of the recruitment formalities will be deducted from your final pay’. Although the Claimant resigned before he had worked for the Respondent for 12 months, I was not referred to any evidence of what the recruitment checks were, or how they were quantified. I do not find any factual basis for this deduction from the Claimants wages.[39]The Respondent has made unlawful deductions from the Claimants wages totalling £606.82[40]Accordingly, the Respondent is ordered to pay the Claimant the gross sum of £606.82.
Conclusions
[1]A letter from the claimant dated 9 November 2023 was received by the Tribunal on 10 November 2023. The claimant seeks reconsideration of the judgment of 8 September 2023.[2]A reserved judgment and reasons was sent to the parties on 27 October 2023. The claimants claims of unlawful deductions from wages were successful in relation to seven unlawful deductions. The claimant’s claims of unlawful deductions in relation to a further five deductions were dismissed.[3]The claimant's application for reconsideration relates to two of the five items that were deducted from his wages namely a damaged wing mirror on a works van (£27.68) and a deduction for incorrectly measuring a window unit (£94.06).[4]Reconsideration applications are governed by the Employment Tribunal Rules of Procedure 2013 (“the Rules”).[5]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 within the relevant time limit.[6]Rule 71 requires that an application for reconsideration be copied to all other parties. The claimants letter dated 9 November 2023 appears to have been received by the tribunal by post. It does not appear that the claimant copied his application to the respondent in accordance with rule 71. The tribunal has discretion to waive the requirement and has exercised its discretion to do so. It follows that the tribunal has jurisdiction to consider the reconsideration application.[7]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[8]The matters relied upon by the Claimant are summarised below:a. Evidence supplied by the respondent, to support their claim that deductions had been made due to my negligence, was not formally produced by either of their two witnesses. The documents were mostly hearsay from the witnesses’ perspective, leaving it difficult for me to question their content. Although the HR Manager from Martindales was present, she was there in her capacity as a representative only, rather than as a witness I was able to question.b. I would question why, if they were so concerned to take photos of the cleanliness of the van as alleged evidence of my negligence, would they not also have taken a photo of the broken wing mirror at the same time if it was found to be damaged? Their evidence is therefore more consistent with the damage having occurred on the return journey.c. The document (Sec 3 Page 21) was redacted to the extent that I was unable to identify which survey it was. Without thereby being able to recall exactly what I had measured I could only refer during the Tribunal to a potential issue with the surveying app, which had occurred in the past. Again, the document was not provided by a witness so there was no-one available to question about its content during the Tribunal. However, on re-examining this outside of the question of redactions, which were my focus during the Tribunal. I see that it does not actually show evidence of a mismeasure. The document clearly relates to a survey, one which I have undertaken. This fact I have never questioned. It also shows that glass was ordered according to the measurements I provided, and that it is the cost of that glass which was deducted from my wages. However, there is nothing in this document to show what the alleged error in measurement was, or any other supporting documents, such as an invoice for replacement glass which would have thereby been required. It is simply their word that this was a mismeasure, with no valid supporting evidence provided.[9]The hearing was the claimant’s opportunity to give information, ask questions and raise issues, which he did. The claimant had the opportunity to ask questions of all witnesses and advance all relevant arguments. The claimant was successful in relation to seven of his claims for unlawful deductions from his wages. The matters relied upon by the claimanta. The claimant had a full opportunity to make this point during the hearing and to ask the respondent about any issues in relation to the production of evidence. The time to do that was at the hearing on 8 September 2023.b. The claimant had a full opportunity to make submissions about this point. Even if the person who took the relevant photographs was not present, the claimant could have asked the other witnesses and made submissions to support this point. The time to do that was at the hearing on 8 September 2023.c. The claimant had the opportunity to consider the papers ahead of the hearing and make requests for documents to be supplied in a clearer or unredacted format if he considered that relevant to his claims. The claimant did not do this.[10]The Tribunal gave all the issues full consideration and prepared its decision and reasons in detail. The claimant seeks to challenge findings of fact that were made or the conclusions that the Tribunal reached from those findings.[11]The application is an attempt to re-litigate what was explored in detail at the hearing. A reconsideration is potentially a route for a party to raise new matters, but only where these have subsequently come to light after the hearing and where that party can adequately explain why the matter was not raised before. The claimant’s application does not identify any new matters. The photographs of the wing mirror and the interior of the van were in evidence at the hearing. The document regarding the mismeasured window unit was also in evidence at the hearing. The claimant does not put forward an adequate explanation for why the matters put forward in the reconsideration application were not raised at the hearing.[12]It is not the purpose of reconsideration to allow a party to dispute a determination that the party disagrees with, and it is a fundamental requirement of litigation that there is certainty and finality.[13]I have kept in mind the decision in Outasight v VB Brown 2015 ICR D 11. In this case it was confirmed that Employment Tribunals have, under Rule 70, a broad discretion in determination of reconsideration applications. It was stated that discretion must be exercised judicially: “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.[14]Reconsideration cannot be ordered simply because a party disagrees with the Judgment. Further guidance was provided by the President of the Employment Appeal Tribunal in Liddington v 2gether NHS Foundation Trust UKEAT/0002/16/DA, “a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration is a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[15]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.