Mr R Strongitharm v The Roseland Multi Academy and others: 1401845/2022
JUDGMENT
[1]the third respondent is removed as a party to the proceedings[2]the claim against the second respondent is dismissed Case Number: 1401845/2022[3]the claimant succeeds in his claim for unlawful deduction from wages against the first respondent[4]the first respondent is ordered to pay the claimant the gross sum of £1,424.17 comprising unpaid wages of £1,151.50 (calculated at a rate of £127.94 a day for nine days) and unpaid pension contributions of £272.67 Employment Judge H Lumby Date: 4 November 2022 Judgment sent to Parties: 11 November 2022 Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision.[1]the third respondent is removed as a party to the proceedings[2]the claim against the second respondent is dismissed[3]the claimant succeeds in his claim for unlawful deduction from wages against the first respondent[4]the first respondent is ordered to pay the claimant the gross sum of £1,424.17 comprising unpaid wages of £1,151.50 (calculated at a rate of £127.94 a day for nine days) and unpaid pension contributions of £272.67REASONS
[1]In this case the claimant Mr Strongitharm brings monetary claims for breach of contract and unlawful deduction from wages against each of the respondents as potential employer. The respondents each deny the claims.[2]This has been a remote hearing which has been consented to by the parties. The form of remote hearing was via CVP. A face to face hearing was not held because all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 81 pages and pages 1 to 36 of a further bundle provided by the claimant, the contents of which I have recorded. The remainder of the bundle provided by the claimant was not looked at me and has not been considered in reaching this determination. The order made is described at the end of these reasons.[3]By agreement the third respondent has been removed from the proceedings.[4]I have heard from the claimant. I have heard from Mr Andy Pickett for the respondent. I have also heard from Ms Allyson Glover of the third respondent and Ms Jodie Winter of the first respondent.Facts
[5]There was a degree of conflict on the evidence. I have heard the various witnesses give their evidence and observed their demeanour in the witness box. 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 the factual and legal submissions made by and on behalf of the respective parties.[6]The claimant’s claims arise from his claim that his employment began on 1st January 2022. The respondent has argued that it began on 17th January 2022 or in the alternative that the claimant’s failure to mitigate meant that he had lost all or part of his right to be paid for that period. Finally, the claimant has sought to amend the proceedings to argue that his pay for the period until 17th January should be at a higher level.[7]The claimant is a teacher with a specialism in art. He had taught as a supply teacher at Falmouth School from March 2021. His role was supplied through a recruitment agency called Concorde (the third respondent). As a supply teacher he had the benefit of a DBS check which lasted until February 2022 (but through Concorde). This role came to an end on 16th December 2021.[8]In November 2021 the job of head of art was advertised on a short term basis to provide maternity cover and the claimant applied. He undertook several tests and was interviewed on 13th December 2021.[9]The claimant says that he was telephoned that evening and unconditionally offered the job. The respondents dispute this but no evidence was heard from Brenda D’Souza, the offeror.[10]Whatever the contents of that call, it was clear that the claimant was offered a role starting on 1st January and both the school and the claimant acted accordingly, the claimant beginning work on 4th January, the first working day of the year.[11]No written offer has been seen or written contract was signed and I find therefore that there was a verbal contract in place from 1st January 2022. This lasted until the commencement of a written contract on 17th January.[12]As part of the process of being recruited, the claimant provided a large amount of information, including that required to carry out DBS checks. After the claimant had begun work, it came to light that this had been mislaid by the school and the DBS checks not carried out.[13]On 7th January the claimant was informed of these issues and it was suggested that he should continue on a Concorde supply contract until the DBS check was completed. The claimant refused to accept this arrangement, believing that to do so would be a backward step – he would not receive the benefits of a permanent contract and would be missing out on pension contributions and other benefits. He also genuinely believed that the arrangements with Concorde were at an end, although in practice it would appear that they could have worked and allowed continuity of DBS protection. It is reasonable for him to consider that he should not be losing out as a result of the school’s mistakes.[14]Alternatives to address the DBS were available but not suggested then by either the claimant or the respondents. The situation had arisen from the respondents’ errors and it should have shown more flexibility in seeking to find a solution.[15]A written offer was made to him starting on 17th January at lower pay level than the claimant believed had been agreed. The offer was made on 11th January and at the end of the same week he received an email telling him that the offer would be withdrawn unless he signed the new contract. He felt he had no choice but to comply.[16]That contract contained a start date of 17th January and purported to supercede and render of no effect any previous offers. It was an attempt to nullify the offer from 1st January and to annul any liability until 17th January. I find this to be unreasonable given that the claimant had worked from 4th January and should be remunerated for his services to the school. In addition, the issue was not one of his making and the school should not benefit from its own failures.[17]I find that the employer for the purposes of the verbal contract was the first respondent.[18]I need to make a finding of fact on the remuneration under the verbal contract. The claimant has argued that he was offered the role at the UPS1 level but has only pleaded the lower M6 role contained in the 17th January contract. I have seen no evidence to support, on the balance of probabilities, this higher level and place weight on the level pleaded. I therefore find that it was at the M6 level of £36,961. The claimant worked under a .9 contract so his annual pay was £33,265. He worked a total of nine working days under that contract.Law
[19]Having established the above facts, I now apply the law.[20]The claimant’s claim for breach of contract is permitted by article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”) and the claim was outstanding on the termination of employment.[21]Normal contractual principles apply to claims under the Order, which includes the right of set-off, even in circumstances where the employer has not entered an employer’s counterclaim under paragraph 4 of the Order, see for instance Ridge v HM Land Registry [2014] UKEAT 0485/12.[22]The claimant also claims in respect of deductions from wages which he alleges were not authorised and were therefore unlawful deductions from his wages contrary to section 13 of the Employment Rights Act 1996.[23]Under section 24(2) of the Act, where a Tribunal makes a declaration that there has been an unlawful deduction from wages it may order the employer to pay such amount as a Tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of. Application of law to facts[24]I have found that the claimant was employed by the first respondent from 1st January 2022 to 16th January under a verbal contract, a total of nine working days on .9 equivalent contract at £33,265 per annum.[25]The first respondent has breached that contract by not paying the claimant and therefore has unlawfully deducted wages.[26]The respondent has argued that the claimant could have mitigated this position by agreeing to operate during this period under the Concorde arrangements but I find that, as he had a contract already with the first respondent, he could not be required to do so and had reasonable grounds to refuse to accept what he viewed as a worse position. The issues arose from the school’s failings and more could and should have been done to resolve the matter in a manner that fully protected the claimant.[27]The respondent has also argued that the failure to follow a grievance procedure was a breach of the ACAS code and so the award should be reduced accordingly. The claimant has legitimate reasons why he felt this was inappropriate and it is the respondent’s behaviour that is open to question. I therefore find no adjustment should be made.[28]The amounts claimed by the claimant in respect of wages and pension were set out in the schedule of loss provided by him. Subsequently he has sought to argue that these sums are too low and has argued for increased amounts, based on salary and pension payments subsequently received by him under his subsequent contract. I do not accept that the claimant can revisit the quantum of his claim in this fashion and at this stage.[29]I therefore find that the first respondent should pay wages and pension contributions to the claimant for the period 1st January to 16th January, amounting to nine working days. This amounts to a daily rate of £127.94 and a total of £1,151.50 gross and a pension contribution of £272.67.[30]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 1; the findings of fact made in relation to those issues are at paragraphs 5 to 18; a concise identification of the relevant law is at paragraphs 19 to 23; how that law has been applied to those findings in order to decide the issues is at paragraphs 24 to 28; and how the amount of the financial award has been calculated is at paragraph 29.