Ms A Herbert and Ms O Orimolade v Tech and Boujee Ltd: 1403379/2024 and 1403380/2024
JUDGMENT
[1]The name of the Respondent is amended to Tech and Boujee Limited.[2]The claim of the First Claimant, Ms Herbert, that there had been an unlawful deduction from wages was well founded. The Respondent is ordered to pay her the sum of 1,041,666.67 Nigerian Naira gross.[3]The claim of the Second Claimant, Ms Orimolade, that there had been an unlawful deduction from wages was well founded. The Respondent is ordered to pay her the sum of 1,041,666.67 Nigerian Naira gross.REASONS
[1]In this case the Claimants, brought monetary claims for unpaid wages, against the Respondent. Procedural background[2]Ms Herbert notified ACAS of the dispute on 30 May 2024 and the certificate was issued on 11 July 2024. She presented her claim on 8 August 2024.[3]Ms Orimolade notified ACAS of the dispute on 31 May 2024 and the certificate was issued on 12 July 2024. She presented her claim on 12 August 2024.[4]Both Claimants alleged that they started work for the Respondent on 1 March 2024 and that issues arose just before payment for their first month’s work was due. They both claimed they were not paid for their work between 1 and 31 March 2024.[5]The responses to the claims were in similar terms. The start date for both women was agreed. It was accepted that the wages were not paid due to incomplete internal processes and then a period of illness of the founder Mrs Ayogu. The claims were defended on the basis that the salaries were overstated and that it had been agreed for both Claimants that the annual salary would be 12,500,000 Naira.[6]Both Claimants had claimed a sum in Pounds Sterling in their claim forms. The Respondent had calculated the amount in Pounds Sterling in a different amount. This was due to date used for the calculation.[7]Both Claimants provided schedules of loss and both said that their annual salary was 12,500,000 Naira, with a currency conversion. Both claimed for a month’s pay.[8]Ms Ayogu, director of the Respondent was unable to attend the hearing. In advance of the hearing she sent a witness statement and copies of the Claimant’s contracts.[9]At the start of the hearing the name of the Respondent was discussed. The Respondent said in the response that it was a limited company. On the Companies House website there was a company with the name Tech and Boujee Limited under company number 15231734. It had the same address as that where the claim was served and its sole director was Mrs Ayogu. The name of the Respondent was amended to Tech and Boujee Limited.The evidence
[10]I heard from both Claimants and took into account Ms Ayogu’s witness statement.The facts
[11]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.[12]Ms Herbert and Ms Orimolade started work for the Respondent on 1 March 2024 as Operations Manager and Social Media and Community Manager, respectively.[13]It was agreed that they would each have an annual salary of 12,500,000 Nigerian Naira, which would be paid in equal monthly instalments .[14]The Respondent was unable to pay the Claimants’ salaries at the end of the March 2024. I accepted that this was due to the illness of Ms Ayogu and a lack of funds. The salary for March 2024 remained unpaid and Ms Ayogu acknowledged the Respondent’s responsibility to resolve it and that it was committed to paying their wages.The law
[15]Section 13 of the Employment Rights Act 1996, provides:(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.(2) In this section “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(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.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.Conclusions
[16]Both Claimants’ contracts provided that they were paid in Nigerian Naira. There has been a dispute as to the amount this should be converted to in Pounds Sterling. The Contracts did not make provision for payment in Pounds. Accordingly any Judgment should be made in the currency detailed in the contract. Ms Herbert’s claim[17]Ms Herbert was not paid her salary for March 2024.[18]A month’s salary was a twelfth of 12,500,000 Naira, i.e. 1,041,666.67 Naira a month.[19]There was not a provision in the Claimant’s contract or a statutory provision or a previous written agreement signed by the Claimant that permitted a deduction to be made.[20]The claim that there was an unlawful deduction from wages was well founded and the Respondent is ordered to pay the Claimant the sum of 1,041,666.67 Nigerian Naira gross. Ms Orimolade’s claim[21]Ms Orimolade was not paid her salary for March 2024.[22]A month’s salary was a twelfth of 12,500,000 Naira, i.e. 1,041,666.67 Naira a month.[23]There was not a provision in the Claimant’s contract or a statutory provision or a previous written agreement signed by the Claimant that permitted a deduction to be made.[24]The claim that there was an unlawful deduction from wages was well founded and the Respondent is ordered to pay the Claimant the sum of 1,041,666.67 Nigerian Naira gross.