Mr A Ellaway v Vale Sports Arena: 1600157/2018
JUDGMENT
The respondents ET3 response form is rejected because it was received out of time. There being sufficient material before me to enable a proper determination to be made, I uphold the following claims:• Unpaid Wages: £7,780.54• Unpaid Holiday Pay: £2,369.19 Total: £10,149.73 The claimant is responsible for any income tax or employee national insurance contributions that may be due on the sums awarded in respect of unpaid wages and unpaid holiday pay. I act in accordance with my powers under Rule 21 of the Employment Tribunal’s Rules of Procedure 2013. RESERVED JUDGMENT[1]The judgment of the Tribunal is that:[2]The Respondent has made an unauthorised deduction from the Claimant’s wages by failing to pay the Claimant the full amount of wages due between March 2017 and January 2018 and is ordered to pay to the Claimant the gross sum of £6,451.40 in respect of the amount unlawfully deducted.[3]The Respondent has made an unauthorised deduction from wages by failing to pay the Claimant in lieu of accrued but untaken annual leave on termination of employment and is ordered to pay to the Claimant the gross sum of £380.75, in respect of the amount unlawfully deducted.[4]The Respondent is ordered to pay to the Claimant additional compensation of £1,692.28 pursuant to section 38 Employment Act 2002 for failure to provide the Claimant with a written statement of employment particulars.REASONS
Issues
[5]The Claimant claims unauthorised deductions from wages in relation to basic pay and a failure to make him a payment in lieu of accrued but untaken holiday.[6]The Respondent’s position in relation to the alleged deduction of basic pay is that all sums owed have been paid and that where payment was not made via BACS into the Claimant’s bank account, he was paid in cash. The Claimant denies receiving any cash payments.[7]In relation to holiday pay, the Claimant alleges that he took no holiday during his employment. The Respondent alleges that the Claimant took 18.5 days holiday, and was then paid for 97.30 hours on 31 January 2018 via BACS, following his dismissal.[8]It was accepted the Claimant was employed by the Respondent.[9]The issues for consideration were discussed and agreed at the outset of the hearing, the issues to be determined were: Unlawful deduction from wages[10]Is the claim in time? In relation to the alleged deduction of basic pay, was there a series of deductions with sufficient frequency of repetition?[11]Is the claim in respect of wages?[12]Has the Respondent made a deduction?[13]In relation to basic pay, what was the Claimant entitled to be paid between March 2017 and January 2018, and was he paid this amount?[14]In relation to holiday pay, how much holiday was the Claimant entitled to? How much holiday had the Claimant accrued but not taken, if any, by the end of his employment?[15]Was any deduction authorised by statutory provision or relevant contractual provision or agreed to in writing by the Claimant before deduction?[16]How much, if anything, is the Claimant owed? Failure to provide written statement of employment particulars[17]If the Claimant succeeds in another claim and it is found that he had not been provided with a written statement of particulars, should he be awarded additional compensation of 2 or 4 weeks’ pay under section 38 of Employment Act 2002? Procedure, documents and evidence heard[18]I heard evidence from the Claimant, and from Peter Griffiths and Catherine Sharp, joint owners, on behalf of the Respondent.[19]The Claimant had provided a witness statement and a bundle amounting to 45 pages.[20]The witness statements for the Respondent had been provided in email form. A witness statement for Jennifer Rowlands was provided to the Tribunal but she was not called as a witness. A bundle of 132 pages had been provided by the Respondent on the morning of the first day of the hearing and after spending some time reviewing the contents, the Claimant confirmed he had previously been provided with the documents included in the Respondent’s bundle, albeit in a different format/order and was happy to continue.[21]During the course of the hearing both parties provided additional documents. The Claimant provided additional bank statements and the Respondent provided extracts from a 2017 diary and an image of a 2021 wall planner.[22]The Respondent provided written closing submissions and the Claimant provided oral submissions.[23]I explained to the parties that I should be directed to the documents that they wished me to review. Fact findings[24]The Claimant commenced employment on 22 February 2017 as a Development Sports Manager. Prior to commencing this role, the Claimant had undertaken some work as a coach for the Respondent. The Respondent sent the Claimant an email on 12 January 2018 informing him that he had been summarily dismissed and that his last date of employment was 9 January 2018. The decision to dismiss was communicated to the Claimant on 12 January 2018. The Claimant’s last day of employment was therefore 12 January 2018. Contract of employment[25]The Claimant states that he was not provided with a contract of employment, or a written statement of particulars, during his employment. The Claimant also states he asked for a contract on several occasions. The Respondent’s Bundle contains emails in which the Claimant requested a copy of his contract of employment. The Claimant requested a copy from Mr Griffiths, Chief Executive and Joint Owner, in an email dated 7th January 2018: “Still waiting on a copy of my contract You did say to me that it was on your computer, So this is the 3rd time of asking”.[26]The Respondent’s Bundle, at page 9, contains a document headed “Summary of Employment Terms at Vale Sports Arena” (referred to as the contract hereafter). The contract is not signed or dated. In response to questioning, Mr Griffiths, stated that a copy of the contract at page 9 was provided to the Claimant both before he started employment and on his first day. Also, in response to questioning, Miss Sharp, Joint Owner, stated that she was present at a meeting at the start of the Claimant’s appointment and that he was provided with a copy. In a response to a question by myself regarding the practice of obtaining signed copies of contracts of employments Miss Sharp stated that signed copies were not obtained and that in her other business staff do not have contracts of employment.[27]Within the Claimant’s Schedule of Loss and during the hearing, the Claimant stated that he was told by Miss Sharp that his salary would be £24,000.00 per annum and that he was entitled to 28 days holiday plus Bank Holidays. The Claimant was not able to identify when this discussion took place. In cross examination Miss Sharp could not recall a conversation in which she allegedly said the Claimant would be paid £24,000 per annum.[28]On the evidence available I do not find that the Claimant was told his annual salary would be £24,000.00 per annum and that he was entitled to 28 days holiday plus Bank Holidays.[29]The contract does not set out the Claimant’s gross annual salary. In relation to pay, it states: “7, Rate of Pay: - £284,44 per week £352 per week (take home) payable in arrears by credit transfer to your bank account or by cash.• increase of wages (64,56) due to coaching with PG1 from 19th June 2017 to £352 this was paid by PG1 However coaching on weekends is voluntary like other coaches” .[30]Mr Griffiths could not give a definitive answer on what the Claimant’s annual salary was at the commencement of his employment or when a pay rise was agreed, and referred to what the contract said. The contract, which the Respondent claims was provided at the start of employment in February 2017, specifically refers to an increase in wages from 19th June 2017. In addition, clause 22 of the contract states: “22, Introduced December 2017 a Confidential Policy must be signed by employees. Failure to sign the policy will result in termination of contract/probation period.”[31]The amounts referenced in the contract are net amounts. It is unusual for a contract of employment to refer to precise net amounts, as net pay can vary subject to tax, national insurance, pension contributions etc.[32]There was no evidence put forward by the Respondent regarding any amendment of the contract in June or December 2017.[33]I find that the contract was not given to the Claimant at the commencement of employment and was likely to have been produced at a later date, although I have not been able to make a specific finding of fact on when the contract was created, I consider it likely that it was produced in or around late December 2017 or January 2018. On this matter I therefore prefer the Claimant’s evidence and find that the Claimant was not provided with a copy of the contract during employment. Basic Pay[34]The Claimant set out the dates of the alleged deductions of wages in a Schedule of Loss. I have set out findings of fact in relation to March 2017 to January 2018 below under a sub-heading for each month and have also made general findings of fact.[35]Neither the Claimant or Respondent Bundle contained all the pays slips for the period of employment.[36]The Claimant was paid weekly between March and December 2017, as evidenced by his bank statements. From July 2017 onwards, only monthly pay slips were produced by the Respondent’s new accountant. The move to monthly pay slips was on the advice of the Respondent’s accountant, to reduce the costs associated with the production of pay slips.[37]The Claimant’s evidence is that he was only provided with a copy of the pay slips dated 29th September 2017, 27th October 2017, 24th November 2017, 29th December 2017 on 3rd January 2018. Mr Griffiths stated that he provided a copy of these pay slips following request from the Claimant, but that copies would have been provided to the Claimant at the time of payment. Similarly, the Claimant did not receive pay slips for July and August 2017 until 31st January 2018. There was no evidence to corroborate whether the pay slips for the months of July to December 2017 were provided to the Claimant contemporaneously and I find that the monthly pay slips were not provided to the Claimant in the month in question and were provided by email on 3rd and 31st January 2018.[38]Mr Griffith and Miss Sharp both stated that where payments of wages were not made by BACS a cash payment would be made to the Claimant. Miss Sharp stated that whenever the Claimant was paid in cash a copy of the associated pay slip would be provided to the Claimant. There is no documentary evidence to corroborate this statement, and I find the provision of weekly pay slips from July 2017 did not take place.[39]The Respondent’s Bundle contains a document at page 23, which is a typed document purportedly setting out the manner of payments. It is not clear who produced this document and when it was produced. In addition, there is no detail of the amounts of the sums paid, or allegedly paid.[40]The Respondent averred that the Claimant brought the claim in retaliation for being dismissed and maintained that he had not raised non-payment of wages prior to bringing the claim.[41]In the ET1 the Claimant stated that he raised the missed payments with Mr Griffiths during employment and that he emailed Mr Griffiths about the matter. In his witness statement the Claimant also stated that he confronted Mr Griffiths in respect of wages owed, but no dates were given by the Claimant other than a discussion in December 2017. Mr Griffiths stated that the Claimant did not raise the issue of outstanding sums owed in December 2017. This issue is not recorded in Mr Griffiths email dated 22 December 2017, following the discussion.[42]The Respondent’s Bundle contains images of a text message between the Claimant and an unknown third party dated 12 December 2017 which states “How much mate Peter bloody owes me 3 thousand pound now [emoji – covering face]”.[43]In emails dated 7 January 2018 the Claimant emailed Mr Griffiths regarding various issues and in relation to sums allegedly owed stated: “But right this minute that’s not the issue, The issues are the money you owe me... I will put in a letter dates off missing wages” and “At the end of the day I’m owed money from none payment on wages that’s it and you keep directing it to other things”.[44]I find that towards the end of his employment the Claimant did raise concerns about wages owed to him with Mr Griffiths. I do not consider the Claimant not formally raising his concerns earlier to be fatal, as quite often whilst the employment relationship continues employees may mention matters such as a shortfall of wages informally or not at all, for a variety of reasons, until other matters come to a head. March 2017[45]From 22 February to 27 March 2017 the Claimant’s gross weekly pay was £330.00 per week. The Claimant’s case is that he was not paid on Monday 6th March 2017.[46]The Claimant’s bank statement for March shows net payments of £287.44 were received into his bank account via BACS on 13th, 20th and 27th March 2017. The bank statement does not show any payment received on 6th March 2017.[47]The Claimant’s Bundle contains a pay slip dated 10 March 2017, which states the basis of payment was weekly, the gross sum was £330.00 and the Claimant’s net pay was £287.44. It is not clear if this pay slip relates to work undertaken in the week commencing 6 March or 13 March 2017.[48]I find that no BACS payment of £330.00 gross pay was made on 6th March 2017. April 2017[49]The Claimant alleges he was paid at the gross rate £330.00 on 3rd April, received no payment at all on 10th April, was paid at the gross rate of £333.00 on 18th April and that no payment was received on 24th April. This is corroborated by the Claimant’s bank statements which show net payments of £287.44 paid via BACS on 3rd and 18th April.[50]The Claimant’s Bundle contains pay slips dated 7 April, 14 April, 21 April and 28 April, all of which refer to a gross weekly sum of £423.07 and a net payment of £352.74, the payment method being cited as BACS.[51]I find that the pay increase was deemed to take effect from April 2017, as indicated by the pay slips. The Claimant’s pay was increased to £423.07 (gross) per week.[52]I find that no BACS payments of £423.07 gross pay were made on 10th and 24th April 2017.[53]Miss Sharp, in her witness statement, stated cash payments were made on 10th and 24th April 2017. There is no contemporaneous documentary evidence to support this, and the statement does not specify how much was paid in cash. May 2017[54]The Claimant claims that no payment was received on 1st or 8th May 2017. He was paid a gross sum of £330.00 via BACS on 15th, 22nd and 30th May. This is evidenced by the Claimant’s bank statements which show net payments of £287.44 on 15th, 22nd and 30th May.[55]The Claimant’s Bundle contains pay slips dated 5th May and 26 May 2017, both refer to a gross weekly sum of £423.07. However, the pay slip dated 5th May refers to a net payment of £352.74 and the pay slip for 26th May refers to £351.74 and indicates a £1.00 payment for a student loan.[56]Although there is a pay slip dated 5th May 2017 which states payment was made via BACS, there is no corresponding payment into the Claimant’s bank account.[57]I find that no BACS payments of £423.07 were made on 1st or 8th May 2017.[58]Miss Sharp, in her witness statement, stated cash payments were made on 2nd and 8th May 2017. There is no contemporaneous documentary evidence, other than the pay slip dated 5th May 2017 referenced above, and the statement does not specify how much was paid in cash.[59]I find that on 15th, 22nd and 30th May 2017 the Claimant was not paid his full wages via BACS, he was paid a gross sum of £330.00 in each week, but was due £423.07 each week, therefore there was a shortfall of £93.07 in each weeks’ pay. June 2017[60]The Claimant claims that no payment was received on 5th June 2017. He was paid a gross sum of £330.00 via BACS on 12th June and gross sums of £423.07 on 19th and 26th June. The Claimant’s bank statements show net payments of £287.44 on 12th June and £352.00 on 19th and 26th June.[61]There are no pay slips for June 2017 in the Claimant’s Bundle.[62]I find that no BACS payment of £423.07 was made on 5th June 2017.[63]Miss Sharp, in her witness statement, stated a cash payment was made on 5th June 2017. There is no documentary evidence to support this, and the statement does not specify how much was paid in cash.[64]I find that on 12th June 2017 the Claimant was not paid his full wages, via BACS, he was paid a gross sum of £330.00 but was due £423.07, therefore there was a shortfall of £93.07. July 2017[65]The Claimant does not allege any deductions were made in July 2017. He accepts he was paid a gross sum of £423.07 on 3rd, 10th, 17th, 24th and 31st July 2017. This is evidenced in his bank statements which show net payments of £352.00 on 3rd, 10th, 17th, 24th and 31st July 2017.[66]The pay slip for July 2017 states the pay period was monthly and the payment method being BACS, and that his gross monthly pay was £1,473.33 and net pay was £1,083.69. The Claimant was actually paid a total of £1,760.00 net pay in July 2017. The information on the pay slip does not match the sums paid to the Claimant, or the basis of the payment, which I find was weekly and not monthly. August 2017[67]The Claimant asserts that he was not paid on 14th and 28th August 2017. He was paid via BACS gross sums of £423.07 on 7th and 21st August 2017. The Claimant’s bank statements show net payments of £352.00 on 7th and 21st August 2017.[68]The pay slip for August 2017 states the pay period was monthly and the payment method being BACS, and that his gross monthly pay was £1,473.33 and net pay was £1,083.69. According to the Claimant’s bank statements, the Claimant was paid a total of £704.00 net pay via BACS in August 2017. The information on the pay slip does not match the sums paid to the Claimant’s bank account. If the Claimant had been paid four weeks at gross rate of £423.07 that would amount to a gross payment of £1,692.28 (a net payment of £1,408.00).[69]I find that no BACS payments of £423.07 were made on 14th and 28th August 2017.[70]Miss Sharp, in her witness statement, stated cash payments were made on 14th and 29th August 2017. There is no documentary evidence to support this, and the statement does not specify how much was paid in cash. September 2017[71]The Claimant states he was not paid on 4th and 11th September 2017. He was paid via BACS the gross sums of £423.07 on 18th and 25th September 2017. The Claimant’s bank statements show net payments of £352.00 on 18th and 25th September 2017.[72]The pay slip for September 2017 states the pay period was monthly and the payment method being BACS, and that his gross monthly pay was £1,473.33 and net pay was £1,083.69. According to the Claimants bank statements, the Claimant was paid a total of £704 net pay via BACS in September 2017. The information on the pay slip does not match the sums paid to the Claimant, or the basis of the payment, which I find was weekly and not monthly.[73]I find that no BACS payment of £423.07 were made on 4th and 11th September 2017.[74]Miss Sharp, in her witness statement, stated cash payments were made on 4th and 11th September 2017. There is no contemporaneous documentary evidence to support this, and the statement does not specify how much was paid in cash. October 2017[75]The Claimant does not allege any deductions were made in October 2017. The Claimant was a paid a gross sum of £423.07 on 2nd, 9th, 16th, 23rd and 30th October 2017, this is evidenced in his bank statements which show net payments of £352.00 on 2nd, 9th, 16th, 23rd and 30th October 2017.[76]The pay slip for October 2017 states the pay period was monthly, the payment method is BACS, that gross monthly pay was £1,473.33 and net pay was £1,083.69. The Claimant was actually paid a total of £1,760.00 net pay in October 2017. The information on the pay slip does not match the sums paid to the Claimant, or the basis of the payment, which I find was weekly and not monthly.[77]Miss Sharp, in her witness statement, stated a cash payment was made on 23rd October 2017. There is no contemporaneous documentary evidence to support this, and the statement does not specify how much was paid in cash. The Claimant was paid via BACs on 23rd October 2017. November 2017[78]The Claimant asserts that he was not paid on 20th November 2017. He was paid gross sums of £423.07 on 6th, 13th and 27th November 2017. The Claimant’s bank statements show net payments of £352.00 on 6th and 13th November 2017. The bank statement for November 2017 at page 43 of the Claimant’s Bundle ends on 15th November 2017. The bank statement at pages 44 and 45 runs from 5th to 21 December 2017.[79]The pay slip for November 2017 states the pay period was monthly, the payment method BACS and that his gross monthly pay was £1,473.33 and net pay was £1,083.69. The Claimant alleges that for November he should have been paid for four weeks (4 x £423.07 = £1,692.28 gross, 4 x £352 = £1,408.00 net). The information on the pay slip does not match the sums the Claimant asserts were due.[80]Although there is no bank statement for the period covering 20th November 2017, I find that no BACS payment was made on 20th November 2017, based on the pattern of non-payment as set out above.[81]Miss Sharp, in her witness statement, stated a cash payment was made on 20th November 2017. There is no contemporaneous documentary evidence to support this, and the statement does not specify how much was paid in cash. December 2017[82]The Claimant asserts that he was not paid at all for December 2017. His Schedule of Loss sets out that he believes a gross payment of £423.07 was due on 4th, 11th, 18th and 25th December 2017. This amounts to a gross total of £1,692.28 and a net payment of £1,408.00.[83]The Claimant was given a cheque for £700 on or about 12 December. The cheque bounced. The Claimant’s submission was that the cheque was given to tide him over Christmas. There is no evidence to suggest that any cheques had been provided to the Claimant previously. Mr Griffiths stated that the contract permitted payment by BACS, cheque or cash. The contract only refers to payment via bank account or cash. Mr Griffiths and Miss Sharp both gave evidence stating that the business largely operated in cash. There was no evidence put forward as to why a cheque, as opposed to a cash payment, was made on 12 December 2017.[84]The Claimant accepted that a payment of £1,020.00 was paid into his bank account on 21 December 2017. Although the Claimant has provided a copy of his bank statement the value of £1,020.00 is not displayed at page 45, but it does show an entry for 21 December 2017.[85]The pay slip for December 2017 states the pay period was monthly and the payment method being BACS, and that his gross monthly pay was £1,473.33 and net pay was £1,083.69. The information on the pay slip does not match the sums the Claimant asserts were due.[86]I find that no BACS payments of £423.07 were made on 4th, 11th, 18th and 25th December 2017 but a payment of £1,020.00 was received by the Claimant, and therefore there was a shortfall. The Claimant’s total gross wages for December would have been £1,692.28 and therefore there was a shortfall of £672.28 (£1,692.28 - £1,020.00) in December 2017.[87]Miss Sharp, in her witness statement, stated cash payments were made on 4th, 11th and 27 December 2017. There is no contemporaneous documentary evidence to support this, and the statement does not specify how much was paid in cash. This evidence is inconsistent with Mr Griffiths’ evidence that a cheque was provided on 12 December.[88]The document at page 25 of the Respondent’s Bundle states that a cash payment was made on 18th December, but this is not referenced in Miss Sharp’s statement.[89]There was some confusion about whether the Respondent’s business was open during the Christmas period, the Claimant alleging that it was shut and the Respondent stating it only closed on Bank Holidays. I find that it was only closed on the Bank Holidays. However, the Respondent maintains that the Claimant was on annual leave 22 to 31 December 2017, and therefore, if he did not attend work due to annual leave, I find that he should have been paid for the period of annual leave. January[90]The Claimant did not attend work due to sickness absence from 31 December 2017 until the date of his dismissal.[91]The Claimant asserts that he was not paid on 1st January 2018, but did not specify the amount allegedly due.[92]On 3 January 2018 Peter Griffiths emailed the Claimant stating pay would be moved from a weekly to a monthly basis from 27 December 2017.[93]In an email dated 12 January 2018 the Claimant was notified that he had been dismissed. The email states: “You will be paid for any accrued but untaken holiday pay and your salary up to the 1st January 2018, being the date you took unauthorised annual leave, which for the avoidance of any doubt is unpaid”.[94]The Respondent asserted in the ET3 that the Claimant “last got paid via bank transfer on 9th January”. The ET3 also states “he was last paid on Monday 8th January 2018”. It is not specified how much the Claimant was allegedly paid on 8th or 9th January 2018. The Claimant’s Bundle does not include a bank statement for this period.[95]The Respondent’s Bundle contains a pay slip dated 31 January 2018, which states a part month payment of £476.00 gross was paid via BACS. It also refers to holiday pay (further comment below). As late disclosure the Claimant provided a photograph of his mobile banking app from 29 January to 5 February 2018. The extract does not show any data for 1 February 2018. It does not show any payments in from the Respondent during that period. The Claimant’s evidence was that no payments in or out were received or made on 1 February 2018.[96]I find that the Claimant should have been paid up to and including 12 January 2018, the date he was notified of his dismissal. The Claimant maintained that he reported that he was unwell and the Respondent maintained that from 1 January 2018 the Claimant’s absence was unauthorised, but did not provide evidence explaining why the Claimant was treated as being on unauthorised leave.[97]I find that no BACS payment for part payment of wages owed for January was made on 31 January 2018. General findings in relation to wages[98]I find that the Claimant was given a pay rise effective from 1 April 2017, and that his gross weekly salary increased from £330.00 to £423.07. I therefore find that from April 2017 the Claimant ‘s gross weekly pay was £423.07, and this would equate to an annual salary of £21,999.64 (£423.07 x 52 weeks).[99]Usually, a pay slip is reliable evidence that wages have been paid. However, in this case, I do not consider the pay slips provide reliable evidence of what has and has not been paid. The Claimant’s Bundle contains copies of pay slips for that were sent to him in January 2018, as set out in paragraph 37 above. The Respondent’s Bundle contains what appears to be pay slips dated 29/09/2017 (page 47), 27/10/2017 (page 57), 24/11/2017 (page 45) and 29/12/2017 (page 51). However, the information on these pay slips does not match precisely the pay slips in the Claimant’s Bundle.[100]The Respondent states that when wages were not paid via BACS, a cash payment was made to the Claimant and a contemporaneous pay slip was provided to the Claimant each time a cash payment was made. The Respondent did not provide copies of all weekly pay slips, and indeed pay slips appear to have been produced on a monthly basis from July 2017. However, in a few weeks, as set out in the findings of fact above, a pay slip has been produced where there was not a clear corresponding BACS payment. There is no other documentary evidence, such as a receipt or copies of the Respondent’s bank statements, to corroborate the Respondent’s assertion that cash was paid. I find that cash payments as allegedly made by the Respondent were not paid.[101]Mr Griffiths referred to a document at page 33 of the Respondent’s Bundle that he asserts sets out the PAYE and NI that has been paid in relation to the Claimant. The document allegedly shows payment information from 31 July 2017 to 31 January 2018. The document was prepared by the Respondent’s accountant. It is not a contemporaneous record and was produced on 11 September 2019. The gross sums stated do not match the sums actually paid to the Claimant. One example being October 2017. Page 33 refers to a gross payment of £1,473.33 being made but the Claimant’s bank statements show that he received a total of £1,760.00 in October, which amounts to a gross payment of £2,115.35.[102]The ET3 and Mr Griffiths’ witness statement refers to a reduction in pay from £1,692.00 per month to £1,473.33 a month, it is not specified when the reduction was implemented, agreed or effective from. The Claimant’s position is that he did not agree to any reduction in pay. I was not directed to any documents by the Respondent evidencing an agreed reduction in pay. I find that the Claimant’s pay was not reduced at any time.[103]I find that the Claimant was paid weekly, between 22 February 2017 and December 2017. On 3 January 2018 Mr Griffiths sent the Claimant an email stating: “Following a change in accountant and changing the way we work wages will now be paid monthly Wages for dec 27 jan 2 8 15 will be paid on the 16th January Your pay slips will follow this email”.[104]On or around 13 November 2017 an investigation commenced regarding the Claimant’s conduct at a football game he was coaching. Holiday Pay[105]Neither of the Respondent’s witnesses could give a clear answer on what they considered the Claimant’s holiday entitlement to be.[106]The Claimant stated that from other jobs he had been in he thought he would have four weeks holiday but that he was told by Ms Sharp that he was entitled to 28 days plus Bank Holidays. The Claimant did not specify when this conversation took place.[107]Ms Sharp in response to my question firstly stated that she considered his entitlement to include Bank Holidays but a moment later stated that it may have been an entitlement plus Bank Holiday. Ms Sharp could not recall the detail of any conversation with the Claimant regarding holiday entitlement.[108]In relation to holiday the contract states: “11, Holiday year: - 1st April to 31st March 12, Paid Holiday entitlement: - Full time employees are entitled to 28 days per annum the 8 normal pubic/bank holidays are included. This is calculated on a pro-rata basis for part time employees”.[109]Although the contract states the holiday leave year runs from 1 April to 31 March Mr Griffiths stated that the holiday year ran from the Claimant’s start date in February 2017. As set out above, I have found that the contract was not provided, and therefore I find the leave year ran from 22 February.[110]I find, considering all the above, that the Claimant was entitled to statutory holiday of 28 days including Bank Holidays, and did not have any additional contractual entitlement.[111]The Claimant’s evidence by way of a general assertion was that he had not taken any holiday since commencing employment, however, he did comment that he would ask to leave early to watch football games. In an email exchange between the Claimant and Mr Griffiths on 7 January 2018 Mr Griffiths stated: “I note your intention to take further annual leave...” in a response shortly after the Claimant stated “I just said In a text message saying I wasn’t fit to work and should I use some annual leave because I’ve not had any al year for my time to revover [sic]”.[112]Both Mr Griffiths and Miss Sharp explained that there was no formal process for requesting annual leave, and that requests were made informally by staff asking for time off.[113]Miss Sharp, in her witness statement, set outs the dates that she believes the Claimant took annual leave. The Respondent’s position is that the Claimant took a total of 18.5 days annual leave in 2017 as set out below: 17th April – half day 3rd to 7th July 7th to 11th August 9th and 10th October 22nd to 31st December[114]This totals 20.5 days. The Respondent, as set out in Miss Sharp’s witness statement, disregards two Bank Holidays from the calculation. There was no clear explanation provided by the Respondent for the discounting of two days.[115]During questioning Miss Sharp referred to using a wall planner and diary to record annual leave, these documents were not in the Respondent’s Bundle. On the second and final day of the hearing a copy of a wipe clean wall planner labelled in wipeable pen for 2021 was provided by the Respondent together with six pages of extracts from a 2017 diary. The 2017 diary extracts contain various data regarding events and notes the Claimant’s annual leave. The Respondent’s submission was that the diary entries corroborate the witness evidence of Miss Sharp. As the Claimant did not have the opportunity to cross examine on the late documents, I have placed the appropriate weight and note the Respondent’s submission that they corroborate Miss Sharp’s evidence and the Claimant’s submissions that he was not aware of such a diary whilst employed and he recalled use of a paper monthly diary chart, rather than a wall planner.[116]The monthly pay slips dated 31 July, 31 August, 29 September, 27 October, 24 November and 29 December do not record any holiday as being taken. However, they also do not specify the remaining amount of holiday entitlement. The weekly pay slips in the Claimant’s Bundle from March to May 2017 do not mention holiday. For this reason, I find that the pay slips are not an accurate record of any holiday accrued or taken.[117]I find that the Claimant did take holiday as set out in Ms Sharp’s witness statement and recorded in the 2017 diary, and this amount to 20.5 days.[118]The Respondent provided a pay slip dated 31 January 2018, which states a payment of holiday entitlement of 97.30 hours at a rate of £8.50 amounting to £827.05 was paid via BACS. 97.30 hours equates to 13.1 days (based on a 7.4 hour working day). As late disclosure the Claimant provided a photograph of his mobile banking app from 29 January to 5 February 2018. The extract does not show any data for 1 February 2018. It does not show any payments in from the Respondent during that period. The Claimant’s evidence was that no payments in or out were received or made on 1 February 2018. The Claimant accepted that he had not previously complained about BACS payments not reaching him.[119]The Respondent’s position is that the Claimant took 18.5 days leave during employment (it did not count Christmas Day and Boxing Day) and that it paid the Claimant for 97.3 hours in January 2018. This would equate to 32 days leave. No explanation was given as to how the 97.30 hours was calculated.[120]In the ET3, at page 1 of Respondent’s Bundle, which lists Ms Sharp as the representative, it states: “My accountant has informed me Mr Ellaway is due annual leave payment however given his misrepresentation of himself I am reluctant to pay this”. When responding to questioning Mr Griffiths was not able to clearly explain this statement and what his accountant told him was owing, but stated that after this a payment to the Claimant in relation to holiday pay was made on 31 January 2018.[121]Considering all of the above, I find that the Claimant was not paid for any accrued but outstanding leave via a BACS payment on (or about) 31 January 2018.Law
[122]Section 13(1) of the Employment Rights Act 1996 (ERA) provides an employer shall not make a deduction from wages of a worker employed by him unless 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 the worker has previously signified in writing his agreement or consent to the making of the deduction.[123]An employee has the right to complain to an Employment Tribunal of an unauthorised deduction from wages pursuant to section 23 ERA. The definition of “wages” in section 27 ERA includes holiday pay.[124]A claim about an unauthorised deduction from wages must be presented to an Employment Tribunal within three months beginning with the date of payment of the wages from which the deduction was made, with an extension for early conciliation if notification was made to ACAS within the primary time limit, unless it was not reasonably practicable to present it within that period and the Tribunal considers it was presented within a reasonable period after that.[125]The Working Time Regulations 1998 provide for minimum periods of annual leave and for payment to be made in lieu of any leave accrued but not taken in the leave year in which the employment ends. The Regulations provide for 5.6 weeks leave per annum, although a contract of employment can provide more. The leave year begins on the start date of the Claimant’s employment in the first year and, in subsequent years, on the anniversary of the start of the Claimant’s employment, unless a written relevant agreement between the employee and the employer provides for a different leave year. There will be an unauthorised deduction from wages if the employer fails to pay the Claimant on termination of employment in lieu of any accrued but untaken leave.[126]A worker is entitled to be paid a week’s pay for each week of leave. A week’s pay is calculated in accordance with the provisions in sections 221- 224 of ERA, with some modifications.[127]In accordance with section 38 Employment Act 2002 where a Tribunal finds in favour of an employee in a complaint of unlawful deduction from wages, and the Tribunal finds that the employer has failed to provide the employee with a written statement of employment particulars, the Tribunal must award the employee an additional two weeks’ pay, unless there are exceptional circumstances which would make that unjust or inequitable, and may, if it considers it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay. Conclusions Time limitsConclusions
[128]I found that the Claimant worked for the Respondent up to and including 12 January 2018. The payment of any accrued but unused holiday pay became payable on the termination of employment.[129]I conclude that there was a series of deductions in respect of basic wages as there was frequent repetition of weekly wages not being paid throughout the period March 2017 to January 2018.[130]The claimant was presented on 26 January 2018. The claims of unlawful deductions from wages in respect of wages and holiday pay were presented in time. Unauthorised deduction from wages – March 2017 to January 2018[131]I have found that the Claimant was entitled to be paid the gross weekly sum of £330.00 between the start of his employment until the end of March 2017. I have also found that the Claimant’s pay increased with effect from 1 April 2017, from which time his gross weekly pay was £423.07.[132]Usually, a pay slip is reliable evidence that wages have been paid. However, in this case, I do not consider the pay slips as providing reliable evidence of what has and has not been paid due to the various inconsistencies as set out above. The Respondent states that when wages were not paid via BACS, a cash payment was made to the Claimant and a contemporaneous pay slip was provided to the Claimant each time a cash payment was made. There is no other documentary evidence, such as a receipt or accounting records, to indicate whether cash was paid or not. The Respondent did not provide copies of all weekly pay slips, and indeed pay slips appear to have been produced on a monthly basis from July 2017. However, in a few weeks, as set out in the findings of fact above, a pay slip has been produced where there was not a clear corresponding BACS payment and the amounts set out in the pay slips do not always match the sums received by the Claimant.[133]I have found that there were some weeks where the Claimant was not paid via BACS, and I have concluded that cash payments were not made.[134]Therefore, the Claimant was not paid all the wages due to him and on some occasions, there was a shortfall in pay. Set out below are the gross sums owed to the Claimant. 6 March - £330.00 10 April - £423.07 24 April - £423.07 1 May - £423.07 8 May - £423.07 15 May – £93.07 22 May - £93.07 30 May - £93.07 5 June - £423.07 12 June - £93.07 14 August – £423.07 28 August – £423.07 4 September - £423.07 11 September - £423.07 20 November - £423.07 December - £672.28 January - £846.14 Total £6,451.40 gross[135]I considered whether any of the above deductions were authorised by statutory provision or relevant contractual provision or agreed to in writing by the Claimant before deduction, and conclude that they were not authorised.[136]I, therefore, conclude that the Respondent made unauthorised deductions of £6,451.40 gross wages in respect of wages of basic pay and order the Respondent to pay this amount to the Claimant.[137]The Respondent will be entitled to deduct any tax and employee’s national insurance contributions due on this amount before payment to the Claimant. Holiday pay[138]As set out in the findings of fact, I conclude that there was no contractual agreement to holiday entitlement in addition to the right to annual leave under the Working Time Regulations 1998.[139]The Claimant took 20.5 days annual leave in 2017, including Bank Holidays. His annual leave entitlement was 5.6 weeks (including Bank Holidays). The leave year began on 22 February. The Claimant was employed until 12 January 2018. He had, therefore, accrued 25 days of his annual entitlement to leave in his final leave year.[140]I conclude that the Claimant was entitled to be paid in lieu of 4.5 days accrued but untaken leave. I conclude that the Respondent made an unauthorised deduction from wages by not paying the Claimant in lieu of this leave.[141]I calculate the amount of payment on a gross basis, but the Respondent is entitled to make any deductions which are due to tax and national insurance contributions before payment is made to the Claimant.[142]The Claimant’ gross weekly pay was £423.07. The amount due was £380.75 (£423.07/5 x 4.5 days).[143]I, therefore, conclude that the Respondent made unlawful deductions from wages by not paying the Claimant £380.75 in lieu of accrued but untaken annual leave and order the Respondent to pay this amount to the Claimant.[144]The Respondent will be entitled to deduct any tax and employee’s national insurance contributions due on this amount before payment to the Claimant. Failure to provide employment particulars[145]The Claimant has succeeded in his claim. An award of additional pay under section 38 Employment Act 2002 for failure to provide a written statement of employment particulars is, therefore, possible.[146]I conclude that as the Claimant was an employee of the Respondent, he was entitled under section 1 of ERA to be provided with a written statement of particulars by no later than 2 months after the start of his employment. I found that the Claimant was not given a written statement of particulars during employment. The Respondent has not put forward any evidence of any exceptional circumstances which would make it unjust or inequitable to order them to pay the Claimant an additional amount for this failure, in accordance with section 38 Employment Act 2002. I must, therefore, order the Respondent to pay an additional two weeks’ pay and may, if I consider it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay.[147]The Respondent should have provided the written statement by 22 April 2017. There had been a complete failure to provide the written statement throughout the period of employment. It appears that the contract was produced in or around late December 2017 or January 2018 and considering the evidence given by Miss Sharp I conclude that the Respondent did not appreciate the importance of providing a written statement. In these circumstances, I do consider it would be just and equitable to order the Respondent to pay an additional four weeks’ gross pay, i.e., 4 x £423.07 = £1,692.28.