Miss S Brown v Spectrum Healthcare Domiciliary Care Ltd: 1601096/2021
JUDGMENT
[1]The claim for compensation related to entitlement to leave pursuant to Regulations 13, 13A, 14 & 30 Working Time Regulations 1998 succeeds.[2]The Respondent is ordered to pay to the Claimant the sum of £3,171.01 in respect of holiday pay.[3]Pursuant to s 38 Employment Act 2002 the Respondent is ordered to pay to the Claimant a sum equivalent to 2 weeks’ pay, being £954.[4]The total to be paid by the Respondent to the Claimant is £4,125.01. JUDGMENT having been sent to the parties on 4 February 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The hearing was listed to determine the Claimant’s claim for holiday pay pursuant to Regulation 30 Working Time Regulations 1998.Background
[2]Ms Brown attended in person, accompanied by her mother who was present for support but not acting as a representative. For the Respondent, Mr Evan Phillips (Deputy Manager) and Ms Jane Nichols (Finance Manager) attended. I was referred to a bundle of documentation prepared by the Claimant, one copy of which had not been received by the Respondent but it was agreed at the outset that the hearing would proceed on the basis of the papers as prepared by the Claimant. During the course of the hearing no reference was made to papers other than those in the bundle.[3]I noted at the outset that there was reference to a potential claim relating to pension. That is the subject of a separate claim and there is no amendment application to consider in respect of pension. There was however an amendment application disclosed by the Claimant’s witness statement to take into account the fact of on-going deductions in relation to holiday pay running up to and including the date on which the Claimant’s employment with the Respondent terminated, that date being 17 December 2020. I was told that there was a termination payment made at the end of the contract but also that the payslips which showed that payment appeared in the bundle. I was also told by the Respondent that the Respondent has had legal assistance throughout proceedings.[4]At the outset of the hearing I clarified the issues as being:a. How much was the Claimant’s leave entitlement?b. What does the contract of employment provide for in respect of leave entitlement?c. When does the leave year run from and to?d. How much holiday had been taken?e. How far back can the claim go?f. Whether or not the Claimant had been prevented from carrying forward leave due to coronavirusg. The amount of a week’s pay andh. Whether a written statement of employment particulars had been provided and, if not, whether an adjustment to any award would need to be made pursuant to s 38 Employment Act 2002.[5]The Respondent had not prepared a witness statement but it was agreed at the outset of the hearing that we would treat the Respondent’s response as amounting to its witness evidence.[6]I heard evidence from Ms Brown who confirmed the truth of her statement and was asked a limited number of questions by Ms Nichols and by myself. I also heard evidence from Ms Nichols who confirmed the truth of the contents of the Response and had appended her signature to that document.[7]I made the following findings of fact on the balance of probabilities.Facts
[8]The Claimant, Ms Brown, was employed as a healthcare assistant from 20 December 2019 through to 17 December 2021.Law
[9]There is no dispute between the parties that the Claimant did, on occasion, take annual leave. There is also no dispute between the parties that, in light of the COVID-19 pandemic, the Claimant was entitled to carry over accrued but untaken annual leave into following leave years.[10]Ms Nichols explained, and I accept, that following the implementation of the relevant legislation employees were offered a choice between taking a payment, and carrying forward annual leave. Some employees chose to take a payment. Ms Nichols said – and was not challenged on this point – that Ms Brown was paid in lieu of the untaken leave.[11]I find that it was not reasonably practicable for the Claimant to have taken forward accrued but untaken annual leave in the relevant leave year (specifically 20/21) and I also find that the Respondent agreed that leave could be taken forward.[12]I find that a) carry forward of annual leave had been expressly authorised by the Respondent, and in any event b) it was not reasonably practicable for the Claimant to have taken annual leave in the year in which it accrued due to COVID-19.[13]The leave year ran from 1 April to 31 March each year. That much is common ground between the parties.[14]I find that the Handbook was signed for. I have seen a copy of the Terms of Engagement. Ms Brown accepted in evidence that this amounted to a written statement of terms and conditions. However, I accept that Ms Brown’s evidence that she was not given a copy of this document until the proceedings began.[15]However, I find that it is likely that the document would have been available for inspection.Law
[16]Under the Working Time Regulations 1998 (“WTR 1998”) a worker is entitled to 5.6 weeks’ annual leave in each leave year: Regulations 13 and 13A WTR 1998. Regulation 30 WTR 1998 provides for a complaint to an employment tribunal that the employer has failed to pay the worker the whole or any part of any amount due under Regulations 14(2) or 16(1) WTR 1998.[17]A part-time worker is entitled to 28 days’ leave calculated pro rata – but this can still be expressed as 5.6 weeks.[18]Regulation 13(10) WTR 1998 provides as follows: (10) Where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave as provided for in paragraph (11). (11) Leave to which paragraph (10) applies may be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due.[19]The calculation of a ‘week’s pay’ is governed by the formula in s 224 ERA 1996. That explains that the amount of a weeks’ pay (prior to 6 April 2020) is the amount of average weekly remuneration in the period of twelve weeks ending with the calculation date. After 6 April 2020, this becomes a period of 52 weeks.[20]I note for completeness Regulation 14 which provides that where the proportion of leave taken by a worker in a leave year is less than the proportion of the leave year which has expired, the employer shall make a payment in lieu in accordance with Reg 14(3)(b).[21]For a claim under Regulation 14, the calculation date is the date of termination (by reference to Regulation 16.[22]Section 38 Employment Act 2002 provides that if, in proceedings to which Schedule 5 of the 2002 Act relates, there has been a failure to provide a written statement of employment particulars (in accordance with s 1 Employment Rights Act 1996), then the Tribunal must increase the total award by an amount equivalent to two weeks’ pay and may increase the total award by an amount equivalent to four weeks’ pay.[23]A claim under Regulation 30 WTR 1998 is a claim listed in Schedule 5 of the 2002 Act.[24]The dispute between the parties is fundamentally one about the amount of pay to which the Claimant is entitled in respect of her total holiday entitlement. Her employment has now ended, and so she is entitled to be paid for accrued but untaken annual leave.[25]It is common ground between the parties that the Claimant took some leave, albeit not all of the leave to which she was entitled. It is common ground that the Claimant received some pay in respect of that leave, albeit that the Claimant says that this was paid at an undervalue.[26]The Claimant’s untaken leave from 2020-2021 was carried forward both by operation of Reg 13(10)-Reg 13(11) and/or in the alternative with the consent of the Respondent.[27]The question then becomes: did the Claimant receive less on termination than the amount to which she was entitled? This can be answered by considering a) how much (in financial terms) was the entitlement on termination, and b) how much had she in fact been paid in respect of holiday pay during employment?[28]The Claimant’s total accrued entitlement amounted to 5.6 weeks in each leave year: Regulations 13 and 13A WTR 1998. The Claimant at the date of termination had been in employment for a period of 2 years less 3 days. As at the calculation date (i.e. the termination date) the Claimant’s average weekly pay was £477.[29]The Claimant’s total entitlement was therefore £5,342.40.[30]The Claimant received the following sums: £179.14 in August 2020; £295.71 in October 2020; and £661.45 in March 2020, a total of £1,136.30[31]In respect of the period 5 April 2021 – the termination of the Claimant’s employment, the Claimant received £168.80 in April 2021; £123.12 in June 2021; £281.86 in August 2021; £193.54 in October 2021; and £267.77 in January 2022: a total of £1,035.09[32]The Claimant had therefore received £2,171.39 in respect of holiday, as against a total entitlement of £5,342.40. The difference between these two figures is the amount to which the Claimant is entitled: a shortfall of £3,171.01.[33]As to the failure to provide a written statement of terms and conditions, this is a matter which I must consider. I consider that there was a failure to provide a written statement of terms and conditions in accordance with s 1 Employment Rights Act 1996, given the facts as found above. However I also consider that the failure was innocent, and that it would not be just and equitable to make the higher award.[34]The total award is therefore increased by a sum equivalent to 2 weeks’ pay, in the total of £954.[1]The Claimant’s application for a preparation time order dated 1 March 2022 is refused.[2]The Claimant’s claim was heard on 31 January 2022. Judgment was sent to the parties on 4 February 2022 upholding the Claimant’s claim for holiday pay in respect of holiday accrued but untaken at termination of employment. Written reasons were requested by the Claimant on 1 March 2022 (“the Request”) together with an application for a preparation time order (“the Application”). Neither the Request nor the Application were copied to the Respondent as required by r 92 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”)[3]Pursuant to r 6 of the Rules a failure to comply with any provision of the Rules does not of itself render void any step taken in the proceedings. In the case of non-compliance the Tribunal may take any action it considers just. I accordingly directed a copy of the request and the application to be sent to the Respondent.[4]Written reasons were sent to the parties on 21 April 2022.[5]The Respondent failed to respond to the Application. On 8 June 2022 the Tribunal therefore wrote to the parties to notify them that in the absence of a response from the Respondent, the application would be dealt with on the papers.[6]On 8 June 2022 the Respondent wrote to the Tribunal stating inter alia that it had “no record of receiving any communication from the court in regards to expressing any views on the preparation time order submitted by Miss Brown”.[7]The Tribunal by return provided copies of the Claimant’s correspondence dated 1 March 2022 and enclosing the Request and Application. I directed the Respondent to respond to the Claimant’s Application within 28 days indicating whether it objected to the making of such an order and, if so, the reasons for the objection.[8]The Respondent failed to respond to the Application within the deadline. No request for a hearing was received. I therefore decided to deal with the Application without a hearing.Law
[9]Rules 74 - 76 provide, insofar as is material, as follows: Costs orders and preparation time orders 75.— [. . .] (2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing. [. . .]. When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success. [. . .] Procedure 77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the applicationProcedure
[10]The Respondent has had a reasonable opportunity to make representations in writing in accordance with Rule 77.[11]A preparation time order may be made where the Tribunal considers that a party has acted “vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings . . . or the way that the proceedings . . .have been conducted” or where “any . . . response had no reasonable prospect of success.”[12]The Claimant’s application was made on the basis that the Response had no reasonable prospect of success.[13]I do not accept that submission. Having carefully considered the applicable law, I concluded that the Respondent’s calculation of the Claimant’s holiday entitlement was inaccurate. I also found that it was not reasonably practicable for the Claimant to have taken forward accrued but untaken annual leave in the relevant annual leave year, and that the Respondent had agreed (i.e. expressly authorised) that carry-over. Neither the factual findings on which the Judgment depends, nor the analysis of the legislation, are simple exercises. I do not consider that the Response can be said to have had “no reasonable prospect of success”, notwithstanding that I considered the Respondent’s position to be legally inaccurate.[14]Even had I considered the Response to have had “no reasonable prospect of success”, I would nonetheless have declined to make a preparation time order in this case. I consider that the Respondent’s Response was raised in in good faith, albeit that the Respondents’ position was, in my view, incorrect; costs are the exception rather than the rule; and that it would not be just in the circumstances to make a preparation time order. I therefore refuse the Claimant’s Application.