Employment Judge BraceIn person for claimantNot represented for respondentDate 8 July 2024
JUDGMENT
RULE 21 JUDGMENT Employment Tribunals Rules of Procedure 2013 The respondent having failed to enter a response or attend the preliminary hearing, Employment Judge Brace has decided to issue a judgment. The judgment of the Tribunal is as follows: Notice Pay[1]The complaint of breach of contract in relation to notice pay is well-founded.[2]The respondent shall pay the claimant the sum of £2,166.67 as damages for breach of contract. This figure has been calculated using gross pay to reflect the likelihood that the claimant will have to pay tax on it as Post Employment Notice Pay. Wages[3]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period 15 June 2023 to 19 July 2023.[4]The respondent shall pay the claimant the sum of £2,000, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance. Holiday Pay[5]The complaint in respect of holiday pay is well-founded. The respondent failed to pay the claimant in accordance with regulation 14(2) and/or 16(1) of the Working Time Regulations 1998.[6]The respondent shall pay the claimant the sum of £500. The claimant is responsible for paying any tax or National Insurance.
REASONS
[1]The Claimant is permitted to amend her claim to include a claim for notice pay and payment in respect of holidays accrued but untaken at the date of the termination of her employment, oral reasons were provided at the preliminary hearing.[2]The provisions of s.13 ,14 and 27 Employment Rights Act 1996 are relevant in relation to the unlawful deduction from wages claims which provide as follows[13]Right not to suffer unauthorised deductions. (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[14]Excepted deductions.(1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker. [. . .] 27 Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, [. . .] 3. A worker may present a complaint to an employment Tribunal if there has been a deduction in contravention of section 13. 4. The relevant provisions of the Working Time Regulations 1998 are as follows: Entitlement to annual leave 13.— (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year.(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entitlement to additional annual leave 13A.—(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). (2) The period of additional leave to which a worker is entitled under paragraph (1) is— [. . .] (e)in any leave year beginning on or after 1st April 2009, 1.6 weeks.(3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.(4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. Compensation related to entitlement to leave 14.—(1) Paragraphs (1) to (4) of this regulation apply where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under [F2regulation 13] [F3and regulation 13A] differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— (AxB)-C, where A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. 5. The claim was that the claimant had been dismissed without notice or pay in lieu of notice of her one months’ notice period. The respondent having failed to submit a response, it is not established that in this case that the respondent was entitled to dismiss without notice. Such a dismissal therefore amounted to a fundamental breach of contract. I therefore find that by summarily dismissing the claimant, the respondent acted in breach of the claimant’s contract of employment and the claimant is entitled to compensation representing payment in lieu of her contractual entitlement to notice of one month. 6. In the period 15 June 2023 – 19 July 2023, I found that wages were properly payable to the Claimant as she was available and did in fact undertake work. I also consider this element of the claim, in the sum of £2,000 representing four weeks’ pay is well founded and succeeds. 7. In relation to the In relation to the claim for unpaid holiday, an award in respect of unpaid untaken annual leave of 30 days, being the annual entitlement to annual leave is not well-founded as the Claimant had been in work for two months only and therefore had not accrued 30 days as at the termination of her employment. 8. However a claim in respect of one week’s pay, or 5 days’ pay can be determined (2/12 x 30 days) and the Claimant is also awarded a further sum of £500 in respect of that claim also. 9. The claimant is responsible for the payment of any tax or National Insurance.