Ms S Matharu v Lola Rose Interiors Ltd. (In Voluntary Liquidation): 1801247/2020
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The claims of unauthorised deduction from wages and failure to provide written statements of particulars of employment succeed and the respondent is ordered to pay to the claimant the following sums:[1]Unauthorised deduction from wages pursuant to section 13 of the Employment Rights Act 1996 – the net sum of £1616.04.[2]Failure to provide statement of employment particulars pursuant to section 38 of the Employment Act 2002 – two weeks gross pay – £1000.[3]The claim of unfair dismissal is dismissed.REASONS
4.17 Rule 21 judgment – universal template Case No: 1801247/2020 Upon considering the submissions of the claimant and the available material I am satisfied that the determination can be made of the claims.[1]The respondent is in voluntary liquidation and the address for service is now M.R. Insolvency PO Box 95, Heckmondwike WF16 6AU[2]The claimant presented a claim to the Employment Tribunal of unfair dismissal, unauthorised deduction from wages and failure to provide written particulars of employment. 3.. The time for presenting a response has expired and no valid response has been presented, and, on the information before the employment judge, the Tribunal has no jurisdiction to hear the claim of unfair dismissal, the claimant having been employed for less than two continuous years with the respondent, the claim of unfair dismissal is dismissed.[4]The claims of unauthorised deduction from wages and failure to provide written statements of particulars of employment succeed.[5]The claimant provided a payslip showing that the sum of £1616.04 net. This has not been paid to the claimant.[6]The claimant did not receive a written statement of particulars of employment as required by section 1 of the Employment Rights Act 1996 and, pursuant to section 38 of the Employment Act 2002 I can award an amount equivalent to 2 weeks’ pay for equivalent to 4 weeks’ pay. A statement from the director of the respondent indicated that a written contract of employment would be provided had the claimant completed her probation period. In the circumstances, I find it just and equitable to all the sum of two weeks’ pay as there was an intention to provide written particulars.[1]The rule 21 judgment having been revoked and the parties having provided written representations. Also, in accordance with rule 72, the parties have been given a reasonable opportunity to make further written representations, I have considered the submissions and documents and reached a conclusion based on the papers with the parties’ agreement.[2]The claim for unfair dismissal is dismissed as the claimant did not have two years continuous employment as required by section 108 of the Employment Rights Act 1996.[3]I am satisfied that the respondent had provided the claimant with written particulars of employment by means of a text message dated 21 October 2019 those particulars confirm the vast majority of the requirements pursuant to section 1 of the Employment Rights Act 1996. In those circumstances I am satisfied that there are exceptional circumstances which would make an award unjust or inequitable pursuant to section 38(5) of the Employment Act 2002.[4]I have considered all the documentation and the response from the respondent in respect of the claim for unauthorised deduction from wages.[5]The claimant received a wage slip for £1,616.04 in respect of hours worked.[6]On 16 March 2020 the respondent sent an email to the Tribunal in that email was stated: “Pay has been withheld for Sunita due to her failing to meet standards set out in her terms of employment, not following procedures leading to loss of money and persistently being late for work or closing the shop early and fraudulently claiming for hours not worked on her timesheet…”[7]In the response it was indicated that the claimant had attempted to defraud the respondent by being offered a higher paid position and job title due to her being degree educated. There are references to complaints from other members of staff, money stolen from safe and missing from daily cash sales. It was stated that the claimant had been spoken to many occasions regarding being late for work. There was reference to CCTV cameras showing that the claimant started late or finished early on a number of occasions. There are no CCTV cameras inside the premises and I do not accept that it was shown that that the claimant did not work the hours for which the payslip was issued.[8]There were references to the claimant causing unrest between the staff and other matters was said to be a result of the claimant’s behaviour. The respondent has also referred to money that should have been left in the petty cash tin in respect of a footstool and the claimant not following company procedures for handling incoming cash or staff benefits.[9]Section 13 of the Employment Rights Act 1996 provides as follows: “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 the 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.”[10]In this case it was not shown that there was statutory provision or provision of the claimant’s contract which allowed for the deduction of wages. The claimant did not provide written agreement to the deduction.[11]In those circumstances, having considered all the written evidence and submissions, I am satisfied that the claim for unauthorised deduction from wages is well founded and succeeds. The amount of the deduction being in the unpaid wage slip. The respondent is ordered to pay the claimant, the net sum of £1,616.04