Mr N Perry v Marshall Morrison Ltd: 1802974/2020
JUDGMENT
The complaint that the Claimant was unfairly dismissed is struck out.REASONS
[1]The Claimant complains of unfair dismissal.[2]Section 108 of the Employment Rights Act 1996 requires a Claimant to have not less than two years’ service to make an unfair dismissal complaint.[3]The Claimant was employed by the Respondent for less than two years.[4]Therefore the Claimant is not entitled to bring such a complaint.[5]The Claimant has failed to give a reason, despite being given the opportunity to do so by the Tribunal’s letter of 12 June 2020, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The Claimant’s other complaints are not affected by this Judgment. Employment Judge Cox Date: 18 August 2020 Case No:1802974/2020(V) 1 / EMPLOYMENT TRIBUNALS Claimant: Respondent: Mr Nigel Perry Marshall Morrison Ltd Heard at: Leeds (By CVP Link) On: 04 December 2020 Before: Employment Judge R S Drake Representation: Claimant: In Person Respondent: Mr A Morrison (Director) JUDGEMENT 1. The Claimant has established that he was a “worker” as defined in Section 230 of the Employment Rights Act 1996 (“ERA”) and thus entitled to unpaid wages unlawfully withheld from his pay contrary to Section 13 ERA for the period 1 April 2020 to the date of termination of his engagement with the Respondents on 9 April 2020 in the sum of £664,61, and also for 18.5 days untaken holiday for the purposes of Regulation 13 of the Working Time Regulations 1998 (“WTR”) as at that date in the sum of £1380.92. Thus, the Claimant is entitled to and the Respondents shall pay to him the total sum of £2,045.53 to which extent his claims succeeds. 2. The Claimant has not established that he was engaged as an employee as defined by Section 30 ERA and thus his claim for notice pay as an employee fails and is dismissed. COVID-19 Statement on behalf of Sir Keith Lindblom, Senior President of Tribunals. This has been a remote hearing. The parties did not object to the case being heard remotely. The form of remote hearing was V - video. It was not practicable to hold a face to face hearing because of the Covid19 pandemic. Case No:1802974/2020(V) 2 /Findings of Fact
[7]The Claimant’s withheld pay complaint is framed under Section 13 of the Employment Rights Act 1996 (“ERA”) which provides as follows: - “(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 workers contract, or –(b) the worker has previously signified in writing her agreement or consent to the making of the deduction …”[8]Regulations 2 and 13 of the WTR provide as follows; - “2(1) “worker is defined a being … an individual engaged under a contract of employment or under any other contract to perform work personally …” and - “13 a worker is entitled to annual leave and pay therefor …”[9]The Claimant had first to establish non-payment to him of his monthly salary and the quantum thereof. Throughout these proceedings it has been common ground that the Respondents accept that they did not pay to the Claimant any pay accrued for the month of April 2020, nor any pay in lieu of notice as at the date of termination of his engagement.[10]In the absence of rebuttal evidence from the Respondent today, I am able to accept the Claimant’s evidence about this aspect of his claim in full. However, he has not established he was an employee because he has not established that there existed a “mutuality of obligation” (as required pursuant to case law as expressed in the HL decision of Carmichael v National Power [1998]) on his part to work, nor an obligation on the part of the Respondent to provide work. He has not established he was a part of the Respondent’s establishment nor that he had a contract of “employment” as such.[11]I find that the Claimant has established on the facts found that he was obliged to provide his services personally (again my emphasis) and that he was not free to render such services by a substitute or by any means other than personally. Thus, I find that for the purposes of Section 230 ERA he was engaged to provide personal services and was thus a “worker” as defined by S 230 ERA.[12]I find that the Claimant did not take any holiday during the period of his engagement by the Respondent, but that because he can be treated as a “worker” as defined by Regulation 2 of WTR, he is entitled to holiday and/or Case No:1802974/2020(V) 5 / to pay for holiday not taken.[13]Therefore, I find that the Claimant's claim to be a worker, if not an employee, is well founded and that he is entitled to be paid any unpaid wages and for pay for holiday not taken. His claims for and the calculation of the value of his claims in this respect are unchallenged and are therefore well founded.[14]I award the Claimant Judgement for unpaid wages for the period of 1 to 9 April 2020 in the sum of £664.61 to which extent his claim in this respect succeeds.[15]Further, I find that as a “worker” he is entitled to be paid holiday pay for holiday not taken to be well founded and that he is entitled under this head to Judgement in the sum of £1,280.92. Therefore, his claims for the total to which he is entitled is £2,045.53 and is well founded, so I award him Judgement for this total sum. His claims to pay in respect of notice were dependent on him establishing he was an employee which claim fails.