Ms M Balazova v Commissioners for HM Revenue and Customs: 1803698/2022
EMPLOYMENT TRIBUNALS
Case No 1803698/2022
Between
Ms M BalazovaClaimantCommissioners for HM Revenue and CustomsRespondent
Before
Judge SillsIn person for claimantMr McClean for respondentDate 18 May 2023
JUDGMENT
The Respondent made an unauthorised deduction from the Claimant’s wages of £211.58 (gross). The claim for detriment under s45A(1)(b) of the Employment Rights Act 1996 is dismissed. Oral reasons having been given at the hearing and written reasons not requested at the hearing, written reasons will not be provided unless they are asked for by a written request presented by any party within 14 days of the sending of the written record of the decision. Tribunal Judge Sills Sitting as an JUDGMENT having been sent to the parties on 18 May 2023 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 Claimant brings claims for unlawful deduction of wages contrary to Section 13 of the Employment Rights Act 1996 and detriment under Section 45A(1)(b) of the Employment Rights Act 1996 for refusing to forgo a right to annual leave under the Working Time Regulations 1996. The Claimant worked for the Respondent as a Customer Service Consultant from 12 November 2018 until 18 April 2022.[2]The Tribunal Order of 5 December 2022 set out the following issues to be determined: Unauthorised deduction from wages The parties agree that the Respondent made a deduction of £330.94 from the Claimant’s final instalment of wages on 29 April 2022. The Claimant alleges that this amounts to an unauthorised deduction from her wages, contrary to Section 13 of the Employment Rights Act 1996. The issues are: 1. Was this an excepted deduction, in being a reimbursement of an overpayment of wages? (The Respondent’s case is that the Claimant had been overpaid her wages because she had taken in excess of her flexi-leave entitlement) and/or 2. Was the deduction in any event authorised under a relevant provision of the Claimant’s contract? (The Respondent’s case is that it was.) Detriments The Claimant alleges that she has been subjected to various detriments done on the ground that she challenged whether the Respondent had correctly recorded her leave entitlement. This could amount to a breach of Section 45A(1)(b) of the Employment Rights Act 1996, which makes it unlawful to subject a worker to a detriment because she had refused to forego a right to annual leave under the Working Time Regulations 1996. The detriments are:[1]In March 2022 Zahoor Baber and John Morton failed to respond to the Claimant’s emails querying her leave record and failed to take into account the evidence she provided to show that the Respondent’s calculation was wrong.[2]After a meeting in March/April 2022 at which the Claimant queried her leave record and provided evidence to show that the Respondent’s calculation was wrong, Katie Haigh told the Claimant that her calculation was wrong and wrote to her saying that she had fraudulently recorded her leave.[3]The Respondent’s HR Department failed to respond to the Claimant’s queries of 1 April and 4 May 2022 about her leave record and did not take her complaints seriously.[4]On 29 April 2022 the Respondent deducted £330.94 from the Claimant’s wages. Procedure, Documents, And Evidence Heard 3. The parties had agreed a bundle of documents of 342 pages. In the course of the hearing, I decided to admit as evidence one further document, namely minutes from a meeting that took place on 11 February 2022. 4. At the outset of the hearing, the parties confirmed their agreement that the issues set out above were the issues to be determined in this claim.[5]I heard evidence from the Claimant and from Ms Haigh. I then heard submissions from Mr McLean and the Claimant. I then gave judgment finding that the Respondent had made an unauthorized deduction from the Claimant’s wages of £211.58 gross. I dismissed the claim for detriment. Judgment was sent to the parties the same day. The Claimant subsequently requested written reasons which I now provide. Factual Background[6]The Claimant worked full time from the start of her employment on 12 November 2018 until 14 October 2019 when she reduced her hours to 24 hours per week, 8 hours each on Monday to Wednesday. On 13 April 2020 she changed her working pattern to 6 hours each day Tuesday to Friday. An issue arose in late 2021, when it came to light that the Respondent’s SAP system, the system used to record the working hours and holiday entitlement of employees, had not been updated when the Claimant changed her working pattern. This meant that the calculation of her leave taken was incorrect. The Respondent was also concerned about the way in which the Claimant was taking public and privilege holidays (PPH). This led the Respondent to review and recalculate the Claimant’s leave and entitlement from the outset of her employment. The Respondent raised concerns with the Claimant about how she was taking PPH leave in January 2022. The Respondent informed the Claimant that her leave entitlement had been recalculated in February 2022 and this was confirmed in an email on 2 March 2022.[7]On 18 March 2022, the Claimant gave notice of resignation with her employment terminating on 18 April 2022. The Claimant disputed the Respondent’s calculation of her remaining leave entitlement in an email on 22 March 2022.[8]The Respondent’s Jill Snap then carried out a further review of the Claimant’s leave entitlement in early April 2022. The Claimant’s final pay included a deduction of £330.94. This was based on the Respondent’s calculations of the annual, flexi, and PPH leave taken by the Claimant and on the basis that the Claimant had a flexi leave debit of 30.8 hours. The Claimant complained about this on 4 May 2022. The Respondent responded to the complaint on 13 July 2022 maintaining the previous calculation. Unlawful deduction of wages
The Law
[9]S13(1) Employment Rights Act 1996 states: 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. Findings[10]The Claimant does not dispute that Respondent was entitled under the contract to make deductions from wages. The Claimant does not dispute that some deduction should have been made. However, the Claimant disputes the amount of the deductions. Ultimately this is a dispute about how much annual leave the Claimant took. The Claimant’s case is the Respondent has incorrectly recorded time as annual leave, and this led to unlawful deductions from her wages as a result. The Claimant’s case is that she has evidence in the form of flexi sheets to show that some of the time taken as annual leave was actually taken as flexi leave. The Respondent's case is that having corrected the SAP and consulted various records and raised concerns about the accuracy of the Claimant’s records, they calculated leave taken on the basis of entries made by the Claimant and their records.[11]The Respondent has submitted a significant number of time-recording sheets from various systems with sometimes conflicting date. Ms Khanum was the first person tasked with re-assessing the Claimant’s annual leave entitlement in late 2021. Her email of 17 December 2021 states ‘it has not been an easy task’. This reflects the fact that there is some contradictory information in the documents provided by the Respondent. I formed a generally positive view of the credibility of both witnesses who gave evidence. That said, it is understandably difficult to recall the precise type of leave that was taken on a particular day several years ago. The Claimant has challenged a number of specific deductions as set out in her witness statement which I deal with in turn. Period 12 November 2018 to 31 October 2019[12]The Claimant disputes the recorded leave taken of 1 hour on 6 December 2018. The Claimant states that she took 24 minutes flexi leave that day. The records produced by the Respondent at p55 states 1 hour leave was taken. However, at p58 it states 7.4 hours taken (a day). There was no adequate explanation for this anomaly in the Respondent’s own records. The Claimant at p129 has produced the flexi time sheet for that day. This shows that she worked 7 out of 7.24 hours day. The flexi sheet is the most clear and detailed evidence of what happened that day, so I accept that. It follows that the deduction of 1 hour’s wages was incorrect and so unlawful.[13]The Claimant disputes the recorded leave of 0.3 hours taken on 7 August 2019. The Claimant states that this was flexi leave, not annual leave. The Claimant was able to provide no contemporaneous evidence to support her claims in relation to this deduction and so I do not accept her claim and find that the Respondent’s record in this respect is more likely to be accurate. I find that the Claimant took 0.3 hours annual leave that day. I therefore accept that the deduction made by the Respondent based on records held and so was correct and lawful.[14]The Claimant disputes the record that she took 6 hours annual leave on 28 October 2019. The Respondent states that 6 hours was not recorded as required. P167 is a flexi time sheet showing that the Claimant recorded taking 8 hours flexi leave that day. I accept this evidence of what the Claimant did that day. I am therefore satisfied that the 6 hour’s wages deduction was incorrect and so unlawful. Period 1 November 2010 to 31 October 2020[15]The Claimant disputes taking 2.5 hours annual leave on 24 December 2019. She states that she took flexi leave. The record on p332 records this as annual leave, as does p90 and p59. I am thus satisfied that the Claimant took annual leave for 2.5 hours that day and so there was no unlawful deduction.[16]The Claimant disputes taking 2.5 hours annual leave on 31 December 2019. She states that this was flexi leave not annual leave. The Respondent’s records at p90 record the Claimant taking flexi leave only on that day. The Respondent’s record at p89 records the Claimant taking flexi leave and annual leave that day. In view of the conflicting evidence produced by the Respondent, I accept that the Claimant took flexi leave that day. Hence 2.5 hours’ wages deduction was incorrect and unlawful.[17]The Claimant disputes taking 6 hours annual leave on 2 July 2020. The Claimant has produced her flexi time sheet for that period, showing she recorded taking 6 hours flexi leave that day at p342. In view of that evidence, I accept that the Claimant took 6 hours flexi leave that day, and so the deduction of 6 hours’ wages was incorrect and unlawful.[18]The Claimant disputes the record that she took 6 hours annual leave on 8 April 2020. The Claimant states that she used time accrued from the bank holiday falling on Friday (10 April) on the preceding Wednesday, as Friday was a non-working day and that this was approved by her team leader Maria Ali. There are a number of problems with these claims. First, the Claimant has provided no evidence that this was approved. Second, I accept that the Respondent’s policy was that time accrued on a bank holiday that falls on a non-working day cannot be used in advance of that bank holiday (see e.g., the email of 4 January 2022 from Ms Khanum to the Claimant at p81). Third, given the Claimant’s working hours at the time, the most that the Claimant would have been entitled to claim would have been 4.8 hours. In view of these matters, the Claimant has therefore not established that the Respondent was incorrect to record this time as annual leave. Hence there was no unlawful deduction from her wages. 1 November 2020 to 31 August 2021[19]The Claimant does not dispute any of the recorded annual leave in this period. 1 September 2021 to 18 April 2022[20]The Claimant disputes taking 3 hours annual leave on 27 October 2021. She states that she requested leave on this day, but it was refused by a Mr John Morton. The Claimant referred me to p214 which makes no reference to her taking leave on that day. I therefore find that the Claimant did not take leave that day. This deduction for 3 hours wages was incorrect and unlawful.[21]The Claimant also claims that her entitlement to PPH days had been incorrectly calculated in the final year of her employment. There were three public holidays in 2022 prior to her leaving her employment, for New Year, Good Friday, and Easter. That amounts to 14.4 hours PPH (3 x 4.8). She states she took only 6 hours of this, on Good Friday, leaving 8.4 hours outstanding.[22]I have considered the records. On her own account she then took 6 hours PPH on 14 April 2022, leaving 8.4 hours outstanding. The records at p57 show that on 5 January 2022 the Claimant took 4.8 hours PPH leave and 1.2 hours annual leave, leaving 3.6 hours outstanding. The Claimant was given a credit for 2.4 hours by the Respondent. That leaves 1.2 hours PPH leave accrued but untaken. That should have been deducted from the outstanding balance. Hence on that basis there was an unlawful deduction of a further 1.2 hours’ wages.[23]In view of the above, when giving judgement, I calculated the Claimant’s taken annual leave and flexi leave to have been incorrectly overstated by 19.7 hours, with an hourly wage of £10.74 that meant an unlawful deduction of £211.58.[24]However, on giving judgment, the Claimant drew my attention between the anomaly between p57 which I relied upon, and p56, which sets out a summary of the Respondent’s calculations. P56 records that on 5 January 2022 the Claimant took 4.8 hours annual leave. On reflection, I am satisfied that p56 sets out the calculations relied upon by the Respondent in making the deductions from the Claimant’s wages. I am also satisfied that the record for 5 January 2022 on p56 is incorrect, with the correct record being on p57. I am satisfied that on 5 January 2022 the Claimant took 1.2 hours annual leave, and 4.8 hours PPH leave, but that this has been incorrectly recorded as 4.8 hours annual leave. That means the leave taken was overstated by 3.6 hours. Therefore, there was a further unlawful deduction of 3.6 hours’ wages not reflected in the judgment.[25]By counting the Claimant’s PPH as annual leave at p56 on 5 January 2022, I now provisionally consider that there was a further unauthorized deduction of 3.6 hours wages, so £38.66. That would mean that the leave taken was overstated by 23.3 hours, and the total unauthorized deduction would be £250.24.[26]I therefore propose to reconsider the decision on my own initiative under Procedure Rules 70-73. For the reasons set out in the previous three paragraphs, my provisional view is that my judgement understated the unlawful deduction from the Claimant’s wages by £38.66 and so the award should be increased to £250.24. Given the issue to be reconsidered and noting that a three-day hearing has already taken place, I will issue directions giving the parties until 28 July 2023 to submit any written representations in relation to this particular issue alone. Upon consideration of any representations received, I will then decide whether or not to vary my judgment in the manner set out above. Detriment[27]I have set out above the four claimed detriments as confirmed at the outset of the hearing.
The Law
[28]The relevant provisions of the Employment Rights Act 1996 state: 45A.— Working time cases. (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker–… (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,
Findings
[29]The Claimant’s first claimed detriment is: 1. In March 2022 Zahoor Baber and John Morton failed to respond to the Claimant’s emails querying her leave record and failed to take into account the evidence she provided to show that the Respondent’s calculation was wrong.[30]I do not accept this amounted to a detriment done on the ground that the Claimant refused to forgo a right conferred by the Regulations. The Respondent did not fail to respond to the Claimant’s email querying her leave. The Respondent delegated the task of responding to the Claimant to Ms Haigh, who promptly contacted Claimant about this. The Respondent was entitled to delegate the task of responding to the Claimant in this way. Further, there was no detriment in having the matter looked into by someone other than Mr Baber or Mr Morton. I am satisfied that this delegation was not done because the Claimant had refused to forgo a right under the Regulations. It was done simply to process the Claimant’s complaint.[31]The Claimant’s second detriment is: 2. After a meeting in March/April 2022 at which the Claimant queried her leave record and provided evidence to show that the Respondent’s calculation was wrong, Katie Haigh told the Claimant that her calculation was wrong and wrote to her saying that she had fraudulently recorded her leave.[32]I do not accept this amounted to a detriment done on the ground that the Claimant refused to forgo a right conferred by the Regulations. Neither of these actions were taken on the grounds that Claimant refused to forgo a right to annual leave. The issue in dispute was the calculation of annual leave. I accept that Ms Haigh genuinely believed that the Respondent’s calculation was right, based on the examination of the documents by the Respondent, and that it was for this reason that she stated that the Claimant’s calculation was wrong. It is not the Respondent’s case that the Claimant acted fraudulently, and it was inappropriate to use that term. However, I find that Ms Haigh did not say this because the Claimant was refusing to forgo her annual leave entitlement. I accept that Ms Haigh used that term, albeit inappropriately, to express genuine concern that the Claimant’s records were inaccurate.[33]The third detriment is: 3. The Respondent’s HR Department failed to respond to the Claimant’s queries of 1 April and 4 May 2022 about her leave record and did not take her complaints seriously.[34]I do not accept this amounted to a detriment done on the ground that the Claimant refused to forgo a right conferred by the Regulations. It is not right that the Respondent failed to respond to either complaint. The Respondent responded to the first email on 6 April 2022. The Respondent was entitled to send the response to Claimant’s work email address while she was still employed. The Claimant complained that the response of 6 April was not sent to her private email. Even if this is the case, I am satisfied that this was not because the Claimant refused to forgo her right to annual leave, but due to an administrative oversight. In any event, I do not consider that the Claimant suffered any detriment as the response was sent to her work email while she remained employed.[35]While there was a delay in dealing with the May complaint, with the complaint finally dealt with on 13 July 2022, I find that this had nothing to do with the fact that the Claimant refused to forgo a right under the Regulations. I do not accept that Respondent’s HR department failed to take the complaint seriously. I am satisfied that the Respondent investigated the issue after each complaint. While the Claimant disagreed with the outcome, that does not mean that the investigation was not taken seriously. I am satisfied that the delay was for reasons other than the fact that the Claimant had refused to forgo her right to annual leave.[36]The fourth detriment is: 4. On 29 April 2022 the Respondent deducted £330.94 from the Claimant’s wages.[37]I do not accept this amounted to a detriment done on the ground that the Claimant refused to forgo a right conferred by the Regulations. The deduction was not made on the grounds that the Claimant refused to forego a right. I am satisfied that the deduction was made on the basis that the Respondent genuinely believed it was entitled to make the deduction based on the Respondent’s calculations concerning the amount of annual and other types of leave taken by the Claimant by the time her employment ended.[38]In short, I find that nothing done by the Respondent was done on the grounds that the Claimant had refused to forgo any right under the Regulations, and her right to annual leave in particular. I therefore dismiss the claim for detriment. Preparation Time Application[39]In her email requesting reasons for the decision, the Claimant has also sought a preparation time order of 25 hours. No further details were provided. Rule 76 states as follows: 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; [or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins. (2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[40]The Claimant has not set out any basis for why a preparation time order should be made against the Respondent. The Claimant did not raise any significant concerns in the course of the hearing about the Respondent’s conduct in these proceedings. As the Claimant has not identified any basis on which a preparation time order could be made, I dismiss the application for a preparation time order. Directions[41]As set out above, I propose to review the judgment given on 18 May 2022 on my own initiative under Procedure Rules 70-73 on the basis that upon further considered of pp56-57 of the bundle, it appears that there was an additional unlawful deduction of 3.6 hours’ wages amounting to £38.66 to that set out in the judgment. I thus provisionally propose to vary the judgment by increasing the award to £250.24. a. The parties must file any submissions they have on this issue by 28 July 2023. Tribunal Judge Sills, Sitting as an