Mr C Pickles v Northern Trade Windows (Pennines) Ltd: 1805883/2022
JUDGMENT
[1]The proper name of the respondent is Northern Trade Windows (Pennines) Limited.[2]The claim for notice pay is dismissed.[3]The claim for holiday pay is dismissed.[4]The claim for wages for the period 12 April 2022 to 15 April 2022 is dismissed.[5]The claim for wages for the period 29 August 2022 to 2 September 2022 is dismissed.REASONS
Claims 1.1. No notice pay. 1.2. No holiday pay. 1.3. Unauthorised deduction of wages (two claims). 1 ph outcome re case management Nov 2014 versionClaims
[2]Issues The issues in this case relate to: 2.1. No notice pay - whether in fact the claimant was entitled to notice pay. 2.2. Holiday pay - whether the claimant was in fact paid his holiday pay. 2.3. Unauthorised deduction of wages - whether the claimant was in fact paid his wages which are the subject of the claim.[3]The law The Tribunal has to have regard in relation to the notice claim section 86 Employment Rights Act 1996 whereby notice is required to be given by an employer to terminate the contract.[4]Facts The Tribunal having carefully reviewed all the evidence given by the claimant (both oral and documentary) before it finds the following facts (proved on the balance of probabilities): 4.1. The claimant was employed as a delivery driver from 12 April 2022 until he resigned on 31 August 2022. The claimant admitted that he had resigned. 4.2. The claimant has claimed three days holiday pay but during the course of the hearing admitted that he was paid this holiday pay on 4 November 2022. 4.3. The claimant claimed unauthorised deduction of wages for the period 22 August 2022 until 26 August 2022 but during the course of the hearing admitted that he was paid for this period. Instead he substituted a claim for what he called a week in hand for the period 12 April 2022 until 15 April 2022. He admitted in cross-examination that he was in fact paid for this period (see pages 39, 40 and 41 of the bundle of documents). 4.4. The claimant claimed unauthorised deduction of wages for the period 29 August 2022 to 2 September 2022. He admitted that he did not work on 1 September 2022 or 2 September 2022 and that in fact he had resigned on 31 August 2022. He further admitted that he was paid for the period 29 August 2022 to 31 August 2022 on 4 November 2022. 4.5. In the event the claimant admitted that he did not have claims for holiday pay and/or unauthorised deduction of wages and was not entitled to notice pay.[5]Determination of the issues 5.1. It was clear at the end of the claimant’s evidence that his claims and indeed all of them had no substance and before the respondent opened its case the Tribunal had dismissed each and every claim. 5.1.1. The claim for notice pay because the claimant terminated his contract. 5.1.2. The claim for holiday pay because he had been paid. 2 ph outcome re case management Nov 2014 version 5.1.3. The claims for unauthorised deduction of wages because he had been paid.Claims
[1]Issue Whether the claimant is liable for a Preparation Time Order. If so he shall be ordered to pay the same.[2]No Attendance by the Claimant The claimant did not attend the hearing and was telephoned by the clerk in order to enquire as to his whereabouts. The claimant stated to the clerk that he did not know anything about the hearing. This is despite the fact that notice of hearing was served upon him by email to his correct email address. It was clear from the conversation that the claimant did not wish to attend the hearing.[3]Individual Voluntary Arrangement (IVA) 3.1. At the outset of the hearing the respondent informed the Tribunal that the claimant was subject to an IVA. It was made on 8 February 2022 and not discharged. The Tribunal has power to deal with the respondent’s application withstanding the IVA.[4]The respondent’s case for a Preparation of Time Order 4.1. The claimant conducted the case unreasonably. This is evident from the Judgment in the case given on 14 February 2023, because the claimant was claiming four sums of money which he had already received from the respondent and he admitted that accordingly. 4.2. The Judge has a discretion in the case of whether or not to grant a Preparation Time Order. 4.3. When the claimant filed his claim he was aware that he had no reasonable prospect of success. 4.4. The respondent submitted a schedule of costs in its application and bundle. The hourly rate pursuant to Rule 79(2) of the Employment Tribunal Rules (Rules) is £43 per hour. The Tribunal dealt with the schedule as follows: 4.4.1. Initial resistance of claim - £34.40. 4.4.2. Preparation of the response. The claim of 3 hours 34 minutes is too much. One hour is allowed of £43.00. 4.4.3. Preparation of the response. This is a duplicate of 4.4.2 – nil. 4.4.4. Coming on record – not applicable. 4.4.5. Reviewing case file - £43.00 4.4.6. Discussion with the client - £32.25. 4.4.7. Preparation - liaison with client - £129.00. 4.4.8. Preparation for the final hearing - £43.00. 4.4.9. As 4.4.8 - £64.50.. 4.4.10. Not applicable 4.4.11. Grand total of the respondent’s claim £389.15.[5]Determination of the Issue (after listening to the factual and legal submissions made by and on behalf of the respondent): 5.1. The Tribunal accepts that the claimant had undischarged IVA. He has provided no other evidence of his means. He says he is on Universal Credit, which covers rent and council tax, and that he has a three year old child, but there is no evidence of these or of his partner’s means. The Tribunal can take into account the IVA. 5.2. Having regard to Rule 76(1)(a) of the Rules I consider that the claimant has acted unreasonably in pursuing a case without merit. 5.3. Having regard to Rule 76(1)(b) of the Rules, for the same reason set out in paragraph 5.2 above, the claim had no reasonable prospects of success. 5.4. Having regard to Rule 75(2) of the Rules I am satisfied that whilst the respondent was not legally represented time was spent by the respondent in working on the case as set out at paragraph 4.4 above. 5.5. With regard to Rule 79(1)(b) of the Rules I have decided what I consider reasonable and proportionate to spend on preparatory work with reference in particular to the lack of complexity of the proceedings. 5.6. With regard to Rule 84 of the Rules the Tribunal may have regard to the claimant’s ability to pay. The claimant has raised this in an email of 24 April 2022 no evidence has been submitted in support although the Tribunal can take into account the fact that there is an undischarged IVA. 5.7. I have considerably reduced the respondent’s original claim of £829.90 on the grounds of proportionality. Whilst the claimant has raised the ability to pay in his email of 24 April 2022, no evidence has been submitted in support but the Tribunal can take into account the fact that there is an undischarged IVA. 5.8. I have reduced the respondent’s claim and although I take into account the IVA I do not exercise my discretion to reduce the claim further on the grounds of ability to pay. 5.9. I do not reduce the claim further for a number of other reasons. The claimant raises his mental health but provides no evidence about it and I cannot see that this has any bearing on the hearing. I take into account the claimant’s conduct of his claim and his failure to attend today, which from a discussion with the clerk, who had to call him, was deliberate, not even having the courtesy to inform the Tribunal that he was not attending. He even stated that he did not know anything about the hearing. It is clear that the notice of hearing was sent to his correct email address. 5.10. For all these reasons the claimant is ordered to pay a Preparation Time Order in the sum of £389.15.