Mrs G Harris and others v A.K. Hull Ltd: 1806404/2020 and others
JUDGMENT
[1]The respondent has made unlawful deductions from the claimants’ wages from 1st August 2020 to 31 May 2021 when they were furloughed. The claims made pursuant to section 13 of the Employment Rights Act 1996 succeed and the respondent is ordered to pay each claimant the wages properly payable in the furlough period in the amount set out in the table below. The total gross sum of unpaid wages is £60,574.78.[2]Pursuant to section 12A of the Employment Tribunals Act 2016, the respondent is also ordered to pay a financial penalty of £20,000 to the Secretary of State. Further information about the financial penalty is annexed to this judgment. Claimant Gross sum Gail Harris £15,961.85 Lauren Harris £4,799.75 Lisa Wadsworth £9,398.89 Pauline Shores £5,440.88 Susan Ayliffe £10,888.20 Janet Mallory £2,468.21 Janice Jackson £8.664.27 Ilene Taylor £2,948.73REASONS
[1]By a claim form presented on 15 October 2020, the 8 claimants brought complaints of unpaid wages and outstanding holiday pay against four named respondents A.K. Hull Ltd (R1); Mr A. Thangarajah (R2); Mr A. Kalamohan (R3) and Mr V. Paskar (R4). At a preliminary hearing on 2 February 2021 the claimants agreed the ‘employer’ A.K. Hull Ltd was the correct respondent to the claim the legal entity liable to pay unpaid wages and holiday pay to the claimants. By consent the claim made against the individual named respondents was dismissed leaving Ak Hull Ltd as the sole respondent.[2]The individual named respondents (R2 R3 R4) had at different times during the claimants’ employment been the sole directors and shareholders of AK Hull Ltd a limited company operating general convenience shops in Hull.[3]R2 was the sole director from 2018 until 20 March 2020. R4 was appointed as director on 20 March 2020 and resigned the same day. R3 was appointed as sole director on 21 March 2020 and resigned on 1 September 2020. Mr Paskar (R4) became the sole director on 1 September 2020 and continues to be the director with significant control of the company and the sole shareholder. The last set of company accounts filed for AK Hull Ltd were filed on 30 April 2021 for the financial year ending 31 July 2020. They were prepared by Amity Accountants and were signed by Mr Paskar. The next accounts are due in April 2022.[4]By a claim form presented on 15 October 2020, the 8 claimants brought complaints of unpaid wages having been furloughed by AK Hull Ltd in April 2020. The claimants had been paid 80% of their wages under the scheme from April 2020 up to June 2020. However, from 1st August 2020, the claimants were not paid any wages by the respondent even though HMRC continued to pay the respondent the furlough payments during this period. The respondent unlawfully and without good reason withheld their wages and has made for 10 months causing them to suffer severe financial hardship, worry and stress. Additionally, for the leave years ending 31 March 2020 and 31 March 2021 the claimants had not been paid holiday pay. Mrs Harris also claimed the respondent had made unlawful deductions by failing to pay the employer pension contributions from April 2020. All the claimants continue to be employed by the respondent. If their wages are not paid correctly in June 2021, a further claim will be made.[5]On 12 November 2020, Mr Paskar submitted an ET3 response on behalf of the respondent accepting responsibility for the payment of claimants’ unpaid wages. Mr Paskar asserted facts that “furlough had been applied for and upon receiving the funds the wages will be transferred”. This was untrue. HMRC publish records which show the respondent had received furlough grants from HMRC from April 2020 to 31 March 2021 for the payment of the claimants’ wages which the respondent should have promptly transferred to the claimants’ bank accounts under the Coronavirus Job Retention Scheme (CJRS).[6]Mr Paskar was the sole director of the respondent and had significant control of the company finances. When he submitted the response in November 2020 he knew or ought to have known ‘funds’ had already been received from HMRC and those funds had not been transferred to the claimants August 2020. The ET3 response he completed on behalf of the respondent was deliberately misleading.[7]At a telephone preliminary hearing on 2 February 2021, the claimants’ confirmed to the