Mr V Buzila v Frank London Ltd: 2200005/2018
JUDGMENT
The respondent is ordered to pay the claimant £946. 46 for wages due.REASONS
[1]This is a claim for unpaid wages by a chauffeur employed by the respondent, being an underpayment in September 2018, and no payment at all in October 2018.[2]The respondent defends the claim on the basis that they were authorised to make deductions from wages that exceeded the amount due. The deductions are for parking tickets while the claimant was in charge of the vehicle, and for the cost of damage to a Bentley car.[3]The Employment Rights Act section 13 provides: “in this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion. (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. …… (5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.[4]Summarising this, for a deduction to be lawful, it must have been authorised by the worker in writing before the event giving rise to the deduction occurred.[5]The claimant was not paid wages for 1-10 October 2018. Nor was he provided with a payslip setting out the deductions. No payslip was available to the tribunal.[6]Section 8 of the Act provides that employees are Section entitled to an itemised pay statement when paid. This must contain particulars of the gross amount wages or salary, and the amount of any variable deductions from that gross amount, and the purposes which they are made. If this is not done, and employee can refer this to an employment tribunal which can make a declaration of missing particulars, and may alos order the respondent to “pay the employee a sum not exceeding the aggregate of the unnotified deductions” – section 12 (4).[7]The claimant has not made such a reference, but I note that Parliament considered unnotified (even if lawful) deductions to be so serious that a defaulting employer could be ordered to pay them back.Evidence
[8]To decide the claim I heard sworn evidence from the claimant, Valentin Buzila, and from the respondent’s assistant manager, Guzem Demirler. There were no written witness statements. I also read the documents copied to the Tribunal with the response form, and 8 pages of WhatsApp messages from the claimant. I was shown on the parties’ telephones the letter of dismissal and the claimant’s reply.[9]Some of the respondent’s evidence included WhatsApp messages in Turkish. The claimant (who is Romanian) does not speak or read Turkish, they had not been translated, and no neutral interpreter was present.[10]Mr Abdullah Yesildag, one of the company’s directors was present, and his evidence was relevant on one disputed issue. He declined to give evidence. This may have been because his command of English is limited. I did not permit Ms Derinyer, his employee, to interpret for him and it was not right for the tribunal to rely on a partial translation, or what be thought to be partial or misleading translation.Findings of Fact
[11]The respondent is a small company providing cars with drivers. The claimant started work on 21 September 2018.[12]On 25 September he signed a written contract and also initialled as read a 6 page chauffeur standard conduct policy.[13]The contract of employment provides a salary of £30,000 per annum for a working week of 66 hours and includes the opt out from the working time regulations maximum of 48 hours per week. Time worked over 66 hours is paid at £15 per hour.[14]Clause 6 is headed “deductions” and states: “we shall be entitled to deduct from salary or other payments due to you any money which you may owe us resulting from a breach of this agreement”.[15]Clause 11 of the chauffeur standard conduct policy states: “you shall ensure compliance with the Highway code and all road traffic laws. You shall also ensure compliance with all local laws and regulations relating to chargeable ingestion zones, car parks, parking bays and areas. You shall not incur any fines and charges or cause us or the vehicle to incur the. If so committed then you shall be liable to pay them, and any costs associated with them.”[16]There was also a vehicle policy, signed by the claimant on 25th of September. It covers vehicles assigned to employees which could take home, but was not otherwise for personal use. It states “I accept responsibility for misuse of the vehicle and understand that I will be held accountable or replacement or repair costs in the event of loss or damage. I agreed to return the car in good condition”.[17]All vehicles could be taken home, except the respondent’s two Bentleys. For insurance reasons these were kept in a secure car park at Westfield shopping centre and were taken out when there was a booking and then returned there. The claimant was allocated a Mercedes car for his normal duties.[18]At the end of September the claimant was paid £576.92. This is the gross and net figure, as both tax and national insurance were stated as nil. From 21 to 30 September is 10 days, in a 30 day month, so the expected salary is £2,500 x10/30, or £833. The claimant’s national insurance number is shown, and the tax code is 1185L. The respondent was unable to explain the calculation, saying it was prepared by the accountant. The annual salary when divided by 52 is £576.92 so the accountant may have reckoned that the claimant was owed one week’s pay, but as he worked on 21 September, a Saturday, he worked one week 2 days, for which the pay is £807.69. The claimant believed the missing money represented the statutory deductions for tax and national insurance.[19]He had advised at interview that he had to take holiday from 11-22 October. It was agreed he could take unpaid annual leave for this purpose. His last working day was 11 October. While he away the employment was terminated.[20]The dismissal letter refers to a meeting on 3 October 2018 to discuss performance, and it was explained in tribunal that this related to an earlier incident when he was chauffeuring the sales manager (Gabriel) and it is alleged that due to a delay picking up a hotel concierge the respondent lost a potential order for that hotel’s business. The tribunal does not have to decide if that was true or fair. The letter then goes on to say that on 11 October 2018 it was discovered that there were multiple parking tickets for his vehicle, and that, an unspecified date in October, the Bentley “was identified” to have scrapes and scratches to a wheel rim, and a missing steering wheel adjustment button.[21]The claimant replied by email on 15 October 2018 the dismissal letter. He stated that he forgot to let them know about the Westminster parking ticket; and when he returned he hoped to talk to them about the letter. The respondent replied that the contract finished it. There was no meeting.[22]On 2 November the claimant contacted the respondent about his November wages. He asked for his payslips and for evidence of the amounts of the deductions but was only sent the September payslip. The respondent did not itemize the deductions. The parking ticket value is identified on the response to the claim, but not the vehicle damage. Parking Tickets[23]On the parking tickets, the respondent’s evidence was that drivers were told to park where they could, and not to be fined.[24]The first ticket was for parking near the claimant’s home in Haringey on the 22 or 23 September. It is unclear when because the ticket was not provided. On Saturday 21 September claimant drove a Bentley, which was returned to a secure garage, and he then was asked to take a Mercedes home. His next job was at 10 a.m. Parking restrictions start at 8 a.m. There must have been a conversation with Yassin as messages between them showing Yassin telling the claimant parking would be free that day and the next (presumably Saturday and Sunday). When he got the parking ticket he told one of the directors, Yassin, that this was likely to recur as he did not have a resident’s parking permit. He was told to start his working days at 8 a.m. instead, to avoid the difficulty. This tends to suggest the ticket was dated before the contract was signed on 25 September. The ticket went unpaid. After the termination of employment the respondent paid £130 for this.[25]There is a ticket for parking in Camden on 26 September 2018. The claimant agrees he is liable for this, as he stopped for coffee. The respondent paid £130 (because paid late, otherwise £65).[26]There is a third ticket for parking in Westminster on 9 October. Claimant says this is because he was asked to wait in Tavistock Street or a customer at the London Waldorf hotel. There is a WhatsApp message from control saying “tomorrow you can start at 8 as usual and go to Waldorf Hilton directly and stand by there. Park on Tavistock Street when waiting on standby”. Ms Derinyer said she had been away on leave that day, but that if there was no parking place on Tavistock Street he should have spoken to the hotel concierge who would find him a reserved space. This was not put to the claimant, but added after he had given evidence. Vehicle Damage[27]The claimant says that when he returned his Mercedes car on 10 October he went round it with the Head Chauffeur, Ozman, and Mr Yesildag, and showed him the tickets in the glove box. This is denied. The respondent says if that had been the case they would not have had to ring every borough in London to check if there were any tickets against the vehicle registration. The respondent says another driver told them on 11 October two tickets had fallen from the claimant’s pocket on an earlier occasion.[28]The damage to the Bentley is valued at £430.29 to replace the steering wheel adjustment button – Jack Barclay invoice 23 November 2018 (2 other items are on the repair invoice not attributed to the claimant, as one appears to be a maintenance problem and the other caused by an earlier faulty repair). There is quotation for replacing a front tyre and wheel rim from PR mechanical for ££2,967.47, including £2,450.89 for the rim, £381.58 for a tyre, £4 for a repair kit and £50 labour. The respondent as not had this work carried out.[29]The two Bentleys were kept at Westfield when not on a job. The respondents kept no written record of handover. The head chauffeur checked the vehicles from time to time. He did not have an office at Westfield. I was not provided with any record of when the Bentley in question was out on a job or which driver that was. The claimant drove the vehicle on 4 and 5 October and left it at Westfield at towards 10pm on the first day and took it out again for a 5 am start on the second day. In oral evidence Ms Debinler said Mr Yesildag had just told her (in Turkish) that the damage was occurred or was found on 9 October. Discussion and Conclusion[30]The claimant is owed £230.77 (£807.69 - £576.92) for September 2018.[31]For October 2018 he worked 10 days, so is owed another £807.69. The WhatsApp messages show him being told by the controlller he is to have 2 hours overtime _on 4 October and 3 hours the following day. At £15 per hour this adds £105 to gross wages, so the October total is £912.69. For both months the amounts due are £ 1,143.46.[32]What of the deductions? The Haringey ticket on balance of probability predates the signing of the contract and so by section 13 cannot lawfully be deducted. The claimant does not dispute the Camden ticket and that should be deducted. The Westminster ticket is hard to understand as the claimant’s liability when he was specifically instructed to wait in a street subject to parking restrictions, and on the limited evidence available (being told after that he would be added to the Waldorf Whatsapp group) he had not been to the Waldorf before. If there was an arrangement with the concierge to use pre booked spaces there is no evidence he was told about it. On the other hand the claimant did not query what would happen about parking, and he was by contract liable for parking fines.[33]I find the respondent is entitled to deduct the £130 for Camden and the £65 for Westminster.[34]On the vehicle damage, the claimant stoutly denies he is responsible for either the steering wheel adjustment button (which is inside the car), or the wheel rim. The car was driven by different drivers. There is no record of faults or damage inspections or who drove the car when. It is damage that could have occurred at any time. It is not said when the steering wheel button’s absence was noted, and it could have only been noted when it went for repair on another problem. The wheel damage is said to have been reported by the head chauffeur on 9 October, and the claimant could have been asked about it then or on 10 October, but was not. Nor was he asked about it later or given an opportunity to question it before starting these proceedings. On the evidence, and bearing in mind that by law the respondent was required to notify the amounts deducted and the reasons for doing so, the respondent has not shown that the damage was caused by the claimant. It would not be lawful to deduct either sum from his wages.[35]Consequently there is judgment for the claimant for £948.46.[36]The respondent cannot make PAYE deductions as the claimant is no longer employed and in any case there is a new tax year. It is for the claimant to declare the money for tax when paid.[37]I hope that the respondent will take heed from this judgment the importance of providing a payslip even when no payment is made, especially when the reason for that is that deductions (even authorised deductions) are being made from pay otherwise due.