Ms A Marjanovic v Ms K Sudeck: 2201799/2023
JUDGMENT
[1]The claimant was employed by the respondent as a nanny from September to December 2022. She brought a tribunal claim in March 2023, claiming sick pay, holiday pay and failure to provide itemised pay statements.[2]The itemised pay statements issue arises from the fact that the claimant worked more hours than had originally been envisaged. The offer letter and contract of employment provide for an hourly rate of £15 net of tax for a working week of 30 hours, making the weekly net pay £450. In the event, the claimant worked for 35 hours per week, with weekly net pay of £525, which she was paid each week by the respondent. She was not provided with payslips at the time.[3]After the end of her employment, the respondent asked Nannytax (an agency which provides payslip and other services to individuals who employ nannies) to provide payslips for the claimant. These were supplied but they reflected the original agreement (£450 net per week) not the actual working arrangement (£525 net per week).[4]The case came before EJ Joffe for a hearing on 21 April 2023. The hearing could not progress because the claimant was in Germany and had no permission from the German government to give evidence in a UK hearing. In addition, there had been no exchange of documents, no bundle and no witness statements. EJ Joffe made appropriate orders and the case was listed for a further hearing on 8 June 2023 before EJ Stewart.[5]At that hearing, the parties reached terms of settlement and Judgment was entered, with a stay to allow the terms of settlement to be carried out. The terms of settlement were not recorded but the claimant states that they included provision of corrected payslips.[6]The claimant wrote to the tribunal to say that the terms of settlement had not been complied with and requesting that the claim be reinstated.[7]The case was listed for today and notice of hearing was sent out on 27 September 2023 by email. The respondent received the dial-in details for today’s hearing yesterday and replied to the tribunal saying that she never received the notice of hearing and was unable to attend today’s hearing.[8]The claimant attended and explained that the only issue for the hearing today was the respondent’s failure to provide corrected payslips. There was, therefore, no bundle (albeit various documents had been supplied separately and not within a bundle) and no witness statements.[9]I decided to go ahead with the hearing in the respondent’s absence. This was the third hearing date for this matter and the issue before me could be dealt with on the information I had. I therefore considered it proportionate and in accordance with the overriding objective to hear the case today.[10]I explained to the claimant that I could only consider the issue as it was raised in her ET1. Although she also wanted to proceed on the basis that the claimant had breached the terms of settlement, I explained that this was not itself an issue before me.[11]I find that the respondent failed to provide the claimant with itemised pay statements at or before the time she was paid her wages. The respondent attempted to remedy this by providing payslips shortly after the termination of the claimant’s employment.[12]Having considered the evidence of the claimant’s bank statements which shows that she was paid £525 net a week, I accepted that the payslips, which were based on net pay of £450 per week, were inaccurate and that this meant that it was possible that there had been an underpayment of tax and an underpayment of pension contributions.[13]As the only issue before me is whether the amount included in the pay statement was accurate, in accordance with the provisions of Section 11(3) of the Employment Rights Act 1996 I do not have jurisdiction to determine the particulars which should be included in the payslip.[14]The claimant’s schedule of loss does not identify any loss flowing to her directly from the errors on the payslip. The error may have resulted in an underpayment of pension amounting to £45.45. There is also potentially an underpayment of tax and national insurance. It is not possible to calculate this precisely but tax is likely to be £225 and National Insurance Contributions less than this amount. I was not able to ask the respondent to comment on these sums as she did not attend. I have no jurisdiction to make any orders in relation to these sums.[15]I find that there are no outstanding issues relating to the claimant’s claim, which is now disposed of.