Mr Fairclough Ahammed v 1SA Ltd T/a Subway: 2203538/2019
JUDGMENT
The Claimant’s unfair dismissal claim is not well-founded and is dismissed.REASONS
Preliminary
[1]The Claimant does not have two years’ service as required by s 108(1) of the Employment Rights Act 1996 (ERA 1996).[1]The Tribunal has jurisdiction to consider the Claimant’s complaints of breach of contract, unauthorised deductions from wages and for holiday pay.[2]The claims will be heard on 1 September 2020 at 2 p.m. at the London Central Employment Tribunal. That hearing date will be vacated if the Claimant provides sufficient information for the Tribunal to give a rule 21 judgment.[4]Section 207B of the Employment Rights Act 1996 (identical provisions are to be found in the Working Time Regulations 1998 and the Employment Tribunals Extension of Jurisdiction Order 1994) provides, “(2) In this section –(a) Day A is the day on which the complainant or applicant concerned complies with the … requirement to contact ACAS before instituting proceedings … and(b) Day B is the day on which the complainant or applicant concerned receives … the certificate … (3) In working out when a time limit set out be a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Date A and ending one month after Day B, the time limit expires at the end of that period.”[5]In this case, the effect of section 207B(3) is that the time limit for all these claims expired on 10 November 2019. The period of 31 days between 11 August (the day after Day A) and 10 September (Day B) does not count. A period of three months from 11 July 2019, not counting the 31 days, ends on 10 November 2019. Section 207B(4) does not apply in this case.[6]The time limit expired on 10 November. The claim was presented on 21 November. I, therefore, had to consider whether it was not reasonably practicable for the claims to have been presented by 10 November 2019.[7]In Adams v British Telecommunications plc EAT/0342/15 the EAT held that in a case where the first claim is presented in time but rejected because it is defective and the second claim is presented outside the time limit, in determining whether it was reasonably practicable to present the claim in time , the focus should be on the second claim and whether there was any impediment to timely presentation of that claim.[8]In the present case, the Claimant made a mistake when he filled in the Respondent’s name in the claim form. I have no doubt that it was a genuine error and that he was unaware that he had made a mistake. The claim was presented on 19 September, well before the time limit expired. He believed that he had presented a correctly completed claim and had no reason to doubt it until he received the Tribunal’s rejection of his claim on 14 November (nearly two months after he presented it). The time limit for presenting the claim was 10 November. As the Claimant was not aware of any error in his first claim before 10 November, I concluded that it was not reasonably practicable for him to have presented that claim by that date. I considered that the presentation of the second claim within a week of being informed of the error was reasonable. The Tribunal, therefore, had jurisdiction to consider all the complaints.[9]I could not give judgment today because it is not clear what sums the Claimant is claiming and his bases for calculating those sums. I needed to hear evidence from the Claimant on those matters. It was clear that his English was very limited and that he required the services of an interpreter. The Claimant had brough a friend to act as his translator. I explained to him that the Tribunal did not permit parties to use their friends as interpreters and that we only used professional interpreters engaged by the Tribunal. I adjourned the hearing so that the Tribunal could book a Bengali interpreter for the Claimant. If, however, before that date the Claimant sent to the Tribunal a document setting out clearly what he was claiming for notice pay, unpaid wages and holiday pay and how he had calculated those figures and any documents in support of what he said (such as a contract, pay slips, etc), it might be possible for the Tribunal to give a rule 21 judgment on his claims.[1]The Claimant brings complaints of unlawful deductions from wages, failure to pay holiday pay and breach of contract by failure to pay notice pay.[2]The Claimant presented his claim on 19 September 2019.[3]The Respondent did not present a Response to the claim and did not attend the hearing today.[4]The Claimant gave evidence and produced his contract and payslips. I accepted the Claimant’s evidence.[5]The Tribunal had the assistance of a Bengali interpreter.[6]The Claimant asked for preparation time costs.Findings of Fact
[7]The Claimant was employed by the Respondent from 1 August 2018 until 12 July 2019 as a “sandwich artist”.[8]By Clause 7 of his contract of employment, the Claimant was employed to work 24 hours per week. The Claimant worked 3 days each week pursuant to this, for 8 hours each day.[9]By clause 11 of his contract, his holiday year ran from 1 January to 31 December each year.[10]The Claimant took no holiday between 1 January 2019 and 12 July 2019. He worked 3 days each and every week and had no time off.[11]The Claimant was not paid for his accrued holiday at the end of his employment.[12]The Claimant claimed holiday pay accrued 1 January 2019 to the end of his notice period.[13]The Claimant’s contract specified his gross hourly rate as £7.83. The Claimant’s gross hourly pay changed to £8.21 in April 2019. His net hourly pay was not significantly different because of the low rate of pay.[14]The Claimant worked 128 hours in the period June 2019 – 12 July 2019 but was not paid at all for those hours. His last pay slip recorded the Claimant having worked 120 hours, to be paid by credit transfer on 31 July 2019, but this sum was - 2 - never paid. The Claimant told me that he had actually worked 128 hours but the Respondent had taken 8 hours off incorrectly.[15]By clause 22 of the Claimant’s contract of employment, he was entitled to 4 weeks notice. The Respondent dismissed him without notice and without paying him notice pay.[16]The Claimant obtained new work on 1 August 2019. He was unable to mitigate his loss during his notice period.[17]The Claimant told that he had spent 10 hours preparing his papers for the Employment Tribunal, reading relevant documents and calculating his entitlements. The Claimant does not have English as a firs language and needed the assistance of a Bengali interpreter.Relevant Law
[18]Under Regs 13 & 13A Working Time Regulations 1998 workers are entitled to take paid holidays and to be paid holiday pay. The right under Reg 13 is 4 weeks; the right under Reg 13A is 1.6 weeks, meaning that a worker has a right to 5.6 weeks paid holiday. Under Regulation 14 WTR 1998, an employee is to be entitled to be paid, at termination of employment, the proportion of holiday that he is entitled to in proportion to the holiday year expired but which has not been taken by the employee during that time.[19]By reg 13(3) ERA 1996 a worker’s leave year begins on the date provided for in his contract of employment, or if there is no relevant agreement, on the date when the employment begins and each anniversary of that date.[20]Regulation 14(3) provides for calculation of the amount of holiday pay due in these circumstances as follows: (A x B) less C, where A is the period of leave to which the worker is entitled, B is the proportion of the leave year expired and C is the period of leave taken.[21]Holiday pay is paid gross. By Reg 30 WTR a worker can bring a claim in Employment Tribunal in respect of unpaid holiday pay under Regulation 14. 22. s13 Employment Rights Act 1996 a worker has the right not to suffer unauthorized deductions from wages. By s27 ERA 1996 “wages” is defined. By s27(1), “In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including: a) any fee, bonus, commission, holiday pay or other emolument referable to his employment whether payable under his contract or otherwise. …” .[23]Employment tribunals are entitled to make any award for unlawful deductions from wages gross, leaving it to the employer to work out exactly how much of the gross sum should be paid to the worker and how much to HMRC: see Walters t/a Rosewood v Barik UKEAT/0053/16 (13 February 2017, unreported). - 3 -[24]By Employment Tribunals (Extension of Jurisdiction) England & Wales Order 1994 the Employment Tribunal has jurisdiction with regard to contractual claims arising or outstanding at the termination of the employment of an employee.[25]In awarding damages for wrongful dismissal, in order to put the employee in the position they would have been in had the contract been performed, account must be taken of the tax and National Insurance contributions that would have been paid. Tribunal awards are tax free up to £30,000. Damages for wrongful dismissal in awards made below this amount are therefore calculated on the basis of net pay. Discussion and Decision[26]By clause 22 of the Claimant’s contract of employment he was entitled to 4 weeks’ notice. The Respondent breached his contract of employment when it dismissed him without notice. It failed to pay him for his notice period.[27]The Claimant is entitled to 4 weeks’ pay in compensation for wrongful dismissal. His loss is 24 hours’ pay for each of the 4 weeks.[28]The Claimant is entitled to 24 hours x £8.21 x 4 weeks = £788.16 compensation for failure to pay notice pay (wrongful dismissal).[29]The Respondent failed to pay the Claimant wages for 128 hours work. It made unlawful deductions from the Claimant’s wages.[30]The Claimant is entitled to 128 x £8.21 = £1,050.88 in compensation for unlawful deductions from wages.[31]The Respondent failed to pay the Claimant holiday pay on termination of his employment. The Claimant was entitled to be paid accrued holiday pay. He had not taken any holiday during the holiday year from 1 January 2019 and therefore was entitled to holiday pay accrued from 1 January 2019 until his the end of his notice period.[32]The calculation of holiday pay entitlement is ( 32/52 weeks x 5.6 weeks) x 24 hours x £8.21 per hour = £679.03.[33]The Claimant also asked for a preparation time order. He said he had spent many hours on his Employment Tribunal claim. By rules 75 & 76 ET Rules of Procedure 2013 “preparation time” means the time spent by the receiving party in working on the case, except for time spent at any final hearing. A preparation time order can be made, ordering a party to pay a sum of money in respect of the other party’s preparation time. A Tribunal may make a preparation time order when it considers that a party has acted unreasonably in the way it has conducted proceedings.[34]I considered that the Respondent had acted unreasonably by not engaging in the proceedings at all. It had failed to pay the Claimant the money he was - 4 - entitled to and had not admitted the claim against it. It therefore unreasonably required the Claimant to pursue his entitlement through the Tribunal. The Claimant had to gather together his evidence and prepare to present his case. He had to read all the correspondence from the Tribunal.[35]I considered that it was appropriate to make a preparation time order. 5 hours preparation time was reasonable, given that the Claimant did not have English as a first language and would therefore have taken more time to do all these things. The claim was a straightforward one, however, so 5 hours was reasonable and proportionate. It was appropriate to make a preparation time order at this hearing. The Respondent had had an opportunity to attend the hearing and could have responded to the application for costs if it had attended.[36]The rate at which preparation time is currently paid is £40.[37]The Respondent shall pay the Claimant 5 x £40 = £200 for his preparation time.