Miss S Musumeci v CH&CO Group: 2203583/2019
JUDGMENT
[1]The Respondent failed to pay the Claimant’s annual leave entitlement and is ordered to pay the claimant the gross sum of £851.58, to be paid net of tax and national insurance.[2]There is no award for further losses described as inconvenience or interest.REASONS
[1]The Respondent has applied under rule 76 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 (“the Rules”) by a letter dated 15 January 2020 for their costs.[2]I have not considered representations from the Claimant in response, but do not consider that I need to. - 1 -[3]The Claimant was awarded £851.58 to be paid net of tax and national insurance. She did not recover further sums for inconvenience, interest or wages lost.[4]The factual basis for the Respondent’s application for costs are set out in eight paragraphs in the letter of 15 January, including the following points: 4.1. As at 26 November 2019 the Respondent had proposed settling the claim by COT3 in the sum of £851.58, subject to interest being paid. It seems that the Respondent believed that an agreement in principle had been reached. 4.2. The Claimant did not return the COT3 nor did she specify the quantum of interest payments, but asserted that she’d worked more than 392 hours contended by the Respondent. 4.3. The Respondent incurred the cost preparing and filing an ET3 Response. The Respondent then offered £1,200, reflected in an amended COT3. Again the Respondent believed that this had been agreed but they say that the Claimant informed ACAS that she would not sign as her claim was worth more. 4.4. The Respondent warned the Claimant in a letter dated 20 December 2019 that they would apply for costs if the Claimant pursued the matter to a hearing. Confusingly this letter asserted that the Respondent had made a payment of £851.58, whereas in fact no payment had been made at that point, but £599.11 (a figure net of deductions) was paid on 3 January 2020.[5]The Respondent argues that: 5.1. The claim in excess of £851.58 had no reasonable prospect of success. 5.2. It was unreasonable of the Claimant to pursue the matter to a hearing in view of the content of a costs warning letter sent by the Respondent on 20 December 2019.Law
[6]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, contains the following: 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success. - 2 -Conclusion
[7]A claim is not settled until the parties have complied with all of the formalities. In the case of using a COT3 and ACAS this requires both parties to confirm that they agree the terms. This did not happen in this case.[8]It is sometimes the case in negotiation that parties will think that they have achieved a settlement only to find that they have not.[9]I recognise a particular difficulty in this case is that the Claimant was acting in person without professional representation and also in a language which is not her own and in a legal system which she has limited understanding of.[10]The Claimant only appreciated in this case that she had received payment into her account over the weekend of 4-5 January 2020. She did not receive a pay slip or similar to explain how the net figure of £599.11 was reached from the gross figure of £851.58. She was only shown a slip showing the deductions made on the screen of a mobile telephone during the course of the hearing, which was not particularly satisfactory, since it made it difficult for her to evaluate it.[11]The Respondent’s letter of 20 December wrongly stated that the Claimant had been paid £851.58, whereas in fact at that stage no payment had been made and the sum of £599.11 was not paid until a couple of weeks later.[12]The Claimant in this case may have been unwise not to accept the offer of £1,200, but that is with the benefit of hindsight. I do not consider that her conduct, taking account of the fact that she is a lay person and the language barrier amounted to acting vexatiously, abusively, disruptively or otherwise unreasonably.[13]As to the contention that the claim in excess of £851.58 had no reasonable prospect of success, I do not agree with this. Had the Claimant produced evidence that she had suffered financial loss as a result of late payment, she might have made out a claim under section 24.Law
[23]Complaints to employment tribunals (1) A worker may present a complaint to an employment tribunal— (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2))[24]Determination of complaints - 2 -(1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer— (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13 24(2) Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of. Evidence 12. I have been directed to a slim bundle of documents containing 42 pages, comprised of ACAS certificate, pleadings and Tribunal correspondence and correspondence between the parties. In addition to this bundle I also received payslips from the Respondent which related to July, August and September 2018. 13. I was supplied separately with wage slips for the period September 2018 – May 2019. The Claimant handed up sick certificates for the period 5 September 2018 – 30 September 2019 in relation to a back injury. 14. I have not been supplied with any witness statements. 15. The Claimant gave brief oral evidence to confirm that the content of her claim form was accurate. During the course of that oral evidence, in response to Mr Azman’s questions she conceded that the Respondent’s number of hours figures for July and August 2018 were correct and it followed that the correct figure for unpaid holiday pay was £851.58. 16. The Claimant accepted that she had received the net figure of £599.11, which she had noticed in her bank account at the weekend (4 & 5 January). She did not suggest that the calculations of tax or national insurance work incorrect, although in fairness to her she was given very little time to consider this information. I am informed that the payslip which contains the detailed calculations has yet to be sent out to her, which was somewhat unsatisfactory. 17. It was said in submissions on the Claimant’s behalf, following the conclusion of evidence, that she had lost £80 wages by attending this hearing today. Conclusions 18. Given that the Claimant accepted in cross examination that the Respondent’s figures were correct, it follows that the gross value of the claim for unpaid annual leave is £851.58. From this sum deductions for tax and national insurance must be made. 19. As to the claim for interest, unlike the County Court, in the Employment Tribunal there is no freestanding discretionary power to award interest to reflect a - 3 - successful claimant being kept out of that money prior to judgment. The only basis to award interest would be if the Claimant could prove financial losses under section 24. 20. The Claimant did not produce any evidence in support of financial losses she contends are arising as a result of late payment of the unpaid annual leave pay. She did not take the opportunity to adjourn this hearing so that she could obtain more evidence. 21. The principal cause of any financial difficulty that the Claimant experienced during the material period was that she was absent on sick leave and receiving SSP rather than her usual wages. I understand from the Claimant’s correspondence on the file that she is, in separate proceedings, pursuing a claim for personal injuries. If her injury has caused her additional losses as a result of impecuniosity caused by being unable to work, she may reasonably seek to recover sums in those proceedings. 22. Interest - I am not satisfied based on the evidence I have heard that there have been financial losses arising from the late payment of the annual leave pay. The Claimant has not put forward a figure that she says she has lost by way of interest, nor has she produced evidence from which such a figure might be calculated. I am not satisfied that this part of the claim is made out. 23. Inconvenience - As to the claim for compensation for “inconvenience”, I do not consider that this should be correctly characterised as financial losses falling within section 24(2) and do not consider that I have the power to make such an award. 24. Lost wages - As to the question of £80 wages lost to attend today’s hearing raised for the first time in submissions, this was not substantiated by documentary evidence and the Respondent did not have the opportunity to challenge this in evidence. Taking a pragmatic view, however, I would have accepted the quantum of this figure.Conclusions
[25]I have considered whether I should make an award for the £80. The Claimant was asked to consider whether she was pursuing the discrepancy between the Respondent’s figure and her own by a letter sent from the Acting Regional Employment Judge 18 December 2019. This was an opportunity to indicate whether or not she agreed the Respondent’s figures and potentially avoid the hearing. She did not take this opportunity with the result that this hearing was necessary. At the hearing she agreed the Respondent’s figures. In the circumstances therefore I do not consider it would be appropriate to order a sum for £80 wages lost. - 4 -