Miss Jitka Skrebska v Mr Leo Charles Baxter: 2206230/2018

EMPLOYMENT TRIBUNALS

Case No 2206230/2018

Between

Miss Jitka SkrebskaClaimant

Mr Leo Charles BaxterRespondent

Before

Employment Judge Mason

In person for claimant

In person for respondent

Date 20 May 2019

JUDGMENT

[1]The Tribunal declares that the Respondent made unlawful deductions from the Claimant’s wages contrary to section 13 of the Employment Rights Act 1996. The Respondent is ordered to pay the Claimant the sum of £1,384.54 (gross).

[2]The Tribunal declares that, contrary to section 1 of the Employment Rights Act 1996, the Respondent has failed to provide the Claimant with written particulars of her employment and is awarded £1,846.15 (gross).

[3]Interest on the sums awarded accrues from the day after this Judgment at the rate of 8% per annum unless the full amount is paid within 14 days.

REASONS

[1]Miss Skrebska (“the Claimant”) was employed by Mr. Baxter (“the Respondent”) as a Housekeeper from 12 September 2016 until 29 June 2018.

[2]The Claimant claims:2.1 Unlawful deductions have been made from her wages, specifically she claims monies in lieu of accrued untaken holiday.

(i) She says there was a verbal agreement with the Respondent that she could carry forward eight days untaken holiday from the holiday year ending 12 September 2017 to the following holiday year (which was the year in which her employment with the Respondent terminated). The Respondent says there was no such agreement and that she lost any unused holiday entitlement at the end of the 2016/2017 holiday year.

(ii) The Respondent accepts that she is owed 7 days holiday in respect of the holiday year 2017/2018.

2.2 The Claimant also claims that she did not receive a written statement of particulars of her employment in accordance with s1 Employment Rights Act 1996 (“ERA”). The Respondent attached to his response (ET3) a draft contract which he says he sent to the Claimant shortly after the start of her employment; he accepts that she did not sign it. The Claimant denies that she ever received this draft contract.

[3]The Claimant contacted ACAS on 29 August 2018 and an Early Conciliation Certificate was issued on 26 September 2018. She presented this claim against the Respondent on 28 September 2018 (“ET1”). The Respondent submitted a response on 6 January 2019 denying her claims (“ET3”).

The issues

[4]The issues to be determined by the Tribunal are as follows:4.1 Did the Respondent make unlawful deductions from the Claimant’s wages by failing to pay her in lieu of accrued untaken holiday?

4.2 If so, how much is she entitled to?

4.3 Did the Respondent fail to issue the Claimant with a written statement of particulars?

4.4 If not, how much should the Tribunal award (either 2 or 4 weeks’ pay)? Procedure at the Hearing

[5]The Respondent is a quadriplegic and was supported at the hearing by Ms. Bochea; he had access to his computer and informed me that he did not require any specific adjustments to assist him to present his case. Both the Claimant and the Respondent gave evidence and were briefly cross-examined by the other and then made verbal submissions. I reserved my decision which I now give with reasons.

Findings of fact

[6]Having considered all the evidence I make the following findings of fact having reminded myself that the standard of proof is the balance of probabilities.

[7]The following facts are agreed:7.1 The Respondent is unable to handle documents or writing instruments but can use a computer.

7.2 The Claimant was employed by the Respondent as a Housekeeper from 12 September 2016.

7.3 She was introduced to the Respondent by an employment agency. At the hearing, she showed me an email from the agency dated 9 September 2016 which sets out in summary her salary, hours and annual holiday entitlement. It states that she would be paid £12.00 per hour for additional hours.

7.4 She was paid £2,000 per month and £12.00 per hour for additional hours.

7.5 The Respondent employed a number of other Housekeepers and Carers and outsourced HR and payroll functions to a business trading as Trevor Jones.

7.6 The holiday year ran from 12 September to 11 September.

7.7 The Claimant was entitled to 28 days holiday per annum to include bank and public holidays; this is the statutory minimum prescribed by the Working Time Regulations.

7.8 By the end of the holiday year 2016/2017 she had 8 days holiday left untaken. 7.9. The Claimant’s employment terminated on 29 June 2018 and at that point she had 7 days left untaken from the holiday year 2017/2018. Statement of particulars of employment

[8]The Claimant says: 8.1. She asked the Respondent for a written contract “on numerous occasions” (ET1); in verbal evidence she said she cannot recall how many times she asked but it was more than twice. 8.2 The Respondent told her he would contact his PA and she would sort it out; she accepts she did not ask the Respondent, his PA or Trevor Jones for this by email. 8.3 She did not receive the draft contract and points out that if she had, she would have raised with the Respondent that it incorrectly states she would be paid £10.00 an hour for additional hours, as opposed to £12.00 per hour (as correctly stated in the email from the agency).

[9]The Respondent says:9.1 A draft contract was “given to her in September 2016 which she elected not to sign” (ET3).

9.2 A copy of the draft contract is attached to the ET3 and shows the Claimant’s name, her job title (housekeeper) and start date of employment (12 September 2016). It is not signed by either the Claimant or the Respondent.

9.3 He relies on the Microsoft File Properties Record (attached to the ET3) which shows that this draft contract was created on 21 September 2016, and modified and accessed on 22 September 2016.

9.4 All his staff have similar Employment Contracts. Typically, when an employee starts, Trevor Jones generate the draft contract and send it to him; he then prints it out and sits down with the employee and they go through it together. Any points raised by the employee are discussed and then he contacts Trevor Jones and a corrected version is generated.

9.5 He has “not always had employment contracts for some staff (often in the case of housekeepers/cleaner) ... because they have been self-employed” (ET3). In verbal evidence he explained that he is vigilant to ensure that his personal care assistants sign contracts as they are in a critical role. However, as a housekeeper, the Claimant was in a less essential role and he was “indifferent” whether she signed or not.

9.6 In verbal evidence, he was unable to recall when he gave the Claimant the draft contract but believes it was around 21 September (when the contract was created) or 22 September (when it was modified). He did not send it to her electronically

[10]On balance I prefer the Claimant’s evidence. Whilst I accept the draft contract was generated on 21 September and accessed on 22 September, I find that in fact the Respondent did not provide it to the Claimant. My reasons are as follows:10.1 The Respondent was vague; he was unable to say when he met with the Claimant and could not give me any details of their alleged conversation.

10.2 As the Claimant points out, if she had been provided with a copy, she would have raised with him the discrepancy in the additional hours payment (which the Respondent accepts is incorrect in the draft contract) and Trevor Jones would have then generated an amended version. This never happened.

10.3 The Claimant was in a non-critical role and other housekeepers had been engaged on a self-employed basis; by his own account, this was not a priority for the Respondent and I believe it was overlooked. Holiday pay:12 September 2016 to 11 September 2017

[11]During the holiday year 12 September 2016 to 11 September 2017, the Claimant took 12 days holiday on 24 and 27 March 2017 and 17 to 28 July 2017. It has not been explained by either side whether she also took days for bank/public holidays but the Respondent agree with the Claimant that she had accrued 8 days untaken holiday by the end of that holiday year.

[12]The Claimant says:12.1 The Respondent verbally agreed to allow her to carry forward 8 days holiday to the following holiday year.

12.2 She recalls that this conversation took place in the Respondent’s study; she told him that she had 8 days holiday left and would be unable to take it in the current holiday year; the Respondent replied along the lines “yes, absolutely, no problem”.

12.3 She did not put it in writing (such as in an email) because she relied on the verbal agreement, she trusted the Respondent.

[13]The Respondent says:13.1 He accepts that the Claimant had untaken leave but denies that there was a verbal agreement that this could be carried over to the next holiday year.

13.2 It is a standard term of all his employees’ contracts of employment that holiday entitlement cannot be carried forward. He does not allow holiday to be carried forward as it is difficult to administer and complicates planning of his care. In 10 years he has not allowed anyone to carry forward holiday entitlement.

13.3 It is significant that the Claimant did not send an email even though she sent him emails every month about overtime, expenses and so on. She knew that payroll was outsourced and everything goes via his computer as he cannot lift a pen or write.

13.4 The first time the Claimant mentioned this was after she left.

13.5 He has 5 or 6 staff and does not keep track of how much holiday has been taken and is outstanding.

[14]On balance, I prefer the Respondent’s evidence and find that there was no agreement that the Claimant could carry over her unused holiday entitlement. My reasons are as follows:14.1 Whilst I have found that the Claimant was not given the draft Contract, I accept that this draft reflect the Respondent’s standard terms and conditions of employment; clause 14 provides that carry forward “is only considered if there has been a period of extended sickness absence, statutory maternity paternity, shared parental or adoption leave has prevented you from taking leave in the relevant year”. None of these applied in the Claimant’s case.

14.2 I accept that the Respondent does not allow holiday to be carried forward for the reasons he has given (para. 13.2 above). Holiday pay: 12 September 2017 to 29 June 2018

[15]The Claimant left on 29 June 2018. In August, the Respondent sent the Claimant a reconciliation of her outstanding leave and after an exchange of emails, he accepted that she was entitled to be paid in lieu of 7 days. This figure is agreed by the Claimant.

The Law

[16]Unlawful Deduction from Wages 16.1 Section 13 ERA 1996 gives workers the right not to suffer unauthorised deductions from their wages: “13(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) 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.” 16.2. Sections 23-26 ERA 1996 sets out provisions relating to complaints to employment tribunal the relevant parts of which are as follows: “23(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 …” “24(1) Where a tribunal finds such a complaint under section 23 well-founded, it shall make a declaration to that effect and order the employer – (a) in the case of a complaint under section 23(1)(a0, to pay to the worker the amount of the deduction made in contravention of section 13.” 16.3 Series of deductions: Two-year Limitation Backstop (i) In order to establish a “series” of deductions, there must be a factual and temporal link between the deductions. (ii) A gap of more than three months between non-payments or underpayments of wages breaks the ‘series’ of deductions for the purpose of bringing an unlawful deduction from wages claim. (iii) Reg.2 of the Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322) amends section 23 of the ERA 1996 to introduce a two-year “backstop” period on most unlawful deductions from wages claims including holiday pay.

[17]Statutory Entitlement to annual leave17.1 All UK workers are entitled to a minimum of 5.6 weeks (28 days) paid holiday (prorated for part-time staff:

(i) Reg. 13 of the Working Time Regulations 1998 (“WTR”) provides that all UK workers must receive at least four weeks (20 days) paid holiday each year (pro-rated for parttime staff) (“Reg 13 leave”); and

(ii) Reg. 13A of the WTR provides additional annual leave of 1.6 weeks (8 days) (“Reg. 13A leave”).

17.2 Untaken statutory holiday (whether Reg. 13 leave or Reg. 13A leave) may not be replaced by a payment in lieu other than on termination of employment (reg. 13(9) and 13A(6)).

17.3 The ability to carry forward untaken holiday leave to the next holiday year is complex: (i) Reg 13(9(a) WTR provides that Reg 13 leave may only be taken in the leave year in respect of which it is due. (ii) Reg 13A(6) provides that Reg 13A leave may be carried over in accordance with a relevant agreement between the employer and the employee but only into the leave year immediately following the leave year in respect of which it is due.

(iii) However, in the recent decision of Max-Planck-Gesellschaft v Shimizu the ECJ held that the WTD requires that if a worker did not exercise the right to paid annual leave in any year, the leave should not automatically be lost unless the employer has “diligently” brought it to the workers attention that leave would be lost. The ECJ noted that employers are required in particular ‘to ensure, specifically and transparently that the worker is actually given the opportunity to take the paid annual leave … by encouraging him, formally if need be to do so while informing him accurately and in good time … and that if he does not take it, it will be lost.” This is because the worker is the weaker party in the situation and the law must guard against the possibility that the worker will be dissuaded from exercising his/her right to take holiday. The ECJ's view was that it cannot be left solely to workers to ensure they exercise their rights effectively. This means the employer must encourage the worker to take his or her holiday, while informing him or her, accurately and in good time, of the risk of losing that leave at the end of the applicable reference period. The worker must have refrained from taking paid annual leave deliberately and in full knowledge of the ensuing consequences, after having been given the opportunity actually to exercise his or her right thereto. The ECJ indicated that the burden of proof falls on the employer to show that it had brought the matter to the employee or worker’s attention. Furthermore, although the employer in that case was a private institution, the right to paid leave was still enforceable between private parties, rather than only against State bodies, although it comes from a Directive, as the right to annual leave is in the EU Charter.

[18]Failure to give written particulars18.1 In accordance with s1 ERA an employer must give every employee a written statement of particulars of certain terms of his or her contract not later than two months after the beginning of the employee’s employment.

18.2 In the event that an employee brings a successful claim of a type specified in Sch. 5 to the Employment Act 2002 (including s23 ERA 1996 unauthorised deductions from wages) then the Tribunal must award the employee 2 weeks pay and may increase this to 4 weeks’ pay if it is just and equitable to do so (s38 ERA).

Conclusions

[19]Applying the relevant law to my findings of fact to determine the issues, I have concluded as follows.

[20]Holiday Pay;20.1 The Respondent accepts that she is owed 7 days in respect of the holiday year commencing 12 September 2017 and I therefore award the Claimant £646.14 (£461.53/5 = £92.30 x 7 = £646.14) gross.

20.2 With regard to the holiday pay for the previous year, the Respondent accepts that the Claimant had unused accrued holiday of 8 days by the end of that year. I have accepted that the Respondent did not verbally agree to allow the Claimant to carry that holiday forward. However, he took no steps to bring to her attention that it would be lost if she did not take it and in accordance with Max-Planck-Gesellschaft v Shimizu I have concluded that the leave was not automatically lost and the Claimant was entitled to carry it forward to the next leave year.

20.3 This was a “series” of deductions as there is a factual and temporal link between the deductions. The gap between non-payments is less than three months as the payment in lieu of the 8 days, having been carried forward, was not due to be paid until termination of employment.

20.4 I therefore award the Claimant £738.40 (£461.53/5 = £92.30 x 8 = £738.40) gross.

20.5 The Respondent commented during proceedings that he sometimes pays his employees monies in lieu of untaken holiday at the end of each holiday year; I hope he will take note that this is not permitted other than on termination of employment.

[21]Failure to give written particulars:21.1 The Claimant’s claim under s38 ERA succeeds. I have found that the Respondent did not give the Claimant the draft contract and he does not rely on any other document to show that he gave the Claimant written particulars as required in accordance with s1 ERA. The email from the agency falls far short of providing the necessary particulars.

21.2 The Claimant’s claim for unlawful deductions having succeeded (para. 20 above), she is entitled to an award of compensation of either 2 or 4 weeks pay. I award the Claimant 4 weeks’ pay as it is just and equitable to do so. The lack of a written contract has contributed to the disagreement over holiday pay and to these proceedings. The Respondent employs only 5 or 6 staff and outsources payroll and HR to Trevor Jones; he has not put forward a satisfactory explanation as to why neither he nor Trevor Jones failed to check that the Claimant had been given a contract and ensure that a copy was on the Claimant’s personnel file. The Claimant may not have been in a critical caring role, but she had the same employment rights as those who did.

21.3 The Claimant was paid £2,000 gross per month which equates to £461.53 per week and is therefore awarded £1,846.15 gross

[22]In conclusion:22.1 The Respondent failed to give the Claimant written particulars of her employment and is awarded £1,846.15 (gross).

22.2 The Respondent made unlawful deductions from the Claimant’s wages in respect of holiday pay and is awarded £1,384.54 (gross). Signed by ___________________ on 20 May 2019