J Buffong v Support For Living: 2215651/2023
JUDGMENT
[1]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.REASONS
[1]On 9 February 2015, the claimant commenced full time employment with the respondent as a Support Worker. That employment continues to date. The crux of the claimant’s complaint relates to an alleged breach of the terms of her contract of employment. The claimant states she was contracted to work 39 hours a week. The claimant states the respondent had reduced her contracted hours of 39 hours a week to 37.5 hours a week and reducing her wages. The respondent agrees that Case No: 2215651/2023 2 the claimant’s contracted hours had been reduced but denies that the claimant had suffered any unauthorised deductions from wages.The Hearing
[2]The hearing commenced just after 10 a.m. On the morning of the hearing, the Tribunal received a Diagnostic Assessment Report for the claimant. I enquired in light of the report whether the claimant required any reasonable adjustments. Mr Neckles confirmed that the claimant would not require any reasonable adjustments.[3]Mr Neckles also confirmed that the Tribunal should disregard the calculations attached to the claimant’s witness statement and that the correct calculation had been provided in a separate word document. Mr Neckles confirmed that the holiday pay claim had been withdrawn. Mr Neckles invited the Tribunal to dismiss the holiday pay claim upon withdrawal. Mr Neckles confirmed the only matter outstanding before the Tribunal was the complaint of unauthorised deductions from wages. A list of issues had been very helpfully provided by Mr Neckles. Mr Graham was in agreement with the list of issues. Mr Graham also confirmed that he had had sufficient time to consider the additional documents provided on the morning of the hearing.[4]The claimant gave evidence on her own behalf. The respondent relied on the evidence of Ms Y Hawtin. On conclusion of the evidence, I heard oral submissions from both Mr Graham and Mr Neckles. I adjourned to consider the evidence and submissions. I gave oral judgment with reasons.The Issues
[5]The parties agreed that these were the issues to be decided by the Tribunal: a) What is the claimant’s contracted weekly hours and hourly rate of pay? b) Has there been any lawful variation to the claimant’s contracted weekly hours and hourly rate of pay? c) If there has been a lawful variation of the claimant’s weekly contracted hours and hourly rate of pay by the respondent, when did the variation take effect and how? d) Has there been any unauthorised deductions from the claimant’s wages between 1 July 2021 and 1 July 2023 by the respondent? e) Were the unauthorised deductions a one off or a series of deductions? f) What is the total sum of deductions being claimed by the claimant?Findings of Fact
[6]The claim for unauthorised deduction from wages is governed by section 13 of the Employment Rights Act 1996. For the claimant to succeed in proving there has Case No: 2215651/2023 3 been an unauth orised deduction from wages, section 13(3) requires the claimant to demonstrate that “….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)…” Contracted Hours and Variation[7]I have considered the claimant’s contract of employment. I find from the contract that the claimant was contracted to work 39 hours per week when she commenced full time employment with the respondent as a Support Worker on 9 February 2015. The claimant states that she was unaware the respondent had changed her hours in March 2018. She states she did not find out until June 2022 about her change of hours. Ms Hawtin for the respondent states that all employees were informed in March 2018 that their hours would be reduced and their pay would increase to support their employees’ work life balance. Ms Hawtin states that the respondent did not carry out a consultation but that the Union had been informed as part of the annual pay review.[8]Mr Neckles argues that the respondent should have carried out a consultation. Having heard oral evidence, I find there is a distinction between consultation and being informed as to the variation in the terms of one’s employment contract as part of the annual pay review. I accept Ms Hawtin’s evidence that no consultation was carried out nor was one required. Having considered the documentary evidence, I find that all employees were informed that their contractual hours had been reduced but that their pay had been increased. I find the respondent did promptly inform all employees of a change in their terms in March 2018 to take effect from 1 April 2018.[9]The claimant states she did not add up her hours on the rota each week. However, she confirmed in oral evidence that she did work the hours on her rota. I find from the evidence of Ms Hawtin that the hours on the rota reflected the variation in the claimant’s contractual hours from 1 April 2018. I find the claimant was not required to work 39 hours. I find she was only required to work 37.5 hours.[10]I find it is not the claimant’s case that she worked additional unpaid hours beyond 37.5 hours on the rota. I find from Ms Hawtin’s evidence that if the claimant was required to work additional hours, the claimant would be able to claim overtime. I find the claimant must have known she was working 37.5 hours a week and not 39 hours a week from March 2018 because her rota reflected the reduced hours.[11]Mr Neckles argues that the claimant was unaware of the changes to the terms of her contract in 2018 when the changes was brought in and that she only found out in 2022. I have carefully considered this point. I find that this does not assist the claimant in making out a claim that the total wages paid to her was less than the Case No: 2215651/2023 4 total am ount properly payable. Even if she was unaware she had been working reduced hours since 2018 (which I do not accept). I find the claimant still bears the burden of proving that there had been a consequent reduction in her wages. Salary/ Hourly Rate of Pay[12]I have considered the claimant’s contract of employment. I find from the claimant’s evidence and the documentary evidence that she was paid a fixed salary every month. I find the claimant was not paid an hourly rate. Having considered her payslips, I find there are no hours worked indicated on the payslips. I find the claimant’s salary is the same each month. I find this further corroborates the finding that that claimant was paid a fixed salary every month and was not paid an hourly rate for the hours worked. Unauthorised deductions from the claimant’s wages between 1 July 2021 and 1 July 2023?[13]I find the claimant’s salary in 2015 when she commenced employment was £17,500 per annum. I find that by March 2018, the claimant salary had risen to £19,164 per annum to take effect from 1 April 2018. According to the claimant’s payslips, for the financial year ending 31 March 2023, her pay was £21,606.00.[14]The central plank to the claimant’s case is that there has been a reduction in her hours. She states that a reduction in her hours was automatically accompanied by a reduction in her salary. I find the premise would be true for employees or workers paid an hourly rate for the hours worked. I find it is not necessarily the case that a reduction in hours is always accompanied by a reduction in pay for those who are paid a salary. For the claimant to succeed in her claim, the burden is on her to prove that the reduction in hours were accompanied by a reduction in pay.[15]I have already found the claimant worked the hours on her rota. I accept Ms Hawtin’s evidence that the hours on the rota reflected 37.5 hours as stipulated in the variation of terms sent to all employees in March 2018. I have already found it is not the claimant’s case that she had to work a further 1.5 hours each week unpaid. I have already found from the claimant’s evidence that she was paid an annual salary. I find that salary was divided into 12 equal parts. I have already found the payslips do not mentioned the number of hours worked. I find the claimant’s pay for each month remained the same apart from annual increases each year. I find the claimant was required to work less hours for the same or more pay between 1 July 2021 and 1 July 2023.[16]I find the total amount of wages paid by the respondent to the claimant between 1 July 2021 and 1 July 2023, is not less than the total amount of the wages properly payable by the respondent to the claimant after authorised deductions such as tax and national insurance contributions. I find the claimant has failed to discharge the burden of proving that there had been an unauthorised deduction from her wages. Case No: 2215651/2023 5