Mr B Ward v C McAteer FAO The Sports PR Company: 2220047/2024
EMPLOYMENT TRIBUNALS
Case No 2220047/2024
Between
Mr B WardClaimantC McAteer FAO The Sports PR CompanyRespondent
Before
Employment Judge ScottNot represented for respondentDate 24 January 2025
JUDGMENT
[1]The respondent has made an unlawful deduction from wages and is in breach of the Working Time Directive and is ordered to pay the claimant gross wages in the sum of 1303.61 from which any tax and national insurance fall to be deducted.
REASONS
[1]By a claim form presented on 21 May 2024. the claimant , Mr Ward, complained of unlawful deduction of wages.[2]In a response dated 24 June 2024, the respondent stated that the claimant had not completed his notice period having finished work on 12 March 2024 and was therefore not entitled to any remedy in respect of unpaid wages.[3]The claimant’s employment ended on 14 March 2024. Early conciliation started on 3 May 2024 and ended the same day. As the claim form was submitted on 21 May 2024, this claim is within time.[4]Following an adjourned hearing on 19 August, the final hearing in this matter was adjourned until 4 November 2024. Notice of that hearing was sent the same day, 19 August 2024.[5]By email dated 6 September 2024, the claimant sought to amend his claim to include a claim for holiday pay. By email of the same date, the respondent resisted that application on the basis that the respondent disputed the factual basis of the claim. By order dated 4 October 2024, Employment Judge Goodman allowed that application to amend.[6]The issues for me to determine were as follows: 1. Was the claimant entitled to be paid for the following: i. 01-12 March 2024 (inclusive)? ii. 13 and 14 March 2024? 2. Was any deduction required or authorised by statute? 3. Was any deduction required or authorised by a written term of the contract? 4. How much is the claimant owed? 5. In the alternative, whether the claimant was owed 2 additional days holiday pay for 13 and 14 March 2024. Adjournment application and strike out application[7]By email dated Friday 1 November 2024 at 17.14pm, the respondent emailed the Employment Tribunal to state that ‘I am not able to attend on Monday so ask please for the court to suggest a rescheduled date.’[8]By further email dated Sunday 3 November 2024 at 21.44 the respondent provided further information stating ‘I have to travel for my work in morning and will be on a flight so am not able to attend the hearing’ and requested the hearing be postponed. This was received by the Tribunal after an email had been sent to the respondent on 4 November 2024 indicating that without reasons for any postponements and supporting documents the hearing would likely proceed.[9]The respondent wrote to the Tribunal at 15.07 on 4 November 2024 stating that she was required to travel for work which was completely out of my control.[10]I have considered that the final hearing was already adjourned from 19 August 2024, and the claimant has been waiting for a considerable period of time for this claim to be resolved.[11]The respondent has sought an adjournment after 5pm on the working day prior to the hearing. No explanation was provided in any of the communication from the respondent as to why she sought an adjournment so late in the day. It is impossible to ascertain whether the respondent was required to travel at the last minute, or whether she simply failed to seek an adjournment in a timely fashion. There is no indication as to whether the respondent has sought another member of staff, or a representative to attend in her place.[12]The Tribunal would expect at a minimum an explanation as to why such a request was made to adjourn the hearing at the last minute. No explanation is provided. The Tribunal has considered the prejudice to the respondent in refusing to adjourn the hearing, that they will be unable to cross examine the claimant and provide submissions to the Tribunal.[13]However, the Tribunal notes that the respondent has failed to file any witness statements in support of their claim by 11 October 2024 as required by the order dated 19 August 2024. The respondent also failed to confirm by 23 October 2024, that she was ready to proceed with the hearing. It does not therefore appear that the respondent was active in defending this claim.[14]As the respondent herself was not giving evidence, it was open to her to appoint a representative to attend to cross examine the claimant, but chose not to do so. Accordingly, it was open to the respondent to avoid the prejudice and it appears that she has chosen not to do so.[15]I have had regard to the overriding objective, at rule 3 of the Employment Tribunal Procedure Rules, and the importance both to seeking flexibility in proceedings, and with avoiding delay and saving expense. In my view, an adjournment of this hearing for the reasons provided is not in line with the overriding objective and accordingly, the request is refused.[16]The respondent also seeks strike out of the claimant’s claim on the basis it is unreasonable and vexatious because the claimant breached his contract by finishing work on 12 March 2024, and by taking alternative employment.[17]I remind myself that striking out a parties claim is a draconian measure. In Attorney General v Barker 2000 1 FLR 759, Lord Chief Justice Bingham described a vexatious claim as one with ‘little or no basis in the law’ and the effect of such proceedings were to inconvenience, harass and subject the respondent to disproportionate expense.[18]In this case, the respondent appears to offer no defence to the failure to pay the claimant for the period 1 – 12 March 2024. The claim is plainly not vexatious and is clearly based within the law as set out within the Working Time Regulations and the Employment Rights Act 1996. Accordingly, this application for strike out is without merit and is dismissed.
Evidence
[19]I was provided with a bundle from the claimant consisting of 120 pages together with a statement from the claimant.[20]In the course of the hearing I also received an email from the respondent referred to above, dated Sunday 3 November 2024 and including representations and extracts of the claimant’s contract, which is set out within the bundle.[21]I also heard oral evidence from the claimant in relation to his application for holiday pay. Late evidence.[22]Pursuant to the case management order dated 19 August 2024, the respondent was required to provide all documents relevant to the issues in this claim to the claimant by 6 September 2024, with the bundle to be agreed by the 13 September 2024.[23]The respondent in her email dated 3 November 2024, refers to a further electronic file of documents to be provided via ‘we transfer’ including evidence previously provided and additional evidence. The additional document received by the Tribunal consisted only of an extract from the employment contract, which is already in the bundle.[24]As the respondent did not attend the hearing, it was not possible to ascertain whether there were further documents to be provided in evidence, or the relevance of any additional documents. The respondent also did not give any reason for failing to comply with the orders from the CMO dated 19 August 2024.[25]As the only additional evidence before me is already included within the final evidence bundle, I refuse this application for late evidence. Relevant Law.[26]The Employment Rights Act 1996 section 13 prohibits unlawful deductions from wages as follows: (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[27]In relation to remedy for unlawful deductions of wages, s24(2) ERA 1996 allows the Tribunal to make an award as follows; 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.[28]The Working Time Regulations set out the amount of annual leave a worker is entitled to as follows: 13.— This regulation applies to— (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year.[29]Further, the Working Time Regulations set out the additional annual leave entitlement as follows: 13A.—(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).(2) The period of additional leave to which a worker is entitled under paragraph (1) is— (a)in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks; (b)in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year; (c)in any leave year beginning on 1st April 2008, 0.8 weeks; (d)in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year; (e)in any leave year beginning on or after 1st April 2009, 1.6 weeks.[30]Furthermore, in relation to payment for that leave, the Working Time Regulations say as follows: 16.—(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulations 13, 13A and 15B, at the rate of a week’s pay in respect of each week of leave.[31]In relation to remedy for failure to pay holiday pay, regulation 30 sets out the following: 30.—(1) A worker may present a complaint to an employment tribunal that his employer— ….. (b)has failed to pay him the whole or any part of any amount due to him under regulation 14(2) 15E, 16(1) or 16A.
Findings of Fact
[32]The claimant was employed by the respondent, a Sports PR company, as a Junior Publicist from 5 October 2020 until 14 March 2024. It is not disputed that the claimant gave notice in December 2023, and that his final day of employment was 14 March 2024.[33]It is common ground that the claimant made a request for two days leave on 7 February 2024, for Monday 26 and Tuesday 27 February 2024 (bundle p70).[34]By email dated 19 February 2024, Ms McAteer confirms that she has not yet authorised the leave request made on 7 February 2024.[35]It is common ground that the request for annual leave on 26 and 27 February 2024 was granted, and the claimant says in his witness statement that it was approved the night before he was due to the take the leave. There is no evidence to the contrary and I accept his account of his experience.[36]The claimant further states he requested two further days annual leave at an office team meeting on 29 February 2024, for 13 and 14 March 2024 and her response was ‘that they would be really busy’. This is a similar response to that made by Ms McAteer in her email on 19 February 2024. The respondent has not disputed the claimant’s account of this meeting in her email dated 3 November 2024, nor in the ET3.[37]However, in his email of 10 March 2024, Mr Ward states that ‘I would like to use my two remaining annual leave days on Wednesday 13 March 2024, and Thursday 14 March 2024’ and he confirms that he has attached the official annual leave request on that date.[38]The email of the 10 March 2024, makes no reference to the previous request for leave in the meeting of 19 February 2024.[39]Ms McAteer responded to his annual leave request on 11 March 2024 at 12.21 refusing his request for annual leave on 13 /14 March 2024.[40]Mr Ward responded by email at 17.29 on 12 March 2024, in which he again did not reference requesting the annual leave at an earlier meeting. Furthermore, he gives no indication that he believed his annual leave request was granted by the respondent. Instead he references that he has been told by another member of staff that his last day was 12 March 2024. This would be directly contradictory to the previous email sent in that email chain, and I do not accept that the claimant believed his holiday was authorised.[41]It is agreed that the claimant worked between 1 – 12 March 2024 and that he has not been paid for those dates.[42]It is not disputed that the claimant did not work on 13 and 14 March 2024. On the basis of the above, his absence on the 13 and 14 March 2024 was unauthorised.[43]The parties agree that the claimant’s leave year runs from 1 January to 31 December each year. Conclusions Unlawful deductions of wages.
Conclusions
[44]The Tribunal is asked to determine whether there have been unlawful deductions from the claimant’s wages for two time periods, 1 – 12 March 2024 and 13-14 March 2024.[45]In regards to the period 1-12 March 2024, it is accepted by the respondent that the claimant worked for that period and it is not disputed that he has not received any payment for working in that period.[46]The Court of Appeal in Delaney v Staples (t/a De Montfort Recruitment) 1991 ICR 331 confirmed that a complete failure to pay would fall within the definition of a deduction.[47]The respondent has clearly made a deduction from the wages of the claimant for the period 1 – 12 March 2024. The respondent has failed to identify a contractual or statutory basis for those deductions, and therefore those deductions are unlawful.[48]In her email of 3 November 2024, the respondent refers to the claimant having breached his contract of employment, firstly in relation to clause 12, ‘obligations upon termination’. The respondent does not explain how that clause has been breached within her email. In the ET3, the respondent states that Mr Ward ‘wiped his laptop and all his company emails without permission. He did not complete any of the Obligations upon termination in his contract’.[49]There is no evidence within the bundle in relation to the laptop or company emails, or any cost implication of such action.[50]Turning to the period 13-14 March 2024. I have found that the claimant’s request for holiday was not authorised, and therefore that his absence from work on 13 March 2024 and 14 March 2024 was unauthorised.[51]Section 13(3) ERA 1996 prohibits deductions from wages ‘properly payable’. The claimant was not ready, willing and able to work on 13 March 2024 and 14 March 2024, as he had stated at the end of the work day on 12 March 2024 that that would be his last day of work. Accordingly, wages for those days are not ‘properly payable’ under the ERA 1996, and therefore there has been no deduction from wages for those days. Holiday claim.[52]The claimant’s amended ET1 is identical to his original ET1, save for the holiday pay box having been ticked. In the application for amendment, at paragraph 11, the claimant is clear that he is not seeking to alter the underlying factual basis of his claim and refers to the case management order, that if he is not entitled to be paid for 13 and 14 March 2024, that he is entitled to an equivalent payment as accrued holiday pay.[53]The claim presented at the final hearing was different, with the claimant seeking 6 days in accrued annual leave, or 4 days, should the 13 and 14 March 2024 be found to be holiday days.[54]The respondent in the ET3 states that ‘any untaken holiday would be in his final pay’ and accepts that the claimant has two days leave remaining at the end of his contract.[55]However, the respondent accepts that no payment was made at the end of his employment on the basis that the respondent argues his contract was breached.[56]At bundle p65, an email chain between the claimant and the respondent’s accountant, Ms Angela Hammond, refer to the claimant’s holiday entitlement as 4.10 days by the date of termination. Ms Hammond then states that the annual leave can be rounded up to 4.25 days.[57]The claimant’s employment contract confirms he is entitled to 20 days paid holiday, together with public holidays. This is in line with the Working Time Regulations 1998 (WTR 1998), which provide for a minimum of 5.6 weeks holiday per year.[58]The claimant’s employment contract has the following clause in relation to accrued holiday at clause 8.1: If the appointment commences or terminates part way through a holiday year, the Employee’s entitlement during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest whole day.[59]Ms Hammond has not set out how she has calculated the claimant’s accrued holiday. However, the respondent, in her email of 3 November 2024, states the following: ’His holiday allowance as per his contract was 20 days per year – that is 1.6 days per month, so 2.5 months is 4.1 days.[60]At clause 8.4 of the claimant’s employment contract, it is recorded as follows: 8.4 …..any payments due under clause 2.1 any payment due under clause 8.3 shall be limited to the Employee’s statutory entitlement under the Working Time Regulations 1998 and any paid holidays (including paid public holidays) taken shall be deemed first to have been taken in satisfaction of that statutory entitlement.[61]It is unclear what is meant by paragraph 8.4, as it would appear to intend to limit the entitlement for annual leave to the initial 20 days set out in clause 8.1, and set out in regulation 13 WTR 1998 However, the WTR provide for an additional 1.6 weeks annual leave at regulation 13A WTR 1998.[62]The respondent’s contract differentiates between public holidays and annual leave, and the claimant confirmed in evidence that public holidays were expected to be taken on the date of the holiday. However, he also gave evidence that he undertook work from home on public holidays and stated that he always ended up working every bank holiday and weekend.[63]The respondent’s calculation of the claimant’s outstanding holiday was incorrect. On the basis of the WTR 1998, the claimant was entitled to 5.6 weeks annual leave and not 20 days per year, as per the calculation by both Ms McAteer in her email of 3 November 2024, and Ms Hammond in her email of 11 January 2024.[64]Given the claimant’s employment ended on 12 March 2024, he worked for 72 days during this leave year, therefore his leave entitlement is as follows; 28 × ( 72 365) = 5.52[65]The contract requires that leave be rounded up to the nearest full day, so the claimant accrued 6 days annual leave up to and including 12 March 2024.[66]It is accepted that the claimant took two days annual leave. The respondent has not relied upon any further dates for annual leave within their calculation. Accordingly, I am satisfied that the claimant had 4 days annual leave remaining at the termination of his employment.[67]Accordingly, in accordance with the WTR 1998 and the claimant’s contract, he is entitled to payment in lieu for his accrued holiday untaken at the end of his employment.
Remedy
[68]In his ET1, the claimant claims he was paid £2166 per month before tax, equivalent to £25,992 annually before tax. The respondent, in her ET3, confirmed that this rate of pay was correct.[69]The respondent has also confirmed that Mr Ward had been provided with a bonus of £1000, however, no details in relation to that have been provided within the bundle, and the claimant has not sought to rely on this bonus as part of his remuneration.[70]The claimant was provided with a payslip for March 2024, indicating his pay for the period 1 – 14 March 2024 should have been £1031.75 (p72 bundle) which is slightly higher than the figure agreed by the parties in the claim form and response.[71]However, given the payslip was provided by the company accountant, and does not appear to be disputed by the respondent, I am prepared to accept that this is the appropriate salary details for Mr Ward. Accordingly, this provides for a gross daily pay rate of £73.70.[72]Given that the claimant’s employment ended on 12 March 2024, the deductions for March 2024 total £884.36.[73]In respect of holiday pay, in his submissions, the claimant asserts that his salary is £24,563.51 pa. It is unclear how this figure has been calculated from the information in the schedule of loss and is lower than the annual salary agreed by the respondent in the ET3 and that I have accepted above as the salary details for the Applicant. Accordingly, given the lack of evidence relating to the claimant’s salary from the respondent, and the payslip from the company accountant, I accept the figures as set out in that payslip.[74]The claimant’s contract of employment provides that the claimant is entitled to holiday pay at a rate of 1/260 his salary. This provides the claimant with a holiday pay entitlement of £99.97 per day.[75]Accordingly, as the claimant had 4 days outstanding at the termination of his employment, he is entitled to a payment of £399.88.[76]The claimant has sought payment of interest under s24(2) of the Employment Rights Act 2024 at a rate of between 6 % and 13% between 28 March 2024 and 4 November 2024, ranging from £44.35 to £96.08.[77]I am satisfied that the claimant has been denied the benefit of the wages he was legally entitled to for the period he worked and that he has been denied the benefit of that money for 10 months. The respondent has never advanced a cogent reason for failing to pay any wage for March 2024, despite generating a payslip for that period and acknowledging that holiday remained outstanding. The respondent has failed to evidence any alleged breach of contract, or other defence to this claim.[78]I also take into account the claimant’s behaviour in ending this employment relationship. The claimant emailed the respondent after 5pm on 12 March 2024 to confirm he would not return to work, notwithstanding the refusal of his leave. It is likely that this would have caused the respondent some inconvenience.[79]In Main v SpaDental [2024] EAT 200 Mr Justice Bourne confirmed that regulation 30 can be construed to allow payment of interest like compensation. I am therefore satisfied that it is appropriate to award Mr Ward 8% interest accruing against his holiday pay entitlement. Given that this has been outstanding for 221 days by the date of the hearing, I calculate this sum to be £19.37.[80]Turning to the compensation under 24(2) ERA 1996, I am not persuaded that I have seen evidence of financial loss for the claimant. In his closing submissions, Mr Bugg provided a helpful extract from the explanatory notes to s7 of the Employment Act 2008, key extracts being “The remedies available in section 23 and 24 of ERA 1996 do not, however, extend to compensation for losses arising out of the non-payment or unauthorised deduction, or payment, for example additional bank charges or interest charges” and “Section 7 inserts a new provision…so as to empower the employment Tribunals to order … a compensatory payment to reflect any financial loss suffered by the worker as a result of the employer’s default.”[81]An interest charge from, for example, a debt accrued due to a failure to make payment, or a bank charge, is different in nature to an interest payment for Monday held in an account. In any event, Mr Ward has provided no evidence to show that he would, in fact, have held this money within an account and thereby received interest on it. He has also not demonstrated the rate of interest such an account would deliver. In those circumstances, I find I am unable to accept that he has suffered that financial loss, and therefore do not make a further payment for interest.