Miss Gina Isenberg v CIS Security Ltd: 2300806/2019

EMPLOYMENT TRIBUNALS

Case No 2300806/2019

Between

Miss Gina IsenbergClaimant

CIS Security LtdRespondent

Before

Employment Judge Martin

In person for claimant

Date 20 November 2020

JUDGMENT

The judgment of the Tribunal is that the Claimant’s application to amend her claim to include race and sex discrimination is refused. JUDGMENT

[1]The Claimant suffered an unlawful deduction from her wages for the period 12 November 2018 to 25 November 2018.

[2]The Respondent shall pay the Claimant the sum of £979.20 (nine hundred and seventy nine pounds and twenty pence). Introduction [In this Judgment, references within square brackets are to page numbers within the agreed tribunal bundle.]

[1]By an ET1 received by the Tribunal on 5 March 2019 the Claimant, Ms Isenberg, brings a claim of an unauthorised deduction from earnings for the period 12 November 2018 until 5 March 2019.

[2]At the hearing, which was conducted remotely by CVP, the Claimant represented herself and the Respondent was represented by Ms Plant, the Respondent’s Human Resources Director. The Claimant did not provide a witness statement for the hearing because she had not understood that one was required. However the Tribunal was referred to the following:2.1 an agreed bundle, paginated 1 – 251;

2.2 the Claimant’s Schedule entitled, ‘Deduction of Money and Charges’;

2.3 a witness statement from Mr Graves, signed and dated 14 June 2019.

[3]I heard oral evidence from the Claimant and from Mr Tony Graves, the Respondent’s Operations Director.

[4]It was agreed by the parties that the Claimant was not paid during the relevant period. The Claimant claimed that she should have been paid and that she is owed the sum of £7,360. The Respondent denied that any monies were owed and, in the alternative, calculated that if the Claimant’s claim was allowed in its entirety, the sum outstanding was actually £4,651.20. The Facts

[5]Having heard the oral evidence in this case and been referred to various documents within the tribunal bundle, I have made the following findings of fact:

[6]The Claimant is a security officer and continues to be so employed by the Respondent. It is agreed by the parties that her Contract of Employment is contained in the bundle [28-32]. This Contract includes the following clauses: After consultation and agreement the company may assign you to work on any sites within reasonable travelling distance from your home and you should be aware that you may be reallocated to a different place of work at any time. Should the client no longer require your services, we will try to relocate you however if this is unsuccessful following consultation, we will have no alternative but to terminate the employment. Hours of Work: ……. You should be aware that both the number of hours worked and when these hours are worked may vary as they are dictated by the shift pattern of the site upon which you are working and as stated above you may be reallocated to a different shift or site at any time.

[7]The circumstances in which the non-payment of the Claimant’s wages arose, were as follows:7.1 From around December 2016 the Claimant was based at The McClaren Halls of Residence at the London South Bank University (‘LSBU’), working night shifts (8pm to 8am);

7.2 The Claimant’s employment transferred to the Respondent pursuant to a TUPE transfer on or around 1 September 2018;

7.3 At the time of the TUPE transfer, the Claimant was suspended from her employment and was subject to an ongoing disciplinary investigation. The detail of the allegations which triggered the Claimant’s suspension have not been a matter for this Tribunal but it is noted that reference has been made by both parties, in their evidence, to a suspected theft of some food from the McClaren Halls where the Claimant worked;

7.4 Upon the TUPE transfer, the Respondent continued with the investigation into the Claimant’s conduct and the formal disciplinary process. During this process, the Claimant raised a grievance against the University’s employee at the Halls of Residence;

7.5 On 26 September 2018 a meeting was held with the Claimant to consider both the disciplinary matter and her grievance. Notes of that meeting are included within the bundle [62 - 67]. It had been agreed with the Claimant’s representative, John Nicholson, that the disciplinary and grievance matters would be considered together. In the event, the Respondent decided not to proceed with the disciplinary process against the Claimant. The Respondent was not satisfied that there was a case for the Claimant to answer. However, following a specific request from LSBU, the Claimant was removed from working at the university’s halls of residence. She was informed of this at the meeting and that she would be subject to the Respondent’s redeployment policy [66-67]. This was further confirmed in writing after the meeting by an email from Ms Vincent to the Claimant [68]. It is relevant to note that the Claimant accepted in her oral evidence that it was appropriate for the Respondent to apply the redeployment policy in the circumstances of LSBU requesting that she did not return to her workplace.

[8]Following the meeting on 26 September 2018, it is the Respondent’s case that it attempted to communicate with the Claimant to offer her various redeployment opportunities and that the Claimant did not meaningfully engage in this process. The Respondent states that it was as a result of the Claimant failing to respond, that the Respondent decided to stop paying the Claimant.

[9]The principal contact between the Respondent and the Claimant can be summarised as follows:9.1 On 25 October and 2 November 2018 the Respondent’s control room emailed the Claimant asking her to contact them as they had been unsuccessful in getting hold of her [145, 144];

9.2 On 12 November 2018 the Claimant was sent an email from the Respondent’s Regional HR Manager, Hayley Fichtmuller. Ms Fichtmuller confirmed that the Respondent had checked with the client at LSBU about the Claimant returning to work at the site. The client had confirmed that the Claimant could return to work at the main site but that she was unable to return to work at the halls of residence [146];

9.3 On 14 November 2018 Jade Davies, the Respondent’s account manager, emailed the Claimant about work that was available at Birkbeck University [144];

9.4 On 19 November 2018 Ms Davies emailed the Claimant again and referred to having telephoned her that morning because work was available at Birkbeck University. Ms Davies requested that the Claimant return her call [143];

9.5 Ms Davies spoke with the Claimant on the telephone on 21 November 2018;

9.6 On 23 November 2018 Ms Davies sent a further email to the Claimant which read as follows, ‘Good Morning Gina Following our brief conversation on Wednesday, I am still awaiting your response reference work we have available. Kindly get in touch asap to arrange. Many Thanks’ [142-143]

[10]During her evidence, the Claimant was asked about her contact with the Respondent. The Claimant referred to having some difficulties with her email account. I am satisfied that it is more likely than not that the Claimant did receive her emails including that sent to her by Ms Vincent after the meeting on 26 September 2018. In making this finding, I have referred to the notes of a meeting with the Claimant on 3 December 2018. The Claimant was specifically asked at that meeting whether she had received some emails, to which she responded that she had received emails dated 2nd November and 25 October and, ‘I might have overseen the others’. [81]

[11]In respect of the offer of work at Birkbeck University, the Claimant’s evidence included the following points:11.1 The Claimant told me that she had spoken to Jade on the telephone on 21 November 2018 about available jobs but not the work at Birkbeck. Further, the Claimant said that had she known about the Birkbeck job, she would have taken it;

11.2 Later in her evidence, the Claimant said that on the telephone call Jade had referred to a single day’s work that was available but that it was for that night, namely the night of 21 November;

11.3 It was put to the Claimant that the email from Jade on 23 November 2018 noted that Jade was still awaiting a response to the work that was available and that such an email was inconsistent with the Claimant’s evidence that the work was only for the evening of 21 November. The Claimant then told me that she had spoken about different things to Jade and about being a relief officer;

11.4 The Claimant also said that she had told Jade during this telephone call that she would get back to her about a job at Westminster but that, in the event, she had not got back to Jade prior to the meeting on 3 December 2018.

[12]Having considered the Claimant’s evidence in detail, I do not accept her account that Ms Davies did not refer to the Birkbeck job in the telephone call on 21 November 2018. I am satisfied that the purpose of the telephone call on 21 November 2018 was to discuss the available job at Birkbeck. I do not accept the Claimant’s account that Ms Davies telephoned to offer her work for the night of 21 November. That explanation is inconsistent with the later email dialogue. I also do not accept that there was discussion about the Westminster job at this time. That position had arisen in September, as confirmed by Mr Graves’ oral evidence, and was not current by the time of the November telephone call.

[13]In his evidence, Mr Graves referred me to the Respondent’s spreadsheet recording its attempts to contact the Claimant [198-199]. In particular, Mr Graves tells me that the Respondent attempted to contact the Claimant about work on 2 November, 15 November, 19 November, 21 November, 22 November 2018, as detailed on the spreadsheet [198]. Contrary to this, the Claimant told me that whilst she had been called on 21 November 2018, she had not been called on 2, 15 and 19 November 2018.

[14]Having considered the evidence I have been referred to on this issue, I am satisfied that the Claimant was contacted on the 5 occasions set out above. In reaching this view, I accept Mr Graves’ evidence that the spreadsheet has been created from the logs and records of calls kept by the Respondent’s control room and that it is an accurate record of attempts to contact the Claimant. I also found the Claimant’s evidence on her level of contact with the Respondent to be unsatisfactory. Through her evidence, her account changed. For example, the Claimant told me that she contacted the control room regularly for work and when she received a missed call, she would try to call back although sometimes she did not have sufficient credit on her phone to make calls. However she also told me that she did not accept that she had been telephoned as documented in the log and that she wasn’t aware that she had to call the Respondent to check about available work. Further, later in her evidence, the Claimant stated that she had understood that she remained suspended and that she could not take work in November 2018, December 2018, January 2019 and February 2019. In apparent contradiction to this, the Claimant then stated that from the meeting on 3 December 2018, she fully complied with the need for her to be redeployed.

[15]On 3 December 2018 a further meeting was held with the Claimant. Again, the notes of that meeting are contained within the bundle [76 - 88]. At this meeting the Claimant’s grievance for not being paid in October and November, was heard [76-88]. The Claimant stated that she considered she was still under suspension from work and that she had not been informed about the redeployment policy.

[16]Whilst the Claimant accepted that she had been contacted by Jade, she stated that it hadn’t been made clear to her that she would not get paid if she didn’t accept work that was being offered. The Claimant also confirmed that she did receive the emails offering work and that she had not replied. The Claimant stated that this was because she was still speaking to HR and because she did not understand the process. It is noted that the agreed outcome of the meeting was that the October wages payment would be made to the Claimant, work would be referred to the Claimant and that the Claimant would communicate directly with Mr Graves going forward [76].

[17]On 5 December 2018 the Claimant emailed the Respondent. She appealed against the outcome of the grievance.

[18]On 29 and 30 December, the Claimant attended for 2 night shifts at LSBU. These shifts were covering an officer’s annual leave.

[19]On 5 January 2019, a grievance appeal hearing was held. The outcome of this hearing was confirmed in a letter which again stated that the Claimant was not on suspension but was subject to redeployment. By a letter dated 31 January 2019, it was explained to the Claimant that despite Mr Graves asking the client (LSBU) again to reconsider permanently removing the Claimant from McClaren House, the client had refused to change the decision [104].

[20]On 7 January 2019 Mr Graves sent the Claimant an email about the roster availability at the main campus of LSBU. Within the email it referred to a meeting which was to take place with the Claimant on the following day, 8 January 2019 [218 – 220]. From the minutes of that meeting it is clear that little progress was made, with the Claimant referring to wanting to talk about her case with HR.

[21]On 6 March 2019 a further meeting was held with the Claimant [106- 111]. The Claimant referred to her grievance and that the original allegations of theft had not been adequately investigated [107]. The Respondent confirmed to the Claimant that they had not proceeded with the disciplinary because they had not been satisfied of the accusation and, accordingly, no sanction had been given. Rather, it was because the client would not have the Claimant return to McClaren Halls, that the Respondent had sought to redeploy the Claimant.

[22]Towards the end of the meeting the Claimant referred to being suspended and that the case was still ‘ongoing’ and that she should get ‘full pay’ [111].

[23]At a further redeployment meeting on 2 May 2019 the Claimant was offered a permanent night shift role at Turner Broadcasting. In the event, the Claimant attended for some training days at that site [181-183]. By an email dated 10 June 2019, the Claimant was offered a position at the Royal College of Music in Kensington [195].

[24]I am told by both parties that the Claimant is now back attending work and that she continues to be a valued employee. Legal Summary

[25]Pursuant to sections 13 and 15 of the Employment Rights Act 1996, no deduction from a worker’s wages may be made unless either:25.1 It is required or permitted by a statutory or contractual provision; or

25.2 the worker has given his prior written consent to the deduction.

[26]A complaint may be presented to an employment tribunal that an unauthorised deduction from wages has been made contrary to section 13(1) or 15(1) of the Employment Rights Act 1996. In considering such a complaint, the employment tribunal must establish what was the total amount of wages properly payable to the Claimant for the period in question. When the amount paid is less than the total amount properly payable, that amount is the deduction.

[27]If there has been a deduction, the employment tribunal will then consider whether the deduction was authorised or unauthorised.

[28]The question of what is properly payable to a worker under section 13(3) of the Employment Rights Act 1996 is therefore critical to determining whether an unlawful deduction has been made. Section 13(3) provides that: ''where the total amount of any wages paid on any occasion by an employer … 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 … as a deduction made by the employer from the worker's wages.''

[29]Determining what is properly payable will generally involve resolving a dispute over what a worker is contractually entitled to receive by way of wages. It requires a consideration of all the relevant terms of the contract, including the implied terms. Was there a legal entitlement to wages? Did the employee refuse to work?

[30]An employee must be ready and willing to work. In considering whether an employee is ready and willing the employment tribunal shall examine the employee’s situation and intentions. Where it is clear that the employee has deliberately refused to work without good reason and where there is nothing in the contract to the contrary, the employer may make a deduction in respect of the period where no work was carried out. Tribunal’s Conclusions

[31]In considering this complaint, the Tribunal must determine what amount was properly payable to the Claimant for the period 12 November 2018 until 5 March 2019.

[32]It is agreed by the parties that the Claimant was subject to the redeployment policy following the decision by LSBU not to allow the Claimant back to work at its halls of residence. The application of this policy to the Claimant’s situation was clearly discussed with her at the meeting on 26 September 2018. At a later meeting on 3 December 2018 it was agreed that the Claimant would be paid up to and including week commencing 5 November 2018, on the basis that there may have been some initial lack of clarity and certainty as to the application of the redeployment policy and the requirement for the Claimant to engage with that process.

[33]I am satisfied that following the September meeting, there was some contact between the Claimant and the Respondent but that it was irregular and that there were occasions when the Claimant failed to return telephone calls and respond to emails. I am satisfied that the Claimant’s failure to fully engage with the Respondent from this time was due to a reluctance to be subjected to redeployment and, accordingly, move from her role at LSBU. The Claimant continued to feel aggrieved that LSBU would not allow her to return, she did not consider that her grievance had been resolved and she wanted to return to her job and working arrangements at the McClaren Halls.

[34]In her closing submissions the Claimant stated that she couldn’t engage with the redeployment process because her grievance wasn’t fully investigated. This contention was at odds with the Claimant’s earlier evidence that her difficulty with engaging had been problems with receiving telephone calls and emails successfully. On balance, I am satisfied that the Claimant understood that a redeployment process was to be followed from the September meeting but she chose not to fully participate with that process because she remained unhappy that LSBU had removed her from working at McClaren Halls. This conclusion is supported by the Claimant’s evidence about wanting her grievance to be fully investigated before engaging with redeployment and the Claimant’s oral evidence that she wanted to challenge the need for redeployment.

[35]In my judgment, the Claimant’s failure to fully engage moved on in November 2018 to her failing to return to work in an appropriate role.

[36]In an email on 19 November 2018, the Claimant was told that a role was available at Birkbeck [143]. As referred to in my findings of fact, during the telephone conversation on 21 November 2018 between the Claimant and Ms Davies, the Claimant was told that this role was available to her. In her evidence before me, the Claimant has accepted that this job was entirely appropriate for her. However the Claimant failed to accept the role and return to work. That amounted to a refusal by the Claimant to return to work without good reason. I am satisfied that in those circumstances, the Respondent was permitted to withhold payment of the Claimant’s wages from the time the Claimant could have been expected to work at Birkbeck. The Claimant was not ready and willing to work and her failure to engage with returning to work at Birkbeck was, in effect, a refusal to work.

[37]In all of the circumstances, I have concluded that the date the Claimant could have been expected to return to work at Birkbeck was the week commencing 26 November 2018, some 5 days after the Respondent’s telephone call with her on 21 November 2018.

[38]In my judgment the Claimant has suffered an unlawful deduction of her earnings for a two week period, 12 November 2018 to 25 November 2018. I have calculated the deduction suffered in the sum of £979.20. This has been calculated on the basis of two weeks at £489.60 per week. In reaching this conclusion, I have preferred the Respondent’s evidence that the Claimant’s relevant hourly rate was £10.20. This was the hourly rate paid to the Claimant, and not queried by her, in respect of her December 2018 payslip.

[39]Whilst I have understood that the Claimant’s case was that she incurred various charges as a result of the alleged period of unlawful deductions, I have not been provided with any documentary evidence in support of these charges as set out in the one page summary sheet provided by the Claimant. With no documentary evidence provided in support of these claims, I am not satisfied that any of the charges detailed have been incurred as a result of the two weeks of deductions that I have found. Accordingly the Respondent shall pay the Claimant the sum of £979.20, which is the sum of the deductions unlawfully made.