Miss J Warner v Olufisan T/a Crims Day Nursery: 2302327/2022 Miss J Warner v Olufisan T/a Crims Day Nursery: 2302327/2022
JUDGMENT
[1]This is the Judgment of the Tribunal in the case of Warner v Olufisan, trading as Crims Day Nursery.[2]It is declared that the Respondent has made an unauthorised deduction from wages and is ordered to pay the Claimant the gross sum of £272.30 (which is liable to such tax as falls to be deducted pursuant to section 62 of the Income Tax (Earnings and Pensions) Act 2003).REASONS
[3]By an ET1 which was presented within time on 12 July 2022, the Claimant has made a claim for arrears of pay only. The Claimant was employed as a Pre-school Manager at the Respondent Nursery, located in Croydon, between 25.4.22 and 17.5.22. In the event, she was taken on as an employee in order to assist the owner (a person that the Claimant knew as “Toyo”, the Respondent) to get a new/startup nursery ready for the arrival of the first children. The Claimant and Toyo did not get on well together and the Claimant, who did not enjoy working at the nursery, left employment early in May 2022: her last working day was 16 May 2022. At this time the nursery had not yet opened its doors. It is relevant to note that, in May 2022, the Claimant worked between 2 and 16 May and that this amounted to some 68 hours of work.[4]The Claimant was provided by Toyo with a written contract of employment which she signed and which Toyo also signed (their signatures were attached around a week after the Claimant started work at the nursery).[5]I have not been provided with the written contract, but the Claimant has referred me to the relevant provisions: the contract stated that the Claimant would work 30 hours per week and that her gross weekly income (to be paid each month in arrears by bank transfer) was calculated by reference to an hourly rate (gross, as I have indicated) of £15.38 per hour.[6]The Claimant was paid for the work that she performed at the end of April and she makes no claim in that regard. However, she tells me and I accept that she worked 68 hours in May 2022 and that – initially at least – she was not paid for any of this work. After her employment came to an end, the Claimant entered a process of conciliation with ACAS (in which the Respondent also participated) and was eventually paid £386.77 in two instalments (a total £773.54) in June and July 2022. However, the Claimant’s case is that she was entitled to gross £1,054.84 for the 68 hours work performed in May 2022 and that she is, therefore, short by £272.30 for that gross sum (being, £1,054.84 less £773.54 as paid in June and July this year). The Claimant remains confused as to any relevant tax and national insurance deductions because – despite request – she was not provided by Toyo with any pay slips (instead, monies – including the sums paid after the intervention of ACAS – were simply paid directly into the Claimant’s bank account). It appears to the Claimant that deductions have been made from the May 2022 earnings which are not authorised and which do not reflect her tax/national insurance position. The confusion is increased by the fact that the Claimant recently logged onto her personal HMRC Tax account and this did not record that she had ever worked for the Respondent.[7]The Claimant logged onto this CVP Hearing in good time at 1.45 pm ready for the commencement of this Hearing at 2 pm. There was no attendance by the Respondent. I asked my Clerk to put the Hearing back while repeated attempts were made by email and telephone (which was out of service by reference to the number provided) to contact the Respondent. Such efforts were unsuccessful. In the circumstances, I exercised my power – pursuant to rule 47 – to proceed with this Hearing in the absence of the Respondent. The Claimant gave evidence before me after affirmation and I found her to be a reliable and consistent witness. I accept what the Claimant has told me about her pay and conditions and I also accept the calculations that I have set out above (as provided to me by the Claimant). I have approached the award on a gross basis and, by this calculation, I accept that there was an unauthorised deduction from wages owed.[8]The sum awarded as an unauthorised deduction from wages (being, £272.30) is a gross sum and is, therefore, liable to any tax in the usual manner pursuant to section 62 of the Income Tax (Earnings and Pensions) Act 2003.