Ms P Haynes Waite v Ebonycare Ltd: 2302530/2017
JUDGMENT
The judgment of 23 May 2018 is confirmed. Employment Judge Nash Date 16 April 2019 Case No: 2302530/17 10.15 Certificate of Correction – rule 69 March 2017 EMPLOYMENT TRIBUNALS Claimant: Mrs P Haynes Waite Respondent: Ebonycare Ltd CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the reasons sent to the parties on 31 July 2018 are corrected as set out in block type at paragraphs 12 and 24. For the avoidance of doubt, there is no correction to the judgment sent to the parties on 18 June 2018. Employment Judge Nash Date 16 April 2019 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. 2302530/2017 1 JB EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Ms P Haynes-Waite and Ebonycare Limited HELD AT: LONDON SOUTH ON: 23 May 2018 Before: Employment Judge Nash (Sitting Alone) Representation: For Claimant: In Person For Respondent: No Appearance CORRECTED REASONS[1]The claim form in these proceedings was presented on 18 September 2017.[2]The Tribunal had corresponded with and, had granted an extension of time to come the respondent to submit its response.[3]The respondent did not attend this hearing which was listed for 2 PM. The tribunal file showed that the notice of hearing was sent to the address given by the Respondent when replying to Tribunal correspondence and in its ET3. Tribunal staff on the day of the hearing complied with the Tribunal’s non-attendance protocol by checking all waiting rooms, consultation rooms, email messages, phone messages, and with building security on at least two occasions. No sign of the Respondent was found. A non-attendance 2302530/2017 2 stencil was completed. Because the Respondent had not attended by 2:15 PM and there had been no indication from the Respondent that it was intending to attend the hearing or had been delayed, the Tribunal proceeded in the absence of the Respondent.[4]In respect of witnesses the Tribunal heard from the Claimant herself.[5]The Claimant provided a Bundle and all references in this reason are to this Bundle unless otherwise stated. The Claims[6]In her originating application the Claimant had ticked the box marked ”arrears of pay” when stating her complaint. It was agreed that this complaint was pursued both under Section 13 Employment Rights Act 1996 for unlawful deduction from wages and also under the tribunal’s breach of contract jurisdiction in the alternative. The Issues[7]The issue for the Tribunal were:-(1) What if any wages were due from the Respondent to the Claimant? The Claimant relied on a failure to pay salary in respect of May, June and July 2017. A failure to make proper pension contributions, a failure to pay salary in total for the first 5 months, and a failure to pay annual leave outstanding upon termination.(2) Had the claimant suffered any financial loss attributable to any unauthorised deduction from wages pursuant to section 24(2) Employment Rights Act 1996?(3) Was the claimant provided with a statement of terms and particulars of employment in compliance with section 1 Employment Rights Act 1996? The facts[8]The Respondent runs children’s care homes and employs about 49 people. The Claimant started work on 3 August 2016 as a Secretary/PA. She obtained her job through an agency.[9]The Tribunal accepted the Claimant’s evidence as it was unchallenged, it was consistent with documents and she was found to be a credible witness. 2302530/2017 3[10]The Claimant did not receive a written contract of employment from the Respondent. She received a letter of appointment dated 16 July 2016, according to which she was entitled to 5.6 weeks holiday a year. Her salary was £30,000 pa. The letter stated that terms and conditions would follow.[11]The tribunal made the following findings based on the claimant’s payslips and her oral evidence. The Respondent failed to pay the Claimant’s gross salary in full, from August 2016 to January 2017 inclusive. She was owed according to her letter of appointment, £2,500 per month. However, she was paid gross only £2,422.56 a month, resulting in a shortfall of £77.44 a month. The Respondent started to pay the correct salary in February 2017, but it never made up the shortfall.[12]The Respondent then failed to pay the Claimant in [ ] June and July 2017. Based on previous payslips, she should have been paid £2,500 gross a month, but she was not paid at all. Finally, the Respondent UNDERPAID THE CLAIMANT BY £147.93 IN MAY. Again, the Claimant’s evidence was accepted as it was unchallenged, consistent with the documents and credible.[13]The Claimant was told in March 2017 that the holiday year ended on 31 March. She then sought to take her outstanding holiday for the holiday year 2016 to 2017. However, the Respondent refused, telling the claimant that she had left it too late and had accordingly lost the holiday.[14]The Respondent also made monthly deductions from the Claimant’s salary which were stated in her payslip to be in the respect of pension contributions.[15]The Claimant raised a grievance on 18 July 2017 raising - amongst other things - the shortfalls in her wages, the failure to pay wages from May to July, pension deductions, and the failure to provide a handbook setting out her terms and conditions of employment.[16]The Respondent replied by way of an email of 19 July offering a meeting. The Claimant replied to the Respondent’s reply that day stating, amongst other things, that she had contacted the Respondent stated pension provider Nest, who had no record of either the Claimant or the Respondent.[17]The Respondent then dismissed the Claimant by way of an email of 21 July 2017. The Claimant was paid one week’s notice which she was not required to work. 2302530/2017 4[18]The Claimant was entitled to 9.5 days holiday for the period from 1 April 2017 to termination. She had taken about this amount of annual leave. Her effective date of termination was 31 July 2017.[19]As a result of the Respondent’s failure to pay wages, the Claimant suffered hardship. However, she was in a position to borrow money interest free from family and friends. She was required to dip into her pension pot. However, she did not suffer any financial losses attributable to the respondent’s failure to pay, such as overdraft fees or interest. The applicable law[20]The applicable law is found in the employment rights act 1996 follows: – 1 Statement of initial employment particulars. (1)Where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment. (2)The statement may (subject to section 2(4)) be given in instalments and (whether or not given in instalments) shall be given not later than two months after the beginning of the employment. 13 Right not to suffer unauthorised deductions. (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 … 24-Determination of complaints (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 2302530/2017 5 appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of. Applying the law to the facts[21]The Tribunal considered unauthorised deductions from wages under Section 13 Employment Rights Act.[22]The tribunal firstly considered the three months in which the claimant was not paid at all. These forms part of a series of deductions, and the last one was made within the statutory time limit. Accordingly the tribunal had jurisdiction to consider all three deductions.[23]Compensation for unauthorised deductions from wages is awarded gross of all deductions. It is not for the Tribunal to speculate as to the Claimant’s tax liability in any tax year; it is for the claimant to account to HMRC for any applicable statutory deductions. As the wages are awarded gross, the stated pension deductions are not recoverable, as this would constitute impermissible double recovery.[24]The Claimant is owed £2,500 a month x 2 months being £5,000 - PLUS THE £147.93 NOT PAID. Accordingly, she is entitled to £5,147.93 in respect of wages for her last 3 months of employment.[25]The Claimant has not suffered any consequential loss pursuant to Section 27(2).[26]The Tribunal then considered loss in respect of wages for annual leave. The Claimant was contractually entitled to 28 days annual leave. However her contract was silent as to the date on which a holiday year began. The statutory scheme for annual leave under the Working Time Regulations states that an employee’s holiday year starts on the day she is employed. The amount of annual leave in the claimant’s contract was consistent with the statutory scheme. On the claimant’s evidence, which I accepted, there was a bare assertion from the Respondent that the holiday year started at a different time, being 1 April. However, there was nothing in writing to indicate any departure from the statutory scheme. Accordingly, the Tribunal found that under the Claimant’s contract her holiday year started in accordance with the statutory scheme on 3 August.[27]The tribunal found that it was an implied term of the claimant’s contract that, absent any summary dismissal, she would be paid for any annual leave accrued but not paid upon termination. The reason for this is that this is custom and practice and is in accordance with the so-called officious bystander test. 2302530/2017 6[28]As the Claimant had accrued five days annual leave for which she had not been paid, the respondent unlawfully breached her contract in failing to pay these five days. This deduction was made on termination and accordingly this claim was made in time. It was calculated that the claimant’s daily rate of pay was £113.64 gross. She is owed five days being a total of £568.25 gross of statutory deductions.[29]The tribunal had no jurisdiction under section 13 Employment Rights Act 1996 over the earlier deductions because they were made outside of the statutory time limit and did not form part of a series, the last one of which was made within time. However, the Claimant made a claim in her originating application for “arrears of pay”; she did not claim in terms under Section 13 Employment Rights Act. Accordingly, the Tribunal considered this claim under its breach of contract jurisdiction. As this breach was outstanding upon termination, the Tribunal had jurisdiction to consider it. Accordingly, the Tribunal found that the Respondent breached the Claimant’s contract of employment by failing to pay her on six occasions from August 2016 through to January 2017 at a rate of £77.44 a month being a total of £464.64.[30]The Tribunal next considered its jurisdiction under Section 207A TULRA to adjust the award. The Tribunal found that the ACAS Code on Disciplinary and Grievance at Work is applicable to these claims. The respondent employer had failed to comply with the Code when it failed to offer the Claimant a meeting after she raised a grievance. There was a further failure when the respondent dismissed the claimant after she challenged the respondent’s response to her grievance, instead of permitting the claimant to proceed with her grievance.[31]Accordingly, under Section 207A the Tribunal increased the award because of the respondent failed to comply with the ACAS Code. The Tribunal considered this a serious failure on the part of the Respondent. This failure was compounded by the Respondent dismissing the Claimant, which, it appeared to the tribunal on the evidence before it, was at least partly motivated by a wish to avoid complying with the Code. Accordingly, the Tribunal increased the award by the maximum amount under section 207A, being 25%.[32]Finally, the Tribunal considered Section 38 Employment Act 2008. When a Claimant is successful in her complaint, the Tribunal must consider whether or not she has been provided with a statement of terms and conditions which is compliant with Section 1 Employment Rights Act 1996.[33]The Tribunal found that the claimant had not been provided with such a statement. This failure was almost complete, save for a few terms and conditions which were stated in the offer letter. Further, the respondent accepted that it had not provided a full 2302530/2017 7 statement of terms and conditions in the offer letter by agreeing to provide such a statement at a later date.[34]The Tribunal considered whether the lower or higher amount should be awarded under section 207A. The Tribunal found that the Respondent had sought to take advantage of its failure to provide a written contract of employment by seeking to contend that the Claimant had in effect lost her right to 5 days holiday pay. Accordingly, the Tribunal found it reasonable to award the Claimant the higher amount. The higher amount is 4 weeks’ pay. This amount is capped at £489.00 a week gross and accordingly 4 x £489.00 is £1,956.00.