Mrs E Besta v Cinq Sandwiches and Patisseries 2302894/2017
JUDGMENT
[1]The Respondent will pay the Claimant the sum of £408 in respect of unpaid wages.[2]The Claimant has applied for a preparation time order in the sum of £108 (3 hours’ preparation time).[3]If it disagrees with that Order being made, the Respondent will write to the Tribunal within 14 days of the date of this Order being sent to the parties, setting out its reasons.REASONS
[1]This is a claim brought by the Claimant, Ms Betsa, in which she complained that she was owed unpaid wages in respect of work carried out at the Respondent’s restaurant. Page 1 of 2 October 2017 Case Number: 2302894/2017[2]In its Response, the Respondent denied owing any money and asserted that the Claimant was simply undergoing an unpaid trial.[3]The Respondent did not attend. The parties were informed of this hearing date on 3 April 2018, a previous hearing having been vacated at the request of the Respondent. There was no communication by email or telephone from the Respondent explaining their non-attendance. In those circumstances, the Tribunal proceeded in their absence.[4]The Claimant gave evidence through an interpreter and the Tribunal found as a fact that she worked a total of 48 hours between 26 and 31 July 2017 and that she had been told by her manager she would be paid £8.50 per hour. She told the Tribunal – which accepted her evidence – that the Respondent was wrong in describing this as a trial period.[5]The Tribunal therefore concluded that the Respondent had failed to pay the Claimant her wages in the sum of £408.[6]The Claimant then made an application for a preparation time order in respect of the time it had taken her to prepare her statement and relevant documents, as well as deal with correspondence (including in respect of the vacated hearing). She made the application on the basis that the Respondent had acted unreasonably in the way it conducted the proceedings by failing to attend.[7]The Tribunal agreed in principle and considered that the Claimant was entitled to a preparation time order reflecting 3 hours preparation time at the current rate of £38 per hour (£108). However, before that order can be made, the Respondent has an opportunity to write to the Tribunal and stating why that Order should not be made. NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2302894/2017 Name of case(s): Mrs E Betsa v Cinq Sandwiches And Patisseries The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 26 June 2018 "the calculation day" is: 27 June 2018 "the stipulated rate of interest" is: 8% MANISHA PATEL For the Employment Tribunal Office September 2017 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE 1. This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.justice.gov.uk/tribunals/employment/claims/booklets If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim. 2. The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been[1]In this matter the claimant complains that she was employed by the respondent in July 2017 and is owed £408 in respect of unpaid wages.[2]I heard evidence from the claimant and Mr Gabriele for the respondent. An interpreter should have been available for the claimant at today’s hearing but was not. At the claimant’s request the hearing was not postponed and she proceeded with the assistance of her daughter who confirmed that that assistance would be limited to a strict translation of anything the claimant did not understand with no additional comment or embellishment. Mr Gabriele confirmed that he was happy to proceed on that basis. Given the value of the claim and the delays already in getting to this hearing (see below), this seemed a proportionate way forward. In the event, it appeared that the claimant understood the vast majority of the hearing and Ms Kyrtsia had to assist her infrequently.[3]The parties’ witness statements, which had been exchanged prior to the hearing, both had documents attached to them. Where the other party had not yet seen those documents, I ensured that they were shown to them and they had the opportunity to comment on them.[4]This matter has had a very unfortunate procedural history which has resulted in this being the fourth hearing in respect of a low value claim. Neither party was particularly to blame for the delays and indeed it is clear that it was the Tribunal’s error in using the respondent’s incorrect email address that led to one wasted hearing.Relevant Law
[5]If a worker suffers an unauthorised deduction from his or her wages he or she may make a complaint to the Tribunal (section 23 of the Employment Rights Act 1996). The burden is on the claimant to persuade the Tribunal that it is more likely than not that they have suffered such a deduction.Findings of Fact
[6]Having assessed all the evidence, both oral and written, I find on the balance of probabilities the following to be the relevant facts.[7]The claimant is a Greek national who has extensive experience of working in restaurants/cafes both in Greece and this country. At the time of the events in question she was working in London in other similar jobs. Mr Gabriele is the owner of the respondent - a well-established sandwich shop that has been trading for over 33 years in various sites and has some very long serving employees.[8]The parties agree that on 24 July 2017 the claimant attended at the respondent and asked Mr Gabriele if there was any work available. Their accounts as to what then happened fundamentally and markedly differ.[9]In summary the claimant says:a. she carried out one two-hour trial shift on 25 July 2017 for which she was not to be paid;b. she then commenced paid employment on 26 July at an agreed rate of £8.50 per hour (which she specifically checked with Mr Gabriele as she had an alternative job offer at £8ph);c. over the next week she worked 48 hours;d. she was not asked to complete any forms and was not asked to produce any identification documents;e. the respondent refused to pay her what she was due for the hours worked;f. she was told by other employees that they did not have contracts of employment, were only paid cash in hand and at various rate.[10]In summary the respondent says:a. it was agreed the claimant would work three, two-hour unpaid trial shifts which she did and this was the only work she did;b. she was asked to complete an application form and to produce documents proving her right to work in the UK which she did not do;c. she did not attend on Saturday 29 July when she was asked to;d. if she had started work she would have been paid £7.50 per hour which was the then minimum wage which all new employees are paid.[11]It is clear that both the claimant and Mr Gabriele feel very strongly that their account is the correct one. Both gave their evidence convincingly and both appear to be honest. The claimant in particular has incurred considerable expense in attending the various Tribunal hearings from her home in Greece. The accounts are so fundamentally different that this does not seem to be, as we often see in Tribunal, that the truth lies ‘somewhere in the middle’.[12]When there is such a dispute between the parties we look to documents from the time to help assess which account seems the more likely to be true. Unfortunately there are no contemporaneous documents that directly go to what was agreed between the parties and what hours the claimant did or did not work. There is a letter that the claimant says she sent to the respondent on 5 August 2017 setting out her request to be paid for 48 hours at £8.50 per hour totalling £408. I have also seen a copy Royal Mail certificate of posting which indicates that a letter was sent to the correct address for the respondent on the same day. The claimant says that she checked the online tracking system which said the letter was returned to sender. Mr Gabriele says that no such letter was received nor returned and that they receive post from Royal Mail every day.[13]Mr Gabriele referred me to examples of documents that he says show that he runs his business quite properly and not as described by the claimant. In particular, a standard letter of engagement and contract of employment that he says would have been entered into with the claimant had she commenced work together with an example of the application form that he says she was given. Also, documents that show that he engaged Sussex Payroll Services Ltd to operate his payroll and PAYE scheme together with example payslips showing that employees were paid by bank transfer rather than cash and an email in July 2017 that shows employees at that time were paid £7.50 per hour. The claimant says that these documents do not prove how all the employees of the respondent were treated.Conclusion
[14]In deciding whether the respondent owes unpaid wages to the claimant, I have to decide on the balance of probabilities, i.e. what is more likely than not, to be the correct position. As stated above the burden of proof is on the claimant.[15]Despite the claimant’s obvious very strong feelings about this matter and the fact that she has made great efforts to attend the Tribunal and to pursue her claim, I do not conclude that she has met that burden of proof. I have a situation where both parties appear to be telling me the truth but the documentary evidence such as I have in general terms supports the respondent’s account of how he does business and to that extent is consistent with his account of what happened. It shows that he was paying employees £7.50 an hour, operated PAYE and has well-organised employee recruitment paperwork. The claimant’s letter dated 5 August 2017 does not, in my view, outweigh that evidence.[16]Accordingly I conclude that the claim is not proved and it is dismissed.[17]This decision and the reasons for it were given orally to the parties at the hearing. The claimant’s daughter was very upset by the outcome and wished to revisit the arguments. I assured her that I had given very careful consideration to her mother’s claim but I had made my decision. I explained the process should she wish to appeal and the grounds of appeal available. She requested these written reasons.Conclusion
[1]There is no reasonable prospect of the original decision being varied or revoked because all the matters raised in the claimant’s application – including the procedural history and the claimant’s undoubted efforts to attend - were fully considered at the hearing. The documents supplied by the claimant were also fully considered.[2]Further, the claimant was given a full opportunity to give her own evidence and to question the respondent. The claimant says that I used the phrase ‘I will not require this information at this phase’ multiple times. This is not a phrase that I would usually use and is not one that I remember using on this occasion. My notes of the hearing do not suggest that at any point in the hearing I stopped the claimant from asking questions or presenting her case. If I had so stopped her I would ordinarily make such a note.[3]I specifically discussed with the claimant and her daughter about proceeding without a translator. Agreement to do so was reached with all parties. ............................................................