Mr A Jama v Cordant Cleaning Ltd: 2303510/2018
JUDGMENT
The judgment of the Tribunal is that: The Claimant’s claim of unauthorised deductions from wages succeeds and by agreement the Respondent shall pay to the Claimant £650.00.REASONS
[1]Oral reasons were given at the hearing.[2]The Claimant presented his claim on (insert date) claiming unauthorised deductions from wages. These deductions related to his period of suspension from (insert date). The Respondent has accepted that it did not have the right to withhold pay from the Claimant during his period of suspension and has made payment to the Claimant. I am satisfied that payment was made and the Claimant was notified of the statutory deductions which were made for tax and national insurance. There is a document in the bundle that shows this.[3]The Claimant’s claim now is that he was paid at the wrong rate and that he should have been paid at £16 an hour whereas he was paid at £11 per hour. This is based on the form in the bundle, which is an amendment to contract form, which at the top of the form states that his new rate of pay for his new role is £11 per hour. However, there is a note at the bottom stating a figure of £16 per hour. The Respondent was unable to give an explanation about this discrepancy.[4]The Claimant worked in his new role from January 2018 till July 2018 when he was suspended. He was paid £11 per hour. The Claimant provided the Tribunal with his payslips which are very detailed and sets out where he worked, the hours he worked and his rate of pay. The rate of pay is shown as £11 per hour.[5]The Claimant complained during the hearing that the Respondent had not provided details of his comparators he says were paid £16 per hour. The Claimant gave names of two people and the Tribunal adjourned so that the Respondent could contact its payroll department and obtain the necessary information. The payslips for these two individuals were given. One individual was paid £11 per hour and the other was paid £12.25 per hour. The explanation for the difference is that the higher paid employee was in a senior grade whereas the Claimant and his other comparator were not.[6]The Tribunal had to decide what the contract correct contractual term was given the discrepancy on the amendment form. The Claimant accepted the new job and performed his duties for approximately six months knowing that he was being paid £11 per hour. Based on this alone, I find that the Claimant knew he was to be paid £11 per hour as otherwise he would have complained earlier. There is a significant difference between being paid £11 per hour and £16 per hour and had he genuinely believed that he should have been paid at £16 per hour then I have no doubt that he would have raised this with the Respondent. He did not do this.[7]In any event, the additional information the Respondent provided at the Claimant’s request confirms that the rate for the job was £11 per hour. I accept the explanation given by the Respondent for the other comparator being paid £12.25 per hour that being that that comparator was employed in a more senior position.[8]The Claimant initially said that he had not been paid for the full period of suspension then confirmed that he had. The Claimant has claimed for consequential losses arising from the non-payment of his salary and this relates to his daily overdraft rate with his bank. There were papers in the document showing what payments were made for an overdraft. It was pointed out by the Respondent that at the time the Claimant went on suspension so, at the time he was still being paid, the Claimant was already in overdraft and therefore the overdraft fees were not because of the Respondent not paying him.[9]The Claimant gave evidence under oath accepting that he had an overdraft at the time he was suspended but explaining that he had to increase overdraft to the maximum £5,000 because he was not being paid by the Respondent. He further explained that there is a stepped increase in the daily overdraft fee depending on the amount of the overdraft at that particular time. The Claimant’s evidence was that he regularly used his overdraft facility although he thought that he may have been able to pay it off at the Claimant have received his payment during his suspension. The Claimant said that in all likelihood he would have used his overdraft even had he been paid, but not to the extent that he did.[10]It was apparent of the Tribunal that assessing the consequential loss would be very difficult. The Tribunal accepted the Claimant’s evidence about how the overdraft facility worked and invited the parties to seek to agree an appropriate sum. The parties did this and agreed this sum of £650.00. The Claimant requested an uplift for failure to follow the ACAS guidance. This does not apply to money claims and was therefore refused.