Miss A Zywczyk v 4 You Residential Ltd: 2303643/2024
JUDGMENT
[1]The claimant’s complaint of unlawful deduction of wages is well-founded and the respondent is ordered to pay to the claimant £576.93. The claimant is responsible for her own tax and National Insurance. Judgment approved by:REASONS
For the judgment dated 17 January 2025, requested by the respondent orally at the hearing[1]The claim was for 3 days wages for 9-12 January 2024 amounting to £576.93.[2]Both sides had prepared a statement and sent in documentation in advance. This included a number of recordings made by the claimant showing calls made to and from her phone. Each gave evidence and was questioned by the other.[3]There was also reference by both sides to other documents that had not been provided. I did allow some further documentation to be forwarded during the hearing but it was not practical for all of them to be provided today, for example the tax return referred to. Neither side was represented and it was a small value claim. It was proportionate to proceed on the basis of what was provided.[4]I have not been shown any written agreement or contract.Issues
[5]The issues between the parties were PHCM Order 1 of 4 September 20235.1 whether the claimant was self-employed with her own clients and customers or was a worker of the respondent within the meaning of s230 Employment Rights Act 1996;5.2 whether the claimant did work on the days in question and merited payment for it.Facts
[6]Based on the evidence before me I found the following facts.[7]The Claimant worked for the Respondent from November 2022 as a project manager. Both agree that by the relevant time she was not employed through PAYE but did a tax return on a self-employed basis. The respondent says this was because she worked on a flexible basis, when she chose, confirmed through time sheets which he then paid. The claimant says her hours were agreed and she worked 4 days a week, with Thursdays working at home apart from site meetings. She did not work for anyone else. She did have absences due to health issues and these were reflected in the time sheets and she was not paid for those days.[8]The respondent has mentioned the need for the claimant’s work to be authorised and that she worked under the supervision of himself and the site manager and she copied him into emails. He talks of her abandoning the work because she did not attend the week of the 4th January though in his statement he says her boyfriend told them she would be back on 8th January 2024. The Claimant says she did inform the accountant that she was delayed in Germany and would be in the next week. I also note the tone and content of the interactions on the 15th January- these are not a business with a client/customer but a worker to their employer. .[9]I find on balance the claimant to be a worker. She wasn’t running a business on her own account with clients and customers. She was working on the respondent’s projects under their supervision. They set the pay rate and required the completion of time sheets. Although the respondent referred to a suggestion the claimant could send a substitute there was no oral evidence or documentation supporting this, it wasn’t put to the claimant and I find it unlikely that the respondent would, in fact, have accepted that.[10]I accept the claimant was delayed from her Christmas travels and returned the week of 8 January but on 9 January 2024. The respondent accepts she had at least one meeting that week. The Claimant has provided a text message of herself and Mr Ellis interacting on 12 January 2024 about her having attended a client meeting in the morning (he gave a thumbs up) and 2 hours approx. later interacting over an issue raised by a third person. This certainly suggests the claimant working into the afternoon on that date. The claimant provided 25 videos of her showing work contacts in her phone and interactions with them on the contested dates. Some were unanswered calls but some were picked up and range in length. Some involved the forwarding of attachments. She does PHCM Order 2 of 4 September 2023 not have access to her email any longer and it is not clear whether her emails have been checked on these dates as the respondent’s focus was on the fact he had not been copied into any emails over that period. I prefer her evidence that she did work those days.[11]There was then the interaction on the 15 January 2024 with the claimant saying she had to work from home that day and asking if it was ok. The respondent said he preferred she came to work saying she was coming more and more infrequently and it concerned him. He said they should have a chat soon. She explained she was not well and he said ok, to rest and let the company know her hours.[12]In the event she did not return to work and she did not claim for that date. She only claimed payment for the work of 9th – 12th January 2024. She did not fill in the time sheets at the end of the month as she normally would. She was very unwell in the following weeks with repeated admissions to hospital, blood transfusions, dialysis and periods when she says she was barely conscious and she has referred to having feared she was going to die. She says she asked her partner to let the respondent know that she was not coming back. The respondent accepts that there were messages from her partner that she wasn’t well and that she was in hospital and then they terminated the relationship, regarding her as having abandoned the position, and asked her partner for the keys back and he did return them.[13]It was not until the end of February 2024 that the Claimant was well enough to ask about payment for those three days of work in January. She no longer had access to the time sheets through her work email account so could not complete a time sheet. The relationship broke down very quickly after that.[14]The Respondent has referred to the claimant needing to have that week of work (9-12 January) authorising because she had not worked the week before. I prefer the Claimant’s evidence that the obligation was to attend unless she communicated otherwise. This is supported by and is consistent with the interaction on 15th January 2024.Conclusion
[15]To conclude I accept the claimant was a worker and her evidence that she worked for those 3 days. Both agree that the daily rate was £192.31 and therefore the Claimant was awarded £576.93. PHCM Order 3 of 4 September 2023 Reasons approved by: