Ms A Fountain v Theatre Experiential Agency Ltd: 2303834/2022
EMPLOYMENT TRIBUNALS
Case No 2303834/2022
Between
Ms A FountainClaimantTheatre Experiential Agency LtdRespondent
Before
Employment Judge T PerryIn person for claimantMr Barry Duncan for respondentDate 6 April 2023
JUDGMENT
[1]The Claimant’s claims for arrears of pay and commission fail and are dismissed
REASONS
[2]The Claimant brings claims of unlawful deduction from wages and breach of contract.[3]The Claimant says she worked but was not paid for 27 May 2022 and 3 June 2022. The Claimant says she was promised commission of £50 for each person she referred to the Respondent who worked at least one full shift at the Mayflower Cruise Terminal.
Evidence
[4]I heard evidence under affirmation from the Claimant and Mr Glenn Brighty and for the Respondent from Mr Duncan. Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017[5]I had no access to a bundle of documents but the Claimant provided a series of photographs and one PDF document. Mr Duncan had previously been provided with these.
Findings of fact
[6]The Respondent is an Isle of Mann based company providing agency workers for promotional events. The Claimant works regularly in this industry.[8]The Claimant worked two days for the Respondent at the Mayflower Cruise Terminal in April 2022 and was paid for these.[9]Mr Brighty reached a commercial arrangement with the Respondent to be paid commission for candidates provided to work at the Mayflower Cruise Terminal. The arrangement was between Mr Brighty and the Respondent. The Claimant may have assisted in providing names to Mr Brighty but was not a party to this agreement.[10]The Claimant was then asked by Keith Trickett, the Respondent’s UK representative, to work for two days on 27 May and 3 June 2022 at the Bestway cash and carry in Brighton. The rate was agreed as £100 a day plus £20 for travel expenses.[11]The Respondent’s systems require workers to check in on arrival at site via an app and to check out. The system enables workers to provide pictures via the app to show where they are – specifically a photo of the till showing the date and time.[12]On 27 May 2022, the Respondent’s system shows the Claimant checking in at 8:41 and checking out at 16:51. I was also provided with a picture taken by the Claimant of the check in sheet at the cash and carry showing her arriving at 8:45. The Claimant says she only took this phot to get the details of someone else on the sign in sheet but there is only the first name of one other person shown on the sheet.[13]The Respondent says that it was later told by the Kiosk Manager for Bestway, Mia, that the Claimant left after 15 minutes.[14]On 3 June 2022, the Respondent’s system shows the Claimant checking in at 9:12 and checking out at 17:47. The Respondent was suspicious Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 because of a lack of till sales and at 12:01 asked the Claimant for a picture of the till. The Claimant provided a photo at 12:53, but Bestway said this was not their till.[15]Mr Trickett messaged the Claimant at 13:23 to say that the Kiosk manager said there was nobody in the store. Mr Trickett messaged the Claimant at 15:13 to point out that Bestbuy had said the till in the picture was not theirs. The Claimant replied at 15:56 that it was the main till. Mr Trickett asked at 15:57 if the Claimant was at the right place with Mia. The Claimant did not reply until 18:10 to say she had not seen Mia. Mr Trickett asked whether the Claimant had been at the right store.[16]In deciding whether the Claimant was at the store on 27 May and 3 June 2021, I have limited evidence before me. However, I find on balance that the Claimant was not at store (other than possibly for a brief period to sign in on both days). I find the evidence that Bestbuy clearly thought the Claimant was not there on both days and that the till pictured on 3 June was not theirs to be compelling. I also find that on 3 June 2022 had the Claimant been in place she could have simply sent a picture of herself to Mr Trickett to prove where she was. That the Claimant did not do this suggests that she was not, in fact, where she said she was.
The Law
[17]The right not to suffer unlawful deduction from wages is contained in section 13 Employment Rights Act 1996.[18]In order to amount to wages a sum has to be payable under the worker’s contract or otherwise (per section 27(1)(a) Employment Rights Act 1996.[19]The phrase “payable under the worker’s contract or otherwise” was considered by the Court of Appeal in New Century Cleaning Co Ltd v Church [2000] IRLR 27. In Church a majority of the Court of Appeal held that it was necessary for a worker to show that there was some legal entitlement to the sum in question, although the entitlement need not necessarily arise from an express term in the contract.
Conclusions
[20]As I do not find that the Claimant worked on 27 May and 3 June 2021 the Claimant has no sums payable as she had no legal entitlement to be paid. Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 Accordingly, there can be no unlawful deduction and the Claimant’s claim fails.[21]As to the claim in respect of commission, I do not find that the Claimant was a party to this agreement, which was between Mr Brighty and the Respondent. The Tribunal has no jurisdiction to consider that commercial claim and it is dismissed. __________________________________________ Employment Judge T Perry Date 06 April 2023 Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Ms A Fountain Respondent: Theatre Experiential Agency Ltd Heard at: London South Employment Tribunal (by CVP) On: 5 April 2023 Before: Employment Judge T Perry Representation Claimant: In person Respondent: Mr Barry Duncan
Conclusions
[1]The Claimant’s claims for arrears of pay and commission fail and are dismissed CORRECTED REASONS Claim and issues[2]The Claimant brings claims of unlawful deduction from wages and breach of contract.[3]The Claimant says she worked but was not paid for 27 May 2022 and 3 June 2022. The Claimant says she was promised commission of £50 for each person she referred to the Respondent who worked at least one full shift at the Mayflower Cruise Terminal. Evidence[4]I heard evidence under affirmation from the Claimant and Mr Glenn Brighty and for the Respondent from Mr Duncan. Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017[5]I had no access to a bundle of documents but the Claimant provided a series of photographs and one PDF document. Mr Duncan had previously been provided with these.
Findings of fact
[6]The Respondent is an Isle of Mann based company providing agency workers for promotional events. The Claimant works regularly in this industry.[8]The Claimant worked two days for the Respondent at the Mayflower Cruise Terminal in April 2022 and was paid for these.[9]Mr Brighty reached a commercial arrangement with the Respondent to be paid commission for candidates provided to work at the Mayflower Cruise Terminal. The arrangement was between Mr Brighty and the Respondent. The Claimant may have assisted in providing names to Mr Brighty but was not a party to this agreement.[10]The Claimant was then asked by Keith Trickett, the Respondent’s UK representative, to work for two days on 27 May and 3 June 2022 at the Bestway cash and carry in Brighton. The rate was agreed as £100 a day plus £20 for travel expenses.[11]The Respondent’s systems require workers to check in on arrival at site via an app and to check out. The system enables workers to provide pictures via the app to show where they are – specifically a photo of the till showing the date and time.[12]On 27 May 2022, the Respondent’s system shows the Claimant checking in at 8:41 and checking out at 16:51. I was also provided with a picture taken by the Claimant of the check in sheet at the cash and carry showing her arriving at 8:45. The Claimant says she only took this phot to get the details of someone else on the sign in sheet but there is only the first name of one other person shown on the sheet.[13]The Respondent says that it was later told by the Kiosk Manager for Bestway, Mia, that the Claimant left after 15 minutes.[14]On 3 June 2022, the Respondent’s system shows the Claimant checking in at 9:12 and checking out at 17:47. The Respondent was suspicious Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 because of a lack of till sales and at 12:01 asked the Claimant for a picture of the till. The Claimant provided a photo at 12:53, but Bestway said this was not their till.[15]Mr Trickett messaged the Claimant at 13:23 to say that the Kiosk manager said there was nobody in the store. Mr Trickett messaged the Claimant at 15:13 to point out that Bestway had said the till in the picture was not theirs. The Claimant replied at 15:56 that it was the main till. Mr Trickett asked at 15:57 if the Claimant was at the right place with Mia. The Claimant did not reply until 18:10 to say she had not seen Mia. Mr Trickett asked whether the Claimant had been at the right store.[16]In deciding whether the Claimant was at the store on 27 May and 3 June 2021, I have limited evidence before me. However, I find on balance that the Claimant was not at store (other than possibly for a brief period to sign in on both days). I find the evidence that Bestway clearly thought the Claimant was not there on both days and that the till pictured on 3 June was not theirs to be compelling. I also find that on 3 June 2022 had the Claimant been in place she could have simply sent a picture of herself to Mr Trickett to prove where she was. That the Claimant did not do this suggests that she was not, in fact, where she said she was.
The Law
[17]The right not to suffer unlawful deduction from wages is contained in section 13 Employment Rights Act 1996.[18]In order to amount to wages a sum has to be payable under the worker’s contract or otherwise (per section 27(1)(a) Employment Rights Act 1996.[19]The phrase “payable under the worker’s contract or otherwise” was considered by the Court of Appeal in New Century Cleaning Co Ltd v Church [2000] IRLR 27. In Church a majority of the Court of Appeal held that it was necessary for a worker to show that there was some legal entitlement to the sum in question, although the entitlement need not necessarily arise from an express term in the contract.
Conclusions
[20]As I do not find that the Claimant worked on 27 May and 3 June 2021 the Claimant has no sums payable as she had no legal entitlement to be paid. Case No: 2303834/2022 10.5 Reserved judgment with reasons – rule 62 March 2017 Accordingly, there can be no unlawful deduction and the Claimant’s claim fails.[21]As to the claim in respect of commission, I do not find that the Claimant was a party to this agreement, which was between Mr Brighty and the Respondent. The Tribunal has no jurisdiction to consider that commercial claim and it is dismissed. __________________________________________ Employment Judge T Perry Date: 06 April 2023 Date of corrected Judgment: 25 May 2023 Case No: 2303834/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72 EMPLOYMENT TRIBUNALS Claimant: Ms A Fountain Respondent: Theatre Experiential Agency Ltd[1]As to the information provided in relation to paragraph 8 of the reasons, this in no way affects the outcome of the case.[2]As to the comments in relation to paragraph 10 of the reasons, this does not prove that the Claimant worked on 27 May 2022.[3]As to the comments on paragraphs 11, 12, 13, 14 and 15 of the reasons, whilst the Claimant disagrees with the findings of fact, there is nothing in the information provided that suggests that the findings are wrong. At points the Claimant seeks to introduce new evidence but there is nothing to suggest that the evidence could not have been obtained with some reasonable diligence for use at the original hearing nor any other mitigating factor justifying adducing this evidence now.
Evidence
[4]As to the Claimant highlighting the Tribunal’s comment about the limited evidence before it and the absence of a bundle, the state of preparation of the case was not of the Tribunal’s making. I do not consider that there is any reasonable prospect that the state of preparation of the case was sufficiently lacking to justify the original judgment being varied or revoked.[5]I note the two incorrect references to Bestbuy and will issue a certificate of correction in relation to them. _____________________________ Employment Judge T Perry Date: 25 May 2023 Case No: 2303834/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 EMPLOYMENT TRIBUNALS Claimant: Ms A Fountain Respondent: Theatre Experiential Agency Ltd Heard at: London South Employment Tribunal (by CVP) On: 29 September 2023 Before: Employment Judge T Perry Representation Claimant: In person Respondent: Mr Barry Duncan UPON APPLICATION made by letter dated 20 July 2023 to reconsider the judgment sent to the parties on 25 May 2023 under rule 71 of the Employment Tribunals Rules of Procedure 2013