T Kerr v X Markets Group Ltd and X Markets Securities Ltd: 2305228/2020

EMPLOYMENT TRIBUNALS

Case No 2305228/2020

Between

T KerrClaimant

X Markets Group Ltd and X Markets Securities LtdRespondent

Before

Employment Judge Apted

In person for claimant

Not represented for respondent

Date 24 May 2022

JUDGMENT

[1]The claimant’s application to amend the claim to include the second respondent is granted.

[2]The claimant’s claim for unlawful deduction of wages is well founded. The respondents are ordered to pay to the claimant the net sum of £84,345.

REASONS

On 21 September 2020, the claimant brought a claim for unlawful deduction of wages under section 13 of the Employment Rights Act 1996, against the respondent - X Markets Group Ltd. The respondent did not respond to that claim. The claim was listed on the 24 May 2022 for a final hearing. In preparation for the hearing, the Tribunal was in possession of the following documents:a. Form ET/1.

b. Amendment to ET/1

c. Contract of employment dated the 14 August 2017.

d. A document headed ‘Salary monies and disbursements owed to Teresa Kerr by X Markets Group as at 31 Dec 2018.’

e. A document headed ‘Total Work Hours Log and Wages Owed.’

f. Timeline of events. Case No: 2305228/2020 10.8 Reasons – rule 62(3) March 2017

g. Work hours Log 2019.

h. Work hours Log 2020

i. Signed letter from respondent dated 18 January 2019. During the course of the hearing, I heard oral evidence from the claimant which I noted in my record of proceedings. Application to amend: Out the outset of the hearing, the claimant made an application to amend her claim to add the second respondent – X Markets Securities Ltd. I granted that application on the basis that the first respondent accepted that the claimant had previously been employed by the second respondent and that the second respondent owed the claimant money. The Tribunal clarified the claimant’s claims as a claim for the unlawful deduction of wages between 30 May 2016 and 30 June 2020. This amounted to non-payment of her salary along with other payments which were £200 per month for transport costs when in London and her accountancy subscription costs. The background to the claim is as follows: The claimant was employed by the first respondent on the 14 August 2017 as a Financial Controller. Prior to that, she had been employed by the second respondent since the 28 May 2016. Her contract of employment with the first respondent stated said that she would be paid £40,000 per annum, her annual chartered accountancy subscriptions would be paid along with £200 per month for transport costs when in London. The claimant told the Tribunal that her salary with the second respondent had previously also been £40,000 per annum, although the other items (namely transport costs and subscription fees) were not included. The Law: Section 13 Employment Rights Act 1996 reads as follows:

(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. Section 27(1) Employment Rights Act 1996 defines ‘wages’ as ‘any sums payable to the worker in connection with his employment’. This includes ‘any fee, bonus, commission, holiday pay or other emolument referable to the employment’ (s27(1)(a)). Case No: 2305228/2020 10.8 Reasons – rule 62(3) March 2017 Certain payments by employers to workers are specifically excluded from the definition of wages by section 27(2) and (5) Employment Rights Act 1996, meaning that a worker cannot seek recovery of such payments by bringing an unlawful deduction from wages claim under section 13. These are:

• any payment by way of an advance under an agreement for a loan or by way of an advance of wages — section 27(2)(a)

• any payment in respect of expenses incurred by the worker in carrying out his or her employment — section 27(2)(b). Findings and conclusions: The claimant gave unchallenged evidence that she had not been paid since the 30 June 2020, save that on some occasions the respondent did pay the claimant some monies. Based upon her contract of employment, the claimant has calculated that sum to be £88,645 net. The claimant had already deducted from that sum, the monies that the first or second respondent had paid. However, the claimant has included within that figure the sum of £4,300 for transport when in London and accountancy subscription fees. In my judgment, under section 27 Employment Rights Act 1996, I find that the transport allowance and accountancy subscription fees would not be defined as wages. The claimant is therefore unable to bring a claim for these. I find that the money which the claimant should have been paid, is less than the money that she was paid. I therefore find that there has been a deduction of her wages. I find that deduction was not authorized or required by statute or a provision in the claimant’s contract and I also find that the claimant had not given her prior written consent to the deduction. The claimant’s claim for unlawful deduction of wages under section 13 Employment Rights Act 1996 is well founded and is allowed. The first and or second respondent is ordered to pay to the claimant the net sum of £84,345. Employment Judge Apted Date: 30 September 2022 Case No: 2305228/2020 11.6R Judgment – Reconsideration refused – respondent - rule 72 EMPLOYMENT TRIBUNALS Claimant: Teresa Kerr Respondent: (1) X Markets Group Limited

(2) X Markets Securities Limited JUDGMENT The respondent’s application dated 6 September 2022 for reconsideration of the judgment sent to the parties on 25 August 2022 is refused. REASONS There is no reasonable prospect of the original decision being varied or revoked, for the following reasons. This claim was listed before me on the 24 May 2022 for a Final Hearing. The claimant attended via CVP. The respondent did not attend. The claimant gave evidence and I considered the documentary evidence provided. Having done so I found the claimant’s claim for unlawful deduction of wages under section 13 of the Employment Rights Act 1988 well founded and I ordered that the respondent pay the claimant the net sum of £84, 345. The history of the proceedings is as follows: An ACAS certificate was issued on the 23 August 2020. This was sent by ACAS to the respondent’s registered address at Weston Road, London. A claim for unlawful deduction of wages on form ET/1 was received by the Tribunal on the 21 September 2020. That claim form was sent to the respondent at their registered address on the 5 May 2021. No response to that claim was received. According to a search of Companies House, the registered address of the respondent changed on the 4 October 2021 to an address in Wenlock Road, London. Case No: 2305228/2020 11.6R Judgment – Reconsideration refused – respondent - rule 72 On the 27 January 2022 correspondence was sent to the respondent at Wenlock Road informing them that the case would be listed for a final hearing. On the 28 January 2020 a Notice of Hearing was sent to both parties confirming the date of the final hearing as the 24 May 2022. That was sent to the respondent at the Wenlock Road address. On the 12 May 2022 a notice was sent to both parties informing them that the hearing on the 24 May 2022 would be heard remotely via Cloud Video Platform. That was sent to the respondent at the Wenlock Road address. On the 23 May 2022 the CVP log in details for the hearing on the 24 May 2022 were emailed to the claimant. The same details were posted to the respondent. No reply was received from the respondent to any of this correspondence and as already stated, they did not attend the final hearing. On the 25 August 2022, the Tribunal sent my Judgment to both parties. The same day, the respondent contacted the Tribunal for the first time by email. They acknowledged receipt of the Judgment and stated that they had not received any notice of the hearing. The respondent emailed the Tribunal again on the 6 September 2020 and asked for a reconsideration. The respondent set out three reasons why the judgment should be reconsidered:

The Law:

[1]They did not receive notice of the hearing.

[2]An error was made in calculating compensation.

[3]There is “new evidence” that was not available at the hearing. Notice of the hearing: All of the tribunal’s correspondence was sent to the respondent’s registered address as shown on Companies House. No response was received to any of that correspondence, save once Judgment had been issued. I do not accept that the respondent did not receive any of this correspondence and I do not accept that the respondent was unaware of the hearing on the 24 May 2022. In their email dated the 6 September 2022, the respondent appears to contradict themselves. They state “…she [the claimant] didn’t even notified us the hearing date or the court case the whole time…” However, they also stated “Meanwhile, we had been talking to [the claimant] the whole time…” The respondent attached some text messages as proof that they were unaware of the hearing date. However, it is clear from those messages that the respondent was aware that the claimant was at the very least contemplating proceedings, was trying to resolve their differences and that they were being accused of refusing to engage in conciliation. For these reasons, as I have already stated, I do not accept that the respondent was unaware of the proceedings and had not received the notice of hearing. Case No: 2305228/2020 11.6R Judgment – Reconsideration refused – respondent - rule 72 Errors in calculating compensation: In calculating compensation, I considered oral evidence from the claimant and the documentary evidence that had been provided. This included a letter signed by a Mr Ken Kemal on behalf of the respondent dated the 19 January 2019 (from their address at Weston Road). This letter confirms that the claimant was employed by X Markets Group Ltd and prior to that by X Markets Securities Ltd. That same letter also states that as at the 31 December 2018, the respondent owed the claimant £52, 476.39 net in “salaries and disbursements”. Thereafter the claimant gave evidence that since this date, the claimant had failed to pay her some additional wages which totaled the amount in the Judgment. According to Companies House, the name of the company was changed on the 09 June 2022 from X Markets Group Ltd to Alpha Technology & Research Ltd. There is therefore compelling evidence that the respondent made an unlawful deduction of wages from the claimant and I do not accept that Judgment has been issued against the wrong parties. New evidence unavailable at the hearing: Under this subheading, the respondent repeats their observations about being unaware of the hearing date. They again contradict themselves and state the claimant had been “…talking to us throughout the whole court hearing process and didn’t even notified us from the court hearing, court hearing date and also the case. Also, we had talked to her in 2019 and the amount we agreed upon is way too less than the amount the court calculated.” Within this sub-heading, the respondent does not identify what “new evidence” they are referring to. As I have already stated, I do not accept that the respondent was unaware of these proceedings. For all of the above reasons, the application for reconsideration is refused because there is no reasonable prospect of the original decision being varied or revoked.