Mr D Wilson v Manddbars Ltd: 2306205/2020
JUDGMENT
The complaint of unauthorised deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded. The respondent made an unauthorised deduction from the claimant’s pay in respect of the period 1/7/2020 to 30/9/2020. The respondent is ordered to pay to the claimant the gross sum of £9,401.93 deducted from his pay.REASONS
[1]This notice of hearing for this final one hour hearing was sent on 30/7/2021, therefore one year five months ago. Two previous hearings were listed firstly for the 12/8/2021, which was brough forward to the 25/5/2021 at the claimant’s request. Directions (steps to take by way of preparation for the hearing) were sent on 11/3/2021. The 25/5/2021 hearing was postponed due to lack of judicial resources.[2]On the 13/10/2022 the parties were asked if they were ready for the final hearing. The claimant replied that he was. There is no response on file from the respondent. In fact, the last correspondence received from the respondent was 15/4/2021.[3]It is understood that the respondent and his lay representative Mr Wells attended. The claimant attended with a witness (Ms G Heinecke), the hearing was ready to commence, the claimant was no longer on the video call. The Tribunal Clerk attempted unsuccessfully to contact him by telephone. At this point, it was 20 minutes into a one hour hearing. There was no witness statement for Ms Heinecke before the Tribunal. Witness statements should have been exchanged on 13/5/2021. In any event, it is 10.1 Judgment – no hearing - rule 60 February 2018 difficult to see what evidence Ms Heinecke can add to a claim for unauthorised deductions from wages.[4]Turning to the claimant’s claims, in his claim form (which is where what he is claiming is particularised Chandhok & Anor v Tirkey UKEAT/0190/14/KN) states that he is claiming notice pay and for wrongful dismissal/breach of contract, he then set out that he was not paid three months’ notice. The claim is therefore a quantified claim for notice pay. The claimant provided the calculations and stated that he was owed £20,412.49 net, less a net payment of £11,826.21, giving a net sum due of £8,586.28. That claim is clear and straight-forward. The claimant said that he cannot provide gross figures as he did not receive payslips. The claimant referred to not being placed on the Coronavirus Job Retention Scheme, due to information not being supplied to HMRC. There is however no right to be placed on the Coronavirus Job Retention Scheme and no legal right to make a claim in respect of those payments.[5]The claim form and other papers were sent to the respondent on 23/12/2020, to the address provided by the claimant and were returned marked ‘not at this address’. The papers were re-sent to the respondent on 11/3/2021 the ET3 response to the claim form was due on the 8/4/2021. On the 15/4/2021 the respondent emailed the Tribunal and sent in documents which he said showed he had been in the US and so had not seen the posted documents. What was attached was a boarding pass for a flight from Miami to London on 5/4, there was however no year on the boarding pass and no other evidence (such as copies of etickets). This correspondence was not copied to the claimant and the respondent did not expressly ask for an extension of time to present the response. In any event, no response or defence to the claimant’s claim has ever been received.[6]On 14/5/2021 the parties were told the final hearing would be a video hearing. As referred to above, the hearing on 25/5/2021 was postponed. The respondent emailed the Tribunal on 26/5/2021 to give dates he was unavailable, as did the claimant on 29/5/2021.[7]Prior to this, on 8/4/2021 the claimant sent a schedule of loss and schedule of remedy. The sums sought had expanded to include unpaid wages, holiday pay and ‘lost furlough support earnings’. There has been no application by the claimant to amend his claim to include these claims and they were not referenced in the original claim. Those claims are out of time. The time limit, calculated from 4/9/2020 and allowing for Acas early conciliation was 2/1/2021. The sum the claimant now sought was £51,887.90.[8]The sum the claimant sought for unpaid notice was £9,504.67. That also accounted for a payment he had received of £3,098.07. Although the sum sought had been amended, the basis of that claim had not. The claimant seeks three months’ notice pay, based upon his gross salary of £50,000. Three months’ gross pay is £12,500. Less the sum paid of £3,098.07 10.1 Judgment – no hearing - rule 60 February 2018 leaves a figure of £9,401.93. The claimant said that the respondent did not account to HMRC for deductions, therefore the sum (£3,098.07) he did receive was a gross payment.[9]The respondent has never presented a response to the claim. This is despite it clearly having been received. Under Rule 21, when no response has been presented, an Employment Judge shall decide whether on the available material a determination can properly be made, and if so a Judge shall issue a judgment accordingly.[10]It is possible, based upon the information the claimant has supplied to determine that he is due from the respondent the gross sum of £9,401.93. The claimant is to account to HMRC in respect of any deductions which should be made. No further hearings will be listed in this case.[1]The complaint of unauthorized deductions from pay contrary to Part II Employment Rights Act 1996 is well-founded.[2]The respondent made an unauthorised deduction from the claimant’s pay in respect of the period 19/03/2020 to 30/06/2020 in the amount of £4,923.86 gross.[3]The respondent made a further unauthorised deduction from the claimant’s pay in respect of the period 1/7/2020 to 30/9/2020 in the amount of £8,410 gross.[4]The respondent is ordered to pay to the claimant the total gross sum of £13,333.86 which was deducted from his pay.[5]The claimant attended in person by way of CVP. The respondent was not represented. However, the day before the hearing the Tribunal received an email from Hudson Weir informing the Tribunal that the respondent was in voluntary liquidation and that they had been appointed as administrators. They confirmed that they would not be appearing today.[6]In his schedule of loss the claimant brings three claims. The first was for unpaid holiday, which I have not considered as it was not brought in the original ET1 and no application has been made to amend the claim to include it.[7]The second claim was in relation to underpayment during the period 19 March 2020 and 30 June 2020. The third, relating to underpayment during his notice period from 1 July 2020 to 30 September 2020.[8]This is a case where the dispute between the parties clearly goes further than the facts of this case. I understand that potential questions relating to fraud (including against HMRC), assault and misconduct as a director are also being levelled at the respondent’s director, but I make no findings in relation to those as they remain beyond the jurisdiction of this Tribunal.[9]It is common ground that the Claimant’s annual salary was £50,000 and he was to be paid around £4,166 gross each month. March to June 2020[10]The claimant says that he was not put on covid furlough during the period 19 March to June 30 2020, although there are references to it in the redundancy letter. I see no compelling evidence from the Respondent that the Claimant had been placed on furlough through the government scheme and therefore find that the Claimant was entitled to his full rate of pay.[11]The claimant says that during this period he received a payment of £15,906.14 which is a gross figure. However, this also covered his pay for February and all of March. For this period (February to June 2020) he was entitled to £20,830 gross. Therefore, I find that the Respondent has underpaid him by £4,923.86 gross. Notice Period[12]On 30 June 2020 the Claimant was given notice that he was being made redundant and that as he was entitled to three months notice his last day was 30 September 2020. This would have entitled him to a gross notice payment of £12,500[13]On 4 September 2020 the Claimant was informed that his employment was being terminated immediately for Gross Misconduct. The Respondent relied on two actions for this:a. Working for another restaurant during this period, and lying about being paid for it.b. Promoting the other restaurant on social media.[14]The Respondent relied upon clause 14.1(e) of the contract which allows immediate termination where the claimant is: “guilty of any fraud or dishonesty or act in any manner which in the opinion of the company brings or is likely to bring you or the company into disrepute or is materially adverse to the interests of the company”[15]The Claimant explained to me that that the restaurant he was working in was in Dalston, about 45 minutes by public transport (and the opposite side of the River Thames) from the Respondent, which is based in Bermondsey. He also informed me that they sold a different cuisine and had a different target market. He denied being paid, saying he was simply helping out a friend who was seriously ill and unable to cook that night. He tells me the industry relies on favours such as this to survive.[16]In the absence of any evidence of payment I find that the Claimant was not paid for this work in another kitchen.[17]In relation to the social media posts, although the Respondent says that they were attached to the letter terminiating the Claimant’s employment, they were not attached when the Respondent sent the letter to the Tribunal. I therefore find that no such posts were made.[18]Even if I am wrong and the posts were made, and the Claimant was paid for his work in this kitchen, I find that no reasonably employer could hold the opinion that this was conduct likely to bring the company into disrepute (helping another struggling restaurant is unlikely to be seen as a bad thing). Nor could any reasonable employer hold the opinion that this would be materially adverse to the interests of the company. I find that the other restaurant was not a competitor as it was in a different location, selling a different style of food, with a different target market.[19]Therefore I find that this clause was used to try and hide the real reason for termination, which was an attempt to punish the Claimant for resigning as a director and raising questions of financial impropriety (the substance of which I make no findings on), and also to avoid paying him for the full period.[20]Therefore, I find that the Claimant was entitled to the full £12,500 gross, of which he received £4,090. This leaves an underpayment of £8,410 gross.[21]All figures have been given gross because the Claimant has never received a payslip, P60, P45 or other evidence of how he has been paid. The Claimant is of the view that no tax has been paid to HMRC.