Mr A Pashley v Pinnacle Plumbing and Electrical Ltd (in Creditors’ Voluntary Liquidation): 2400005/2024
EMPLOYMENT TRIBUNALS
Case No 2400005/2024
Between
Mr A PashleyClaimantPinnacle Plumbing and Electrical Ltd (in Creditors’ Voluntary Liquidation)Respondent
Before
Employment Judge McDonaldRepresenting himself for claimantNot in attendance for respondentDate 8 November 2024
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The respondent made an unauthorised deduction from the claimant's wages in the period 3 July 2023 to 31 August 2023 consisting of:a. Non-payment of wages for hours worked in the period amounting to 40 hours at £21.00 making a total of £840b. Non-payment of an agreed bonus of £1500.[2]The respondent shall pay the claimant £2340, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.[3]The claim for payment of expenses is dismissed on withdrawal.
REASONS
[1]By a claim form received by the Tribunal on the 2 January 2024 the claimant claims that the respondent made an unauthorised deduction from his wages by failing to pay him for hours worked in July 2023 and for failing to pay a bonus. He says his outstanding wages and the bonus were due to be paid through the respondent’s payroll in August 2023.[2]The respondent did not file a response to the claim. On 2 May 2024 it entered into creditors voluntary liquidation.[3]This hearing was held by remote video link using the CVP platform. Relevant Law Unauthorised Deductions from Wages
Relevant Law
[4]In relation to a claim for deduction from wages, s.13(1) of the Employment Rights Act 1996 (“ERA”) says: "(1) An employer shall not make a deduction from the wages of a worker employed by him unless-(a) the deduction is required or authorised to be made by virtue of a statutory provision of 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.”[5]S.27(1) of ERA says: "(1) In this Part 'wages', in relation to a worker, means any sums payable to the worker in connection with his employment, including- (a) Any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”[6]S.27(2)(b) excludes from the definition of “wages”: (b) any payment in respect of expenses incurred by the worker in carrying out his employment,[7]S.13(3) of ERA says: "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."[8]in New Century Cleaning Co Ltd v Church 2000 IRLR 27, CA the majority of the Court of Appeal held that a worker would have to show an actual legal, although not necessarily contractual, entitlement to the payment in question in order for it to fall within the definition of “wages”.[9]S.23(2) of the ERA says that an unlawful deductions claims has to be brought before the end of the period of three months beginning with the date of payment of the wages from which the deduction was made or (in the case of a series of deductions) beginning with the date of the last deduction in that series.[10]That time limit is extended by the rules relating to ACAS Early Conciliation so long as Early Conciliation is begun within that primary three-month time limit (Pearce v Bank of America Merrill Lynch and ors EAT 0067/19).[11]If the claim is brought outside that time limit the Tribunal does not have jurisdiction to hear it unless the Tribunal is satisfied(i) that it was not reasonably practicable for the claim to be presented before the end of the relevant period of three months and(ii) that it was presented within such further period as the Tribunal considers reasonable (s.23(4) of ERA). Findings and Decision[12]I heard sworn evidence from the claimant. He had provided a brief witness statement dated 20 April 2024 which he sent to the Tribunal on 17 June 2024. The respondent did not attend so there was no evidence from Mr Gore challenging the claimant’s version of events. I accept the claimant’s evidence. I found him a credible witness and his evidence consistent with the limited documentation available.[13]I find the claimant worked for the respondent as a plumbing manager from 14 February 2022. I find his employment ended on 10 July 2023. I find that from June 2023 the work provided for his was more ad hoc but that he agreed to the respondent’s request that he carry out work for it undertaking various plumbing jobs in July 2023, payable at an hourly rate.[14]The claimant had set out the hours for which he was claiming in an email to Mr Gore dated 3 August 2023. The email in response from Mr Gore dated 4 August 2023 confirmed those monies would be paid in the August payroll. There was no indication that he disputed the claimed hours or the rate of pay. I find that the claimed was owed for 40 hours’ work. I find the appropriate rate of pay is £21.00 per hour. Although there were no payslips available the claimant’s contract confirmed his salary was £45,000 per annum which I find equates to an hourly rate of £21.00.[15]I accept the claimant’s evidence that Mr Gore had orally agreed that he would be entitled to a bonus of £1500 which represented (part of) profit derived by the respondent from a contract to install solar panels at the claimant’s mother’s house. I accept the claimant’s evidence that it had been agreed that the claimant would be paid that for setting up that job. Doing so was beneficial to the respondent because it meant it was on the relevant governing’s body’s authorised list and could then get other similar jobs installing panels in future. The exchange of WhatsApp messages on 15 August 2023 although sort, was consistent with that bonus also being payable and being payable in August 2023. On balance, I find that the bonus of £1500 was payable and was due to be paid through the August payroll on 31 August 2023.[16]The claimant’s claim included a small claim for expenses, namely parking payments. They were identified in his email of 3 August 2023 to Mr Gore. The claim would fail because expenses are excluded from the definition of wages in the ERA. At the hearing the claimant confirmed that he was not pursuing that claim. I have dismissed it on withdrawal. Time Limits[17]At the preliminary hearing on 15 May 2024 Employment Judge Leach noted that there were concerns about whether the claimant had issued his claim in time.[18]I find that the claimant’s employment contract provided that his salary was payable on the last working day of the month. I have found that the wages for July 2023 and the bonus of £1500 were due to be paid in the August monthly payroll. I find that means they were due to be paid on the last working day of that month, i.e. 31 August 2023.[19]Since payment was due on 31 August 2023, the time limit for bringing a claim of unauthorised deduction from wages would be 3 months from the date the payment was due. Early conciliation was begun on 4 October 2023 and ended on 15 November 2023. Allowing for the effect of the “stop the clock” provisions means that the time limit of 3 months was extended by a further 42 days. That means the new time limit for issuing the claim would be 10 January 2024. The claim was issued on 2 January 2024 and so is in time.
Conclusions
[20]I find that the claimant was entitled to a total of £840 wages (gross) for the 40 hours at £21.00 per hour worked in July 2023 identified in his email of 3 August 2023.[21]I find he was also entitled to payment of the bonus of £1500.[22]I have included in the judgment confirmation that the claim for expenses was dismissed on withdrawal.