Judge BJ DoyleIn person for claimantMr R Morton (instructed by solicitor) for respondentDate 21 September 2021
JUDGMENT
[1]The claimant’s complaint of unlawful deductions from or non-payment of wages contrary to Part 2 of the Employment Rights Act 1996 is well-founded and succeeds.[2]The claimant’s remaining complaints in her claim, as amended, are not well-founded and are dismissed.[3]The Tribunal will consider remedy in chambers, subject to an order for disclosure that has been made separately. Judge Brian Doyle Date: 21 September 2021 Case Number: 2401728/2019 2
REASONS
[1]At the conclusion of a 4 days’ hearing on 13-16 September 2021, the Tribunal determined that the claimant’s claim was well-founded in part. The Tribunal found that the claimant’s complaint of unlawful deductions from, or non-payment of, wages contrary to Part 2 of the Employment Rights Act 1996 was well-founded and succeeded.[2]In its oral decision on 16 September 2021, the Tribunal informed the parties that in its findings of fact the claimant’s gross wages properly payable for the period of employment in 2017 and 2018 amounted to £16,491.94 by its calculation. The Tribunal questioned whether the sums recorded by the respondent as having been paid to the claimant had in fact been paid, despite the prima facie evidence of such alleged payments contained in a P60, a P45 and HMRC returns or records. The respondent produced wage slips in support of its position, which the Tribunal found had not in fact been provided to the claimant at the time. Case Number: 2401728/2019 2[3]The respondent’s evidence suggested that it had paid the claimant a total of £8,374.54 gross. However, if the evidence of the wage slips was to be believed, much of that sum had been extinguished or reduced by deductions made for loan payments (or “advances of wages”, as the respondent alternatively put it) made to the claimant and/or her husband. The claimant denied that she had received the payments represented by the pay slips, whether in cash or by bank transfer, although she accepted that she had received payments amounting to a total of £1,867.98 into her bank account in 2018.[4]The Tribunal considered that the conflict in this evidence could be resolved by requiring the parties to make fuller disclosure of relevant documentary evidence other than such evidence that was before the Tribunal at that time.[5]Accordingly, by separate Order, the Tribunal required the claimant by 14 October 2021 to send to the Tribunal (with a copy to the respondent’s legal representative) unredacted and unedited copies of statements or other records in respect of all or any bank or building society accounts held by her and by her husband, and covering the period 1 April 2017 to 31 January 2019, so that the Tribunal could be enabled to see what payments were made into or otherwise credited to those accounts from OBBS Ltd (by whatever means) or in cash.[6]As part of that Order, and by the same date, the respondent was required to send to the Tribunal (with a copy to the claimant) unredacted and unedited copies of statements or documents or other records in respect of its company accounts (however maintained) and all or any bank or building society accounts held by the company or by its director, Mr Shah, and covering the period 1 April 2017 to 31 January 2019, so that the Tribunal could be enabled to see what payments were made into or otherwise credited to the claimant or her husband (by whatever means) or in cash (whether said to be wages, advances upon wages, loans, statutory maternity pay or reimbursement of expenses).[7]The Tribunal indicated that it would then resume its consideration of remedy in chambers as soon as possible thereafter. It warned the parties that the Tribunal might draw adverse or negative inferences from non-disclosure of relevant documents. The above orders were made (and explained to the parties) at the conclusion of the hearing on 16 September 2021.[8]The claimant has complied with that order by disclosing detailed bank statements for accounts held at Barclays and at NatWest by her or by her husband.[9]The respondent has not complied with that order. The Tribunal has received no further evidence or submissions or correspondence from the respondent. The Tribunal draws adverse inferences from that state of affairs.[10]The respondent’s original evidence in the form of wage slips suggests that various payments over a number of months were made to the claimant by BACS transfer, including deductions for income tax, national insurance and “loans”. The Tribunal would expect to see evidence of such payments appearing in the bank statements of the claimant and her husband. Payments from OBBS Ltd (or Mr Shah) of sums totalling £1,867.98 do appear in the Case Number: 2401728/2019 3 statements of the claimant’s bank accounts, together with other payments clearly identified as being “reimbursement” of expenses. However, no other sums appear to have been paid by BACS as alleged by the respondent and as suggested by the wage slips. If sums were paid to the claimant by way of cash in her hand, then the evidence of the bank statements do not obviously reveal such fact.[11]It would have been relatively easy for the respondent to have evidenced these bank or cash payments to the claimant by producing its records or statements. It has not done so. The Tribunal draws an adverse inference and concludes that the respondent did not in fact make the payments it alleges. Nor has it produced evidence that might have caused the Tribunal to reconsider whether the respondent was authorised to make deductions from wages or withhold payment or wages in respect of “loans” or “advances” said to have been made by the respondent to the claimant (or her husband).[12]In conclusion, therefore, the Tribunal determines that the claimant is entitled to be paid the sum of £14,623.96 – being the difference between £16,491.94 wages properly payable for the period in question and the sum of £1,867.98 actually paid to the claimant (as evidenced by the bank statements).[13]These written reasons are provided in relation to the remedy decision only. No application for written reasons has been made in respect of the liability decision. Judge Brian Doyle Date: 29 October 2021