Miss K Rouse v Italian Catering Concept Ltd: 2403302/2020
JUDGMENT
[1]The claimant's claim that the respondent made unlawful deductions from her wages in the total sum of £224.22 succeeds. That total includes an unlawful deduction of £80 for tips and of £144.22 for wages for the week of 12-15 June 2019.[2]The respondent must pay the sum of £224.22 to the claimant subject to any deductions required for tax or national insurance reasons but otherwise free from any deductions.REASONS
[1]This was the final hearing of the claimant’s claim that the respondent had made unlawful deductions from her wages. As the “Code V” at the top of this document indicates, the hearing took place by CVP videolink with all parties attending remotely to which the parties consented. There was an electronic bundle of documents of 54 pages (“the Bundle”) which included a written statement from the claimant.[2]I gave my judgment and reasons orally at the hearing and Miss Jackson for the respondent requested those reasons in writing.[3]The claimant worked for the respondent as a waitress from 11 June 2019 to 17 January 2020. Her claim was for two payments. The first was for tips for the final week she worked (referred to as week 41 i.e. the week commencing 30 December 2019). She claimed the average figure of £80 for that week in tips. That figure was not disputed. The second payment was in relation to the days she worked on 12, 13, 14 and 15 June 2019. These were labelled as “training days”.[4]In relation to the wages for 12-15 June 2019, Miss Jackson for the respondent accepted at the start of the hearing that if the claimant worked those hours she was entitled to be paid at the National Minimum Wage rate of £6.15. She said that she simply had no information about whether the claimant had actually worked the hours claimed.[5]In relation to the tips, the respondent’s position was that they were due but had already been paid to the claimant when she came in after the end of her employment to drop off her apron and collect the tips for week 40.The Law
[6]Dealing briefly with the law, an employee is entitled not to have unlawful deductions made from her wages. Section 13(3) of the Employment Rights Act 1996 (“ERA”) says that where the total amount of wages paid on any occasion by an employer to a worker is less than the total amount of wages properly payable, the amount of the deficiency shall be treated as a deduction. A worker must bring a claim relating to a deduction to the Employment Tribunal within three months of the deduction unless it was not reasonably practicable to do so in which case it must be brought within such further period as the Tribunal considers reasonable (s.23(2) and (4) ERA).[7]S.49 of the National Minimum Wage Act 1998 provides that any provision in any agreement is void in so far as it purports to exclude or limit the operation of any provision of that Act or to preclude any person from bringing proceedings under the Act before an employment tribunal.Findings of Fact
[8]I heard evidence from the claimant under oath. I found her an honest and credible witness and her evidence reliable. Her evidence as to the shifts she worked were corroborated by her diary entries showing the hours that she had worked and WhatsApp communications arranging shifts both of which were in the Bundle. I find those diary entries were made at the time.[9]I find that the claimant did work on 12, 13, 14 and 15 June 2019. The total hours she worked on those days were 23 hours and 45 minutes. She was aged 20 at the time so the relevant national minimum wage rate was £6.15 per hour.[10]I find that the claimant worked week 41 but was not paid the tips for that week. The respondent’s practice was to collect all the tips and divide them equally between staff, handing them over in cash. Miss Jackson said that a manager would have given the claimant her tips for week 41 at some point when she came into the restaurant to drop off her apron after her employment ended. I am satisfied, based on the claimant’s evidence (corroborated by the WhatsApp messages in the Bundle), that that did not happen. She was paid her tips for week 40 when she attended the restaurant after her employment ended but was not paid the tips for week 41. DiscussionThe claim
[11]In summary, therefore, I accept the claimant's version of events in this case. I find that she was not paid the tips of £80 to which she was entitled for week 41 and that she was entitled to be paid for the 23 hours and 45 minutes she worked over 12- 15 June 2019. The failures to pay those amounts were unlawful deductions from her wages.[12]In fairness to the respondent, although not specifically raised by Miss Jackson, I also record something which the claimant mentioned in her claim form, which is that there was a purported agreement that the money for the “training days” worked (in this case on 12-15 June 2019) would only be repaid if the claimant stayed in employment for more than 12 months. I did not see the relevant contract but even if there was such an agreement I am satisfied that it would be void under s.49 of the National Minimum Wage Act 1998. That is because its effect would be to purport to exclude the operation of that Act by denying the claimant the right to be paid at the national minimum wage for those hours worked despite it being clear from regulation 33 of the National Minimum Wage Regulations 2015 that hours spent training are treated as hours of time work. Time limits[13]In this case I find that the claim relating to deduction of the tips was made within the relevant time limit. ACAS conciliation was begun on 1 April 2020, within 3 months of the end of the week commencing 30 December 2019.[14]The claim in relation to the payments for the days worked in 12-15 June 2019 was made more than three months after the payment was due in that it was due at the end of that working week (the claimant being paid weekly). However, I am satisfied that it was not reasonably practicable for the claimant to bring a claim before she did because she was not aware until the end of March 2020 that she was entitled to be paid for those hours. The reason for that is that she had been given to understand by the respondent via the term in her contract that she would only be so entitled if she remained in employment for 12 months. I find that it was not reasonably practicable for the claimant to bring a claim in relation to those wages until it was clear that the respondent would not pay them and after the claimant had made reasonable enquiries about her entitlement to be paid. She had done that by 30 March 2020 (p.36 of the Bundle) and started her ACAS Early Conciliation Process on 1 April 2020. I find that was within a reasonable time from it becoming reasonably practicable for her to bring the claim. The Tribunal therefore has jurisdiction to deal with the claim about the tips for week 41.Conclusion
[15]For the reasons given the above, the claimant’s claim succeeds in relation to the tips for Week 41 (£80) and the wages claimed by the claimant for 12-15 June 2019 (£144.22).