Mr K Knott v K & J Group Ltd: 2403345/2018
JUDGMENT
In the absence of the claimant, and with no explanation for his failure to attend the hearing despite an attempt by the Tribunal’s administrative staff to contact him by telephone, the claim is dismissed under rule 47 of the Employment Tribunals Rules of Procedure 2013.REASONS
[1]The claimant presented his claim on 27 January 2018 claiming arrears of pay and specifying that £96 deductions had been taken from his wage without notification or consent for alleged penalties that he had asked for a full copy of. He maintained that no copy of contractual documentation had been provided by the respondent. He also claimed two hours’ missing wages.[2]By its response presented on 9 March 2018, the respondent vigorously resisted those claims contending that it had written consent from the claimant in Case No. 2403345/2018 2 respect of deducting the £96 penalty charges from his net earnings, which penalty charges had been made available for scrutiny as with any other driver/employee, and that he had made full payment of his outstanding wages. It attached to its response copies of a company vehicle policy, penalty charge notices, day sheets and overall pay schedule.[3]The proceedings had a troubled history in that the claim was dismissed in the claimant's absence at a hearing on 5 April 2018 in unfortunate circumstances where he had in fact attended the Tribunal building but not been notified that the hearing was about to start. At a Reconsideration Hearing on 13 August 2018, Employment Judge Franey revoked the dismissal judgment and made detailed Case Management Orders for this next hearing. The Judge had initially proceeded with the final hearing at that reconsideration hearing, but eventually acceded to the respondent’s request to adjourn the hearing since the respondent was taken by surprise by the claimant's assertion that he had never signed the company vehicle policy document authorising deduction from wages for unpaid penalty charges, and so sought to adduce evidence to deal with the position. In the event, no further oral evidence was called by the respondent although incomplete email traffic dating from a point after the termination of the claimant's employment was relied upon. No witness statement from any witness intending to give evidence on behalf of the respondent was provided, notwithstanding that Ms Morris, its manager who had only been in position since January 2018, intended to and did give oral evidence.[4]These were highly charged proceedings since both parties had viewed the claims, ultimately concerning a total of £111 at most, as a firm matter of principle. Notwithstanding that, the respondent’s sole witness was a senior employee who joined the company after the claimant's short employment. She was unable to challenge his oral evidence, given on affirmation, in respect of the events of 6 December 2017 although she firmly sought to put the respondent’s case in respect of the authorisation for deductions from wages in accordance with her understanding of common company practice. Ultimately, the Tribunal was persuaded on the balance of probabilities by the claimant, albeit on the question of authorisation for deductions by a fine margin.[5]From the oral and documentary evidence the Tribunal made the following key findings of fact. The claimant commenced employment for the respondent as a driver/fitter delivering and fitting blinds on 6 November 2017. Whatever promises had been made to the claimant about overall level of salary, he was only paid statutory minimum wage of £7.50 per hour. The employment did not run smoothly and the claimant took great exception to being provided with a written warning on Tuesday 5 December 2017, warning him that if he did not obtain payment from customers when he delivered goods on future occasions he would have to pay for the missing payments. This matter had been raised informally by the respondent’s Consultant Director, Richard Greenwood, when the claimant had explained the difficult circumstances of the customer refusing to pay, and he had been told by Mr Greenwood, “Ok, we will leave it at that”. Therefore, the claimant explained he was taken aback to be provided with a written warning of possible termination of employment on 5 December. Case No. 2403345/2018 3[6]That set the scene for the events of 6 December 2017 when the claimant attended as normal at 8.00am. He filled in his timesheets and handed over payments from the previous day and obtained his work for that day, spending some 45 minutes loading his van. He was asked by Richard Greenwood to stay later for a team meeting, and at about 10.00am attended that team meeting with some three or four other members of the small team. Again things did not run smoothly, since the claimant questioned the service of the written warning the previous day, and before long he effectively gave notice to terminate his employment in circumstances where he made clear he was not prepared to work for the respondent anymore if he was going to have to pay for unpaid deliveries that customers had refused to pay for. The meeting ended at about 10.30am when the claimant tossed the keys of his van to Richard Greenwood. Unfortunately for him, he had forgotten that he had left his personal belongings within the van, so he had to ask Mr Greenwood for the keys back, only to receive the response: “No, you are on my time now, you can wait”. Whilst the claimant did not appreciate the fact that he had to wait outside in full view of all members of staff, considering that he was being mocked by them including Mr Greenwood, he did respond: “Well, that is good, I’m expecting to be paid for it”. Mr Greenwood replied: “Well good luck with that”. The claimant eventually recovered his possessions and left the premises only at about 11.00am. For that day he received one hour’s pay from the respondent.[7]This respondent’s practices as to documentation upon commencement of employment by employees left much to be desired. Whilst Ms Morris as the new General Manager might have tight systems in operation, the limited documentation provided by the respondent shows many deficits. Thus, whereas the claimant commenced employment on 6 November 2017, the earliest document is dated 10 November 2017 (document 7) apparently a short version of a contract of employment with bare details of key terms of contract of employment set out but no evidence it was provided to or even shown to the employee. The next documents are all dated 15 November 2017 and include the hotly disputed document. Document 1- 1A headed “Company Vehicle Policy”, says that it was issued to the claimant on 15 November 2017 on the first page, and on the second page includes the authorisation for the respondent to deduct a large variety of items from wages: “(1) Any unauthorised expenditure in respect of my company vehicle and/or fuel card that is attributable to myself; (2) Any expenditure incurred by the company as a result of clear negligence or abuse on my behalf or as a result of my failure to return the vehicle to the company upon demand; (3) In the case of an insured loss for which I was deemed by an insurance company to be culpable, the insurance excess at £500. (4) In the case of any damage to the vehicle whilst in my care where no party can be attributed up to a maximum of £500; (5) Any fines/penalties/charges incurred in respect of the vehicle whilst in your care; Case No. 2403345/2018 4 (6) The value of company car benefit accrued during any period of unauthorised absence; and (7) Private mileage at the set rate notified by the company from time to time.”[8]The second page concludes: “I confirm that I have read and understood the terms and conditions of company vehicle usage and agree to abide by them”, and bears a signature and the date, 15 November 2017. The claimant maintains that was not his signature.[9]Other documentation bearing signatures which the claimant acknowledges were his own comprise an Employed Staff Cash Handling Contract issued to him and dated and signed by the claimant on 15 November 2017 and a Fuel Card Contract, issued to the claimant on 15 November 2017 and again dated and signed by him on 15 November 2017. It is therefore apparent that the claimant had already been working for the respondent for a week and a half when some documentation was signed by him. There is no checklist or record showing the detail of what was provided or issued to him or signed for by him on 15 November 2017 or any other date.[10]The claimant incurred charges whilst driving his allocated van, in particular by entering bus lanes and crossing the Mersey Gateway bridge. Whereas the expected procedure was for the claimant to notify the respondent when he crossed the bridge so that a charge notice could be paid at the first instance, it appears that he did not also always do so or did not always effectively do so such that the respondent had to pay the excess charge notice and not the bare minimum.[11]In his short employment, the claimant did once reimburse the respondent for a penalty charge, but he maintained that he had expressly been asked to pay and had expressly authorised that particular deduction for that penalty.[12]On conclusion of his employment, not only was the claimant not paid for two hours’ work on 6 December 2017 he felt were missing, but £96 deductions were made from his final pay packet to account for penalty charge notices received by the respondent. The sums are not in issue.[13]To those key facts, the Tribunal applies the law which is set out at Part II of the Employment Rights Act 1996. In particular, at section 13: “(1) An employer shall not make a deduction from the wages of a worker employed by him unless 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 the worker has previously signified in writing his agreement or consent to the making of the deduction.”[14]At subsection 2: Case No. 2403345/2018 5 “A relevant provision in relation to a contract means a provision of the contract comprised in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question or is one or more terms of the contract, whether express or implied, and if express whether oral or in writing, the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.”[15]For the purposes of this hearing, non-payment of wages is regarded in exactly the same way as the making of an actual deduction from wages. Whereas the strict burden of proof falls upon the claimant to prove his entitlement to awards of money in respect of the deduction or non-payment by the respondent, those would be unlawful unless, for instance in respect of the deduction, justified by the respondent in accordance with section 13 of the Act.[16]This Tribunal has heard the oral evidence from the claimant. Whilst there are matters the respondent relies upon within the email traffic commenced a week or more after the termination of the claimant's employment, or the previous acknowledgement by him that a penalty was to be deducted from his wages, the Tribunal was ultimately not satisfied that he was misleading it in terms of never having signed and never having been provided with a written copy of anything he had signed or any contractual authorisation for the deduction from wages.[17]The respondent’s procedures in December 2017 were not as tight as they should have been and may by now be in respect of the induction to and commencement of employment of new employees including the specific provision to employees of clear written details of what are very onerous provisions for potential deduction from the employee’s wages.[18]Accordingly, on the balance of probabilities, the claimant establishes his claim that the respondent made an unlawful deduction from wages to the extent of £96 gross, and the respondent is ordered to pay him that sum. The Tribunal was not persuaded by the respondent that it was entitled to rely upon the exceptions provided for at Section 13(1) and (2) of the 1996 Act.[19]The remaining matter was much more clear-cut. The claimant did not actually leave work until about 11.00am on 6 December 2017, having given notice to terminate as best he could at 10.30am, but very definitely being made to wait by Mr Greenwood until a convenient time to clear his van. The respondent called no contrary evidence and provided no convincing documentary evidence that the claimant's version was wrong. He has established the non-payment of a further two hours’ wages at the statutory minimum pay of £7.50 per hour, a total of £15 gross, and the respondent is ordered to pay him this further sum.[20]Finally, the claimant made an application for compensation in respect of his lost wages in attending the hearing. As pointed out in Employment Judge Franey’s Case Management Order, this was in effect an application for a preparation time order falling to be considered within the costs and preparation time procedures at Rules 74, 75 and 76 of the Employment Tribunals Rules of Procedure 2013. Rather Case No. 2403345/2018 6 than specific compensation in lieu of lost wages, it would have been an order at the set hourly rate. However, the general rule at Rule 76 is that a Tribunal may make a costs or preparation time order where a party or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part of them) or in the conduct of those proceedings.[21]In the circumstances here, it did not appear to the Tribunal that the respondent was responsible for unreasonable conduct of the proceedings in circumstances where the first date of hearing was ineffective due to administrative Tribunal mistakes, and the adjournment on the second date was as a result of the claimant expressly raising for the first time his case that a signature was not in fact his signature, Although, in the event, no further evidence was adduced the Tribunal did not find that the respondent acted unreasonably in seeking the adjournment in the first place. That application was refused.