Mr E Enwereuzor and Mrs C Enwereuzor v Umbrella Force Global Care Ltd: 2405049/2022 and others
JUDGMENT
Upon hearing the parties:(1) The complaints were not presented in time in accordance with section 23(2) Employment Rights Act 1996, but the Tribunal is satisfied that it was not reasonably practicable for complaints under this section to be presented before the end of the relevant period and it is reasonable to extend time to the date when the claim forms were presented.(2) The claimants at all material times were employed by the respondent and were therefore employees in accordance with section 230 Employment Rights Act 1996.(3) The first claimant’s complaint of unlawful deduction from wages (contrary to section 13 Employment Rights Act 1996) is successful and the respondent shall pay the first claimant the sum of £1151.40 (one thousand, one hundred and fifty one pounds 40 pence) representing the gross sum of money owed to the first claimant in respect of unpaid wages for shifts worked between 15 to 19 December 2021.(4) The second claimant’s complaint of unlawful deduction from wages (contrary to section 13 Employment Rights Act 1996) is successful and the respondent shall pay the second claimant the sum of £600.60 (six hundred pounds 60 pence) representing the gross sum of money owed to the first claimant in respect of unpaid wages for shifts worked between 18 to 19 December 2021.REASONS
[1]The respondent company was correctly served with the proceedings by order of Employment Judge Allen dated 14 October 2022 and the claims were combined by his order dated 1 December 2022. The respondent is the sole respondent in these proceedings, was properly served at the current registered office and failed to attend the final hearing today, despite having been given notice of that hearing following a case management hearing before Employment Judge Cowx on 26 January 2023.[2]The claimants had provided the Tribunal with witness statements in support of their claims and accompanied by relevant contractual documentation with the respondent, time sheets for the relevant pay periods which were the subject of the claim and invoices produced for payment by the respondent in relation to the time worked by each claimant.[3]In accordance with the order made by Employment Judge Shotter dated 12 July 2022, the question of whether the complaints of unlawful deduction from wages had been presented in time in accordance with section 23 Employment Rights Act 1996 (‘ERA’) were considered as a preliminary issue.[4]I accepted that the claimants’ employment with the respondent company terminated on or around 20 December 2022 when the respondent failed to pay the claimants their outstanding pay between the dates of 15 to 19 December 2022.[5]The first claim form was not presented to the Tribunal under case number 2404759/2022 until 14 June 2022 and this was rejected by the Tribunal on 29 June 2022 by reason of no early conciliation number having been provided.[6]However, the claim forms of the original claims brought under case numbers 2405049/2022 and 2405056/2022 and which were accepted by the Tribunal, were presented on 4 July 2022 following early conciliation taking place on the same day.[7]Accordingly, it would appear that the claim forms were presented more than 3 months following the date when unpaid wages accrued contrary to section 23(2) ERA and were presented out of time.[8]However, the claimants were able to persuade me that it was not reasonably practicable for the complaints to be presented before the end of the relevant period of 3 months required by section 23(2) and I therefore concluded that it was in the interests of justice to consider that time be extended so that the complaints presented on 4 July 2022 were presented in time.[9]This was based upon the claimants being Nigerian by birth and not having familiarity of the courts and tribunals system in relation to the recovery of unpaid wages for work carried out for an employer until these complaints arose. The first claimant who was effectively acting on behalf of his wife provided documentary evidence of corresponding with the respondent seeking to recover the unpaid wages as soon as they became due and liaising with the company who placed them at the Christie hospital (Pulse) in order that pressure could be exerted upon the respondent to pay. The respondent clearly avoided engaging with the claimants or Pulse and the first claimant even travelled to their registered office at the time in London in February or March 2022, but discovered that this was a virtual office and the host business would not put him in contact with the respondent.[10]The claimant made enquiries with the Police who referred him to the Citizens Advice Bureau whom he made frequent attempts to contact during lunchbreaks and which took some time before he could obtain advice and assistance concerning the correct way to bring Tribunal proceedings. In the meantime, the first claimant attempted to bring a civil money claim, but was unfortunately prevented from proceeding because of confusion regarding the correct registered office for the respondent.[11]While the claimants presented a claim form on 14 June 2022 and did not understand that an ACAS early conciliation number was required, within days of it being rejected, they correctly notified ACAS, obtained an early conciliation number and presented their claim forms, all on 4 July 2022.[12]Accordingly, I am satisfied that despite significance unfamiliarity with the courts and tribunals systems, the claimants did everything they could to recover the outstanding wages from the respondent, the respondent was evasive in responding to their requests for recovery and they did everything reasonable to discover what litigation was available to them and correcting any misunderstandings that they initially had quickly and resubmitting their claims.[13]Both claimants gave convincing evidence under oath and also referred to documentary evidence which on balance of probabilities, demonstrated that they were employed by the respondent at the material time in accordance with section 230 ERA. The first claimant commenced employment on 19 August 2021 and the second claimant commenced employment on 24 August 2021.[14]Both claimants also gave convincing evidence under oath and also referred to documentary evidence including time sheets for the dates in question and invoices for those dates with the pay calculated to be paid applying the appropriate rates for the dates worked.[15]I accepted that the claimants employed by the respondent who were an ‘umbrella’ company which allowed them to be placed into work at the Christie hospital in Manchester by a care company called Pulse. Pulse would process the time sheets which they worked and submit the details to the Christie for payment and in turn, they would pay the respondent in order that they would deduct income tax and national insurance before paying the claimants. It is understood that this system is commonplace and enables companies using workers such as the claimants to have confidence that they will pay their statutory deductions and thereby avoid issues arising with HMRC.[16]Both claimants gave convincing evidence that they worked shifts in December 2021 and that the payments were made by Pulse for the time worked to the respondent, but the respondent had not at the date of this hearing, paid the claimants for the time worked.[17]The first claimant on balance of probabilities was found to have worked on 15, 16, 17, 18 and 19 December 2021 and was owed from the respondent, £1151.40 gross in unpaid wages.[18]The second claimant on balance of probabilities was found to have worked on 18 and 19 December 2021 and was owed from the respondent, £660.60 gross in respect unpaid wages.[19]Accordingly, the claimants’ complaints of unlawful deduction from wages contrary to section 13 ERA are well founded and succeeed.