Employment Judge HoeyRepresenting herself for claimantRepresenting himself for respondentDate 21 October 2019
JUDGMENT
[1]The sum of £2,275,04, in respect of a failure to pay the claimant the applicable national minimum wage for the period 16 July 2018 to 5 November 2018; and[2]The sum of £273.20, in respect of the respondent’s failure to pay the claimant the applicable minimum wage rate for the period 6 November 2018 to 28 December 2018. Discussion and reasons[1]This case called as a final Hearing. Both parties were in attendance.[2]I began the Hearing by referring to the overriding objective in terms of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 which requires matters to be dealt with justly, which includes fairly and proportionately. Case number 2405530/2019 2 of 7[3]The Hearing began by identifying what exactly the claimant was seeking in terms of her claim and by seeking from the respondent what his defence was.[4]It soon became apparent that there was in fact no dispute as to the issues and facts in question, given the respondent accepted as accurate the figures that the claimant set out and the hours that she had worked.[5]The Hearing was able to progress to deal with the matters arising effectively with both parties’ consent in terms of Rule 64 of the Rules (which allows parties to agree matters by consent).[6]I ensured that the parties fully understood the issues arising. I also ensured the respondent was given time to check the position from the records he had brought. He did so carefully and was able to confirm the position candidly. Issues[7]The issue that arose was whether the claimant was due to be paid the national minimum wage (called the national living wage) for each hour worked during 2 periods of her employment: from 16 July 2018 to 5 November 2018 and then from 6 November 2018 to 6 January 2019. The claimant was not seeking any payment for the period beyond 6 January 2019. Facts[8]The Tribunal is able to make the following findings of fact which emerged from the parties’ agreement.[9]The respondent owns a laundrette and engaged the claimant (who was over 25 at all times) to provide laundry work with effect from 16 July 2018. The claimant was engaged, as an employee, to work for the respondent. She agreed to provide her personal services for the respondent and did so.[10]The respondent agreed with the claimant that she would be paid £178 gross a week.[11]She was initially required to work a weekly pattern of 4 days 930am to 530pm (with half hour unpaid break) and 2 days 930am to 330pm (with half hour unpaid break). For this period in question (which the parties accepted was 16 weeks) she was working (and worked) 39 hours a week.[12]From 6 November 2018 to 6 January 2019 her hours decreased, but she continued to be paid (and it was agreed that she be paid) £178 gross a week. For this period she worked 30 hours for each of these weeks.[13]The claimant did not work any hours from 28 December 2018 (as she was away from work for various reasons). Case number 2405530/2019 3 of 7[14]For the period 6 November 2018 to 28 December 2018 (which the parties agreed amounted to 4 weeks) the claimant did work 30 hours each week and was paid the gross sum of £178 for each week.[15]The respondent accepted that the claimant was only ever paid the maximum weekly sum of £178 gross. While some weeks were paid at a sum less than this, the respondent made up the difference by overpaying sums due to the claimant in subsequent weeks. The claimant had checked the position and confirmed that she had in fact received £178 for each relevant week. This was accepted by the respondent, who candidly accepted he was not aware of the minimum wage rules (and had not checked the position at the point of payment). Law[16]In terms of the National Minimum Wage Act 1998, section 1, a worker is entitled to be paid at a rate not less than the national minimum wage. Section 2 states that a person qualifies for the minimum wage where they are a worker.[17]The National Minimum Wage Regulations 2015 set out how the rate is calculated. The applicable hourly rate is set each year.[18]Where a worker is entitled to be paid by reference to the time to be worked (such as in the claimant’s situation) chapter 3 of the 2015 Regulations explain how the calculation is carried out. This is called time work and involves a calculation of the time (in hours) the claimant was working to ensure that for each hour the claimant worked, she receives the applicable minimum wage rate.[19]Under section 28 of the 1998 Act it is presumed that the claimant qualifies for the national minimum wage unless the contrary is established - section 28(1). It is also presumed that the claimant was paid less than the minimum wage for the period in question unless the contrary is established – see section 28(2).[20]A worker is entitled to be paid a sum equal to the national minimum wage for each hour worked within the relevant pay reference period (section 17).[21]In addition, a claim for failure to pay the national minimum wage is a claim for unlawful deductions of a wage under section 13 of the Employment Rights Act 1996 since the worker is entitled to be paid the applicable hourly rate for each hour worked, and paying the worker less than this results in an unlawful deduction from the wages due. In other words, the sum properly payable under a worker’s contract by way of wages is the national minimum wage rate and a failure to pay this is a breach of section 13 of the 1996 Act, thereby allowing a Tribunal to order payment of the sum in question.[22]Where the employer has failed to pay the worker the relevant rate for each hour worked, the Tribunal is required to base the calculation upon the national minimum/living wage rate that applies at the date of calculation – section 17 (4) of the 1998 Act – even if the minimum wage rate was lower when the deduction took place. Case number 2405530/2019 4 of 7[23]Where the Tribunal finds the claimant was not paid the minimum wage for the period in question, the Tribunal can order the respondent to pay to the claimant the balance (which would be at the current rate) for each hour when the (then applicable) minimum wage was not paid.[24]The applicable rate at the time in question (to 31 March 2019) was £7.83. The rate increased to £8.21 with effect from 1 April 2019 and is the applicable rate as at today’s date. As the claimant was over 25 she is entitled to the national living wage (which is the name for the higher rate of the national minimum wage). Discussion and decision[25]The claimant was a worker engaged by the respondent to provide her personal services. She is therefore entitled to be paid the national minimum wage for each hour she worked for the respondent.[26]For the first period in question, namely from 16 July to 5 November 2018 (which amounts to 16 weeks) the respondent accepted that the claimant worked 39 hours each week and was paid the gross sum of £178 for each week.[27]She was therefore paid the hourly rate of £4.56 which was below the national minimum rate applicable at the time in question (£7.83).[28]For this 16 week period, she was paid £178 x 16 = £2,848.[29]For each week she is now due to be paid £8.21 (the national minimum wage rate applying today) X 39 (the hours worked each week) which amounts to £320.19. For the 16 week period she should have been paid £320.19 x 16 which amounts to £5,123.04.[30]The underpayment which is due to the claimant is the difference between £5,123.04 and £2,848, namely £2,275,04.[31]For the second period in question, namely from 6 November 2018 to 6 January 2019, the claimant accepts that she did not work from 28 December 2018. She accepts that she is only due to be paid the minimum wage for the period to 28 December 2018. The period in question runs to 4 weeks.[32]For this 4 week period the claimant was paid £178 for working 30 hours. This results in an hourly rate of £5.93 which is less than the minimum wage rate applicable at the time (£7.83).[33]She was paid £712 for the 4 week period.[34]She is due to be paid 30 (the number of hours worked during the week) x £8.21 (the applicable rate as at today’s date) x 4 (the number of weeks) which amounts to £985.20. Case number 2405530/2019 5 of 7[35]The balance due to the claimant is therefore the difference between £985.20 and £712, namely £273.20. Observation[36]The respondent noted that his accountant was dealing with the taxation aspects of the sums paid to the claimant. This is something that the parties should attend to urgently thereby ensuring all relevant deductions and payments required by law have been accounted for. Summary[37]The respondent is therefore ordered to pay the claimant the sums of £2,275.04 and £273.20, which arise as a consequence of the claimant receiving a sum less than that properly payable under her contract for the 2 periods in question given the sums paid for each hour worked were less than the national minimum wage. _____________________________ Employment Judge Hoey Dated: 21 October 2019 _____________________________[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”.[3]The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged.[4]“Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet).[5]Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal.[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No: 2405530/2019 EMPLOYMENT TRIBUNALS Claimant: Ms Lyn Cartmell Respondent: Mr Steven Moore
REASONS
[1]I have undertaken preliminary consideration of the respondent’s application for reconsideration of the judgment upholding the claimant’s claims for payment of wages following a hearing on 21 October 2019. Hearing and judgment[2]At a hearing on 21 October 2019 the respondent was ordered to pay the claimant the sum of £2,275.04 in respect of a failure to pay the claimant the national minimum wage for the period 16 July 2018 to 5 November 2018 and the sum of £273.20 in respect of the failure to pay the applicable minimum wage for the period 6 November 2018 to 28 December 2018. The written judgment was sent to the parties on 12 November 2020.[3]The judgment was based upon the respondent’s concession that the claimant was paid a fixed gross rate for each week worked for an agreed number of hours worked during the relevant periods. The respondent had been candid in accepting that he had not considered the national minimum wage rules when agreement was reached as to the sums being paid to the claimant for the hours she worked. The agreed rate paid for the weeks in question resulted in the rate paid per hour being less than the applicable national minimum wage. Case No: 2405530/2019 Respondent wishes judgment to be reconsidered[4]The respondent wrote to the Tribunal on 5 November 2019 stating that he wished to appeal the decision as he alleged he had already paid the claimant the sums ordered. He sought written reasons for the decision. Respondent asked to provide specific basis for reconsideration[5]On 4 January 2020 the respondent was advised that the Tribunal’s judgment was issued in writing on 12 November. The respondent was directed to Rules 70 to 72 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 with regard to an application for reconsideration and told to provide specific grounds for any reconsideration application.[6]On 16 January 2020 the respondent wrote to the Tribunal asserting that he had paid the claimant the money ordered.[7]On 17 January 2020 the claimant wrote to the Tribunal saying that the sums the respondent had paid her was the weekly pay that had been agreed by the respondent as due to her. She was paid a fixed weekly amount. The sums paid were arrears in respect of this fixed weekly amount. Those sums had been taken into account in the judgment (see paragraph 15). Respondent asked to set out where the error in the judgment was[8]On 14 February 2020 the respondent was asked to set out which parts of the judgment are disputed (given the judgment was based on the respondent’s agreement as to the applicable sums and hours) and why there was an error in light of the respondent’s position.[9]On 7 March 2020 the respondent wrote to the Tribunal stating that he had paid the claimant “backpay and sick pay” between 19 January 2019 to 24 April 2019 which totalled £3003.[10]On 6 April 2020 the claimant’s comments were sought on the foregoing and the respondent was asked to state which parts of the judgment were disputed. The respondent was referred to paragraph 15 of the judgment where it was noted that the respondent accepted that the claimant was only ever paid the maximum weekly sum of £178 gross. The respondent sometimes paid less than this but made up the sums by overpaying in subsequent weeks. The respondent accepted at the hearing that he was not aware of the minimum wage rules and had not checked the position. The hours the claimant worked were not in dispute. The sum paid was not in dispute. This resulted in the sums that were agreed to be paid to the claimant (for the hours it was agreed she worked) being less than the minimum wage. The respondent was asked to set out what specifically he disputed in terms of the judgment.[11]On 6 April 2020 the claimant confirmed that the sums referred to by the respondent were the sums that were due to the claimant to pay the agreed weekly amount. She had not been paid sums in excess of that set out in the judgment. In other words the sums referred to by the respondent in his Case No: 2405530/2019 application were the “top up payments” he made to ensure the agreed weekly rate was paid, even if not paid at the time.[12]On 14 April 2020 the respondent wrote to the Tribunal asking why he was being asked the questions now. Respondent given further opportunity to set out where the error was[13]On 12 June 2020 the respondent was referred to rule 70 and 72 of the Tribunal Rules. It was noted that to allow the Employment Judge to decide whether or not there are reasonable prospects of the judgment being varied the respondent should consider the terms of the judgment carefully and provide a written response to the following 2 questions:a. At paragraph 15 of the judgment it is stated that the respondent accepted what the claimant was paid and for which hours. Is this paragraph correct and if not what is the correct factual position?b. Does the respondent argue that there were payments made which were not taken into account? If so please state what these are and for what periods.[14]The respondent was advised that once it was clear as to what precisely the error was, further procedure could be considered.[15]On 12 June 2020 the claimant confirmed that the sums referred to by the respondent were not sums in excess of those referred to in the judgment.[16]On 20 June 2020 the respondent referred to the sums to which previous reference was made. Respondent given final opportunity to set out where the error was[17]On 10 September 2020 the following communication was issued to the respondent: “Employment Judge Hoey has considered the respondent’s letter of 20 June 2020 in which he states that he had paid the claimant sums of money after January 2019. The claimant in an email of 12 June 2020 stated that the respondent paid the claimant £100 a week from January to April 2019 which was payment in respect of arrears at the agreed rate of £178 per week. The respondent accepted at the hearing that he had agreed to pay the claimant £178 gross a week. Paragraphs 11 to 15 set out what was agreed between the parties. At paragraph 15 of the judgment it is noted that the claimant accepted that she had been paid less than £178 a week but this was often made up by overpayment in subsequent weeks (which appears to be the sums referred to by the respondent in his letter of 20 June). The respondent is given one final opportunity to explain if any of the foregoing is incorrect and if so why, in particular the facts as agreed by the parties set out at paragraphs 9 to 15 of the judgment. Case No: 2405530/2019 The respondent is given 21 days from the date of this letter to set out the position to allow a final decision to be made in respect of the reconsideration application.”[18]On 18 September 2020 the respondent replied repeating essentially what he had said in his letter of 20 June 2020. He said that at the hearing he could not refer to anything that had happened after January 2019. He did not set out what parts of the judgment he maintained was incorrect or what additional sums were paid in excess of those set out in the judgment.
The Law
[19]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70).[20]Rule 72(1) of the 2013 Rules of Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[21]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[22]Similarly, in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”[23]In common with all powers under the 2013 Rules, preliminary consideration under rule 72(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication. Case No: 2405530/2019 The application[24]The judgment issued by the Tribunal set out what was agreed between the parties. The claimant was paid £178 gross per week. Where there were weeks whereby the sums paid to her were less than this, subsequent payments were made to ensure she received £178 per week. That appears to be the sums to which the respondent refers in his application.[25]It was accepted at the hearing that the claimant worked 16 hours a week in the period 16 July 2017 to 5 November 2018. That was a 16 week period. For each hour she worked during that period she was paid the gross hourly rate of £4.56 which was less than the then applicable national minimum hourly rate of £7.83. The respondent did not suggest (and there is no evidence to suggest) that the claimant received a greater sum for those hours.[26]It was accepted at the hearing that the claimant worked 30 hours a week for the period 6 November 2018 to 28 December 2018. That resulted in the gross hourly rate of £5.93 being paid to the claimant which was less than the then applicable national minimum hourly rate of £7.83. The respondent did not suggest (and there is no evidence to suggest) that the claimant received a greater sum for those hours worked.[27]The foregoing represented what the respondent agreed at the hearing. The respondent was candid in his approach and accepted that he had not checked what the national minimum wage was. The judgment that was issued was based upon the hours the claimant worked and the sums paid for those hours, both of which were confirmed by the respondent during the hearing.[28]The respondent was given a number of opportunities to set out what he believed the errors to be or if there were further sums paid in excess of what is set out in the judgment. The sums to which he refers appear to be the sums paid to the claimant to ensure the agreed £178 was paid to her. That was what was confirmed at the hearing and was the gross sum taken into account, even if the claimant on occasion was paid less than £178 at the time.[29]I have carefully considered the correspondence submitted by the respondent. The respondent has not referred to the areas in the judgment that are alleged to be incorrect. The documents submitted following the judgment appear to support the facts set out in the judgment. The respondent was given a fair opportunity to explain what the error was or if there was additional relevant information that had not been taken into account. He was told that the additional information he was presenting appeared to be confirmation of the back pay to ensure the claimant received the agreed rate (which was the rate taken into account in the judgment). He did not state this was incorrect.[30]The respondent has not therefore presented any new evidence or a compelling reason as to why the original decision should be reconsidered. There is no basis to find that the figures presented at the hearing in respect of the agreed weekly sum and the agreed number of hours worked were incorrect. From that information the claimant was paid an hourly rate Case No: 2405530/2019 less than the then applicable national minimum wage rate. The respondent has now provided any reason to explain why that conclusion was wrong. Not in the interests of justice to allow reconsideration[31]The respondent had not provided any evidence that shows the Tribunal has missed something important or that new evidence is being presented that could not reasonably have been put forward at the time. The respondent set out the hours worked and sums paid. Judgment was issued on the basis of the information before it.[32]The Tribunal considered the facts agreed between the parties and reached a conclusion in light of those facts whilst applying the law.
Conclusion
[33]Having considered the points made by the respondent I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. It is not in the interests of justice to reconsider the decision the Tribunal reached.[34]The application for reconsideration is therefore refused under rule 72(1) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. _____________________________ Employment Judge Hoey Dated: 30 September 2020