Miss C Hagan v S&N Collective Ltd: 2406925/2022
REASONS
[1]The tribunal gave an oral judgment at the hearing that the respondent made an unauthorised deduction from the claimant’s wages in the gross sum of £2,730.78 and ordered the respondent to pay this sum to the claimant subject to any deductions required to be made for tax and national insurance.[2]The gross sum of £2,730.78 consisted of one month’s unpaid salary and two additional days that the claimant was absent from work and not paid. On reflection, and considering the dates of the two days’ absence, it became Case No:2406925/2022 apparent that they fell within the same period as the one month’s unpaid salary. Consequently, the tribunal had erroneously ordered double recovery for that period, which required correction.[3]Therefore, in the interests of justice, the two days salary is deducted from the sum originally ordered, leaving the gross amount of £2,500. The judgment is varied accordingly. _____________________________ Employment Judge Liz Ord Date 9 February 2023[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No:2406925/2022 EMPLOYMENT TRIBUNALS Claimant: Miss C Hagan Respondent: S&N Collective Ltd Heard at: Liverpool On: 2 May 2023 Before: Employment Judge Liz Ord (by CVP) Representation: Claimant: In person Respondent: Not attending RECONSIDERATION OF ORAL JUDGMENT 1. The tribunal’s reconsidered judgment of 9 February 2023 is varied as follows: a. The respondent made an unauthorised deduction from the claimant’s wages and is ordered to pay to the claimant the gross sum of £1,800.01 in respect of the amount unlawfully deducted, subject to any deductions it is required to make for tax and national insurance.[1]Ashleigh Wilcox, who was handling the claim on behalf of the respondent, sent an email to the tribunal on 19 January 2023 saying that she had undergone emergency surgery the day before the final hearing and was unable to attend. The tribunal treated this as an application to reconsider.[2]There had already been a reconsideration due to some double counting of dates and the tribunal considered that there were reasonable prospects of this reconsidered decision being varied or revoked upon further reconsideration. Accordingly, it wrote to the parties on 15 February 2023 Case No:2406925/2022 saying that it was in the interests of justice to reconsider the judgment. The parties were invited to send to the tribunal any further information they felt was appropriate and to confirm whether they required a hearing. Thereafter, a remote hearing was listed by CVP for today.[3]The claimant attended, but Ms Wilcox sent an e-mail at around 10.00am saying she was unable to log on. The tribunal clerk sent another link to her. There was no reply. Over the course of the next hour and a half, he sent another three emails and tried to call her, but the number was not available and she did not reply to the emails. He telephoned the respondent’s director twice, Christian Ingrassia, but the call went to voice mail each time. Neither Ms Wilcox or Mr Ingrassia telephoned the tribunal to discuss any difficulties they might be having.[4]The claimant had now taken time off work on two occasions to attend the tribunal hearing and she explained she would have difficulty taking further time off in the near future. Taking into account that this was a rule 21 hearing, and that the tribunal had written representations from the respondent, which it could consider, it used its discretion to proceed.[5]The respondent’s representations conceded that some outstanding wages were owed to the claimant and estimated this to be in the region of £850. This was after deducting an overpayment for excess holidays and other monies claimed to be owed to the respondent. However, this is not a breach of contract claim in which a counterclaim has been presented, and consequently, the tribunal does not have jurisdiction to hear any counterclaim. It can however, consider previous overpayments for excess holidays.[6]Accordingly, the calculation has been re-done as follows: £30,000 annual gross salary 30,000 / (52 x 5) = 30,000 / 260 = 115.385 per day The claimant was not paid from 30/5/22 to 23/6/22, being 17 working days plus 2 bank holidays, totalling 19 unpaid days. 19 x 115.385 = 2,192.32 The claimant was entitled to 28 days holiday per annum plus 1 extra day for the Queen’s birthday, totalling 29 days. The holiday year ran from 1/4 to 31/3 The number of days from 1/4/22 to 23/6/22 is 83 Therefore, the fraction of the year worked is 83/365 = 0.2274 Holiday entitlement for this period = 0.2274 x 29 = 6.6 days For this period, the claimant took 6 working days (3/5; 26/5; 27/5; 30/5; 31/5; 1/6) plus 4 bank holidays (15/4; 2/5; 2/6; 3/6), totalling 10 days. Case No:2406925/2022 As this was more than her entitlement for this period, her pay is adjusted to deduct the additional holidays taken. 10 – 6.6 = 3.4 additional days 3.4 x 115.385 = 392.31 £392.31 is deducted from wages owed. 2192.32 – 392.31 = 1,800.01[7]The amount owed by the respondent to the claimant is therefore, £1,800.01 gross.