Mr A Dur v Garden Spring Food Ltd and Leo’s Bar and Grill Ltd: 2408650/2023
JUDGMENT
The claim for a redundancy payment is struck out.REASONS
[1]The claim for a redundancy payment is struck out because the claimant has insufficient service with the respondent to bring such a claim, so the Tribunal does not have jurisdiction to hear it.[2]By a letter dated 12 September 2023, the Tribunal gave the claimant an opportunity to make representations or to request a hearing as to why the claim for a redundancy payment should not be struck out.[3]The claimant has failed to make representations in writing why this should not be done or to request a hearing. Accordingly, the claim for a redundancy payment is struck out.[4]This judgment does not affect the claimant’s remaining claims. Employment Judge Phil Allen 11 December 2023[1]The claimant claimed unpaid statutory paternity pay for one week’s paternity leave taken at the end of December 2022/beginning January 2023 and unpaid holiday pay, for 4 days’ taken but not paid and holiday accrued but untaken on termination of employment.[2]There was an issue as to which company employed the claimant and issues as to how much, if anything, was owed to the claimant.[3]There was a time limit issue in relation to the claim about paternity pay and pay for holiday taken, since these complaints were not presented within the normal time limit. I had to decide whether it was reasonably practicable for the claimant to present those complaints in time and, if not, whether they were presented within a reasonable time after the normal time limit.[4]It became apparent during the hearing that the claimant’s employer had not provided him with a written statement of employment particulars so, since the claimant succeeded in his complaints of unauthorised deduction from wages, I had to consider whether to award the claimant an additional 2 or 4 weeks’ pay in accordance with section 38 Employment Act 2002. Evidence and conduct of the hearing[5]Neither company had put in a response to the claim. The first respondent was dissolved as a company on 2 April 2024.[6]Only the claimant attended the hearing, giving evidence with the assistance of an interpreter in the Turkish language. The claimant had not provided a witness statement and the only documents were those on the Tribunal’s electronic case file, which included the claim form and some bank statements submitted by the claimant. I obtained the claimant’s evidence on relevant matters by asking him questions.[7]I had to reserve my decision since the claimant needed to leave the hearing to go to work before I could make a decision and give judgment.Facts
[8]The claimant was employed as a pizza chef at Leo’s Bar & Grill from 20 July 2022 until 9 May 2023.[9]The claimant was not given a written statement of employment particulars.[10]The claimant was not told the identify of his employer, although he was told to take instructions from a number of individuals, who are, or were, the directors of the first and second respondent companies. The claimant did not receive any pay slips. Payments made into his bank account were from different accounts, Case No: 2408650/2023 3 including from the first and second respondents. Some payments were made in cash. Payments were made at erratic intervals.[11]The claimant worked 5 days a week most weeks, although at very busy times, including December, he worked 6 days a week. He was paid £110 net per day, as was agreed when he started work. The claimant was unable to give me information about how much he had earned each week during his employment.[12]The claimant was not told how much paid holiday he was entitled to.[13]At the end of December 2022/beginning of January 2023, the claimant took one week’s paternity leave when his daughter was born. He was told that he would be paid paternity pay, but he never received this. The claimant thought that his paternity pay would be included in his holiday pay when his employment ended. He did not realise that he had not been paid when he should have been paid. It was only when the ACAS conciliator asked him what payments he had not received, that he became aware he should have been paid his paternity pay and had not been paid.[14]The claimant took 4 days’ holiday in February 2023 but was not paid for this absence.[15]On termination of employment, the claimant did not receive any pay in lieu of accrued but untaken holiday.[16]The claimant engaged in early conciliation with ACAS between 19 June and 27 July 2023. He presented his claim to the Tribunal on 10 August 2023.[17]The respondents did not present responses to the claim.Law
[18]Section 13(1) of the Employment Rights Act 1996 provides that an employer shall not make a deduction from 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. An employee has a right to complain to an Employment Tribunal of an unlawful deduction from wages pursuant to Section 23 of the Employment Rights Act 1996.[19]The Working Time Regulations 1998 provide for minimum periods of annual leave and for payment to be made in lieu of any leave accrued but not taken in the leave year in which the employment ends. The Regulations provide for 5.6 weeks leave per annum. The leave year begins on the anniversary of the start of the claimant’s employment, unless a written relevant agreement between the employee and employer provides for a different leave year. Regulation 16 sets out how a week’s pay for a week’s leave should be calculated, which is on the basis of 52 weeks if the worker has worked that long, or the period of their employment, if shorter.[20]Complaints of unauthorised deductions must be presented to the Tribunal before the end of the period of three months beginning with the date of payment of Case No: 2408650/2023 4 the wages from which the deduction was made (s.23(2) Employment Rights Act 1996) unless it was not reasonably practicable for the complaint to be presented within that period, in which case the Tribunal may consider the complaint if presented within such further period as the Tribunal considers reasonable (s.23(4) Employment Rights Act 1996). The time limit will be extended to take account of time spent in early conciliation if notification to ACAS is made within the normal time limit.[21]Section 38 of the Employment Act 2002 has the effect that where an employment tribunal finds in favour of a claimant on a claim under a jurisdiction listed in Schedule 5 (which includes unlawful deduction from wages) and, when the proceedings were begun the employer was in breach of his duty to provide the claimant with a written statement of terms of employment or to notify changes to this, the tribunal must either award (if no other award is made) or increase the award by two weeks’ pay or, if it considers it just and equitable in all the circumstances, by four weeks’ pay. The tribunal does not have to make such an award if there are exceptional circumstances which would make such an award or increase unjust or inequitable. Conclusions Identity of the claimant’s employerConclusions
[22]I conclude that the second respondent was the claimant’s employer. The name of the company most closely matches the name of the restaurant at which the claimant was employed and the claimant, at times, received payments from this company. Unauthorised deduction from wages – paternity pay[23]The claimant was entitled to be paid a week’s statutory paternity pay at the rate which was then applicable: the lower of £156.66 per week or 90% of normal weekly earnings. The lower of these figures in the claimant’s case is £156.66 per week. The claimant did not know when or how this should have been paid. It was only when he was engaged in early conciliation with ACAS that he realized he should have been paid this at the time. The lack of payslips and erratic payments of wages made it difficult for the claimant to know what he had been paid for and when. I conclude it was not reasonably practicable for the claimant to have presented his claim in respect of the unpaid statutory paternity pay within the normal time limit but he presented the claim promptly when he realized he had not been paid what he should have been paid.[24]I conclude the complaint in respect of unpaid paternity pay is well founded. Unauthorised deduction from wages – holiday pay[25]The claimant was entitled to be paid for the 4 days’ holiday he took in February 2023 but was not paid. I conclude this was an unauthorised deduction from wages. Because the payments were so erratic and no payslips were provided, the claimant did not know when he should have been paid and could not be sure what he was being paid for. I conclude it was not reasonably practicable for the claimant, in these circumstances, to present his claim about pay for these four days within the Case No: 2408650/2023 5 normal time limit but conclude he has presented it within a reasonable time after that.[26]The claimant did not take any other paid holiday during his employment. I conclude that the claimant was entitled to 5.6 weeks’ paid holiday during a holiday year, in accordance with his statutory rights under the Working Time Regulations 1998. The holiday year began when his employment began. Because he did not work a full year, his entitlement is a proportion of the leave for the full year, according to the time he worked.[27]I conclude that the respondent made unauthorised deductions from wages by not paying the claimant for 4 days’ leave taken, and for his accrued but untaken leave on termination.[28]I do not have full information about pay during the claimant’s employment to be able to do a calculation fully in accordance with regulation 16 of the Working Time Regulations. I have, therefore, taken an estimate based on the last 12 weeks of his employment, assuming the claimant worked 6 days a week for 4 weeks (in December) and 5 days a week in the other 12 weeks. This gives an average net weekly pay of £587: (4 x £660) + (4 x £550) = £7040 then divided by 12 to give £587.[29]Since the claimant was not paid for the 4 days’ holiday he took, I have calculated the holiday pay due, for leave taken but not paid, and accrued but untaken leave, together. The calculation is as follows: 20 July 2022 to 9 May 2023 is 293 days. The pro rata entitlement to leave on termination was 293/365 x 5.6 = 4.5 weeks. 4.5 x £587 = £2642. Failure to provide a written statement of employment particulars[30]The claimant has succeeded in complaints of unauthorised deduction from wages. I have found that the respondent failed to provide any written statement of employment particulars. I consider it just and equitable in these circumstances to order the respondent to pay to the claimant an additional four weeks’ pay. I calculate this using the same estimate as to average pay as for the holiday pay i.e. £587 per week. The total to be paid for this failure is 4 x £587 = £2348.