Mrs J Moorhouse v Sam Wilson: 2413470/2018
JUDGMENT
[1]The application by the respondent for a postponement of the hearing is refused.[2]The claimant’s complaint of unauthorised deductions from wages in respect of holiday pay is well-founded.[3]The respondent is ordered to pay the claimant compensation calculated as follows: 5 days holiday pay (gross) (37.5 hours x £8.50 per hour) £318.75[4]The tribunal finds that the employer was in breach of his duty under section 1(1) of the Employment Rights Act 1996 to give a statement of employment particulars to the claimant.[5]In accordance with section 38 of the Employment Act 2002 the tribunal makes an award of an amount equal to 4 weeks’ pay to be paid by the respondent to the claimant so that, to the sum set out in paragraph 3 above, there is to be added the further sum of £1275.00.[6]The respondent is ordered to pay the resulting sum of £1,593.75 to the claimant on or before 23 October 2018.REASONS
[1]By a claim presented to the tribunal on 16 July 2018 the claimant alleged that the respondent had made unauthorised deductions from her wages by failing to pay outstanding holiday pay in respect of 5 days untaken holiday.[2]The respondent presented a response disputing the claim but appearing to accept that the claimant was entitled to a maximum of 2½ days holiday pay.[3]The respondent did not attend at the time and place fixed for the hearing. When contacted by the tribunal by telephone he asserted that that he had not been notified of the hearing. When reminded that the date of hearing was contained in the letter sent with the notice to the respondent of the requirement to serve a response, he apologised and said he would send an email to the tribunal. The respondent emailed the tribunal apologising again for his non-attendance. He accepted that the date of hearing was on the original letter but that “we didn’t receive a response to our documentation to the claim. Therefore I believe my Dad just took this as a case closed issue.” He asked for the case to be postponement for hearing to a date that he would attend.[4]When informed of the contents of the email the claimant objected to an amendment.[5]Having regard to the communications from the respondent I was not satisfied that there was any good reason for the respondent’s failure to attend the hearing. I do not understand the assertion that it was believed to be a “case closed issue”. I therefore refused the application to postpone.[6]In deciding the claimant’s case I took account of her oral evidence and the respondent’s assertions contained in the response.[7]Essentially the claimant’s case turned upon whether I accepted her evidence.[8]I found that the claimant was not provided with written particulars employment nor a copy of the handbook when she started her employment. She was unaware at the start of her employment of the respondent’s practice not to permit additional holiday to be taken in the months of November and December and up until early January of the following year.[9]The claimant habitually took holiday at Christmas time. When she asked Mr Wilson for holiday for the first Christmas of her employment in 2017 it is common ground that he refused her permission to take it. The claimant asked whether in the circumstances she could carry forward holiday into May 2018, which was in the following holiday year, I find as a fact that Mr Wilson agreed that she might do so. At that stage she had 7 days holiday outstanding.[10]The claimant gave notice to terminate her employment and it came to an end on 27 April 2018. When she asked for her accrued holiday pay she was told that she was only entitled to 2 days’ pay. The respondent then paid her for 2 days holiday accrued but untaken.[11]For those reasons I found that the claimant’s case that she was entitled to a further 5 days holiday accrued but untaken was established.[12]The claimant worked 37½ hours a week at the rate of £8.50 per hour. The gross sum to which is entitled in respect of unpaid holiday is therefore £318.75.[13]The claimant informed me, and I accepted, that she had not been provided with a written statement of particulars of her employment at any stage.[14]In those circumstances the tribunal must consider whether to make an award under section 38 of the Employment Act 2002. There is no requirement that a claim under that section be made by a claimant.[15]The effect of the section is that where no statement of particulars is provided in breach of section 1 or section 4 of the Employment Rights Act 1996 which provide, essentially, that such a statement must be given after an employee has been employed for a period of 2 months, the tribunal must consider whether to make an award or an additional award of compensation.[16]The award may be for 2 weeks’ pay or, if the tribunal considers just and equitable to do so, for 4 weeks’ pay. In my judgment where an employer makes no attempt to comply with its statutory obligation and, in particular, where the effect of the breach is a significant cause of the claim, it is appropriate to award the higher sum.[17]In this case I find that on the facts the respondent made no attempt to comply with its obligation to provide a written statement of particulars. Had it done so, it is likely the claimant would have been made aware of the restriction on taking holiday in the Christmas period and upon the term in the respondent’s handbook restricting the carrying forward of holiday. In those circumstances, as the claimant informed me, she would have taken her holidays earlier and the need to make this complaint would not have arisen. For that reason I have awarded 4 weeks’ pay.[18]For the avoidance of doubt, I make it clear that the sums I have awarded are to be paid without deduction by the respondent but, as and when received, the claimant may be liable to tax in respect of the sums.