Mrs J Rogers v Oak Tree Family Residential Ltd: 2415426/2020
EMPLOYMENT TRIBUNALS
Case No 2415426/2020
Between
Mrs J RogersClaimantOak Tree Family Residential LtdRespondent
Before
Employment Judge Newstead TaylorIn person for claimantNot represented for respondentDate 25 January 2021
JUDGMENT
[1]By consent the Respondent’s name is amended to Oak Tree Family Residential Limited.[2]The Respondent has made an unlawful deduction from the Claimant’s wages and is ordered to pay to the Claimant the gross sum of £210.00 in respect of the amount unlawfully deducted.[3]The Respondent was in breach of contract for failing to pay the Claimant’s agreed mileage and is ordered to pay to the Claimant £18.90, being damages for the breach of contract.
REASONS
[1]This is the hearing of the claimant’s claim for breach of contract and unlawful deduction from wages. Specifically, the Claimant contends that:1.1 The respondent unlawfully deducted £210 from her wages in respect of eight hours of mandatory training and 12 hours of work; and1.2 The respondent failed to pay to the claimant £18.90 for mileage agreed at 45 pence per mile.[2]The respondent did not attend the hearing.[3]In accordance with Rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”), the Employment Tribunal may proceed in the absence of a party, but before doing so should consider any information which is available to it, after any enquiries that may be practicable, about the reason for the party’s absence.[4]The respondent emailed the Employment Tribunal on 7 January 2021 about the hearing on 11 January 2021. In that email the respondent raised queries about the format of the hearing and referred to certain difficulties between the parties that had involved the police. This email clearly shows that the respondent was aware of the hearing. No further communication was received from the respondent. On 11 January 2021, the clerk to the Employment Tribunal tried to telephone the respondent but the call did not connect. In addition, the clerk to the Employment Tribunal emailed the respondent. No response was received.[5]Further, whilst this case was no doubt of importance to the parties the sum involved was modest, the case was not unduly complex, there was no clear defence on the face of the ET3 and there was no good reason for delay. In all the circumstances, it was consistent with the overriding objective and in the interests of justice to proceed in the respondent’s absence.[6]At the beginning of the hearing the Employment Tribunal raised with the claimant the fact that the ET1 cited the respondent’s name as Oak Tree Family Residential, whereas the ACAS certificate cited the name as Oak Tree Family Residential Limited. Under Rule 12(1)(f) of the Rules, the Employment Tribunal had to consider whether or not the claim required to be rejected. However, taking into consideration Rule 12(2)(a) of the Rules, the Employment Tribunal considered that this was a minor error and that it was not in the interests of justice to reject the claim. Further, Mrs Rogers confirmed that the word “Limited” should been added to the end of the respondent’s name.[7]Unfortunately, no bundle had been prepared for the hearing. Time was taken in the morning for the claimant to provide to the Employment Tribunal those documents she wished the Employment Tribunal to see. The claimant provided the Employment Tribunal with HSBC bank statements for June, July and August 2020, copies of texts between herself and Tracy Hartland and/or Craig Duxbury dated July and September 2020 and emails between herself and a Mr Wignall. The claimant confirmed that she had no further documents that she wished the Employment Tribunal to see.[8]The issue of time limits was considered with the claimant. In accordance with S.23 (2) (a) - (3) of the Employment Rights Act 1996, the claimant has 3 months beginning with the last date of payment of the wages from which a deduction was made to bring a claim for unlawful deduction from wages. Also, the claimant can claim in respect of a series of deductions going back up to 2- years; s.23 (4A) Employment Rights Act 1996. Further, the claimant has 3 months from the effective date of termination to bring a claim for breach of contract.[9]The claimant gave evidence to the Employment Tribunal that:9.1 She undertook 6 hours of mandatory training on 12.03.20. At this point the respondent was not fully operational. The claimant expected to be paid for this work either on 31.03.20 or 30.06.20.9.2 She undertook 2 hours of mandatory training on 12 June 2020. She was due to be paid for this on 30.06.20. She was paid £325 on 30.06.120, but this did not include the 2 hours of mandatory training.9.3 She worked for 12 hours on 08.07.20. She expected to be paid for this on 31.07.20. She was not paid.[10]The Employment Tribunal noted that the claimant’s employment ceased on 24.07.20. She went to ACAS on 04.09.20. She received her certificate on 18.09.20. The ET1 was issued on 29.09.20.[11]In all the circumstances, the Employment Tribunal is satisfied that both the claim for unlawful deduction from wages and the claim for breach of contract have been brought in time. Also, the Employment Tribunal is satisfied that in relation to the unlawful deduction from wages there are a series of payments and that, even if the training undertaken on 12.03.20 was payable on 31.03.20, there are no gaps of greater than three months; Bear Scotland v Fulton [2015] IRLR 15.[12]The Employment Tribunal heard sworn evidence from the claimant and made the following findings of fact: 12.1. The claimant was employed as a Family Support Worker by the respondent. 12.2. There is no written contract. The claimant was given a contract but it was in the name of an Anne Duxbury. She was promised a new contract but never received one. 12.3. The claimant's hourly rate was £10.50 per hour for work and for mandatory training. 12.4. There was an oral agreement made between the claimant and Mrs Kerry Ainsworth, a former director, to pay 45 pence per mile for mileage. 12.5. She undertook mandatory training on 12 March 2020. This was first aid training at Heath Hill House. All staff and the directors were present at the training. It lasted for 6 hours. These hours were payable either at the end of March 2020 or in the June 2020 payslip, as the respondent was not fully trading at the time. 12.6. The claimant undertook two hours of mandatory training on 12 June 2020. On 30 June 2020 she was paid £325, but that did not include the two hours of mandatory training. That was the only payment she ever received from the respondent. 12.7. On 8 July 2020 the claimant worked a 12-hour shift. There was documentary evidence in the form of an email showing the claimant’s agreement to work on that date, and confirmation from Lee Wignall that she was booked to work on that date. 12.8. The claimant travelled 42 mils for work resulting in mileage of £18.90, being 42 x 0.45. 12.9 The claimant has not received any payments from the respondent in July or August 2020 as shown by her HSBC bank statements. 12.10. The claimant has not received any payments directly from Mrs Kerry Ainsworth in respect of some or all of the £228.90 that she claims.[13]In conclusion, the Employment Tribunal finds that the claimant is owed £210 which has been unlawfully deducted from her wages and £18.90 for breach of contract, being the agreed mileage.[14]An oral judgment and reasons were given at the conclusion of the hearing. The Employment Tribunal chose to provide written reasons along with the judgment in order to assist the respondent in understanding why the hearing proceeded in its absence and why the Employment Tribunal made the findings it did.