Miss G Wren v Direct Care (Tameside) Ltd: 2420614/2017
JUDGMENT
[1]The claimant’s claim of unfair dismissal pursuant to S98 Employment Rights Act 1996 is struck out.[1]The complaint of unlawful deduction from wages is not well founded.[2]The respondent was not in breach of contract by not paying the claimant for petrol expenses incurred in travelling between clients.REASONS
[1]It was clarified at the hearing that the claimant claimed unlawful deduction of wages and breach of contract. The complaint of unlawful deduction from wages related to wages which had not been paid for work done and to holiday pay. There was a dispute as to what work had been done, whether an enhanced rate was payable for bank holidays worked and, therefore, how much was due for work done. There was a dispute as to the correct amount of holiday pay due because the claimant said the respondent’s calculation had not been done on the basis of the full hours worked by the claimant. The respondent accepted that some wages and holiday pay had been due but said they were entitled to withhold these payments because the claimant had failed to return her mobile phone and uniform.[2]In respect of the breach of contract claim, the claimant claims she was entitled to be reimbursed for petrol expenses travelling between clients.[3]The claimant had, in her schedule of loss, sought reimbursement for the expense incurred by her for the DBS check. Mr Poingdester informed me at the hearing that the claimant did not pursue failure to reimburse this fee as a breach of contract claim.[4]The claimant had brought a complaint of unfair dismissal but this was struck out because the claimant had less than two years’ service. Facts[5]The respondent is a small company providing care to people in their own homes. The claimant worked for the respondent as a care worker starting on 23 March 2017. Her employment was terminated on 18 April 2017.[6]It is common ground that, when the claimant started, she was told that the company did not pay petrol expenses for travelling between clients.[7]The claimant’s normal rate of pay was the national minimum wage which, at the relevant time, was £7.50 per hour. There was no provision in the contract for any enhanced payment when bank holidays were worked.[8]I accept the respondent’s evidence that employees were told that for work done on bank holidays, they would be paid an enhanced rate of 1.5 times the normal hourly rate provided they completed all visits on the rota issued for the period including those bank holidays.[9]The contract stated that the claimant would only receive payment for actual hours worked. In practice, the respondent paid care workers for the amount of time the appointment with the client had been booked for, even if the care worker did not spend the full amount of time with the client. However, the respondent did not pay separately for travel time and the rotas issued often did not allow any travel time between appointments (and sometimes had the claimant booked to work for two clients at the same time).[10]The contract provided that the holiday year ran from 1 April to 31 March each year. The claimant was entitled to 5.6 weeks holiday during each full holiday year. Bank holidays were normal working days.[11]On termination of the claimant’s employment, the respondent calculated the claimant’s entitlement to holiday pay on the full period of her employment rather than from first of April to 18th of April. Because of the claimant’s start date being close to the end of the holiday year, the respondent agreed that the claimant could carry over holiday accrued in the period from her start date until the end of the 2016/2017 holiday year.[12]The claimant was issued with a uniform and an ID badge at the start of her employment. She signed a form on 23 March 2017 which required her to return the uniform and ID badge in a good and clean condition when leaving the respondent. The form stated: “If I fail to return all or part of my uniform and ID badge I understand that the cost of £50 will be deducted from my final pay.”[13]The statement of principal terms of employment referred to a company handbook. It stated that the statement, together with the staff handbook, (except where explicitly stated otherwise) constituted part of the contract of employment between the respondent and the claimant. In the section on termination of employment, the handbook required the employee to return all company property to the respondent on termination of employment. It stated: “If you fail to return all items to us in a reasonable condition, we may deduct the cost of recovery, replacement or any loss incurred by us from any monies owing to you.” The handbook stated that this was an express term of the contract of employment.[14]The claimant’s employment was terminated by the respondent with immediate effect on 18 April 2017. The termination of employment was confirmed by letter dated 19 April 2017. The claimant considers her dismissal unfair but she has insufficient service to bring a complaint of unfair dismissal. It is not relevant or necessary for me to decide, therefore, whether the respondent acted reasonably in dismissing the claimant. The letter of termination informed the claimant that: “Your final payment will be deposited in your bank in the normal way once you have returned any and all equipment to the office.”[15]The claimant replied to the respondent by letter dated 1 May 2017. She referred to a rota issued at the end of business 16:54 on 13 April 2017. She asserted that the rota for the period 14 April to 16 April was totally unachievable. She wrote that, on Friday 14 April, she had 13 visits, including two clashes at 18.30, with no time allocated for travel between addresses. She wrote that she returned home at 23.15. She did not write that she had completed all 13 visits. She wrote why she considered the rota for Saturday 15 April was impossible. She did not state which visits she did complete on that day. She wrote that she did not work the scheduled shift on Sunday 16 April because her childminder refused to cover the additional hours required following the previous two nights’ experience. The claimant asked for a statement of all outstanding monies owed with the breakdown of dates and hours. She wrote that, once the funds were cleared into her account, she would immediately return the mobile phone and other items to the office.[16]The claimant was owed pay for Thursday 13 April, Friday 14 April and Saturday 15 April. The claimant had been scheduled to work on Sunday 16 April but did not work that day. Friday was a bank holiday (Good Friday).[17]There is a dispute as to whether the claimant completed all the visits on Friday 14 and Saturday 15 April which were on the schedule printed on 13 April.[18]I accept the respondent’s evidence that rotas sometimes change at short notice e.g. when a client goes into hospital. I also accept that information about visits to be made is updated on the phones issued to care workers. Cancelled visits show up in blue. I accept that the claimant may not have been fully confident about operating the technology, having only recently started working for the respondent. This was the first week when she had worked alone, rather than with another carer. I accept it is possible that the claimant did not pick up on all the changes to the rota being notified to her on her phone, relying, instead, on the unamended copy of the rota printed on 13 April.[19]There is a system for care workers to record their arrival and departure times at a client’s home by placing their phone on a transmitter in the client’s home. Sometimes this does not work and sometimes a care worker forgets to log in and/or out. Where the care worker has logged in and out and the transmitter has worked, the actual times of the visit are recorded on the respondent’s system. The respondent provided in evidence a copy of the call log for the claimant for the relevant period. For the majority of calls on Friday 14 and Saturday 15 April, actual times are recorded. Ms Duffy said care workers were still paid for visits where actual times were not recorded.[20]The only rotas for the relevant period which I have been shown are a version printed 13 April, which the respondent says then changed, and a version printed 9 January 2018. There is no version printed closer to the time.[21]Ms Duffy gave evidence that the claimant had not made the visits Ms Duffy had highlighted on the copy of the rota printed 13 April (pages 81-82 of the bundle). On Friday 14 April, Ms Duffy says that the claimant did not visit the first 6 clients on the list. Although Ms Duffy says that the claimant did not visit the first client, MB, the respondent included this call, in error, in the work for which the claimant was to be paid. Ms Duffy said the respondent did not seek to correct this error. Ms Duffy referred to what she said was a record of conversations between the claimant and the employee “on call”. This note is not dated but, from the context, appears to relate to a conversation on Friday 14 April in which the claimant is recorded as saying that she was unable to do her “teas” that day. I find, on a balance of probabilities, that this is an authentic document recording conversations between the claimant and the respondent’s employee who was “on call.” The claimant’s witness statement refers to her starting her first visit on Friday 14 April at 16.00 and finishing at 23.15, against a scheduled finish time of 21.45. However, printouts from the respondent’s system for each of the clients from 16.30 to 18.30, clients DW through to MH, record that other care workers attended those appointments. These records were not printed off the system until 9 January 2018, after the respondent was ordered, at a preliminary hearing the day before, to supply information to the claimant about hours worked and payments. It has been suggested for the claimant that the documents printed on 9 January 2018 cannot be relied on. However, I do not consider that the fact they were printed at such a late date is, by itself, sufficient to cause me to find that the information in the printouts is not accurate. On a balance of probabilities, I find that the records printed on 9 January 2018 are authentic records of information from the respondent’s system, recording what visits were made to which clients by particular care workers on the relevant days. The combination of these records, together with the note of the conversation with the claimant on 14 April, leads me to find, on a balance of probabilities, that the claimant carried out 7 visits on Friday 14 April 2017, beginning at 18.30. The respondent, in its calculations, has included one further visit which they say, in error, they credited to the claimant and they do not seek to correct their error in the amount they say is due to the claimant.[22]In relation to Saturday 16 April, Ms Duffy gave evidence that two clients, MP (20.00) and MB (21.10) were removed from the claimant’s list. Ms Duffy referred to printouts from their system showing visits to those clients on 16 April (printed on 16 January 2018). The printout for client MP indicates that another care worker visited MP at 20.00, the visit on the claimant’s rota. The printout for MB shows another care worker visited MB in the morning but showed no visit at 21.10. Ms Duffy gave evidence that this was because MB had cancelled the visit. The claimant accepted that MB had cancelled the visit but said she was unaware of this until she tried to visit late in the evening and MB’s wife said she had administered her husband’s medication. The claimant gave evidence that she had visited MP to find that another care worker had already been. These incidents are consistent with the claimant not having accessed the up to date information about visits on her phone. I find that the claimant carried out 13 visits on Saturday 16 April; those listed on the rota printed 13 April, apart from the visits to MP and MB. Although the claimant attempted to visit MP and MB, I consider it likely that the claimant’s rota had been changed to exclude these visits but she had not accessed the up to date information about her rota on her phone.[23]The claimant was also entitled to be paid in lieu of accrued but untaken holiday. She had not taken any paid holiday in her brief period of employment.[24]The respondent produced phone bills to show that they had been continuing to pay £13 per month for the phone which had been issued to the claimant; £8 for the phone rental and £5 for the calling plan. Ms Duffy gave evidence that they could not cancel the contract but did not produce the contract with the phone company. The respondent had not written to the claimant at any time after the termination letter to seek to recover the phone and the uniforms and to notify the claimant of costs still being incurred in relation to the phone. Submissions[25]Mr Poingdester, on behalf of the claimant, submitted that the claimant had been given an impossible task. He said the rota for Sunday was unachievable. He asked that the claimant should be paid time and a half for hours worked on Friday and, at a minimum, for the full hours worked.[26]Mr Poingdester submitted that every rota the respondent had provided has been edited and he questioned how reliable these are. He noted that the call to MB had been removed but the time for the care worker visiting MB was totally wrong, being 8:15 am. He submitted that taking out the cost of fuel took the claimant below the national minimum wage. He felt the claimant should be paid her out of pocket expenses for petrol. He said that the respondent had not mitigated their loss. Mr Poingdester submitted that the respondent could have transferred the SIM card and retained the number.[27]Mr Hendley, for the respondent, submitted that there was no express term in the contract to say that expenses should be paid and there was no implied term to this effect. He submitted that the number of hours the claimant was paid for was correct. Even if the tribunal decided to increase the number of hours, the respondent relied on the clause allowing the respondent to make a deduction for loss relating to company property. Even if the claimant handed back the phone at the hearing, the respondent would still have a loss of £117 due to ongoing rental.The Law
[28]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.Conclusions
[29]I have found, on a balance of probabilities, that the claimant worked the visits which the respondent has said she worked on Friday 14 April i.e. 7 visits, although the respondent agrees it should pay her for 8 visits since a visit to MB was included due to the respondent’s error. The claimant is entitled to be paid for 3.08 hours worked on Friday 14 April 2017.[30]I have found, on a balance of probabilities, that the claimant worked the visits on Saturday 15 April that the respondent said she worked i.e. 13 visits. The claimant is entitled to be paid for 4.92 hours worked on Saturday 15 April 2017.[31]There was no dispute as to visits made on Thursday 13 April 2017 (5.33 hours) and no dispute that the claimant did not work on Sunday 16 April 2017.[32]I conclude that the claimant was contractually entitled to pay at the rate of £7.50 per hour for the hours worked. If the claimant had carried out all the visits on the rota for the period Thursday to Sunday, she would have been entitled to pay at 1.5 x normal rate for hours worked on the bank holidays (Friday and Sunday), the respondent having agreed that an enhanced rate should be paid if all the rota for the bank holiday weekend was worked. Since the claimant did not work on Sunday and had been on the rota to work that day, she was not entitled to pay at an enhanced rate for the Friday.[33]The claimant was due wages for 13.33 hours at £7.50 per hour, a total of £99.98, as shown on her payslip dated 21 April 2017.[34]The claimant’s challenge to the calculation of holiday pay was that it was calculated on the basis of fewer hours than had been worked by the claimant. Since I have found that the claimant worked the hours recorded by the respondent, I conclude that the respondent’s revised calculation of £14.49 holiday pay due for 1.5 days’ accrued holiday is correct.[35]But for the retention of company property by the claimant, the claimant would have been entitled to be paid her wages of £99.98 and holiday pay of £14.49 on termination of employment, a total of £114.47.[36]A deduction from wages is authorised if it is made by virtue of a relevant provision of a worker’s contract or the worker has previously signified in writing his agreement or consent to the making of the deduction.[37]The contract of employment referred to a company handbook. In the section on termination of employment, the handbook required the employee to return all company property to the respondent on termination of employment. It stated: “If you fail to return all items to us in a reasonable condition, we may deduct the cost of recovery, replacement or any loss incurred by us from any monies owing to you.” The handbook stated that this was an express term of the contract of employment. I conclude that this provision had contractual effect. It was referenced in the written statement of principal terms of employment. It was a term apt for incorporation and stated that it was an express term of the contract of employment.[38]In addition, the claimant signed a form to indicate her agreement to the following: “If I fail to return all or part of my uniform and ID badge I understand that the cost of £50 will be deducted from my final pay.”[39]I conclude that the respondent was authorised, by the term in the contract or, in the case of the uniform, also by the signed form, to deduct from the wages and holiday pay due to the claimant the amount of £50 in respect of the uniforms not returned and the cost of recovery, replacement or any loss incurred by the respondent in respect of the failure to return the phone. On the basis of the limited information provided by the respondent about the phone contract, it is impossible to assess exactly what would have been the replacement cost or loss to the respondent of the claimant not having returned the phone as at the date of the deduction (the pay processing date of 21 April 2017). However, I conclude that this was likely to be at least £64.47, the balance of the amount due to the claimant after the deduction made for the uniforms. I conclude, therefore, that the respondent was authorised to deduct the whole of the £114.47. The complaint of unlawful deduction from wages is not well founded.[40]Had the claimant returned the uniforms and the phone on termination of employment or before further rental and calling plan costs had been incurred by the respondent, the sum of £114.47 would have become due to the claimant.[41]The question of what, if anything, is due to the claimant if she returned the uniforms and phone after the hearing is not one which I am required to decide so I do not do so. The respondent has, on the basis of its phone bills, been continuing to pay for the phone and its calling plan at a rate of £13 per month since the termination of the claimant’s employment. The respondent would seek to set off this cost as an authorised deduction against amounts otherwise due to the claimant. If the question of whether this was an authorised deduction came before another employment tribunal or court, the tribunal or court would want to see evidence as to whether the respondent could have ended the contract or reduced its continuing loss in some way; the oral evidence of Ms Duffy that the respondent could not terminate the contract is unlikely to be enough on its own.[42]Turning to the breach of contract claim, I conclude that this is not well founded. The claimant seeks payment of petrol costs for travel between clients. Whilst the claimant may consider it unreasonable and unfair that such costs are not reimbursed, particularly given that the claimant was only paid at national minimum wage rate, this does not mean that the claimant had a contractual right to reimbursement. The claimant agrees that she was told at the start of employment that the respondent did not pay travelling expenses. In the face of this express statement, there is no scope for implying a term that the claimant was entitled to be paid petrol expenses. The claim of breach of contract must, therefore, fail.