Mr D Clark v Mike Rogerson Estate Agents Ltd: 2500150/2019
JUDGMENT
The claimant’s complaint of unauthorised deduction from wages is well-founded and succeeds. The respondent is ordered to pay to the claimant the sum of £1,378.96 being wages unlawfully deducted. This a net amount and the respondent shall be responsible for the payment of any income tax and national insurance contributions.REASONS
[1]This matter came before me this morning by way of a private preliminary hearing, the original purpose of which was to consider the claims brought by the claimant, identify the issues arising from those claims and to make such case management orders as were appropriate to ensure that the case was fully prepared for a final hearing. Notice of the case management hearing was sent to the parties under cover of a letter from the employment tribunal dated 27th February 2019, that letter having sent to the respondent with the claim form ET1 and the response form ET3. I am satisfied that the respondent received all those documents, because it completed and returned to the employment tribunal the response form ET3. Since then the respondent has sent additional correspondence to the employment tribunal. I am satisfied that the respondent was aware of today’s preliminary hearing. By 10.30am this morning no-one had attended on behalf of the respondent, although the employment tribunal file shows that there are solicitors instructed by the respondent.[2]In its response form ET3, the respondent indicates that it intends to defend the claim on the basis that the claimant tendered his resignation and left the respondent’s employment without giving the appropriate period of notice. The response form indicates that the respondent is entitled to withhold wages from the claimant in those circumstances.[3]The claimant claims the total sum of £1,378.96, made up of unpaid wages in the sum of £1,105.80 and unpaid overtime in the sum of £273.16. The respondent does not deny that it has not paid the claimant his entitlement and overtime. The respondent does not deny in its response form that the claimant has done this work.[4]By letter dated 10th April 2019 from the employment tribunal to the respondent’s solicitors, the respondent was informed that the employment tribunal could not consider an employer’s contract claim in this case, as the claimant has not brought a breach of contract claim himself. His claim is one of unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996. In the absence of any breach of contract claim by the claimant, the respondent cannot present a contract counter-claim. I am satisfied that, having been told this, the respondent has decided not to defend these proceedings and not to attend today’s hearing. In accordance with the Overriding Objective (to deal with the case justly) I am satisfied that it is proportionate in all the circumstances to dispose of the claimant’s claim today.[5]I heard evidence from the claimant. Mr Clark confirmed that he was employed by Mike Rogerson Estate Agents Limited. I am satisfied that the title of these proceedings to be amended to show the correct name of the respondent and that there is no need for re-service in this case.[6]The claimant confirmed that his employment with the respondent began on 8th October 2018 and ended when he resigned without notice on 20th November 2018. The claimant told me that he was paid his wages for October in the sum of £1,246.00. The claimant confirmed that he had not received any wages for November, which he calculates to be the sum of £1,105.80. The claimant also confirmed under oath that he had worked 32 hours overtime during the relevant period. I was not satisfied that the claimant was entitled to any enhanced hourly rate for overtime and decided that he should be paid for the 32 hours at his standard rate. The total sum owed for wages is £1,105.80 and the total owed for over-time is £273.16. I order the respondent to pay to the claimant the total sum of £1,378.96, being wages unlawfully deducted. That is a net amount and the respondent should be responsible for the payment of any income tax and national insurance contributions thereon. EMPLOYMENT JUDGE JOHNSON