J Gargantos v Club Mumbai: 2500165/2019
JUDGMENT
[1]The claimant’s complaint of unlawful deduction from wages is well-founded. The respondent is ordered to pay the claimant the sum of £1,000.[2]The respondent is also ordered to pay the claimant two weeks wages in the sum of £406.64 in respect of their failure to provide the claimant with a statement of terms and conditions of employment in accordance with section 38 of the Employment Act 2002.REASONS
[1]The claimant was employed by the respondent as a waitress on 10th September 2018. She was not given any contract of employment or pay slips throughout her employment. The claimant left her employment on 25th or 26th October 2018 following seven weeks work. She left because she had obtained alternative employment. The claimant was told that she would be paid £7.82 an hour, namely the national minimum wage. She said that worked on average twenty hours a week but the hours could be variable per day.[2]By the time the claimant left her employment she had not been paid any wages. She was informed that she would be paid the week after she left i.e. the 1st or 2nd November 2018. She did not receive any wages on the 1st or 2nd November 2018 and continued to chase the respondent for her outstanding wages. She was told by the respondent that the wages would be paid by way of instalments. She eventually received £300 into her bank account in about December 2018. She did not receive any further monies and contacted ACAS in January 2019.[3]The tribunal has considered section 13(3) of the Employment Rights Act 1996 “where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion, the amount of the deficiency shall be treated for the purposes of this part as a deduction made by the employer from the worker’s wages on that occasion”. Section 23(2) states that an employment tribunal shall not consider a claim under this section unless it has been presented before the end of the period of three months beginning with in the case of a complaint relating to a deduction by the employer the date of the wages from which the deduction was made. Section 23(4) states that a tribunal shall not consider a complaint if it is not presented within that time period unless it is satisfied that it was not reasonably practicable for a complaint to be presented before the end of the period of three months was presented within a reasonable time period thereafter.[4]The tribunal also considered Section 38 of the Employment Act 2002 and schedule 5 which states that it may award a claimant between two to four weeks wages if an employer fails to provide an employee with a statement of terms and conditions of employment.[5]After hearing evidence from the claimant the tribunal concluded that all of the claimant’s wages were due to be paid to her on 1st or 2nd November 2018, namely the week after her employment ended. The tribunal considered that was the date on which the claimant’s wages were due.[6]The claimant contacted ACAS regarding her claim on 29th January 2019. The ACAS conciliation lasted for one day. She then presented her claim to this tribunal on 30th January 2019.[7]This tribunal concluded that the claimant’s claim for unlawful deduction from wages had to be presented to this tribunal by 31st January 2019 or 1st February 2019.[8]Therefore her claim for unlawful deduction from wages was presented in time as it was presented within three months of the date when deduction was made from her wages namely on 1st or 2nd November 2018. For those reasons the claimant’s complaint of unlawful deduction from wages succeeds. EMPLOYMENT JUDGE MARTIN