Employment Judge NewburnIn person for claimantPaul Clark (instructed by Solicitor) for respondentDate 10 February 2021
JUDGMENT
[1]The Claimant’s claim for unfair dismissal was not presented to the Employment Tribunal within the period of three months commencing with the effective date of termination of the Claimant’s employment. The Employment Tribunal is not satisfied that it was not reasonably practicable for the claim to have been presented within that three month time limit. The claim is out of time. The Employment Tribunal does not have jurisdiction to hear that claim. The claim for unfair dismissal is dismissed.[2]The Claimant’s claim for wrongful dismissal was not presented to the Employment Tribunal within the period of three months commencing with the effective date of termination of the Claimant’s employment. The Employment Tribunal is not satisfied that it was not reasonably practicable for the claim to have been presented within that three month time limit. The claim is out of time. The Employment Tribunal does not have jurisdiction to hear that claim. The claim for unfair dismissal is dismissed.[3]The Claimant’s claim for unauthorised deduction from wages under Section 13 Employment Rights Act 1996 is not well-founded and is dismissed. Case Number: 2501703/2020 (V) The hearing of 9 February 2021 had been a remote hearing which has not objected to by the parties. The form of remote hearing was video (V). A face to face hearing was not held because it was not practicable, no-one requested the same and all the issues could be determined in a remote hearing. EMPLOYMENT JUDGE NEWBURN
REASONS
Summary
[1]The issues to be considered in this matter were as follows:[2]Time limits: 2.1. Were the Claimant’s claims for unfair dismissal, wrongful dismissal, and unauthorised deductions made within the time limits in sections 111 and 23 of the Employment Rights Act 1996 (‘the Act’), and article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994? I needed to decide: 2.1.1. Whether the unfair dismissal and wrongful dismissal claims were made to the Tribunal within three months (plus early conciliation extension) of the effective date of determination. 2.1.1.1. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 2.1.1.2. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2.1.2. Whether the unlawful deduction from wages claim was made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made. 2.1.2.1. If not, whether there was a series of deductions and had the claim been made to the Tribunal within three months (plus early conciliation extension) of the last one. 2.1.2.2. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 2.1.2.3. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?[3]If the Claims were in time, I would need to consider:[4]Unfair dismissal 4.1. Was the Claimant dismissed? 4.2. If the Claimant was dismissed, what was the reason or principal reason for dismissal? 4.3. Was it a potentially fair reason? 4.4. Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?
Relevant Law
[5]Remedy for unfair dismissal 5.1. If I found there to have been an unfair dismissal, I then needed to determine if there were to be a compensatory award to the Claimant for unfair dismissal, and if so, how much should it be?[6]Wrongful dismissal / Notice pay 6.1. What was the Claimant’s notice period? 6.2. Was the Claimant paid for that notice period? 6.3. If not, did the Claimant do something so serious that the respondent was entitled to dismiss without notice?[7]Unlawful deduction from wages 7.1. Did the Respondent make unauthorised deductions from the Claimant’s wages and if so how much was deducted?
The Hearing
[8]I was presented with a bundle of documents amounting to 133 pages as well as three witness statements, one from the Claimant himself, and two from the Respondent, these being from Mr Bryan, the Respondent company Director, and Mr Smith, the Respondent Company’s accountant. The Respondent’s representative also provided a skeleton argument as well as a page of authorities, copies of which were sent to the Claimant.[9]I heard evidence from the Claimant and all Respondent witnesses on affirmation.
Findings of Fact
[10]The Respondent company provides groundwork services to businesses in the construction industry. The Claimant was employed by the Respondent company as a groundworker from 25 April 2016. Mr Bryan is the director of the Respondent company; he was the Claimant’s boss and gave evidence on behalf of the Respondent.[11]As a result of the national lockdown announcement on 23 March 2020, the Respondent’s work sites were closed from 24 March 2020 and the Respondent sent a letter to employees dated 24 March 2020 providing details of lockdown and informing all employees that they would be put on furlough and paid 80% of their wages.[12]The Claimant was put on furlough and the Respondent had confirmed he would be in receipt of 80% of his salary from 24 March 2020. From this date he did not attend site or carry out any work for the Respondent company.[13]On Monday 27 April 2020, Mr Bryan sent a text message to the Claimant informing him that he was required to return to work the following Monday, 4 May 2020.
Conclusions
[14]On Sunday 3 May 2020, the Claimant sent a response to that message stating that he would not be attending work for “at least a week or 2” due to completing some property works at his Grandmother’s flat and stated that he would simply “go on normal sick” until this work was completed.[15]Mr Bryan replied by text shortly after to say, “I need you [in] Tomorrow”, followed by a further message reading “I want you there tomorrow mind”.[16]The Claimant responded to this by text stating that he would not return to site due to safety concerns relating to coronavirus as his Grandmother was vulnerable and needed to shield. The Claimant further stated that his Aunt had set up furlough payment for a number of company workers and had advised him that employers could keep employees with shielding relatives on furlough wages but that was “ultimately up to the employer”. The Claimant further iterated to Mr Bryan the strength of his feelings on the subject stating: “I don’t care if I get it or sick or even 2000 a week it wouldn’t cover killing me granny off. I’ve already spent 700 pund for stuff for flat so I can comeback to work once it’s ready”.[17]A few minutes after receiving this message Mr Bryan called the Claimant and a conversation took place. Mr Bryan informed the Claimant of the steps put in place to ensure the site would be safe.[18]The Claimant informed Mr Bryan that his position remained the same and confirmed he would not be returning to site on Monday. Mr Bryan told him if he did not attend work on Monday, not to bother coming back and terminated the conversation.[19]Shortly after this conversation Mr Bryan sent a message to inform the Claimant that he would was sending someone over to collect the company property, this comprising scaffolding equipment that Mr Bryan had permitted the Claimant to use for his personal renovation works. The scaffolding was collected later that week by another of the Respondent’s employees. The Claimant had a conversation with that employee who asked the Claimant why he had been dismissed.[20]The Claimant considered Mr Bryan’s actions in dismissing him to be unreasonable.[21]There was no contact between the parties thereafter until 26 May 2020, on which date the Claimant sent the Respondent a text requesting his P45, P60, a letter confirming the reasons for his termination, payslips, and holiday pay due to him.[22]The Respondent did not respond, however on 3 June 2020 the Claimant received a payment of £587 into his bank account from the Respondent. The Claimant did not receive any information to explain what the payment related to or comprised.[23]After sending his text message on 26 May 2020, but before 14 July 2020, the Claimant accessed and obtained advice from the Citizens Advice website.[24]On 14 July 2020, the Claimant sent the Respondent a letter by recorded delivery requesting the same information as detailed in his text of 26 May 2020.[25]On 25 July 2020, the Claimant received payslips for the tax years 2019/2020 and 2020/2021, as well as a P60 from the Respondent’s accountant.[26]Further to receiving the payslips the Claimant was able to speak with his Aunt who had experience in HR and payroll. He gave his payslips to her and she took them away to review them. She informed him he needed to seek some further information from the Respondent as she believed the furlough calculation looked to have been carried out incorrectly.[27]On 4 August 2020, the Claimant sent a further letter by recorded delivery to the Respondent in which he suggested that he believed his furlough wages had been paid incorrectly and requested an explanation as to what the £587 payment he had received related to. He also requested a new P45 and confirmation as to why his employment had been terminated.[28]On 29 August 2020, the Claimant received a P45 along with a payslip dated 8 May 2020 regarding the £587 payment he had received on the 3 June 2020. The payslip stated this sum comprised 1 day furlough pay and 6 days salary.[29]On 8 September 2020, the Claimant contacted ACAS; the ACAS certificate was issued on 10 September 2020. 30. 6 days later, on 16 September 2020, the Claimant submitted an ET1 making claims in respect of unfair dismissal, wrongful dismissal, and unlawful deduction from wages.[31]The Claimant claimed that he had been dismissed on 3 May 2020 by Mr Bryan during their telephone call. The Respondent did not accept that Mr Bryan had dismissed the Claimant but submitted that if the Claimant had been dismissed on 3 May 2020, his claims were presented to the Tribunal out of time.[32]The Claimant stated that the reason he had presented his claims out of time was because the Respondent had not sent information that he had requested in his text and letters. Furlough payments[33]The parties had agreed that the relevant pension contributions for the Claimant was 3% Employer pension contribution and 5% Employee pension contribution.[34]The Claimant received 5 weeks and 2 days furlough pay, this comprising 2 days furlough pay at a total sum of £156.40 on 26 March 2020, and thereafter 5 weekly payments in the sum of £391.00 received on 3, 14, 17, 24 April, and 1 May 2020, the total net furlough payment amounting to £2,11.40.[35]The Claimant claimed that the furlough pay was underpaid to him as the Respondent’s calculation was incorrect.[36]Both parties agreed that the Claimant’s furlough calculation should have been based on his normal weekly earnings, however the parties disagreed on what his normal weekly earnings were.[37]The Respondent’s accountant gave evidence regarding the furlough pay. He confirmed that he created the Claimant’s original payslips that had been sent to the Claimant on 25 July and 29 August 2020.[38]The Respondent’s accountant had prepared a spreadsheet at pages 46 and 47 of the bundle from the RTI submissions made to HMRC demonstrating the information the Respondent had submitted to HMRC in respect of the Claimant’s salary. It set out columns showing the Claimant’s gross and net salary, and included details of the tax, national insurance, and employer and employee pension payments for each weekly payment.[39]The Respondent’s accountant explained that the initial payslips sent to the Claimant were generated from his accounts software system. Ordinarily the Respondent accountant’s clients, including the Respondent company, would contact him and confirm their employee’s agreed salaries which he would input into the payroll system. The system then uses this figure when generating payslips and P60s, and when making RTI submissions to HMRC.[40]The Respondent accountant confirmed that unless the Respondent company contacted it to confirm a change to the initially detailed agreed salaries, the payroll system would continue to use the figures it had stored in the system to generate RTI submissions and payslips.[41]The original payslips sent to the Claimant, which appeared at 45J to 45L in the bundle, covering the furlough period, indicated that the Claimant’s net weekly furlough pay was £322.52.[42]The Respondent’s accountant had reviewed those payslips and concluded that they were incorrect. He believed they were incorrect because at that time the payroll software required an update. He believed that the payroll software had calculated the Claimant’s furlough salary by taking 80% of his wage based on the average of his 13 weeks salary prior to the furlough payments. The Claimant’s average wage had been depressed as during this 13-week period he had a number of absences.[43]The Respondent asserted the Claimant’s average weekly salary was £589.50, giving an average net salary of £450.02.[44]The Respondent’s accountant therefore amended the Claimant’s payslips for the furlough period. On 10 December 2020, copies of the amended payslips were given to the Claimant and appear at page 42 – 45 of the bundle. The amended payslips showed furlough pay being calculated using £589.50 as the Claimant’s normal gross weekly salary. 80% of this figure gave a gross weekly furlough sum of £471.60, and a net payment of £376.72.[45]The actual sum paid to the Claimant amounted to £391 per week and the Respondent thereby believed the Claimant had been overpaid.[46]The Respondent’s accountant and the Claimant both suggested that the weekly furlough pay of £391 which he received into his bank account appeared to have been arrived at using a simple calculation of taking 80% of the Claimant’s net weekly wage of £489.[47]In the Claimant’s original Schedule of Loss dated 30 October 2020, the Claimant based his calculations on a weekly net payment figure of £468.88 which amounted to a weekly pay of £450 plus the employer’s weekly pension contribution of £18.88. He took those figures directly from the payslips he had received from the Respondent on 25 July 2020.[48]On 16 December 2020, further to having received the amended payslips, the Claimant submitted an amended Schedule of Loss in which his calculations were instead based on the average weekly pay taken from his bank statements rather than his payslips. The Claimant said this was because the payslips provided to him by the Respondent did not reflect the sums he received into his bank account.[49]The Claimant’s bank statements at 47F to 47K of the bundle demonstrated that the sums that appeared on his payslips were not equivalent to the sums he received. Clearly, some payslips showed he earned money on weeks when in fact no money was received into his account, and in other weeks the net sum stated on the payslips were less than he had received into his bank.[50]In April 2017, the Claimant had received a pay rise so that his net pay was increased from £400 to £450. Page 47B of the bundle shows the Claimant’s bank statement for this period and demonstrates that Claimant’s pay increased by a net of £50.[51]The following April, in 2018, the Claimant had a discussion with Mr Bryan during which it was agreed he would receive a further pay rise. It was agreed that the Claimant’s net weekly salary should be increased by £50 so that his net weekly salary should be around £500 instead of £450. After payment of his pension contribution, the Claimant stated his normal net weekly salary was around £489.[52]The Claimant’s bank statement at page 47B demonstrated that from June 2016 to May 2018 the Claimant’s weekly pay was around £450, and page 47D to 47K demonstrated that from May 2018 the Claimant’s net weekly pay increased to show an average net pay of around £489 per week.[53]The Claimant’s amended schedule of loss used calculations in which he based his net weekly salary on £489.12. The Claimant used the website https://listentotaxman.com/ to gross up his net pay, giving a gross salary of £658 per week alongside a 5% employee pension contribution. The screenshot of this calculation appeared at 41D and 41D1 of the bundle.[54]The Claimant therefore calculated that the total gross furlough payment that he should have received was £2,842.56.[55]The Respondent’s accountant accepted that if the furlough pay were to be based on the Claimant’s average net salary being £489.12, then furlough was underpaid.[56]However, the Respondent submitted that the Claimant had accepted in his ET1 that his salary was £589.50 gross and £450 net. The Claimant was also asked in evidence if he accepted that his salary had increased so that his net take home pay was £450, and he confirmed this to be correct. Relevant Law Time limits for claims of unfair dismissal, unpaid wages, and notice pay[57]By section 111(2) of the Act, a Tribunal shall not consider a complaint for unfair dismissal or wrongful an dismissal unless it is presented to a Tribunal:(a) before the end of the period of 3 months beginning with the effective date of termination; or(b) Within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to have been presented before the end of that period of 3 months.[58]For unpaid wages claims, section 23 of the Act provides:(1) A worker may present a complaint to an employment tribunal: a. that his employer has made a deduction from his wages in contravention of section 13 …(2) Subject to subsection (4, an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with- a. In the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made …(3) Where a complaint is brought under this section in respect of- a. A series of deductions or payments … the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.[59]Article 7 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 make similar provision. The time limit running from the date of deduction (or non-payment) of wages, the date payment should have been made, and the last day of employment.[60]The burden of proof in showing that it was not reasonably practicable to present the claim in time rests upon the Claimant; see Porter v Bandridge Ltd [1978] ICR 943 CA. If the Claimant does succeed in doing so then the Tribunal must also be satisfied that the time in which the claim was in fact presented was in itself reasonable.[61]In Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 CA May LJ referred to the test as being in effect one of “reasonable feasibility” (in other words somewhere between the physical possibility and pure reasonableness).[62]In Asda Stores Ltd v Kauser EAT 0165/07 Lady Smith described the reasonably practicable test as follows: “the relevant test is not simply looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[63]The Respondents Representative directed my attention to a number of authorities including Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470, Wall’s Meat Co Ltd v Khan [1978] IRLR 499, Riley v Tesco Stores Ltd [1980] IRLR 103, Edwards v Surrey Police [1999] IRLR 456. Unfair Dismissal[64]The test for an unfair dismissal is set out in sections 98(1), (2) and (4) of the Act as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal; and,(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and, (b) shall be determined in accordance with equity and the substantial merits of the case.”[65]The Respondents Representative directed my attention to a number of authorities including Martin v MBS Fastenings (Glynwed) Distribution Limited [1983] IRLR 198 CA, Sothern v Franks Charlesly & Co [1981] IRLR 278, East Kent Hospitals University NHS Foundation Trust v Levy (UKEAT/0232/17/LA, Kwik-Fit (GB) Ltd v Lineham [1992] IRLR 156, Edwards v Surrey Police [1999] IRLR 456, Sandle v Adecco UK Ltd (UKEAT/0028/16/JOJ. Unlawful deductions:[66]Section 13(1) the Act provides: “13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless—a. the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, orb. the worker has previously signified in writing his agreement or consent to the making of the deduction. that a worker has the right not to suffer unauthorised deductions from wages.” Conclusions Was the Claimant Dismissed?[67]The first issue to determine in this case was whether the Claimant was dismissed by the Respondent.[68]In this case the Claimant relied on Mr Bryan’s words during their telephone conversation of 3 May 2020.[69]The Respondent’s representative directed my attention to East Kent Hospitals University NHS Foundation Trust v Mrs P Levy [2018] WL 04339499 and submitted that Mr Bryan’s words were ambiguous and highlighted that in determining the true meaning of those words the test is an objective one. Where words of dismissal are considered ambiguous I should consider all the surrounding circumstances (both preceding and following the incident) and should ask how a reasonable employee would have understood those words in the light of those circumstances.[70]The Respondent’s representative further directed my attention to the case of KwikFit (GB) Ltd v Lineham [1992] IRLR 156 and submitted that Mr Bryan’s words were said in the heat of the moment and while he was under extreme stress. He submitted that this amounted to “special circumstances” and the Claimant ought reasonably to have known that these words should not have been taken seriously.[71]Considering the authorities and applying the relevant legal test I reached the conclusion that a reasonable recipient of the words spoken in the surrounding circumstances would have considered them to mean the Claimant was dismissed.[72]Whilst it is possible to conceive of an argument that Mr Bryan’s words suggested an element of choice which could indicate ambiguity, the Claimant had been unequivocal in his confirmation that he would not be attending work due to his health and safety concerns for his Grandmother and had set this out in his text messages to Mr Bryan and again during their telephone call.[73]In these circumstances, Mr Bryan’s words did not provide an element of choice to the Claimant and so would not have been considered ambiguous.[74]However, even if I had considered that Mr Bryan’s words were too ambiguous to amount to words of dismissal, or that they were words spoken in the heat of the moment and the Claimant ought thereafter to have sought further clarity on them, I find that the action of the Respondent in arranging for collection of the company property from the Claimant (the scaffolding) after this telephone call taken in conjunction with these words did provide such clarity and would be understood in conjunction with the Respondent’s words by a reasonable employee as solidifying the Respondent’s intention to dismiss.[75]In the circumstances, I find that the Claimant was expressly dismissed by the Respondent for the purposes of section 95(1)(a) on 3 May 2020, and that this was the effective date of termination of the Claimant’s employment.[76]This precipitated a consideration as to the Tribunal’s jurisdiction to hear the claim. Time limit for unfair dismissal and wrongful dismissal[77]In accordance with S.111 of the Act and article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, further to his dismissal on 3 May 2020, the deadline for the Claimant to present his claim unfair dismissal and wrongful dismissal claims to the Employment Tribunal was 2 August 2020.[78]The Claimant did not commence Early Conciliation with ACAS until 8 September 2020. The ACAS Early Conciliation Certificate was issued on 10 September 2020 and thereafter the Claimant did not present his claim to the Employment Tribunal until 16 September 2020.[79]The Claimant stated that the reason for this delay was due to the Respondent’s failure to provide him with information he had requested.[80]The Claimant gave evidence that he believed that he had been dismissed by Mr Bryan during their call on 3 May 2020 and that he had felt this was an unreasonable action. Further to his dismissal, the Claimant did not need any further information from the Respondent to commence Early Conciliation and thereafter to present his claim for unfair dismissal within the time limits.[81]The Claimant is an intelligent man who, since following the termination of his employment with the Respondent set up and now runs his own business. The Claimant felt that the Respondent’s actions in dismiss him were unreasonable and he confirmed that he used the internet to obtain advice from Citizen’s advice regarding his employment and its termination sometime before 14 July 2020. The Claimant therefore had access to, and was capable of, conducting the necessary research or seeking out the necessary advice regarding a potential claim for unfair dismissal and the relevant time limit in order to submit his claim in time.[82]Even if I were to find that it was not reasonably practicable for the Claimant to present his claim in time, I would then have needed to decide whether he presented his claim 'within such further period as the Tribunal considers reasonable' (section 111(2)(b) of the Act). The relevant considerations under this test were set out by Mr Justice Underhill in Cullinane v Balfour Beatty Engineering Services Ltd EAT 0537/10.[83]The time limit for submitting the claim to the Tribunal was 2 August 2020. The Claim was not presented to the Tribunal until the expiration of a further 6 weeks on 16 September 2020.[84]In the circumstances of this case, I find that it was reasonably practicable for the Claimant’s unfair dismissal and wrongful dismissal claims to be presented on time and, as a consequence, they are out of time. The Tribunal had no jurisdiction to hear those claims and they were dismissed. Unlawful deduction from wages[85]The last payment the Claimant received into his bank was on 3 June 2020. The time limit for presenting his claim for unlawful deduction from wages therefore ended on 2 September 2020.[86]The Claimant did not enter into Early conciliation until 8 September 2020, and presented his claim to the Tribunal on 16 September 2020. The Claimant was therefore out of time in relation to his unlawful deduction from wages claim.[87]I therefore needed to consider whether it was reasonably practicable for the Claimant to bring his unlawful deduction from wages claim in time.[88]The Claimant had submitted the reason he had failed to present his claims to the Tribunal in time was because the Respondent had not provided him with information he had requested.[89]The Claimant had not received any regular payslips from the Respondent through his time working for the company and he had received none at all for the tax year 2019/2020 until 25 July 2020, further to his requests for the same. At this point he was provided with payslips for the 2019/2020 tax year as well as 4 weeks of the 2020/2021 tax year but this still did not include the payslip for his 3 June 2020 final payment. Thereafter, he did not receive his P45 and his final payslip until 29 August 2020.[90]Without this information, it would have been difficult for the Claimant to take a view on whether his furlough payment was correct or not. The Claimant made a number of efforts to obtain information which should have been provided to him in the ordinary course of his employment.[91]The furlough scheme was complex and guidance had been released in a piecemeal manner from the Government regarding how it should be operated, which changed a number of times over the course of April to October 2020. The Claimant would have needed additional time to consider this element of his claim and it was not therefore reasonably practicable for him to have brought this claim within the time limit having only received his final payslip and P45 from the Respondent on 29 August 2020.[92]I then considered whether the Claimant did then present his claim within such further period as would be considered reasonable.[93]The time limit for submitting the unlawful deductions claim was 2 September 2020. The Claimant did not receive his final payslip from the Respondent until 29 August 2020. The Claimant entered into Early conciliation on 8 September 2020 and the claim was presented on 16 September 2020 thereafter.[94]I consider, in light of the complexity of the furlough scheme and the significant delay in the provision of information from the Respondent, the Claimant did present his claim for unlawful deductions within a reasonable period of time after the deadline for presenting his claim.[95]Accordingly, the Tribunal had jurisdiction to hear the Claimant’s claim for unlawful deduction from wages. Furlough payments[96]The Respondent and the Claimant both accepted that the furlough payment should be based on the Claimant’s average weekly salary. The Respondent confirmed his salary was £589.50 gross and £450 net.[97]The Claimant initially agreed that his weekly salary amounted to £589.50 gross and £450 net and these sums were included in his ET1.[98]In evidence the Claimant was directly asked if his weekly salary had been increased to £450 net and he confirmed this to be correct.[99]The Claimant’s furlough payment would equate to the sums as set in the amended payslips at pages 42 to 45 of the bundle, these sums being less than the actual amount the Claimant was paid by the Respondent.[100]Accordingly, the Claimant was not due any further payment in relation to his furlough as he had been overpaid. Summary[101]The Claimant’s claims for unfair dismissal and wrongful dismissal are out of time and are dismissed.[102]The Claimant’s claim for unlawful deduction from wages is not well-founded and is dismissed. EMPLOYMENT JUDGE NEWBURN
Summary
[1]At the conclusion of the hearing I gave the Judgment and reasons for it orally. The Claimant then requested written reasons for the judgment. In preparing those reasons I concluded that I had erred in my judgment in the calculation of the Claimant’s unlawful deduction from wages claim. Consequently, in accordance with rule 73 of the Employment Tribunals Rules of Procedure 2013 I have reconsidered the judgment under my own motion.[2]The Respondent submitted that the Claimant had accepted in his ET1 that his salary was £589.50 gross and £450 net. The Claimant was asked in evidence if he accepted that his salary had increased so that his net take home pay was £450, and he confirmed this to be correct.[3]The Claimant initially agreed that his weekly salary amounted to £589.50 gross and £450 net and these sums were included in his ET1.[4]In evidence the Claimant was directly asked if his weekly salary had been increased to £450 net and he confirmed this to be correct.[5]If this were correct, his furlough payment would equate to the sums as set in the amended payslips at pages 42 to 45 of the bundle.[6]On that basis I found that the Claimant was not in fact due any payment in relation to his furlough as according to those figures he had been overpaid.[7]However, in reconsideration of this Judgment it became clear to me that I had misunderstood the Claimant’s answer to this question. The Claimant’s answer related to the period in 2017 in which the Claimant did receive a pay rise to a net weekly pay of £450.[8]The Claimant however clearly received further pay rise in May 2018. This Claimant’s bank statements supported this and demonstrated that the Claimant was in receipt of an average net weekly salary at £489.12.[9]The Respondent’s accountant accepted that if the Claimant’s average weekly wage was found to be £489.12 then he agreed that the Claimant had been underpaid his furlough.[10]The gross figure produced by the Claimant of £658 is accepted as the Claimant’s average gross weekly pay and that this sum should have been used by the Respondent in calculating the Claimant’s furlough.[11]Using this figure I calculated the sums the Claimant should have received, including 3% Employer’s pension contributions, as set out in the table below. Gross 3% RTI furlough Employer's information based on Net pension showing 3% Actual Claimant's furlough contribution Employer's Net claim based on on Furlough pension furlough (80% of Claimant’s Claimant's days contribution paid £658) claim claim week of 01/05/20 14.06 391.00 526.40 404.93 15.79 week of 24/04/20 14.06 391.00 526.40 404.93 15.79 week of 17/04/20 14.06 391.00 526.40 404.93 15.79 week of 14/04/20 14.06 391.00 526.40 404.93 15.79 week of 03/04/20 14.14 391.00 526.40 404.93 15.79 24 & 25 March 20 5.66 156.40 210.56 161.63 6.32 TOTAL 76.04 2,111.40 2,842.56 2,186.28 85.28[12]The first column shows the amount of Employer pension contribution the Respondent’s accountant confirmed was submitted to HMRC, taken from the spreadsheet he produced at page 46 of the bundle.[13]The second column shows the actual net sum received by the Claimant as furlough wages.[14]Columns 3 to 5 show the gross and net sums and the 3% employer contribution due to the Claimant for the furlough period based on a gross average salary of £658.[15]The total net sum due to the Claimant is £2,186.28. The total net sum the Claimant received was £2,111.40.[16]The total Employer’s pensions contributions due to the Claimant was £85.28, however the RTI submission show £76.04 was paid.[17]Accordingly, the Claimant was underpaid furlough in the total net sum of £74.88 and pension contribution at £9.24. Summary[18]The Claimant’s claim of unlawful deduction from wages is well founded and the Respondent is ordered to pay to the Claimant: 18.1. Pay in respect of underpaid furlough wages in the sum of £74.88. This is a net award and the Respondent shall be liable to the Inland Revenue for any payments of tax and national insurance thereon; and, 18.2. Pay in respect of Employer’s pension contributions in the sum of £9.24. EMPLOYMENT JUDGE NEWBURN
Summary
[1]The Claimant made claims for unfair dismissal, wrongful dismissal, and unlawful deduction from wages relating to his furlough pay. On 9 February 2021, I gave an oral Judgment that the unfair dismissal and wrongful dismissal claims were brought out of time, and whilst the unlawful deductions claim was in time, no sums were due to the Claimant and as such that claim was dismissed. The Judgment was sent to the parties on 26 February 2021. On 3 March 2021 the Claimant requested written reasons.[2]In drafting those written reasons, under Rule 70 on my own motion I reconsidered that judgment and varied it. In my judgment dated 28 April 2021 I found that an award was due to the Claimant in relation to the claim for unlawful deduction from wages relating to his furlough payments (‘the 28 April judgment’). This was sent to the parties on 4 May 2021.[3]On 17 May 2021 the Claimant made a written request for a reconsideration of the judgment on 3 issues;3.1 Requesting an award under Section 38 of the Employment Act 2002 (‘Section 38’). In my oral judgment I confirmed that as the Claimant had not succeeded in any of his claims, I could not make an award under Section 38. In the 28 April judgment I made an award under section 13 for unlawful deduction from wages however I had not readdressed section 38;3.2 The Claimant requests a reconsideration of his wrongful dismissal claim (his claim for his notice pay). The Claimant states that it was not reasonably practicable for him to bring a claim for his unpaid notice until he obtained copies of his payslips from his employer;3.3 The Claimant submits that the sum awarded to him relating to his claim for unlawful deduction from wages relating to his furlough pay is incorrect.[4]On 25 June 2021, the Respondent replied to the Claimant’s representations and confirmed it would accept the reconsideration being carried out on paper. I have carried out the reconsideration on paper as it is in the best interests of justice to do so, because it is proportionate to the value and the complexity of the issues involved.
Relevant Law
[5]Reconsideration of judgments is contained in rule 70 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It states: “70. A Tribunal may, either on its own initiative or on the replication of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the decision may be confirmed, varied or revoked. If it is revoked it may be taken again.”[6]Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[7]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so.[8]In deciding whether or not to reconsider the judgment, the authorities indicate that I have a broad discretion, which “must be exercised judicially … having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible be finality of litigation” (Outasight v Brown [2015] ICR D11). The Court of Appeal in Ministry of Justice v Burton [2016] ICR 1128 also emphasised the importance of the finality of litigation and that a case should not be reopened just for the purpose of further argument or exploration of the evidence (ibid, para 25).[9]That said, if an obvious error has been made which may lead to a judgment or part of it being corrected on appeal, it will generally be appropriate for it to be dealt with by way of reconsideration: Williams v Ferrosan Ltd [2004] IRLR 607 at para 17 per Hooper J (an approach approved by Underhill J, as he then was, in Newcastle upon Tyne City Council v Marsden [2010] ICR 743 at para 16).[10]Ministry of Justice v Burton (ibid) at para 24 confirmed that a mere failure by a party (in particular, but not only, a represented party) or the Tribunal to raise a particular point is not normally grounds for review.[11]In Stephenson -v- Golden Wonder Limited 1977 IRLR 474 EAT Lord McDonald said that the review provisions were “not intended to provide the parties with an opportunity of a re-hearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before.”[12]Section 38 Employment Act 2002 confirms that where a tribunal finds in favour of an employee in a complaint of unlawful deductions from wages, and the tribunal finds that the employer has failed to provide the employee with a written statement of employment particulars, the tribunal must award the employee an additional two weeks’ pay, unless there are exceptional circumstances which would make that unjust or inequitable, and may, if it considers it just and equitable in all the circumstances, order the employer to pay an additional four weeks’ pay.[13]I have not repeated the law applying to the original decision in general as this is set out in the previous judgment.
Conclusions
[14]The Claimant’s request for reconsideration has been made in time.[15]Having considered whether it is necessary in the interests of justice to review my judgment and whether there is a reasonable prospect of my judgment being varied or revoked in the light of the Claimant’s application I have allowed the Claimant’s request for reconsideration as there is an error in the calculation of the award and the section 38 claim must be addressed.[16]Dealing with each of the Claimant’s points in turn. Section 38[17]In the 9 February 2021 judgment I found that no sum was due to the Claimant in relation to his claim for unlawful deduction from wages and his claim was dismissed. I confirmed in my oral judgment that accordingly I would not make an award under Section 38, as this claim requires that I find in favour of the Claimant in one of the claims listed in schedule 5 of the Act (which includes a claim for unlawful deduction from wages).[18]Subsequently in the 28 April judgment I found in favour of the Claimant on his unlawful deduction from wages claim. However, I did not reconsider the section 38 claim in the 28 April judgment. The Claimant therefore asks that I address the section 38 claim.[19]The Respondent objected to a reconsideration on this issue and asserted that the Claimant did not pursue a claim under section 38 and that an outcome relating to the same was not recorded in a judgment.[20]The Respondent was on notice that the Claimant wished to pursue a claim under Section 38. The Claimant had included a calculation relating to a claim under Section 38 in both schedule of losses he submitted in the proceedings, and the Respondent witness, Mr Bryan, addressed the section 38 claim in his witness statement at paragraph 27 in which he accepted that the Respondent had failed to provide the Claimant with a written statement of particulars of employment. The question was also put to Mr Bryan in cross examination at the hearing in which he again conceded that the Respondent had not provided a written statement of particulars and provided no explanation regarding this failure. I am satisfied the Respondent was on notice of a section 38 claim and had adequate opportunity to make representations at the hearing regarding the issue.[21]The Respondent further submitted that had the Claimant pursued a section 38 claim this would have been done at the same time as he submitted his claims for unfair dismissal and wrongful dismissal which were found to be out of time. As a result, the Respondent submitted that a claim under section 38 cannot succeed and is out of time and the Tribunal consequently has no jurisdiction to hear it.[22]A section 38 claim arises when a Claimant brings a claim under Schedule 5. Thereafter, where a Tribunal finds the Respondent was in breach of its duty under section 1 of the Employment Rights Act 1996 (‘ERA’) at the date the proceedings began it is obligated to make an award. There is no specified time limit relating to the section 38 claim itself, it is essentially a parasitic claim that arises by virtue of a qualifying claim under Schedule 5. It follows that where a qualifying claim is successful and the Tribunal finds the Respondent was in breach of its obligations under Section 1 ERA, then the Section 38 claim will be successful.[23]The Claimant brought three claims under Schedule 5, and one of those claims was successful on reconsideration. The Respondent was on notice of the Section 38 claim, and the Respondent conceded in evidence that it was in breach of section 1 ERA.[24]I find that the Respondent was in breach of its obligations under section 1 of the ERA. Accordingly, the wording of section 38 confirms I must award 2 weeks’ pay unless I decide it is just and equitable to increase the award to 4 weeks’ pay or there are exceptional circumstances such that it is unjust and inequitable for an award to be made at all.[25]The Claimant asserted in his Schedule of Loss that he should receive the higher award of four weeks, however he did not provide any reasons for this submission. The Respondent freely conceded that it had not provided a written contract to the Claimant and did not provide evidence of exceptional circumstances which would warrant there being no award.[26]Having considered the position carefully, I do not find there to be any exceptional circumstances which would warrant no award being made.[27]I consider that it would be just and equitable to make an award of 4 weeks’ pay. In taking that decision I have taken into account the fact that the Claimant was employed for over 4 years. This was a relatively lengthy period of employment during which time the Respondent had neglected to comply with the provisions of Section 1(3) and (4) ERA. Whilst I also took into account the fact that the Respondent is a small company with no dedicated HR department, the length of employment meant that there was more than enough time for the Respondent to overcome any impediment it did have to rectifying this omission.[28]As the Claimant’s earnings exceed the statutory maximum the award is therefore for 4 weeks at the statutory maximum of £538 per week which is £2,152. Notice pay[29]The Claimant seeks a reconsideration of the judgment that his claim for wrongful dismissal (his notice pay) was out of time. The Claimant seeks to argue that it was not reasonably practicable for him to have brought his wrongful dismissal claim until he had received his P45 as he argues he did not know he would not be receiving his notice pay until receipt of his P45.[30]In my 9 February 2021 judgment I found that it was not reasonably practicable for the Claimant to have brought his unlawful deduction from wages claim in time and set out my reasoning for this at paragraphs 85 to 95 in the written reasons. The Claimant essentially seeks to apply the same argument to his wrongful dismissal claim.[31]The Claimant raised this argument at the hearing and I did not accept his position for the reasons set out in paragraphs 77 – 84 in the written reasons.[32]It is important to note that the time limits the Claimant had to present his claims for wrongful dismissal and unlawful deduction from wages are not the same. The Claimant had until 2 August 2020 to submit his claim for wrongful dismissal to the Tribunal. The time limit for his unlawful deduction from wages claim however was over a month later on 2 September 2020. The Claimant submitted his claims on 16 September 2020.[33]As detailed in my written reasons at paragraphs 82 and 83 therefore, even if I had found it was not reasonably practicable for the Claimant to have presented his claim for wrongful dismissal in time, I would then have needed to consider if his claim was provided within such further period as was reasonable.[34]The Claimant believed he had been dismissed on 3 May 2020 and at this date he knew or ought reasonably to have known he was entitled to 4 weeks’ notice having worked for his employer for 4 years. Accordingly, he ought reasonably to have been aware that the sum of £587 he received into his bank on 3 June 2020 was not high enough to amount to 4 weeks’ notice. The Claimant received his final payslip and P45 on 29 August 2020.[35]At this date it was then wholly clear to the Claimant that the Respondent had not and did not intend to make a payment to him in respect of his notice pay. The time limit for submitting his wrongful dismissal claim had already expired on 2 August 2020. By 29 August 2020, there was no further impediment to the Claimant from presenting his claim for wrongful dismissal to the Tribunal, however he failed to bring this claim for a further 19 days despite this being 6 weeks after the expiration of his time limit within which to bring his wrongful dismissal claim and despite my findings at paragraphs 81 of the written reasons regarding the Claimant’s access to and ability to review information regarding the time limits within which he had to present his claims.[36]This is distinguished from his unlawful deduction from wages claim where the time limit to bring his claim was later, this being on 2 September 2020, and, as detailed at paragraph 91 of the written reasons, even after having received his final payslip and P45 on 29 August 2020, because of the complexity of the furlough scheme I accepted that he would have needed further time to review the same. As such I accepted that presenting his claim for unlawful deduction from wages on 16 September 2020, this being only 14 days from the expiration of his deadline as opposed to 6 weeks, was such further period as I considered to be reasonable.[37]The Claimant’s application for reconsideration on this issue does not expand upon points made, or which could have been made at the hearing on 9 February 2021. The Claimant has not set out any further reasons or provided any new evidence as to why the decision relating to his wrongful dismissal should be altered.[38]Accordingly, having reconsidered the judgment, I find that there are insufficient grounds for me to vary or revoke the original decision relating to the Claimant’s wrongful dismissal claim. As such, the judgment of 9 February 2021 relating to the Claimant’s wrongful dismissal claim is confirmed. Unlawful Deduction from wages Calculation[39]The Claimant asks that I reconsider the calculation made in the 28 April judgment relating to his award for unlawful deduction from wages relating to furlough pay for the following reasons:39.1 The award was calculated using figures from amended payslips rather than from original payslips;39.2 The sum did not include any element of underpayment relating to employee pension contributions;39.3 The part of the award relating to the Employer pension contributions was calculated using the figures from the column in the spreadsheet that related to Employee pension contributions.[40]The Respondent submitted that the calculations in the 28 April judgment are based on findings of fact and the Claimant’s bank statements showing the actual payments received by the Claimant. As the Claimant has provided no new evidence since the conclusion of the hearing, the Respondent submits it is not in the interests of justice that I exercise my discretion to reconsider the 28 April judgment.[41]The Respondent submits the amended payslips are the correct basis for the calculation rather than the original payslips.[42]The Respondent agrees that the calculation in the 28 April judgment incorrectly utilised the figures from the accountant’s spreadsheet relating to Employee pension contributions rather than the figure relating to Employer pensions contributions. Reviewing the calculation[43]In reviewing the calculation in the 28 April judgment, I believe I made a miscalculation of the sum properly due to the Claimant. For that reason, I have decided that the judgment should be reconsidered in the interests of justice pursuant to rule 70 of the Employment Tribunals Rules of Procedure 2013.[44]My calculations were based on the information contained in the accountant’s spreadsheet at page 46 of the hearing bundle. However, I had misunderstood and had believed that this spreadsheet was based on the original payslips, which were the payslips the Respondent’s accountant had used to calculate the Claimant’s P45 and P60 and were submitted to HMRC in RTI submissions. I can now see that the spreadsheet is instead based upon the amended payslips which the Respondent’s accountant confirmed he had created to review the payment of furlough made to the Claimant further to the amendment of his payroll system.[45]The calculations should however be based upon the original payslips which were submitted to HMRC and formed the basis of the Claimant’s P45 and P60.[46]I further agree with the parties that the calculation in the 28 April judgment relating to the award for Employer’s pension contribution took the figures from the accountant’s spreadsheet relating to the Employee’s contribution rather than the Employer’s pensions contribution.[47]I accept that in making my calculation in the 28 April judgment I did not take into account the difference between the sums the Claimant ought to have paid in employee pension contributions and the sums the Respondent did pay in respect of the Claimant’s employee pension contribution sums. This must be added to the award to reflect his true loss.[48]I have further noted that the reconsideration calculation ought to be amended to take into account the fact that the weeks in dispute span over two tax periods. I have therefore amended the calculations to reflect the correct tax year for each week of furlough pay.[49]In line with the above I have amended the award to the Claimant and set out below a table demonstrating the calculations which make up the new award. 2. 6. 8. Gross 3% 5% furlough 3. 4. 5. Employer's 7. Employee's based on Actual Net furlough 3%Original pension 5%Original pension Claimant's Net based on payslips contribution payslips contribution 1. claim (80% furlough Claimant's Employer on Claimant's Employee on Claimant's Period of £658) paid claim pension claim pension claim Tax week 4- 01/05/20 526.40 391.00 406.93 8 15.79 10.67 26.32 Tax week 3-24/04/20 526.40 391.00 406.93 8 15.79 10.67 26.32 Tax week 2-17/04/20 526.40 391.00 406.93 8 15.79 10.67 26.32 Tax week 1- 10/04/20 526.40 391.00 406.93 8 15.79 10.67 26.32 Tax week 52- 03/04/20 526.40 391.00 404.93 8.06 15.79 10.75 26.32 Tax week 51- 24 & 25 March 20 210.56 156.40 161.97 4.6686 6.32 7.781 10.528 TOTAL 2,842.56 2,111.40 2,194.62 44.7286 85.28 61.211 142.13[50]Accordingly, the following sums are due to the Claimant in relation to his claim for unlawful deduction from wages for his furlough pay; Furlough[51]Column 3 shows the Claimant was owed furlough in the total sum of £2,194.62. Column 2 shows the Claimant actually received £2,111.40. The Claimant was therefore underpaid furlough in the total sum of £83.22. The Respondent has already made a payment to the Claimant of £74.88 in relation to this sum. The total due to the Claimant for furlough is therefore £8.34. Employer’s pension contributions[52]Column 6 shows that the employer’s pension contributions should have been made in the total sum of £85.28. Column 5 shows employer’s pension contributions were made in the total sum of £44.73. The Respondent has made a further payment of £9.24 to the Claimant in respect of Employer’s pension contributions. The total sum due to the Claimant for underpaid Employer pension contributions relating to the furlough period is therefore £31.31. Employee pension contributions[53]Column 8 shows that the employee’s pension contributions should have been made in the total sum of £142.13. Column 7 shows employer’s pension contributions were made in the total sum of £61.21. The total sum due to the Claimant for underpaid Employee pension contributions relating to the furlough period is therefore £80.92.
Summary
[1]The award to the Claimant for unlawful deduction from wages is varied and the and the Respondent is ordered to pay to the Claimant: 1.1. Pay in respect of underpaid furlough wages in the sum of £8.34. This is a net award and the Respondent shall be liable to the Inland Revenue for any payments of tax and national insurance thereon; 1.2. Pay in respect of Employer’s pension contributions in the sum of £31.31; and, 1.3. Pay in respect of Employee’s pension contributions in the sum of £80.92.[2]The Respondent is ordered to pay the Claimant £2,152 this 4 week’s gross pay, capped at the statutory maximum, pursuant to Section 38 of the Employment Act 2002. EMPLOYMENT JUDGE NEWBURN