Mr R Salter v J Coates (HGV Services) Ltd: 2601308/2017
REASONS
[1]By claim form presented to the Tribunal on 5 September 2017, following a period of Early Conciliation which lasted from 23 June 2017 to 6 August 2017, the claimant brought a claim of unlawful deduction from wages. The claim was resisted by the respondent. The Proceedings[2]The original amount claimed by the claimant was £1,799.48, but the claimant provided no breakdown or explanation of that sum in the claim form.[3]By letter dated 29 November 2017 Employment Judge Evans ordered the claimant to provide the following information to the respondent’s representative and the Tribunal:-a. What the figure of £1,799.48 represents (for example, unpaid wages);b. How it had been calculated;c. To what period the figure relates; and Page 1 of 9d. Why the claimant says he should have been paid that amount.[4]In response to this order the claimant sent two emails to the Tribunal. In the first, dated 29 November 2017 [page 40 of the bundle] the claimant wrote that: “…With regard to the amount your asking about this was sent to j coates HGV Services representative by my solicitor at the time Caroline Adams and was broken down clearly in the correspondence as a result of non payment of wages I incurred costs in regard of non payment to my creditors in regards to mortgage credit cards and household bills etc and bank charges which I incurred also for lack of monies in my account due to not receiving money I was entitled to.”[5]In the second email, dated 5 December 2017, the claimant wrote:- “Regarding amount mentioned That you have asked about… This is part of the £8,500 I have not been paid for unfortunately this debt transferred to j coates HGV Services under the tupe rules which my previous employer JSMDT failed to disclose the ACAS rep also mentioned that JSMDT stopped corresponding with them. Breakdown of amount asked about in your email• The salary that I did not receive for the last week of March 2017. Based upon the increased salary of £26,500 this would equate to roughly £605; plus• £106.93 in respect of expenses and £337.55 in relation to bank charges. This would amount to a sum of £1,799.48”[6]The information provided in these two emails did not properly particularise the claimant’s claim or contain all of the required information. The figures provided by the claimant in the second email did not add up to £1,799.48.[7]On 12th January 2018 a Closed Telephone Preliminary Hearing took place before Regional Employment Judge Swann who made an order that the claimant should provide an up to date Schedule of Loss by way of further and better particulars of his claim.[8]In response, the claimant sent to the Tribunal an email that he had previously sent to JSMDT in which he claimed to be entitled to unpaid wages of £8,389.16. In that email he purported to provide a breakdown of the £8,389.16, as follows:-a. Back pay from April 2016 at £200 a month for 11 months - £2,200;b. Payment for training 8 additional students - £2,283.33;c. 90 hours overtime - £1,146.62d. 5 hours double time in April - £127.40;e. Post and envelopes - £35.93;f. Adblue - £11;g. Fuel - £60; and Page 2 of 9h. Bank charges - £241.55.[9]The amounts set out in paragraph 6 a-h above give a total of £6,105.83 rather than £8,389.16.[10]I heard evidence at the hearing from the claimant. The claimant had not prepared a witness statement. He said that this was because he hadn’t been told that he needed to prepare one. No case management orders had been made for the preparation of witness statements.[11]In light of the fact that no case management orders for witness statements had been made, the claimant is a litigant in person, and the respondent was professionally represented at the hearing, I allowed the claimant to give evidence orally without reference to a witness statement. I told Mr Keith that I would give the respondent time to consider what the claimant said in evidence and that, if the respondent was unable to respond to that evidence, Mr Keith could apply for an adjournment of the hearing. No such application was made.[12]The claimant called Mr Christopher Longley to give evidence and produced a witness statement for a Mr Jonathan Ross. Mr Ross was not present at the hearing to be cross-examined. I have read his statement but have placed no weight upon it. It appears to me not to be directly relevant to the issues that I have to determine.[13]I heard evidence for the respondent from Mr Andrew Eburne, Managing Director.[14]There was before me an agreed bundle of documents running to 242 to which an additional document (page 243) was added by consent.The Issues
[15]The issues for determination at the Hearing were as follows:-a. whether the Tribunal has jurisdiction to hear the claim of unlawful deduction from wages, the respondent submitting that it was presented out of time; andb. whether the respondent had made an unlawful deduction from the claimant’s wages.[16]It was not clear to me at the outset of the hearing how much the claimant was claiming, or how that sum had been broken down. During his evidence the claimant told me that the sums he was claiming were set out on page 243 of the bundle. These sums were calculated in three different ways – the first on the basis of a salary of £30,000 a year (a total of £11,461.79), the second on a salary of £26,500 a year (totalling £7,397.01) , and the third on a salary of £25,000 a year (£8,362.13). They included claims for :-a. Bank charges;b. Under pay over 12 months;c. Overtime pay and post; Page 3 of 9d. An unpaid week in March 2017; ande. ‘Unpaid May 2016’.[17]At the outset of the hearing the respondent told me that the claimant had indicated that he also had claims for mileage payments in March 2019 that he wanted to pursue. The respondent had not seen these claims, and they do not form part of this case as currently pleaded. They also arise approximately 18 months after this claim was presented to the Tribunal.Findings of Fact
[18]The claimant is employed by the respondent to provide driver training to military students. The respondent is a private company that provides driver training courses for different categories of large vehicles to a range of clients.[19]The claimant has been employed by the respondent since 3 April 2017. Prior to that date he was employed by another company, JSMDT Limited (“JSMDT”). His employment transferred from JSMDT to the respondent on 3 April 2017 pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).[20]On the 3 April 2017 the respondent began providing driver training known as licence acquisition training or ‘LAT’ to the Ministry of Defence, having successfully tendered to provide these services, which had previously been provided by JSMDT. Underpayment for 12 months[21]Whilst employed by JSMDT the claimant was paid a salary of £25,000. He gave evidence that before joining JSMDT he had been promised a salary of £30,000 by Mr Sukhi Tour, and that in April 2016 he had been promoted to the role of Lead Instructor in charge of other instructors. Those instructors were paid £26,500 and the claimant was not happy at being paid less than members of his team.[22]There was no documentary evidence of any agreement between the claimant and JSMDT that the claimant’s salary would be £30,000. The claimant’s contract of employment [pages 61-70 of the bundle] refers to a salary rate of £25,000. That contract was only provided to the claimant in November 2016. Throughout his employment with JSMDT the claimant was paid at the rate of £25,000.[23]In an email to Mr Sukhi Tour on 6 January 2017 [page 132 of the bundle] the claimant appears to suggest that his pay should be £26,500 a year rather than £25,000. There is no mention in that email of any underpayment of salary in May 2016.[24]In a further email to Mr Sukhi Tour on 22 March 2017 [pages 168-9 of the bundle] the claimant wrote “…I have listed the outstanding monies you owe me since my employment started with you”. He includes in that email “Back pay beginning April 2016 for lead instructor / managers post at £200.00 a month for 11 months”. There is no mention in that email of an Page 4 of 9 agreement to pay him £30,000 nor any claim for back pay to take the claimant’s salary up to £30,000. Similarly, there is no mention of outstanding pay for May 2016.[25]The first time the claimant mentioned a salary of £30,000 in writing was in an email to the Tribunal on 12 January 2018 [page 168 of the bundle].[26]On 3rd April 2017 when the claimant’s employment transferred to the respondent, the respondent promoted the claimant to Lead Instructor and increased his salary to £28,000. Prior to the transfer Mr Sukhi Tour informed the respondent’s solicitors that the claimant had been offered a pay increase to £26,500 but that the claimant had not accepted that increase [page 160 of the bundle].[27]I find that there was no agreement between Mr Tour and the claimant that the claimant would be paid a salary of £30,000 whilst employed by JSMDT. I also find that there was no agreement that the claimant would be paid a salary of £26,500.[28]The claimant was entitled to be paid a salary of £25,000 throughout the time that he was employed by JSMDT.[29]The claimant’s claim for overtime relates to the period up to and including November 2016. The claimant did not do any overtime after November 2016. Underpayment for a week in March 2017[30]The claimant’s evidence was that he had been unpaid for one week in March 2017 to the tune of £480.76. He accepted however that he had been paid by the respondent for that week. JSMDT had no work for him but the respondent did. He therefore worked for the respondent for the last week in March and was paid by the for that week.[31]The claimant was paid by JSMDT on the last working day of the month. He was not paid by them for the last week of March. During that week he carried out some duties for the respondent, and on 3 April 2017 the respondent paid him £538.45 in respect of wages for the last week of March 2017. Underpayment for May 2016[32]There was insufficient evidence before the Tribunal for me to make any findings of fact in relation to the claim that the claimant was underpaid in May 2016. There was no mention of this in the claim form, or in the emails that the claimant sent to Mr Tour in January 2017 and April 2017. The first time it has been mentioned by the claimant is in the document at page 243 of the bundle, introduced into evidence on the day of the final hearing. Bank charges Page 5 of 9[33]The claimant was, on occasion, paid late by JSMDT. He said that he had incurred bank charges as a result. At page 169 of the bundle the claimant values his claim for bank charges incurred due to late payment of wages as £241.55. On page 243 he values them at £487.38. The claimant could not provide a sensible explanation in his evidence for the difference between the two sums.[34]The claimant’s evidence in relation to bank charges was not clear or supported by the documentary evidence before the Tribunal. The dates upon which the claimant’s account was overdrawn did not correspond with any alleged underpayments by JSMDT.[35]The claimant accepted, in cross-examination, that he had ‘approximated’ the amounts that he was claiming and that he had made errors in his calculations. Overtime pay and post[36]The claimant did work overtime and was entitled to be paid for it or to time off in lieu. The claimant did not work any overtime after November 2016 and all of his claim for overtime therefore relates to the period up to and including November 2016.[37]In the email of 6 January 2017 to Mr Tour the claimant refers to 90 hours of overtime, and to an agreement that he could take time off in lieu of being paid for those hours.[38]The claimant accepted in his evidence that it had been agreed he could take time off in lieu of payment for the overtime hours he had worked and said that he had not taken the time off because he liked his job and was ‘very much a worker’. Legal advice / time bar[39]The claimant accepted that all of the sums that he is claiming to be entitled to as part of this claim relate to the period prior to 4th April 2017. He also accepted that he had taken legal advice in relation to the claim.[40]On 22nd March 2017 the claimant sent an email to JSMDT which is at pages 168-9 of the bundle. In that email the claimant set out the sums that he said JSMDT owe him, and which are set out at paragraph 6 above. He referred to a total sum owing of £8,389.16 but the breakdown of amounts owing only comes to £6,105.83.[41]In the email of 22nd March 2017 the claimant also wrote “I have forwarded copies of this schedule to ACAS and my solicitor for appropriate action, if these outstanding monies are not paid in full in my final wage slip from yourselves.” I find that by 22nd March 2017 the claimant was taking legal advice in relation to his potential claim.[42]In his oral evidence to the Tribunal the claimant said that he had first become aware of the time limit for issuing Tribunal proceedings in April 2017. When asked why he had waited from April until September to issue Page 6 of 9 proceedings he said that it was because ACAS had told him they would approach the respondent first.The Relevant Law
[43]Section 13 of the Employment Rights Act 1996 (“the ERA”) provides that:- “(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, or(b) The worker has previously signified in writing his agreement or consent to the making of the deduction… (3) 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 t the worker on that occasion (after deductions), 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.”[44]The time limit for presenting a claim for unlawful deduction from wages is set out in section 23 of the ERA which states that:- “(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 series or deductions or payments…the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series… (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.[45]The burden of proof in relation to a claim for unlawful deduction from wages lies with the claimant. In summary, he has to persuade me, on the balance of probabilities, that there has been an unlawful deduction made from his wages. Conclusions Underpayment for a week in March 2017Conclusions
[46]I find that there was no unlawful deduction from wages in respect of the last week of March 2017. By his own admission, the claimant has been paid for that week by the respondent. The claimant is not entitled to be paid twice for that week. There was therefore no unlawful deduction. Page 7 of 9 Underpayment for 12 months[47]I also find that the claimant’s salary up to the 3rd April 2017 was £25,000 pa. There was no agreement that he would be paid either £26,500 or £30,000. The contract of employment refers to a salary of £25,000 and that is the rate at which the claimant was paid. The claimant was offered an increase to £26,500 but rejected the offer. The first time the claimant suggested that he was entitled to be paid £30,000 pa was in January 2018, some 9 months after his employment transferred from JSMDT to the respondent.[48]As the claimant was paid his correct salary in the 12 months prior to 3 April 2017, there was no unlawful deduction from wages in relation to that period, and this part of his claim fails. Bank charges[49]In relation to bank charges, the claimant has failed to discharge the burden of proof. I accept that the claimant genuinely believes that he has been underpaid. I also accept that the claimant has tried to give evidence honestly, and I do not believe that he has tried in any way to deliberately mislead the Tribunal.[50]I do however find the claimant’s evidence to be contradictory and unconvincing. He has presented his claim to the Tribunal in a number of different ways over the course of these proceedings, and the sums claimed have changed significantly from the £1,7799.48 referred to the claim form.[51]Even by the time of the final hearing he presented his claim in a number of alternative ways, and was unable at time to explain or justify the sums claims.[52]For example, at page 169 of the bundle he values his claim for bank charges incurred due to late payment of wages as £241.55. On page 243 he values them at £487.38. He was unable to provide a convincing explanation for the difference. Jurisdiction and time limits[53]The rest of the claimant’s claim relates to alleged deductions in May 2016 and for overtime / postal charges in the period up to November 2016. Those elements of the claim are on the face of it out of time. In light of my findings above, there was no series of unlawful deductions continuing beyond November 2016.[54]The claimant began Early Conciliation on 23 June 2017. Complaints about any alleged deductions from wages on or before 24 March 2017 are prima facie out of time.[55]The claimant took legal advice by 22nd March 2017 and was aware of the time limit for issuing proceedings by April 2017 at the latest. It is clear from the emails that he was sending to Mr Tour that he believed he had been underpaid for some time and wanted to try and remedy the situation. Page 8 of 9[56]It would, in my view, have been reasonably practicable for the claimant to present his claim in time. If I am wrong on that, I find in the alternative that the claimant did not present his claim within such further period as was reasonable. He waited until September 2017 to do so, having been aware of the facts giving rise to the claim from January 2017 at the very latest, and having taken legal advice.[57]The Tribunal does not therefore have jurisdiction to hear the claim for unlawful deduction from wages in relation to the alleged underpayments for May 2016 and in respect of overtime and post.[58]For the above reasons all of the claimant’s claims fail and are dismissed.