Mr DI Taylor v Welbourn Hall Nursing Home: 2601852/2018
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claim succeeds and the remedy to which the claimant is entitled will be determined at a Remedy Hearing.[2]The hearing listed on 14 January 2019 will consider remedy only.[1]The Respondent will pay to the Claimant the gross sum of £416.61 in respect of outstanding expenses.[2]The hearing in respect of the remaining complaint of unauthorised deductions from wages is adjourned part heard to a date to be fixed by the Tribunal.[3]Case Management Orders are attached.REASONS
[1]This hearing followed on from an adjourned Remedy hearing of 14th January 2019 which had not been able to conclude on that occasion because further information and documentation was necessary to determine the issue of what sum was due to the Claimant in respect of his successful claim of unauthorised deductions from wages which had been the subject of an earlier Default Judgment.[2]Between that hearing date and the resumed proceedings today, I had made a number of Orders for preparation for this hearing. The Claimant candidly accepted that he had not done what was required in that regard although I accept his explanation that he had done what he believed was necessary and understood that ACAS would be forwarding the necessary documentation and information on his behalf. I am satisfied that there was something of a misunderstanding in that regard. As it was, the key documents had been sent to the Respondent and as such we were able to proceed with the remainder of the hearing without difficulty.[3]I should observe my thanks to both parties for their patience with regard to attendance at the hearing. In this regard, both parties travelled to Nottingham rather than Lincoln where the January 2019 hearing had been held but upon arrival discovered that the Tribunal hearing centre could not be used as a result of IT difficulties which had resulted in the building being without any fire alarms. As such, it could not be used. An alternative venue was sourced at the Crown Court but that hearing room was then taken by an emergency hearing. As such, the hearing was held in a Jury room which, whilst a more informal setting, was preferable to abandoning the hearing altogether. That was not least as Mr. Thakerar had travelled from London the day previously to attend. The cause list both in the Crown Court and at the door to the Tribunal hearing centre was amended to reflect the new location and in order that members of the public could gain access if they wished to do so.[4]As observed on the last occasion, the sole issue remaining in this claim is the sum to which the Claimant was entitled in respect of time off in lieu (“TOIL”) payments. A liability only Default Judgment had previously been issued in his favour and so the only issue in respect of the unauthorised deductions found to have been made from his wages is the issue of remedy. The matter of unpaid expenses which also formed part of the claim has been addressed by way of a Consent Judgment at the earlier hearing and a claim for constructive unfair dismissal is proceeding separately.THE HEARING
[5]During the course of hearing, I heard evidence from the Claimant on his own behalf. He was cross examined by Mr. Thakerar (who had permission to do so and to make representations notwithstanding the failure of the Respondent to enter an ET3 Response) and thereafter I heard submissions from both parties.[6]I determined that I would reserve my decision in order to ensure that I could revisit the relevant documentation and have the time to undertake any necessary calculations whilst avoiding the parties having to remain in a venue where there was little or no waiting facilities for them. In addition, Mr. Thakerar had to return to London and the Claimant had an appointment to attend back in Lincoln. As such, this decision was reserved.THE LAW
[7]Before turning to my findings of fact, I remind myself here of the relevant law which I am required to apply to those facts as I have found them to be.[8]Section 24 Employment Rights Act 1996 deals with the determination of complaints of unauthorised deductions from wages and provides as follows: “(1)Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer— (a)in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13, (b)in the case of a complaint under section 23(1)(b), to repay to the worker the amount of any payment received in contravention of section 15, (c)in the case of a complaint under section 23(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and (d)in the case of a complaint under section 23(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision. (2)Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of.”FINDINGS OF FACT
[9]I ask the parties to note that I have only made findings of fact where those are required for the proper determination of the issue of remedy. I have inevitably therefore not made findings on each and every area where the parties are in dispute with each other where that is not necessary for the proper determination of the matter of remedy in the remaining complaint before me. The relevant findings of fact that I have therefore made against that background are set out below.[10]The Claimant was, at the material time, a Maintenance operative working for the Respondent at Welbourn Hall Nursing Home (“The Nursing Home”). I accept his unchallenged evidence that approximately a year after the commencement of his employment with the Respondent he moved from an hourly paid contract to a salaried position working 37.5 hours per week. That would have been in or around June 2009.[11]It appears to be common ground that after that salaried arrangement came into effect then it was agreed that any additional hours worked over and above that 37.5 hour working week were to be dealt with by the Claimant taking time off in lieu (“TOIL”). The Claimant’s evidence is that he worked a number of hours of TOIL and he then took time off to recoup the additional hours worked.[12]However, I accept his unchallenged evidence that problems with the boiler in the Nursing Home meant that he began to steadily work a number of additional hours and accrue a not inconsiderable amount of TOIL. The Claimant’s position is that by April 2015 he had accrued 255 hours of TOIL. However, he accepts that he has nothing to evidence that and no documentation from which I can make findings of fact as to how that amount was calculated and what additional hours it is said were worked and when.[13]The Claimant’s position is that those earlier hours were evidenced in work books which were submitted to the Respondent. Mr. Thakerar tells me that he has made enquiries but those books cannot be located. As such, I can make no positive finding that the Claimant had accrued 255 hours of TOIL by April 2015.[14]However, I do have a copy of the Claimant’s own work book from April 2015 to September 2018 when his employment terminated. Whilst Mr. Thakerar disputes the genuineness of that document on the basis that it is all written in the same handwriting, in what looks like the same pen and in the same style, I accept the Claimant’s evidence that that is a genuine document and accounts for the hours of work that the Claimant was undertaking during that period.[15]I have reached that conclusion on the basis that I considered that the Claimant gave a credible account during the hearing before me. I also accept that the document is not all written in the same pen as Mr. Thakerar says as the Claimant was able to take me to entries within the original (as opposed to the black and white photocopies) where that was clearly not the case. Moreover, it is not unusual that the workbook would be written in the same handwriting or the same style given that it was all written by the Claimant with a view to keeping a record of his working hours. The Respondent has not been able to produce the earlier workbooks to show that there are any differences between the two sets of documents nor have any other documents been produced to demonstrate the Claimant’s hours of work despite, of course, the Respondent’s statutory duty to keep and maintain such records.[16]I have also taken into account in this regard the fact that the Claimant in a number of entries in the workbook gives credit for periods when he has taken TOIL. I find it more likely if he had created that document for the purposes of bringing this claim and bolstering the amount that he claims an entitlement to then he would have been unlikely to include those particular entries as those would lessen the amount of his claim. That is particularly the case when entries such as April 2015 and June and July 2016 as set out below are considered.[17]I therefore accept the Claimant’s evidence that the copy workbook which I have been taken to is a contemporaneous record of the hours worked during the period April 2015 to September 2018.[18]The records show the following for each month between April 2015 and September 2018 when the Claimant’s employment ended: April 2015 – the Claimant took 73.5 hours of TOIL; May 2015 – the Claimant took 13 hours of TOIL; June 2015 – the Claimant took 7 hours of TOIL. July 2015 – 23.5 additional hours over and above normal contracted hours were worked; August 2015 – 5.5 additional hours over and above normal contracted hours were worked; September 2015 – the Claimant took 23 hours of TOIL. October 2015 - 25.5 additional hours over and above normal contracted hours were worked; November 2015 – the Claimant took 9.5 hours of TOIL; December 2015 – the Claimant took 10.5 hours of TOIL; January 2016 - 23 additional hours over and above normal contracted hours were worked; February 2016 - 48.5 additional hours over and above normal contracted hours were worked; March 2016 - 5.5 additional hours over and above normal contracted hours were worked; April 2016 – 0.5 additional hours over and above normal contracted hours were worked; May 2016 - 4 additional hours over and above normal contracted hours were worked; June 2016 – the Claimant took 47.5 hours of TOIL; July 2016 – the Claimant took 49.5 hours of TOIL; August 2016 – the Claimant took 16 hours of TOIL; September 2016 – the Claimant took 1 hour of TOIL. October 2016 - 30.5 additional hours over and above normal contracted hours were worked; November 2016 - 40 additional hours over and above normal contracted hours were worked; December 2016 - 10 additional hours over and above normal contracted hours were worked; January 2017 - 56 additional hours over and above normal contracted hours were worked; February 2017 – 25.5 additional hours over and above normal contracted hours were worked; March 2017 - 36 additional hours over and above normal contracted hours were worked; April 2017 – the Claimant took 30 hours of TOIL; May 2017 - 42 additional hours over and above normal contracted hours were worked; June 2017 - 17 additional hours over and above normal contracted hours were worked; July 2017 - 10 additional hours over and above normal contracted hours were worked; August 2017 - 8 additional hours over and above normal contracted hours were worked; September 2017 - 14 additional hours over and above normal contracted hours were worked; October 2017 – 1.5 additional hours over and above normal contracted hours were worked; November 2017 - 34 additional hours over and above normal contracted hours were worked; December 2017 – 14 additional hours over and above normal contracted hours were worked; January 2018 - 44 additional hours over and above normal contracted hours were worked; February 2018 - 6 additional hours over and above normal contracted hours were worked and the Claimant was paid in lieu for 50 hours of TOIL; March 2018 - 24 additional hours over and above normal contracted hours were worked and the Claimant was paid in lieu for 50 hours of TOIL; April 2018 – 0.5 additional hours over and above normal contracted hours were worked; May 2018 – the Claimant took 15.5 hours TOIL; June 2018 – the Claimant took 22.5 hours TOIL; July 2018 – the Claimant took 16.5 hours TOIL; August 2018 – the Claimant did not work any additional hours nor take any TOIL; and September 2018 – the Claimant did not work any additional hours nor take any TOIL.[19]The Claimant accepts that the amounts of TOIL taken and paid in lieu during that period must be deducted from that which he can evidence as having been worked in addition to his normal working hours over the relevant period.[20]That gives a total of untaken or unpaid TOIL at that stage of 114 hours. It is not disputed that the Claimant’s hourly rate of pay was £10.25 per hour as evidenced on his remittance slips that feature in the documents before me.[21]Mr. Thakerar points to the fact that it is common ground that the Claimant did not raise the issue about accrued TOIL until late December 2017/early January 2018 and thus it cannot be correct that he had accrued so much. However, I accept the Claimant’s consistent position on that matter is that the Respondent’s management and administrative team were aware of the hours that he was working and that it reached a point in late 2017/early 2018 when, in his words, the TOIL situation was “getting out of hand” that he approached the office. The situation was “getting out of hand”, I accept, on the basis that the Claimant was working such hours to attend to the problems with the boiler and other matters that fell under his remit that it was proving impossible to take the TOIL that he had accrued and which had been mounting up. There is support for that position in the fact that the entries in the workbook show that between May 2017 and April 2018 the Claimant was not able to take any TOIL and consistently worked hours over and above that which he was contracted to do.[22]As such, I accept that it was only at that point that the Claimant approached the office. Prior to that point, there had been periods when the Claimant had been able to take periods of TOIL, including some months such as June and July 2016 where a considerable number of hours had managed to be taken.[23]I accept that the Claimant spoke at that time to the then Manager of the care home, Emma Arnold, and to a lady called Chelsea who worked in administration and asked what could be done about the amount of TOIL that he had accrued because he was not getting the opportunity to take it. I accept his evidence that he asked for solutions about how to deal with that and it was proposed by those that he spoke to that he received a payment in lieu of TOIL accrued of 50 hours per month until the accrued amount was resolved.[24]Mr. Thakerar’s position was that he was aware of that arrangement but that he was told by Chelsea that the Claimant had accrued 100 hours of TOIL and as such the payments of 50 hours made in February and March 2018 were all that he was entitled to. I accept the Claimant’s evidence, however, that that was not the position as arranged with Chelsea. I have not heard any evidence from her and Mr. Thakerar is relying on what he was told by Chelsea, who no longer works for the Respondent, at least a year if not more after the event. I accept that the arrangement was that the accrued TOIL would be dealt with by way of a payment in lieu and that the intention was that that would continue on the basis of payment for 50 additional hours per month but that that arrangement stopped without warning in March 2018.[25]Mr. Thakerar points to the fact that the Claimant did not raise complaint with him about non-payment in the immediate aftermath of his resignation which he would have expected would be the case if there was to be any further payment in lieu after March 2018 as claimed. I accept, however, that the Claimant had attempted to raise those matters with the Respondent’s administrative staff to no avail and thereafter had commenced ACAS Early Conciliation in June 2018 in an attempt to resolve the matter. As that clearly did not resolve the situation and by 8th August 2018 these Tribunal proceedings had been issued, it is perhaps little wonder that there was not further direct engagement on the matter of unpaid TOIL after the Claimant resigned.[26]I therefore accept the Claimant’s evidence that over the period April 2015 to September 2018 there was a period of 114 hours of TOIL worked that remained either untaken or the subject of an agreed payment in lieu.CONCLUSIONS
[27]For the reasons set out above, I accept that the sum that was due to the Claimant in respect of untaken and unpaid TOIL related to 114 hours at £10.25 per hour and the Respondent is therefore Ordered to pay to the Claimant the sum of £1,168.50 less whatever sums are to be paid to Her Majesty’s Revenue and Customs by way of deduction for tax on that sum.