Miss J Byrnes v Bearcare (Nottm) Ltd T/a Carlton and Gedling Day Nursery: 2602887/2021
JUDGMENT
The Judgment of the Tribunal is that the claim for wages is well-founded and succeeds. The Respondent is ordered to pay to the Claimant the gross sum of £260.81.REASONS
[1]By a claim form submitted to the Tribunal on 17 November 2021 after a period of early conciliation, the Claimant claimed the sum of £260.81 representing wages due to her for the 26 hours worked for the Respondent between 26 and 29 July 2021.[2]The detail of her claim was not challenged by the Respondent who did not attend the hearing. She said she commenced employment as a pre-school room leader on 26 July 2021. She became concerned at staffing levels during lunch breaks as this presented a safeguarding issue. She raised this with 2 directors of the Respondent who said if she did not like this she could leave and would be paid for the hours she had worked. The Claimant decided to leave but despite a number of requests to be paid, the Respondent did not pay the wages due.[3]In their response, the Respondent justified not paying the Claimant as they said she had not given a week’s notice as was required by her letter of appointment. 10.7 Judgment with reasons – rule 62 Case No: 2602887/2021[4]The Respondent was not in attendance at 2pm when the hearing was due to commence. I directed the Tribunal clerk to telephone the Respondent at 2.15 to ascertain whether they intended to attend. She was told Ms Budden, a director of the Respondent, had left for the day. I then directed the clerk to check whether any email or telephone call had been received from the Respondent to explain their non-attendance and there was none. I decided to continue with the hearing. At approaching 2.30, after the hearing had started, the Tribunal received a call from Ms Budden saying she was attending a member of the public with a medical emergency and would not be attending the hearing. No further details were given and there was no request to delay the hearing until she arrived nor to adjourn and re-list the hearing for another day. The hearing continued.[5]Section 13 of the Employment Rights Act 1996 provides: (1) An employer shall not make a deduction from wages of a worker employed by him unless- (a) the deduction is required 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.Conclusion
[6]There was not just a deduction in this case, but a complete failure to pay any wages due to the Claimant. If the Respondent’s defence is that they have sought to off-set a week’s notice pay against the wages due, that defence is misconceived. There is no employer’s counter claim in this case, nor can the Tribunal entertain such counter claim in a claim for wages. Put simply, there is no defence to the claim and it must succeed.