Mr T Constable v C R Swift Landscaping Ltd: 3200372/2024 and 3200735/2024
JUDGMENT
[1]The complaint of unauthorised deductions from wages is not well-founded and is dismissed. Notice Pay[2]The complaint in relation to notice pay is not well- founded as is dismissed. Holiday Pay[3]The complaint in respect of holiday pay is not well-founded and is dismissed.REASONS
[1]A Notice of Hearing was sent to the parties by email on 11 February 2025. It set out direction for preparation of the case. The Claimant’s representative did send some WhatsApp messages, which would suggest that this notice was received. The Claimant did not provide a calculation of the monies he said he was owed. The Respondent has communicated with the Claimant and the Tribunal regularly in respect of this breach. On 19 February 2025, the Tribunal write to both parties stating that all parties were expected to comply with the orders and failure to do so may result in the claim being struck out at the Hearing.[2]The Claimant did not attend the Hearing at 10am. Efforts were made by the Tribunal to contact the Claimant via email and telephone both to him directly and his representative Michelle Googan and messages were left. The Hearing was delayed until 11am to give him an opportunity to attend.[3]The Claimant did not attend and did not provide an explanation for his non - attendance. A decision was taken to proceed in his absence.[4]The correct name of the Respondent is CR Swift Landscaping Limited.The Claim
[5]The Claimant submitted his first Tribunal claim on 14 February 2024. He indicated that he was employed by the Respondent from 3 March 2022 to 1 December 2023. He claimed unfair dismissal, redundancy payment, arrears of pay and unpaid annual leave. He stated that he worked 80- hour weeks.[6]The Claimant issued a second Tribunal claim 3200735/2024 on 26 March 2024. This stated that the Claimant was employed between 9 May 2022 to 11 December 2023. This also claimed for unfair dismissal, redundancy payment, arrears of pay and holiday pay. This claim stated that the Claimant worked 60- hour weeks.[7]The unfair dismissal and redundancy pay were struck out on the basis the Claimant had less than two years’ service on 27 November 2024.[8]The remaining claims to consider are:a. Unlawful deduction of wages;b. Failure to pay accrued but untaken annual leave on termination;c. Notice pay. The Law Section 13 Employment Rights Act(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.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised – (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(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 to 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. Section 27 Employment Rights Act 1996 (1) Wages in relation to a worker means any sum payable to the worker in connection with his employment including: a) Any fee bonus commission, holiday pay ….. Working Time Regulations 1998 (WTR 1998)- Entitlement to annual leave 13.(A1) This regulation applies to – (a) a worker in respect of any leave years beginning before 1st April 2024, and (b) a worker to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024.] (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. (3) A worker’s leave year, for the purposes of this regulation, begins – (a) on such date during the calendar year as may be provided for in a relevant agreement; or (b) where there are no provisions of a relevant agreement which apply – (ii) if the worker’s employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. Reg 13A (2)(e) in any leave year beginning on or after 1st April 2009 an additional 1.6 weeks. Compensation related to entitlement to leaveThe Law
[14](1) Paragraphs (1) to (4) of this regulation apply where – (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under regulations 13(1) and 13A(1)] differs from the proportion of the leave year which has expired. 9. The Tribunal accepted the Respondent’s evidence that the Claimant was employed from 29 March 2022 to 21 December 2023. 10. The Respondent has produced evidence to show that the Claimant was paid weekly for each shift worked. He was paid £110 daily shift and £150 for a night shift. The Respondent states that the Claimant was provided with paper copy payslips. The Respondent confirmed that when they retrieved the van which they had loaned the Claimant at the end of his employment, they found his paper copy pay slips stuffed down the side of the front seat. 11. The Claimant was entitled to holiday. The Respondent has provided samples of holiday request forms completed by the Claimant and evidence in the form of payslips for paid holidays and bank holidays. The Respondent has also provided a schedule of holidays taken since the start of employment and a schedule of the days the Claimant took as unauthorised leave. 12. The Respondent has confirmed that the Claimant did not work full time hours and on average worked 30 hours a week. The Respondent has maintained records of all shifts undertaken and paid. 13. The Claimant alleges that he was not advised of the Workplace Pension Scheme. The Tribunal has noted that this is not correct. A memo sent to the Claimant on 5 July 2022 which sets out the Respondent’s legal duty to auto enrol him in their pension scheme. The memo sets out the pension provider and the contributions the Respondent is legally obliged to make: 5% employee and 3% employer. The payslips provided record the pension contributions. Unlawful deduction of wages – unpaid wages 14. The Claimant has the burden of proving that he was not paid for the work that he undertook for the Respondent. He has not provided a calculation of what he claims he is owed or a breakdown of the shifts that he was not paid for. However, the Tribunal considered the information he had provided as follows: a) WhatsApp message on 27 October 2023 to Glen “Glen could you please witness I was working in your yard last week” . Answer “ Hi Terry you was with us Thursday if I remember rightly? “ This was put to the Respondent who provided a payslip for the week dated 19 October 2023 to show that the Claimant was paid one shift that week. Finding: No unlawful deduction of wages. The Claimant has not provided any evidence that he was not paid for shifts that he worked. b) WhatsApp message 31 October 2023 to John “John it’s Terry from swifts. Was I working with you last week swifts are trying to say that I did not work” three days nights-. Answer “ You was on site to dig for us on 2 nights I think… you was definitely there Friday and either Tuesday or Wednesday.” This was put to the Respondent who provided a payslip dated 26 October 2023 to show three night shifts paid. Finding: No unlawful deduction of wages. The Claimant has not provided any evidence that he was not paid for shifts that he worked. c) WhatsApp message 1 November 2023 to Richard “ Hello Richard could you please witness I was working with you last Friday night and the job got cancelled on the A14. Answer, “ Yes of course”. This was put to the Respondent who provided a payslip of 2 November 2023 to show that the Claimant was paid one night shift the preceding week. Finding: No unlawful deduction of wages. The Claimant has not provided any evidence that he was not paid for shifts that he worked. On this basis the claim for unlawful deduction of wages does not succeed and is dismissed. Unlawful deduction of wages- Holiday pay[15]The Claimant has the burden of establishing that he has not been paid for accrued but untaken holiday on the termination of his employment. The Claimant has not provided any evidence to support this claim. The Respondent disputes the claim. As the Claimant has not explained otherwise, the Tribunal worked on the basis that the Claimant’s leave year ran from the anniversary of his employment in accordance with Regulation 13 (3)(b) WTR 1998. This means that from 29 March 2023 to 21 December 2023 the Claimant worked 38 weeks (the leave year) and would have been entitled to 20.5 days holiday if he worked full time. The Tribunal has accepted the Respondent’s statement that the Claimant worked on average 3 days a week. The Claimant has not provided evidence to dispute this. This would mean that the Claimant’s entitlement to annual leave up to termination would be 12.3 days.[16]The Respondent has provided holiday request forms and pay slips to show that holiday and bank holidays were regularly paid to the Claimant. The holiday schedule provided shows that the Claimant was paid for 15 days holiday and 5 days as bank holidays in the leave year amounting to 20 days. Even, if the Claimant felt he should be paid for the bank holidays 25-26 December 2023, he had already been paid in excess of the holidays he had accrued for the leave year. Finding: The Claimant was not owed holiday pay on the termination of his employment. This claim is dismissed. Notice Pay[17]The Claimant has ticked the box for notice pay but not given any information to explain this claim. Section 86 Employment Rights Act 1996 provides the minimum notice to be given on the termination of employment by the employer or employee. Section 89 requires the employer to pay the employee is average weekly wage for the notice period provided that the employee is ready and willing to do work of a reasonable nature and amount to earn a weeks’ pay. The Respondent did not terminate the Claimant’s employment and he did not resign in writing. The Claimant just stopped turning up for work. There is no evidence that even if he was entitled to notice pay he was ready and willing to do sufficient work to earn the pay. Finding: The Claimant was not entitled to notice pay. The claim is dismissed. Approved by