Mr I Gough-Henry v Citrus Service Group Ltd/Citrus Fresh Services Ltd: 3200583/2018
REASONS
[1]The Claimant brings complaints of unlawful deductions from wages and failure to permit him to take holiday against the Respondent. The Respondent in this case is Citrus Fresh Services Limited/Citrus Service Group which is the name of the employer given on the Claimant’s P60.[2]The Claimant attended the hearing today.[3]The Respondent did not attend. It had previously submitted an ET3 defending the claim saying that it had dismissed the Claimant on 4 May 2017.[4]The Respondent attached a P45 recording that the Claimant’s leaving date was 4 May 2017 however, the Claimant attended today and gave evidence and told me that he had never seen a P45 from the Respondent until it was sent to the Tribunal by the Respondent. He told me the Respondent had never dismissed him and I accepted his evidence. I decided that despite the fact the Respondent has purported to draft a P45, it was never given to the Claimant and the Claimant was never told that he was dismissed. Accordingly, I have decided that the Claimant remains employed by the Respondent. Case Number: 3200583/2018 3[5]The Claimant brought a previous claim under case number 3201169/2017.[6]The Respondent did not defend that claim and it came before me at a remedy hearing on 11 December 2017.[7]The Respondent in its ET3 response to this claim said that in paragraph 1 of that previous remedy judgment ‘I describe the Respondent as the Claimant’s former employer’ however, it is clear from paragraph 5 of the judgment in that case, I accepted the Claimant’s evidence that he had not been paid at all since 4 May 2017 but that the Respondent had not dismissed him. I clearly found at the hearing on 11 December 2017 that the Respondent had not dismissed him and I ordered the Respondent to pay the Claimant unpaid wages until 11 December 2017. I could only have done so if the Claimant remained in employment with the Respondent as at 11 December 2017.[8]I do not consider that it is necessary to reconsider that judgment. I consider the judgment is clear in so far as there was a dispute or an issue as to whether the Claimant was employed by the Respondent. I resolved it at paragraph 5 saying the Respondent had not dismissed the Claimant.[9]I therefore reject the Respondent’s arguments in this case that the Tribunal had previously found that the Claimant was not an employee of the Respondent. He is an employee, has not been dismissed and he is therefore entitled to bring a claim for unlawful deductions from wages.[10]I accepted the Claimant’s evidence today that his normal wages from the Respondent were £1,629 monthly or £375.92 gross weekly.[11]Again the Respondent in its ET3 had said that the Claimant was on a zero hours Case Number: 3200583/2018 4 contract. The Claimant told me in evidence today and I accepted, that in fact he was transferred pursuant to TUPE to the Respondent and that his contract so transferred was not a zero hours contract but entitled him to be paid £1,629 monthly by the Respondent. The contract which transferred was for the Claimant to work a 40 hour week and the terms of his employment remained the same on transfer under TUPE Regulations 2006.[12]Accordingly, the Respondent has continued to fail to pay the Claimant £375.92 a week.[13]The Claimant presented his claim in this case on 18 March 2018 following ACAS early conciliation.[14]At today’s hearing, I allowed the Claimant to amend his claim to include a claim for unlawful deductions from wages covering the period from the date of issue of the tribunal claim until today’s hearing. That is a total of 33.4 weeks. 33.4 x £375.92 = £12,555.73 and I order the Respondent to pay this on account of unlawful deductions from wages.[15]The Claimant also told me today that the Respondent had never permitted him to take holiday. He had worked Christmas and statutory holidays but had never been allowed to take a paid holiday.[16]I accepted the Claimant’s evidence and I accepted that at the date of issue of the Claimant’s claim, the Respondent had within the previous 3 months plus the early conciliation period, failed to allow the Claimant to take any holiday and had failed to permit him to take any or all of his 5.6 weeks annual leave that he was entitled to take.[17]The Claimant therefore was entitled to bring a claim under Regulation 30(1)(a) Working Time Regulations 1996 for a failure to permit the Claimant to take his holiday and Case Number: 3200583/2018 5 exercise his rights under Rule 13 and 13(a) Working Time Regulations 1998.[18]I made a declaration that the Respondent has failed to permit the Claimant to exercise his rights under those regulations and I also make an award of 5.6 weeks pay for unliquidated damages for that failure. It is quite clear that the Respondent has never allowed the Claimant to take any of his holiday and therefore I award him an amount equivalent to his whole annual entitlement. 5.6 x 375.92 = £2,105.15 and that is the amount that I order the Respondent to pay the Claimant on account of their failure to permit the Claimant to exercise his right under the Working Time Regulations.