Ms M Jakobas v Morgarten Restaurants Ltd: 3205183/2022

EMPLOYMENT TRIBUNALS

Case No 3205183/2022

Between

Ms M JakobasClaimant

Morgarten Restaurants LtdRespondent

Before

Employment Judge B Elgot

In person for claimant

Not represented for respondent

No appearance or representation for respondent

Date 11 May 2023

JUDGMENT

[1]In relation to the three remaining claims for unpaid wages, holiday pay and notice pay I am satisfied that it was not reasonably practicable for the Claimant to present her complaints before the end of the relevant period of three months ( as extended by the ACAS Early Conciliation Period) but that she has presented her claims within such further period as is reasonable. Accordingly I extend the relevant time limit to 1 October 2022.

[2]The hearing of these three remaining claims is ADJOURNED. This is because it is necessary to re-serve the Claim on the Claimant’s actual employer Morgarten Restaurants (Lakeside) Ltd of Business Hub, 5 Rayleigh Road, Hutton, Brentwood, CM13 1 AB which name appears on her contract of employment and her payslips. This company traded as Bourgee restaurant at Thurrock Shopping Centre where the Claimant worked.

[3]Once the employer has had an opportunity to receive the claims and respond this hearing will be re-listed for two hours using CVP. Case Number: 3205183/2022 2 Employment Judge B Elgot Dated: 15 March 2023 Case Number: 3205183/2022 1 EMPLOYMENT TRIBUNALS Claimant: Miss Magdalena Jakubas Respondent: Mortgarten Restaurant (Lakeside) Limited (In Creditors Voluntary Liquidation) Heard at: East London Hearing Centre (via CVP) On: 11 May 2023 Before: Employment Judge John Crosfill Representation Claimant: In person assisted by Mrs Lane Respondent: No appearance or representation

[1]The Respondent unlawfully deducted the sum of £1,183.56 due in respect of unpaid wages from the Claimant’s final instalment of wages payable on 31 May 2022 contrary to Part ii of the Employment Rights Act 1996. The said sum being calculated as follows:a. The Claimant’s annual salary was £27,000 which is deemed to accrue daily.

b. The Claimant worked from 1 May to the date of her resignation on 16 May 2022 a period of 16 days.

c. The daily rate of accrual of salary was £73.97.

d. 16 x £73.97 =£1,183.56.

[2]The Respondent unlawfully deducted the sum of £971.94 due in respect of accrued but untaken holiday pay from the Claimant’s final instalment of wages payable on 31 May 2022 contrary to Part II of the Employment Rights Act 1996. The said sum being calculated as follows: Case Number: 3205183/2022 2a. The Claimant started work on 15 January 2022 and resigned without notice on 16 May 2022.

b. The Claimant therefore worked for 122 days.

c. The Claimant was entitled to 5.6 weeks of holiday per year and worked for 5 days a week.

d. The accrued holiday is therefore 122/365 x 5.6 x 5 = 9.36 days.

e. The Claimant took no paid leave.

f. For the purposes of calculating holiday pay the daily rate is 27,000/(52 x 5) = £103.84

g. The pay due pursuant to regulation 14 and 30 of the Working Time Regulations is £103.84

h. 9.36 x £103.84 = £971.94

[3]The Claimant’s claim for breach of contract, notice pay, brought under the Employment Tribunals of Jurisdiction (England and Wales) Order 1994 is well founded and succeeds.

[4]The Claimant has established that she has suffered loss and damages equating to the period between 16 May 2022 when she was constructively dismissed and 23 May 2022 when she found alternative employment at the same rate of pay. She has suffered no further loss thereafter. The Claimant has losses of 1 week’s pay which should be calculated net of tax = £423.50.

[5]The Respondent is ordered to pay the Claimant the sums of £1,183.56 and £971.94 as wages and £423.50 as damages. The said payments shall be made within 7 days of receipt of this judgment.