Mr P Mishlakov v Merriveen Ltd: 3302930/2018
JUDGMENT
[1]The Claimant’s claims of race discrimination, for notice pay, holiday and arrears of pay, succeed.[2]The remedy to which the Claimant is entitled shall be determined at the hearing currently listed for 2:00 pm on 5 April 2018 at the Employment Tribunal, Triton House, St Andres Street North, Bury St Edmunds, Suffolk.[1]The default judgment entered on 19 March 2018 is set aside and the response filed by the respondent on 26 February 2018 (together with its letter and accompanying documents of 6 February 2017) do stand as its response to these proceedings.[2]Case management orders have been made as set out below.REASONS
[1]The ET1 in this matter was received on 15 January 2018. The time for service of the response expired on 28 February 2018. On the 19 March 2018 Employment Judge Warren entered a default judgment believing that no response had been received from the respondent. The file now records (but it is not clear whether it did at the time) that by email of 26 February 2018 the respondent had indeed filed its response.[2]This hearing had been listed for a remedy hearing but was converted by the Judge to an open preliminary hearing to discuss the issue of the response and to then case manage the proceedings.[3]Mr Buck who attended this hearing on behalf of the respondent produced a screen shot from his sent email box to show that he emailed the tribunal on the 26 February 2018 with his ET3 and also with his letter which is wrongly dated the 6 February 2017.[4]Mr Buck also produced at this hearing a copy of the certificate of posting dated 26 February 2018 to the Watford Employment Tribunal which again was evidence of sending the ET3 and the supporting letter and documentation. Mr Buck explained that the reason why he did both was because it was snowing and he had concerns as to whether the response form would reach the tribunal within the requisite time period.[5]This tribunal could see that the letter of 6 February 2017 was date stamped by the Watford Employment Tribunal on the 27 February 2018. Although it appeared that the response did not have any details of the respondent’s defence, Mr Buck explained this was because he could not fit all of the information into the relevant box on the form and this is why he put it all in the accompanying letter and sent relevant documentation.[6]The above all having been discussed, the claimant’s representative accepted that the default judgment should not have been entered as the tribunal did have the response form at that time and the default judgment has therefore been set aside.[1]There is no dispute that the claimant’s dates of employment were the 24 July to 6 September 2017. Jurisdiction[2]The respondent believed that the claim was out of time, even taking into account the early conciliation requirements. The Judge drew the parties attention to s.207B of the Employment Rights Act 1996 which provides as follows:- “207B Extension of time limits to facilitate conciliation before institution of proceedings(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A.(2) In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.(3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted.(4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.(5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”[3]It therefore appears that the claim form which was received on 15 January 2018 was indeed received in time and the Respondent did not seek to dispute that. Claims brought in the ET1[4]In the ET1 form the claimant ticked the following boxes:-4.1 Unfair dismissal.4.2 Race discrimination.4.3 Notice pay.4.4 Holiday pay.4.5 Arrears of pay. Unfair dismissal[5]The claimant accepts that he had not served two years’ qualifying service such as to entitle him to bring a complaint of ordinary unfair dismissal. Race discrimination[6]The claimant asserts that he was dismissed by text message and that the sole reason for his dismissal was that his English language skills were not adequate. He asserts this is an act of race discrimination, he being Bulgarian.[7]For the respondent it is asserted that the text message that the claimant relies upon and which he says was sent on 6 September 2017 was not sent on that day, but was in fact sent in August and that the claimant continued to work thereafter. It is the respondent’s case that the claimant was dismissed for gross misconduct in damaging a lorry of the respondent’s. Monetary claims[8]As stated above the respondent’s position is that the claimant damaged a lorry incurring costs to the respondent of £1,416.29. That was deducted from any monies due to the claimant under clause 10 of the claimant’s contract.[9]On behalf of the claimant it was not disputed that there is such a contractual entitlement but it is submitted that there was no consultation or other discussion with the claimant about the amount of the deduction. Further, it is argued that no training was given to the claimant to drive the particular container lorry in question and if there had been the incident would not have occurred. £250 withheld wages[10]It is not clear what this sum related to. The claimant explained that this had been deducted before the accident, approximately two weeks before. The respondent produced with his letter of 6 February 2017 details of wages paid and there did not appear to be such a deduction. Further, the claimant was off sick under a sick note dated 7 August for two weeks.[11]The claimant then explained that he believed the deduction had been for a fuel tank that had been damaged. Mr Buck who is alleged to have been involved in that matter had no recollection of it.[12]The claimant also claims £176.83 in outstanding Holiday pay and £357.40 in sick pay. His representative did not have his calculations with him and undertook to file and serve these within seven days of the date of this hearing.[13]The above represent the matters that will now go forward to a full merits hearing which has been listed for 1 day taking into account any dates to avoid of the parties. The claimant who is Bulgarian would benefit from an interpreter on the next occasion. Mr Buck did not have his diary with him, and if the date that the hearing has been listed turns out to be a date on which he cannot attend he will apply back to the tribunal within seven days of the date of this hearing for a postponement setting out his reasons. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. Amended response/Further information 1.1 By the 12 April 2018 the claimant to file and serve detailed calculations showing how the amount of holiday pay and sick pay claimed has been calculated. 2. Disclosure of documents2.1 The parties are ordered to give mutual disclosure of documents relevant to the issues identified above by list and copy documents so as to arrive on or before 3 May 2018. This includes, from the claimant, documents relevant to all aspects of any remedy sought.2.2 Documents relevant to remedy include evidence of all attempts to find alternative employment: for example a job centre record, all adverts applied to, all correspondence in writing or by e-mail with agencies or prospective employers, evidence of all attempts to set up in selfemployment, all pay slips from work secured since the dismissal, the terms and conditions of any new employment.2.3 This order is made on the standard civil procedure rules basis which requires the parties to disclose all documents relevant to the issues which are in their possession, custody or control, whether they assist the party who produces them, the other party or appear neutral.2.4 The parties shall comply with the date for disclosure given above, but if despite their best attempts, further documents come to light (or are created) after that date, then those documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure. 3. Bundle of documents3.1 It is ordered that the respondent has primary responsibility for the creation of the single joint bundle of documents required for the hearing.3.2 To this end, the claimant is ordered to notify the respondent on or before 28 May 2018 of the documents to be included in the bundle at their request. These must be documents to which they intend to refer, either by evidence in chief or by cross-examining the respondent’s witnesses, during the course of the hearing.3.3 The respondent is ordered to provide to the claimant a full, indexed, page numbered bundle to arrive on or before 4 June 2018.3.4 The respondent is ordered to bring sufficient copies (at least five/three) to the tribunal for use at the hearing, by 9.30am on the morning of the hearing. 4. Witness statements4.1 It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.4.2 The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the Tribunal, relevant to the issues as identified above. They must not include generalisations, argument, hypothesis or irrelevant material.4.3 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.4.4 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.4.5 It is ordered that witness statements are exchanged so as to arrive on or before 2 July 2018. 5. Listing the hearing 5.1 The case has been listed for a 1 day hearing at Bury St Edmunds Employment Tribunal, 1st Floor, Triton House, St Andrews Street North, BURY ST EDMUNDS, IP33 1TR on Wednesday 1 August 2018 before a full tribunal. CONSEQUENCES OF NON-COMPLIANCE 1. Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996. 2. The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing. 3. An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.[1]This is the reserved decision following the hearing on 1 August 2018, the matter having been adjourned to enable the parties to produce further documentation.[2]The history of this matter is that a default judgment had been entered on 19 March which was set aside by this Employment Judge at a preliminary hearing on 5 April 2018. At that hearing, the claimant was represented, and the claims were clarified.[3]The claimant accepted that he did not have two years’ service to be able to bring an unfair dismissal claim. His race discrimination claim was that he was dismissed by text message. It has transpired at this hearing, however, that he was not then dismissed as his employment continued. The claims that were before this tribunal were therefore only the monetary claims.[4]The respondent argues it was entitled to deduct monies from the claimant under clause 10 of his contract. At the hearing at which these claims were clarified, the claimant did not dispute there was such a contractual entitlement but submitted there had been no consultation or other discussion with him about the amount of the deduction.[5]There had also been an argument by the claimant that £250 had been deducted from his wages prior to the accident. He also claimed money in respect of holiday pay and sickness absence. Those amounts were further clarified after the hearing by his then representative as being5.1 17 days sick pay of £223.55 and5.2 holiday pay of £176.83 (at £122 per day). Although at the preliminary hearing, the representative had agreed to provide calculations as to how those amounts were calculated, when he wrote into the tribunal with the corrected figures he did not provide calculations of the exact dates save to provide that the sick pay had been calculated at £92.05 per week gross. 1.44 days holiday pay had been claimed, but no dates were given of holidays taken.[6]At this hearing, the claimant was again assisted by a court appointed interpreter. His evidence was heard. He does not dispute that there is a clause in the contract that provides for deductions from pay. The clause provides as follows: “If at any time you owe the organisation money, it may be deducted from your salary. This includes, but is not limited, to overpayment of wages, a day or part day’s pay for each day or part day of unauthorised absence, damage caused by negligence or carelessness and any loan made by the organisation to you.”[7]The tribunal saw an invoice for damage to the respondent’s vehicle which totalled £1,699.55 (including VAT).[8]The claimant then gave evidence that the £250 he also claims was a deduction on the ground he had “scratched the step”. He stated there had been a text message from Mr Buck in which he had agreed it was not the claimant’s responsibility and that Mr Buck had agreed to give this money back. The claimant looked on his mobile phone whilst in the tribunal room and then found an email, not a text message, purporting to be from Mr Buck of 15 August 2017, which he then forwarded to the tribunal office. The email exchange was as follows: 15 August 2017 at 07:31 hrs from the claimant to Mr Buck, “Hello Peter, would you explain why I only have £306. Thanks”. The reply from Mr Buck at 10:01 hrs on the same day stated, “I had to stop £250 off to get your fairing resprayed. The driver showed me a photo before he left with no damage and you were the only driver to use it.”[9]Mr Buck, Director of the respondent and alleged writer and recipient of these emails doubted their credibility. He normally communicated with the claimant by text. The claimant was off sick between 7 and 21 August at the time this email exchange is alleged to have taken place. He had no way of checking this email whilst in the tribunal and explained that he now uses a payroll provider. It was agreed, the evidence of the claimant having been heard, that the decision would be reserved to enable Mr Buck to take further instructions from his payroll provider as to any such deduction.[10]By email of 24 August 2018, Mr Buck stated again he had no knowledge of the email of 15 August 2018. The claimant’s wage for the week commencing 31 July 2017 of £321 gross, £306 net was for 2.5 days work as the claimant had gone home early without finishing the job. The job was for 12 hours but the claimant went home after 8 hours. The payment was for 2.5 days. Mr Buck disputed that there was any money withheld for fairing painting. He had sought further clarity on the payslip but without success.[11]This Employment Judge instructed a letter to be sent to the parties which went on 23 September 2018, asking if Mr Buck had obtained information from the payroll provider. By email of 27 September he confirmed that he had not. By letter of 30 November, the Judge requested any further submissions within 7 days of the date of that letter. All that was received was a copy of a piece of paper from the claimant on which he had highlighted that he expected to be paid the following amounts: £1,326.24 in outstanding wages; £250 in withheld wages; £166.83 in outstanding holiday pay; £357.40 in sick pay. Total £2100.47[12]The tribunal did receive at the hearing copies of two payslips given to the claimant. One for 4 August 2017 showing a gross entitlement of £653.75, deductions of £29.76, making a net payment of £623.99 which has been noted in hand writing as being for the week commencing 24 July 2017.[13]The next payslip was for 11 August 2017 showing gross pay of £321, deductions of £15 and a net payment of £306. That is also noted in hand writing as being for the week commencing 31 July 2017 (as referred to in paragraph 10 above)[14]From the evidence heard, it is known that the claimant was off sick for the period 7 – 21 August 2017. The respondent produced a print out from the government web site showing the entitlement to sick pay for the period between those dates to total £125.09 calculated, Week ending 12 August 2017, £35.74; Week ending 19 August 2017, £89.35. It appears to this tribunal that the first week is a reduced amount as the first three days of the absence would not be taken into account and therefore in the five-day week there were only two day’s pay. In the second week there were five qualifying days. It is not clear to the tribunal and has never been adequately explained, where the claimant gets his figure of £357.40 for sick pay.[15]In the respondent’s calculations of the claimant’s pay, it had provided for two days holiday pay totalling £245.60. It therefore calculated that the following sums (but for the damage to the vehicle), would have been due to the claimant: Sick pay £125.09 Holiday pay £245.60 Pay: Week commencing 21 August 2017 £245.60 Week commencing 28 August 2017 £522.20 Week commencing 4 September 2017 £122.80 Total £1,261.29Conclusions
[16]Despite the time given to the parties, no further documentation of any assistance has been provided to the tribunal. However, the tribunal has not seen any documentation to show that £250 was incorrectly deducted from the claimant’s wages. What it has seen is two payslips showing that he was paid £623.99 and £306 respectively. It has seen that the parties communicated by text message and has concerns about the email that was produced at a late stage purporting to be from Mr Buck.[17]The respondent did have an entitlement to deduct from pay due to the claimant the cost of the damage to their lorry. That exceeded the amount of wages that were due and payable to the claimant. There is therefore, no unauthorised deduction. The respondent’s costs application[18]It was submitted on behalf of the respondent that the claims had been vexatious and that he had travelled from Southampton where he had been working to attend this hearing. He had had to incur costs in his office of help for preparing for the hearing. He had produced invoices from Driver Base, accounts department showing: for week ending 31 March 2018, one hour spent at a charge of £625 plus VAT, being a total invoice of £750 and then another invoice for week ending 3 August 2018 for the same amount. There was also an invoice of the same amount for week ending 6 April 2017. Mr Buck explained that the charges were three days’ time for a nine hour day in preparation for this case.[19]It was explained that the Employment Tribunal Rules only allow for preparation time which would be limited to £38 per hour.[20]The claimant explained he was working as a driver but his hours varied, earning a maximum of up to £800 per week. It was not regular work. He had debts of £5,000. He lives in a camper van paying £200 per month. He sends money to Bulgaria monthly when he can. He pays approximately £500 to Lloyds bank for his debts.[21]In the circumstances of this case and in view of the lack of documentation from not only the claimant, but also the respondent, it cannot be accepted that time of three days at nine hours a day has been incurred in preparing for this matter. The claimant genuinely believed that monies were due to him and the fact that he has not succeeded does not mean that the claim was unreasonable, vexatious or misconceived. The tribunal is not prepared in all the circumstances of this case to entertain the respondent’s application.