Alexandra Szabo v Pannonia Care Ltd: 3307479/2018
JUDGMENT
[1]The claimant was a worker within the meaning of s. 230(3)(b) of the Employment Rights Act 1996 employed by the respondent as a Live-in Care Worker between 25 May 2017 and 6 April 2018.[2]The claimant’s claims for an unlawful deduction of wages in respect of holiday pay for the periods prior to 3 November 2017 are out of time.[3]The respondent made an unlawful deduction from the claimant’s wages in respect of accrued holiday pay for the period from 3 November 2017 to 6 April 2018.[4]The amount of accrued holiday outstanding on 6 April 2018 was 11.9 days.[5]The respondent is ordered to pay the claimant the sum of £1071 by way of wages in respect of accrued holiday. This sum is a gross sum, the respondent may deduct any tax or national insurance it is liable to pay and pay those sums direct to the appropriate authorities.REASONS
[1]In a claim presented on 28 May 2018, the Claimant made a claim in respect of holiday pay. She alleged that she had worked for the Respondent as a live-in care worker between 25 May 2017 and 6 April 2018. The Respondent denied the claim and alleged that the Claimant was a self-employed person so that the right to holiday and holiday pay did not arise.[2]The Claimant did not attend the hearing but I had a witness statement from her dated 11 September 2018 which I took into account. The Respondent agreed with most of its contents.The issues
[3]The issues for me to determine were:-3.1 Whether the Claimant was a worker employed by the Respondent within the meaning of section 230(3) of the Employment Rights Act (“ERA”)1996;3.2 Whether the Respondent made an unlawful deduction from the Claimant’s wages by failing to pay her the holiday pay to which she was entitled and, if so:3.3 Whether any part of the claim is out of time; Case No: 3307479/2018 (R) Page 2 of 43.4 The amount of any unlawful deduction that the Respondent should be ordered to pay the Claimant.[4]I heard evidence on behalf of the Respondent from Ms Timea Zuranyi who is a manager employed by the Respondent.Findings of fact
[5]I made the following findings of fact:-5.1 The Claimant was engaged by the Respondent as a live-in care worker with effect from 25 May 2017. At the outset of her employment, she was given a contract of employment but later, the Respondent told the Claimant that she was going to work as a selfemployed person. The Claimant was paid wages in the sum of £85 per day until 1 February 2018 from which time she was paid wages in the sum of £90 per day. The Claimant was responsible for her own tax and national insurance and was content with that state of affairs.5.2 The Claimant worked seven days a week. She lived in the home of a specific client, Mrs Carole Ann Gibbs who died on 6 April 2018. She had two hours off per day and was entitled to eight hours of sleep per night.5.3 The Claimant was not entitled to send a substitute to do her job and was required to deliver personal service.5.4 The Respondent chooses the care workers who are deployed to its clients. They need to be trained and DSB checked.5.5 The Claimant was expected to be available to care for Mrs Gibbs except when sleeping or on her breaks. She was not free to supply services to any other client when she was engaged to care for Mrs Gibbs and indeed, living in her house.5.6 The Claimant is Hungarian.5.7 The Claimant went on holiday to Hungary twice during the period of her employment. The first occasion was between 3 July 2017 and 2 August 2017. The second occasion was from 9 September 2017 until 2 November 2017.5.8 The contract between the Claimant and the Respondent subsisted until Mrs Gibbs’ death on 6 April 2018. It subsisted for the entirety of this period notwithstanding the Claimant’s holidays in Hungary. Submissions[6]On behalf of the parties:-6.1 The Claimant did not attend the hearing and accordingly I took into Case No: 3307479/2018 (R) Page 3 of 4 account her written representations (her statement).6.2 On behalf of the Respondent, it was submitted that the Claimant was self-employed. She agreed to be self-employed and she was supposed to pay her own tax and national insurance. She did not receive any payslips.The Law
[1]Section 230(3) of the ERA provides “(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.”[2]Claims in respect of holiday pay are enforced through Part II of the ERA. The time limit for bringing claims is 3 months from the date of the deduction – s. 23(2)Conclusions
[3]I had absolutely no hesitation in finding that the Claimant was a worker within the meaning of section 230(3) of the ERA. She was required to personally deliver her services as a live-in care worker and was not entitled to send a substitute. Indeed, it was critical to the Respondent’s operation that the individuals it deploys into clients’ homes are properly trained and checked. If a substitute was to be sent in - for example during the holidays, it is the Respondent’s job to choose that substitute.[4]The Claimant was not in business on her own account. She had no time to provide services to anybody else and she devoted her entire time and attention save when sleeping or during her two-hour daily breaks to caring for Mrs Gibbs.[5]The Claimant worked seven days a week and did not therefore have time during the week to go out and provide services to other customers. The Claimant was clearly a worker engaged by the Respondent.[6]The Claimant took a holiday between 3 July 2017 and 2 August 2017. By that time, she had worked for about 6.5 weeks and was entitled to three days’ paid holiday. She was not paid. However, she did not bring her claim to the Employment Tribunal until 28 May 2018 by which time her claim in Case No: 3307479/2018 (R) Page 4 of 4 respect of that three days’ paid holiday she was entitled to was significantly out of time.[7]The next holiday the Claimant took was from 9 September 2017 until 2 November 2017 by which time she was entitled to 2.9 more days of accrued holiday. She was not given any holiday pay. However, again, her claim in respect of that holiday pay was out of time as the claim was not presented until 28 May 2018 which was outside the three-month limitation period.[8]The Claimant returned to work from her most recent holiday on 3 November 2017 when she worked continuously until 6 April 2018. During that period, she accrued 11.9 days of holiday. When the Claimant’s employment by the Respondent finished on 6 April 2018, she was not given any payment in respect of accrued holiday pay.[9]The Claimant was entitled to a payment in respect of accrued holiday pay in the sum of £1,071 (11.9 days X £90 per day). This is a gross sum. The Respondent may make any payments that are required to be made in respect of tax and/or national insurance to the appropriate authorities and deducted any such payments from the sum to be paid to the Claimant.