Mr R Ainsworth v Take Me Home James Ltd: 3311181/2023
JUDGMENT
[1]The complaint that the Respondent made an unauthorised deduction from wages on 31 May 2023 is well-founded. The Respondent made an unauthorised deduction of £550 from the Claimant's wages on 31 May 2023.[2]The complaint that the Respondent made an unauthorised deduction from wages in the period 15 May to 21 May 2023 is not well-founded.[3]The complaint that the Respondent made an unauthorised deduction from wages in the period 1 June to 3 June 2023 is well-founded. The Respondent made an unauthorised deduction of £346.16 in the period 1 June to 3 June 2023.[4]The complaint that the Respondent made an unauthorised deduction from wages in the period 5 June to 15 June 2023 is not well-founded.[5]The complaint that the Respondent failed to provide an itemised pay statement for the month of June 2023 is well-founded.[6]The Respondent shall pay the Claimant £896.16, which is the gross sum deducted. The Claimant is responsible for the payment of any tax or National Insurance.REASONS
[1]The Claimant, Robert Ainsworth, was employed by the Respondent, Take Me Home James Ltd. The Claimant claims unauthorised deductions from his wages. He also complains that he did not receive an itemised pay statement for June 2023. Issues before the Tribunal[2]At the beginning of the hearing, I discussed the issues with the parties. These had been previously identified by Employment Judge Anderson at a Preliminary Hearing on 23 July 2024 and refined by Employment Judge Warren at a Preliminary Hearing on 12 September 2024.[3]The Claimant claims there were four deductions from his wages:(a) £550.00 deducted on 31 May 2023. Both parties agree the reason for the deduction was to cover damage to a vehicle used by the Respondent (though owned by Mr Hurn’s wife, Sally Davey) caused when the Claimant was driving. The issue between the parties is whether this deduction was an authorised deduction.(b) £576.92 in respect of the period 15 - 21 May 2023. Both parties agree that the Claimant did not work on these dates. The issue between the parties is whether he was entitled to be paid.(c) £1,153.38 in respect of the period 5 - 15 June 2023. Both parties agree that the Claimant did not work on these dates. The issue between the parties is whether he was entitled to be paid.(d) £346.14 in respect of the period 1 - 3 June 2023. Both parties agreed that the Claimant worked on these dates but that he was not paid. Before Employment Judge Warren and at the commencement of this hearing, the Respondent said that the reason the Claimant was not paid was a prior (verbal) agreement that the Respondent could retain the Claimant’s wages if he was ever unable to work due to excessive consumption of alcohol. In his witness statement, and when giving oral evidence on oath, Mr Hurn said that the reason was to cover further damage to a vehicle used by the Respondent but owned by Sally Davey. The issue to be determined is therefore whether there was an authorised deduction from the wages that would otherwise be due for this period.[4]The Claimant also complained that he did not receive a payslip for June 2023. There was a payslip for June 2023 contained within the bundle showing a deduction of £346.14. The Claimant says that he did not receive this at the relevant time but only during these proceedings, in or around August 2024. The Respondent says that it was sent at the relevant time by their payroll company.The Evidence
[5]Having discussed the issues, I asked the parties to confirm which evidence in the bundle was relevant to those issues. We agreed that I would read the Witness Statements of the Claimant, Mr Hurn, Sally Davey and George Cornhill. Neither Sally Davey nor George Cornhill had signed their statements, neither contained a Statement of Truth and neither were present to give sworn evidence so I explained to the parties that their evidence would carry less weight than that of the witnesses who were present to give sworn evidence.[6]We further agreed that the contract of employment at pages 32 – 45 of the bundle and the “subcontract” at pages 46 - 47 of the bundle were relevant. I also agreed to read those text messages at pages 51 - 71 of the bundle as were dated on or around the periods of the Claimant’s absences from work between 15 – 21 May and 5 - 15 June 2023.[7]I heard sworn evidence from the Claimant and from Mr Hurn for the Respondent.The law
[8]Section 8 of the Employment Rights Act 1996 provides that(1) A worker has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.(2) The statement shall contain particulars of (a) the gross amount of the wages or salary, (b) the amounts of any variable, and (subject to section 9) any fixed, deductions from that gross amount and the purposes for which they are made, (c) the net amount of wages or salary payable, ...[9]Section 11 provides that (1) Where an employer does not give a worker a statement as required by section 1, 4 or 8 (either because the employer gives the worker no statement or because the statement the employer gives does not comply with what is required), the worker may require a reference to be made to an employment tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the section concerned. …[10]Section 13 provides that(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.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified. …[11]Section 23 provides that (1) A worker may present a complaint to an employment tribunal (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)) …[12]Section 24 provides that (1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13, …Findings of Fact
[13]The Claimant’s contract of employment is contained at pages 32 – 45. Clause 11 authorises the Respondent to make deductions from the Claimant’s wages where this is required by law. Clause 28 confirms that he was not entitled to pay when sick other than any entitlement to Statutory Sick Pay. Clauses 62 and 63 authorise the Respondent to deduct £55 per month to cover the costs of obtaining a private hire badge where the employee terminates their employment within a year of employment commencing.[14]Mr Hurn gave evidence that the “subcontract” contained at pages 46 – 47 of the bundle formed part of the Claimant’s contract of employment and was handed to the Claimant on the first day of his employment. He described it sitting immediately before the signature page at 43 of the bundle. This “subcontract” is between Sally Davey (Mr Hurn’s wife) and the Respondent and confirms, among other things, that the Respondent’s employees can use three vehicles belonging to her but that the Respondent must reimburse her for any damage caused by its employees and that “This contract will be shown to any future employees at every job interview held by James Hurn/Sally Davey and in doing so if said candidate is employed by the company they will have agreed to the terms of this contract. Take Me Home James Ltd promise Sally Davey that any monies owed to her by an employee of the company will be paid back on a monthly basis from said employees' payslips after having agreed with said employee and gaining their consent to do so.”[15]The Claimant said that he had not signed the subcontract and said that it was not part of the contract of employment he had signed. He said that he had been given the contract of employment at pages 32 – 45 during his interview, which he then signed and returned on his first day of work, but that this did not include the subcontract. He could not remember whether or not he had been shown the subcontract at his job interview.[16]I preferred the evidence of the Claimant on this point: the subcontract was not contained within the contract of employment provided to him. In making this finding, I took account of the following:(a) when considering the totality of the evidence on this and other points, the Claimant gave evidence openly and made appropriate concessions;(b) in contrast, Mr Hurn was inconsistent in respect of the explanation for the fourth deduction, and when this was pointed out to him he denied that he had ever told Employment Judge Warren, or indeed me, that the fourth deduction was made because of the Claimant being unable to work due to excessive alcohol consumption;(c) the contract of employment does not refer to the subcontract; and(d) the subcontract does not appear between pages 42 and 43 of the bundle, as described by Mr Hurn in evidence, but has been placed in the bundle as a separate document.[17]The parties agreed that the reason for the deduction of £550.00 on 31 May 2023 was to cover damage caused by the Claimant to one of Sally Davey’s vehicles. No such deduction was authorised by the Claimant’s contract of employment because the subcontract did not form part of the Claimant's contract of employment. The Respondent adduced no evidence of any other prior written agreement authorising such a deduction.[18]The parties agreed that the Claimant was not able to work during the period 15 – 21 May 2023. It is agreed that the Claimant suffered a head injury on 14 May after falling when intoxicated. The text message from 14 May refers to a headache and then asks for shifts to be rearranged. The Claimant adduced no evidence to show that the reason he was unable to work beyond 14 May was because he was sick. I am not satisfied that this was the reason he was unable to work between 15 – 21 May.[19]The parties agreed that the Claimant worked between 1 – 3 June 2023 but that he was not paid. The Respondent has provided two different explanations:(a) To Judge Warren on 12 September and again when discussing the issues at the commencement of the hearing, Mr Hurn said that there was an agreement to retain pay if the Claimant was ever unable to work due to excessive consumption of alcohol; and(b) On oath, Mr Hurn said that this is a mistake and that the reason was further vehicle damage that would otherwise have been deducted in instalments but the full amount of wages owed to the Claimant at the time of his dismissal was taken instead.[20]The Respondent adduced no evidence of prior written agreement to make a deduction if the Claimant was ever unable to work due to alcohol abuse. No such deduction was authorised by the Claimant’s contract of employment.[21]As above, no provision of the contract of employment authorised a deduction to cover vehicle damage. The Respondent adduced no evidence of any other prior written agreement authorising such a deduction.[22]The parties agreed that the Claimant was not able to work during the period 5 – 15 June 2023. The Claimant says that this was due to alcohol abuse. The Respondent agrees. The Claimant describes the alcohol abuse as sickness but he has not adduced any evidence of sickness during this period. The period exceeds 7 days and so would require a fit note for Statutory Sick Pay to be payable. The Claimant has not produced one. I am not satisfied that the reason he was unable to work between 5 – 15 June was because he was sick.[23]The Respondent adduced no evidence that the Claimant was sent his payslip in June 2023. The Claimant was clear that he did not receive it at that time but only during the course of these proceedings. I find as a fact that the payslip was not sent at the relevant time but provided to the Claimant during the course of these proceedings. Conclusions The First Deduction - £550.00 deducted on 31 May 2023Conclusions
[24]The subcontract at pages 46 – 47 of the bundle was not incorporated into the Claimant’s contract of employment. The contract of employment did not therefore authorise deductions for damage caused by the Claimant to vehicles used by the Respondent and owned by Sally Davey. Whatever may or may not have been agreed verbally, the Claimant had not previously signified his agreement or consent to the deduction in writing. The deduction was therefore an unauthorised deduction. The Second Deduction - £576.92 for the period 15 – 21 May 2023[25]The Claimant’s contract of employment confirms that he was not entitled to be paid when he was not able to work other than if he qualified for Statutory Sick Pay. I am not satisfied that the Claimant was entitled to Statutory Sick Pay for this period. He has adduced no evidence that he was sick during this period. The Claimant was not therefore entitled to be paid for the days he was not able to work. There was no deduction from his wages for this period. The Third Deduction - £1,153.38 for the period 5-15 June 2023[26]I repeat my earlier findings: the Claimant was not entitled to pay when he was not able to work other than if he qualified for Statutory Sick Pay. I am not satisfied that he was entitled to Statutory Sick Pay for this period because he has adduced no evidence of sickness; in particular there is no fit note. I therefore find that the Respondent was not obliged to pay the Claimant for this period and that therefore there was no unlawful deduction from wages for this period. The Fourth Deduction - £346.16 for the period 1-3 June 2023[27]The Claimant was entitled to be paid for this period, during which he worked. There was no prior written agreement to make a deduction in either of the circumstances described by the Respondent as being the reason for the deduction; neither was it authorised by the Claimant’s contract of employment. This was therefore an unlawful deduction from his wages. Itemised Pay Statement[28]The Respondent did not comply with their duty to provide an itemised pay statement for the month of June 2023 at the relevant time.[29]Nevertheless, during the course of these proceedings, they sent the Claimant a pay statement that records a deduction of £346.14, which is the deduction identified above as the fourth deduction and for which the Claimant is to be awarded compensation. I confirm that they are the correct particulars.[30]It is not just and equitable to award the Claimant any further compensation. Approved by: