M Wallace v Richford Motor Services Ltd: 3314586/2023
JUDGMENT
[1]The claimant’s claim of unpaid holiday pay is upheld in part.[2]The claimant’s claim of unauthorised deductions from wages for missing hours and payment of a penalty charge notice are dismissed.[3]The claimant’s claim that the respondent should reimburse him for a second penalty charge notice (breach of contract) is dismissed.[4]The respondent is ordered to pay the claimant the sum of £220.98 (less any deductions for tax and national insurance) within 14 days of the date that this order is sent to the parties.REASONS
[1]The claimant brings a claim, as set out in his claim form, for compensation for ‘missing hours my holiday pay my P45 and my apparent fine’. The claimant was employed as a heavy goods vehicle driver by the respondent, most recently from 18 July to 26 November 20203 when he resigned. The respondent’s defence is that the claimant is owed no money and his conduct at work has caused them to incur costs.The Hearing
[2]The claimant attended as a litigant in person. Mr McCrossan of counsel represented the respondent. Cain Saunders attended as witness for the respondent. The claimant did not file a witness statement. Mr Saunders filed a witness statement. The claimant and Mr Saunders gave evidence on oath at the hearing. I had before me a bundle of documents compiled by the respondent, a copy of an employment contract for a period of employment commencing April 2023, a skeleton argument and chronology from the respondent, the client’s email in response to the skeleton argument.[3]The claimant said that there were photographs he had supplied to the respondent not included in the bundle. It was agreed that the hearing would proceed without these photographs and the matter would be addressed if it became an issue. The matter did not come up again during the hearing.[4]The claimant did not have a copy of the bundle before him. He said that he could open up his old laptop but he had not accessed it for years. He seemed reluctant to do so. The claimant said that he had read the bundle, was familiar with its contents and could proceed without it in front of him. Mr McCrossan said that he was in agreement, and he could read documents to the claimant where necessary. I decided that as this was a wages claim listed for two hours the hearing could commence but that if it became clear that the claimant was disadvantaged an adjournment would be necessary.[5]During the hearing the claimant said that he also did not have a copy of Mr Cain’s witness statement in front of him. He said he had read it and knew what he wanted to say. I insisted that the claimant obtain a copy of the witness statement before cross examination commenced. A short adjournment was taken to facilitate this.[6]I explained to the claimant how the hearing would proceed. The claimant was visibly irritated throughout the hearing by the procedure followed and said on more than one occasion that there was no need for a hearing as the tribunal should have simply read the papers and decided in his favour.[7]Discussions on documents, reading, witness evidence and closing submissions took up the two hours allocated for the hearing, and I reserved judgment.[8]The respondent disputed the claimant’s claim of unpaid holiday but had not set out what it considered his holiday entitlement to be for the part of the year he worked or why. Mr McCrossan did not have instructions on that matter. I thought that the information was likely to be relevant to the decision I needed to make and I ordered that it be supplied by 4pm on Friday 26 July 2024. I told the claimant that if he wished to comment on the information provided by the respondent he had until 4pm on Monday 29 July 2024.[9]Rather than send a clear explanation of what it believed was taken or owed in terms of holiday pay, which was what I had asked for, the respondent sent three print outs of the government calculator, all showing different figures. The claimant did not make any comment on those documents.[10]The claimant sent further documents, mainly pay slips, after the hearing in a number of emails. He had no permission to do so. He had permission only to comment on the information provided by the respondent in answer to my query and I have not taken those emails or any attachments to them into account in reaching my decision. Relevant Facts[11]The claimant was first employed by the respondent from 12 April 2023. He gave notice on 31 May 2023. He said he would work the remaining shifts. It is not clear what these shifts were, but I find, based on the documentary evidence provided of the WhatsApp conversation between the claimant and Mr Saunders on 31 May 2023 and 1 June 2023, as well as the fact that the claimant gave notice the second time he resigned, that the claimant gave notice in accordance with his contract, i.e.one week.[12]When the claimant commenced employment with the respondent on 12 April 2023 he signed a contract under which his notice terms were that as a weekly paid employee, his notice period was 1 week.[13]The claimant was employed for a second time by the respondent commencing on 18 July 2023. This was a separate period of employment and not a continuation of the earlier period of employment.[14]The respondent’s position is that the claimant signed a new contract with different terms. Mr Saunder’s evidence was that the respondent had been unable to locate the contract. It is the respondent’s position that the new contract included a clause that the notice period for weekly workers was now one month.[15]I find that no new contract was issued. I find that the claimant was employed on an increased hourly rate of £14.50 per hour as set out in the WhatsApp conversation between the claimant and the respondent dated 1 June 2023. I find that the claimant understood himself to be otherwise employed under the same contract terms as set out in the contract dated 12 April 2023 and I find that he was employed under those terms.[16]A penalty charge notice (PCN) was issued on 3 August 2023 for a parking contravention that took place on 29 July 2023 while the claimant was driving the vehicle in question. The respondent paid the charge and deducted the sum of £60 in respect of that charge from the claimant’s wages on 25 August 2023. It was entitled to do so under the terms of his contract. It was this PCN that the respondent understood the claimant to have raised in his ET1.[17]Another PCN was issued for a contravention on 15 August 2023 that was not paid by the respondent or the claimant, and enforcement action by the relevant body is now being pursued against the claimant. Mr Saunders said that sometimes the respondent requests that PCNs are redirected to the drivers, but he could not say what had happened in this instance. I was not provided with a copy of the original PCN to which the county court claim referred.[18]Under the terms of the claimant’s employment contract the respondent is authorised to deduct sums for PCNs that it pays out, but the contract is silent on whether the employer will always pay a PCN and recoup the charge from the employee.[19]The claimant gave notice on 26 November 2023 of his intention to resign the following Friday. It would appear then that his last day of employment should be 1 December 2023. However, the claimant gives his last day of employment as 26 November 2023, and notes that he commenced a new job on 1 December 2023. The respondent does not give a date for the end of employment in its ET3 or grounds. The P45 gives a final date of 26 November 2023.[20]I find that the claimant gave one week notice in accordance with his contract on 26 November 2023. I have no information about whether that notice was worked and if not why not, but I find from the claimant’s evidence and the P45 that the claimant’s last day of employment was 26 November 2023. It was not suggested by the respondent that the claimant gave notice and then refused to work it.[21]The claimant was entitled to 28 days holiday in accordance with his contract. He was paid for 5.8 days holiday during his second period of employment. Mr Saunders confirmed that the claimant worked a 42 hour week, though this was by way of a four on/four off shift pattern. Shifts were 12 hours. His hourly rate was £14.50. There is no contractual right to payment in lieu of accrued but untaken holiday.[22]The calculation of 5.8 days on termination was reached by using the government holiday pay calculator and a termination date of 2 November 2023. On using the correct termination date of 26 November 2023, the accrued holiday figure is 7.07 days (or 7.07 12 hour shifts) as set out in the copy of the government calculator disclosed by the respondent which shows the correct termination date.[23]The respondent raised in its pleadings and witness evidence that the claimant had caused damage to vehicles, and it had therefore incurred costs that it had a right to deduct from his wages. The claimant denied this. The respondent did not deduct those costs from his wages. Nor did it bring a counterclaim.The law
[24]Employment Rights Act 1996 s13. Right not to suffer unauthorised deductions.(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.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.[25]Working Time Regulations 1998 13. Entitlement to annual leave(1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. … 13A Entitlement to additional annual leave (1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).(2) The period of additional leave to which a worker is entitled under paragraph (1) is— … (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks.(3) The aggregate entitlement provided for in paragraph and regulation 13(1) is subject to a maximum of 28 days.(4) A worker's leave year begins for the purposes of this regulation on the same date as the worker's leave year begins for the purposes of regulation 13.(5) Where the date on which a worker's employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. 14.— Compensation related to entitlement to leave (1) Paragraphs (1) to (4) of this regulation apply where (a) a worker's employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under [regulations 13(1) and 13A(1)]2 differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) The payment due under paragraph (2) shall be– (a) such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula– (A × B) − C where– A is the period of leave to which the worker is entitled under [regulation 13]3[ and regulation 13A]4; B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. Decision and Reasons Missing hours[26]The claimant made no reference to missing hours when he outlined his claim to me or during his cross examination of Mr Saunders. Mr McCrossan took the claimant to a document concerning missing hours which he said related to the first period of employment and showed that a complaint had been raised by the claimant and the matter had been addressed. The claimant agreed. I have therefore given no further consideration to the matter of missing hours. Holiday Pay[27]The claimant said he had read on his pay slips that he had 14.5 days holiday left on termination of his contract, and he was pursuing payment for those 14.5 days. He said this had been shown on his pay slip but the respondent had filed different payslips without that information in it. The payment slips before me show that the claimant was paid at £14.50 an hour. This is no other reference on the pay slips to holidays other than where holidays have been taken and paid. It may be that the claimant received pay slips which referred to his outstanding balance of holiday for the remaining holiday or financial year. This does not mean that he was entitled to be paid for all of the outstanding holiday on resignation, if he resigned part way through the holiday or financial year. The claimant is entitled to 28 days per annum holiday under his contract. He agreed that he had taken and been paid for 5.8 days. He worked for a period of four and a half months. I can see no basis on which he would then be due payment for a further 14.5 days holiday on termination.[28]Under the Working time Regulations 1998 a full time employee is entitled to 5.6 weeks or 28 days annual leave and if leave is accrued but untaken at the time of resignation then payment in lieu should be made. The claimant had taken and been paid for 5.8 days leave on the effective date of termination which was 26 November 2023. On the basis of the calculations provided by the respondent, the claimant had accrued 7.07 days or shifts (a shift being 12 hours) in holidays by 26 November 2023 and not 5.79. This is clear from the calculation documents provided. The figure of 5.79 is arrived at when a termination date of 2 November 2023 is used. The termination date as agreed between the parties was 26 November 2023. The claimant is therefore owed 1.27 days holidays (7.07 less 5.8 already paid). One holiday day pay is 12 hours (as set out in the government calculator documents provided by the respondent) and the hourly rate is £14.50. Therefore, the figure owing for 1.27 days of unpaid holiday is £220.98 gross.[29]The claimant’s claim of unpaid holiday pay is partly upheld in the sum of £220.98. The Penalty Charge Notices[30]The claimant’s case was that the respondent should have paid the penalty charge notice or the charge incurred as a result of a contravention on 15 August 2023, and as it had not and the cost of that PCN had now risen to in excess of £200, it should either pay it or reimburse him for it. There is nothing in the contract to support the claimant’s claim that it was the contractual obligation of the respondent to pay the PCN when it arose. I have taken note of the fact that it paid an earlier PCN but I was provided with very little information from either party about the second PCN and cannot conclude that there was a usual course of conduct which would lead to an expectation on the claimant’s part, in these circumstances. Any claim about monies owed to the claimant in respect of the second PCN is dismissed. The respondent had, under the terms of the contract, and so in accordance with s13 Employment Rights Act 1996, the right to deduct money it paid out for PCNs from the claimant’s wages. The claim of unauthorised deduction of the PCN fee is dismissed. Notice and damage to vehicles.[31]I have found that the claimant did give notice when he resigned however, I do not find that this is relevant to the decision I have to make. The respondent could have exercised any rights it believed it had under the claimant’s contract to deduct wages for damages due to notice not being given, or damage to vehicles, but it did not do so. The respondent could have issued a counterclaim if it felt it had the grounds to do so. It did not.[32]The claimant’s claim is one of unauthorised deductions from wages and set off is not relevant to such a claim.