Mr G Dias v Total Facilities Recruitment Ltd and Clipper Contracting Group Ltd: 3315327/2023
JUDGMENT
[1]The first respondent has made unauthorised deductions form the claimant’s wages and is ordered to pay him the gross sum of £538.84 (subject to tax and National Insurance). The claimant is to give credit for the net sum of £370.89 already paid to him.[2]The claimant’s other claims of breach of contract (notice pay), unauthorised deductions of wages and for holiday pay against the first and second respondents are dismissed.[3]For the avoidance of doubt, the claimant’s claims for ‘discrimination’ and for a redundancy payment against the first respondent and/or the second respondent are dismissed.REASONS
[1]The claimant was employed (claimant’s case) or engaged under a contract for service (first respondent’s case) on 3 October 2023. Although it is the second respondent’s case that the claimant was employed by the second respondent from 12 October 2023, it is the claimant’s case that he had nothing to do with the second respondent save to receive a payment from it.[2]By a claim form presented on 29 December 2023, following a period of early conciliation from 29 November to 1 December 2023, the claimant brings complaints of unauthorised deduction of wages, breach of contract, a claim for accrued holiday pay and claims of “discrimination” and for a redundancy payment. Despite being given an opportunity to explain any discrimination claim, the claimant did not advance any such case. Further, the claimant does not have the requisite two years continuous service to qualify for a redundancy payment. Consequently, the discrimination and redundance payment claims have not proceeded. For the avoidance of doubt, they have been dismissed. The respondents defend the claims.The law
[3]Section 13 of the Employment Rights Act 1996 provides as follows:- “13 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.”[4]Section 27 of the Employment Rights Act 1996 provides as follows:- “27 Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, …”The issues
[5]Has either respondent subjected the claimant to unauthorised deductions from his wages?The evidence
[6]I was provided with a principal hearing bundle running to 159 pages. I also had a first supplementary bundle running to 27 pages and a claimant’s supplementary bundle running to 47 pages.[7]I had an opening note and authorities from Ms Jabir.[8]I had witness statements and heard evidence from the following:(i) The claimant(ii) Ms Louise Walsh, Director and co-founder of the first respondent.(iii) Mr Robert Wilks, Managing Director of the second respondent.The facts
[9]As its name suggests, the first respondent is a recruitment agency.[10]Robert Wilks describes the second respondent as an umbrella payroll business. He states that it engages workers both on an employed and a self-employed basis, facilitating the process of contracting through multiple recruitment agencies.[11]Louise Walsh states that if a candidate is approved for an assignment by one of the first respondent’s clients and the candidate will be paid at least £14.55 per hour during the assignment, they are employed by one of the umbrella companys the first respondent works with, and that company would deal with the administration of the candidates pay and other employment benefits. Be that as it may, the claimant did not know of such an arrangement, and it rather begs the question as to why the first respondent entered into an agreement with the claimant.[12]On 21 September 2023, the first respondent posted an advert for a job as a Catering Supervisor. The advert referenced “Pay £20.50 - £24.00 an hour”. The job was described as “Temporary contract, temp to perm, full time.”[13]On 21 September 2023, the claimant was contacted on the basis of his profile and invited to apply for the position.[14]On 24 September 2023, the claimant applied submitting his application and his CV.[15]Thereafter the claimant dealt with someone called Pheobe Ilott at the first respondent. They communicated principally by WhatsApp messaging.[16]On 25 September 2023, following a telephone call, the claimant was requested to submit a number of documents which included a Food Safety Level 4 Certificate. The message set out the job description as Catering Manager at Watford General Hospital and the hourly rate was £20.46 per hour.[17]The claimant attended for an interview at Watford General Hospital on 26 September 2023.[18]Also on 26 September 2023 the claimant was sent a number of documents which included a contract for services and a key information document.[19]The claimant passed the interview and on 28 September 2023 his position was confirmed as Catering Manager and a WhatsApp message again reiterated that the pay rate was £20.46 per hour. The start date was 4 October 2023.[20]On 3 October 2023, the claimant was asked to start at 9am the following day.[21]On 3 October 2023, the claimant returned the contract for services and key information documents stating that he had completed all the documents. The initial key information document had his hourly rate as £10.42 and the claimant changed this to “£20.50 per hour for the first six months raising to £24.00 per hour with a min of 40 hours per week”.[22]The claimant readily accepted that he entered into the contract for services with the first respondent.[23]On both key information documents there is the following information:- “Name of employment business: Total Facilities Recruitment Ltd Your employer: N/A Type of contract you will be engaged under: Contract for services.”[24]The terms of engagement for agency workers (contract for services) provides as follows:- “1. Definitions and interpretation “Actual rate of pay” Means, unless and until the agency worker has completed the qualifying period, the rate of pay which will be paid for each hour worked during an assignment (to the nearest quarter hour) weekly in arrears, subject to deductions and any agreed deductions, as set out in the relevant assignment schedule: “Agency worker” Means the individual supplied by Total Facilities recruitment Ltd to provide services to the hirer; “Hirer” Means the person, firm or corporate body together with any subsidiary or associated person, firm or corporate body (as the case may be) to whom the agency worker is supplied or introduced; … 2. The contract2.1 These terms constitute the entire agreement between Total Facilities Recruitment Ltd and the agency worker for the supply of services to the hirer and they shall govern all assignments undertaken by the agency worker. However, no contract shall exist between Total Facilities Recruitment Ltd and the agency worker between assignments.2.2 During an assignment the agency worker will be engaged on a contract for service by Total Facilities Recruitment Ltd on these terms. For the avoidance of doubt, the agency worker is not an employee of Total Facilities Recruitment Ltd although Total Facilities Recruitment Ltd shall made deductions form the agency worker’s pay. These terms shall not give rise to a contract of employment between Total Facilities Recruitment Ltd and the agency worker, or the agency worker and the hirer. The agency worker is supplied as a worker, and is entitled to certain statutory rights, but nothing in these terms shall be construed as giving the agency worker rights to in addition to those provided by statute except where expressly stated. … 2.4 Total Facilities Recruitment Ltd shall act as an employment business (as defined in section 13(3) of the Employment Agency Act 1973 (as amended) when introducing or supplying the agency worker for assignment with its hirers. 3. Assignments and Information to be provided.3.1 Total Facilities Recruitment Ltd will endeavor to obtain suitable assignments for the agency worker to perform the agreed type of work. The agency worker shall not be obliged to accept any assignment offered by Total Facilities Recruitment Ltd.3.2 The agency worker acknowledges that the nature of temporary work means that there may be periods when no suitable work is available and agrees that: … 3.2.2 Total Facilities Recruitment Ltd shall incur no liability to the agency worker should it fail to offer assignments of the type of work or any other work. 5. Timesheets … 5.3 Where the agency worker fails to submit a properly authenticated timesheet Total Facilities Recruitment Ltd shall, in a timely fashion, conduct further investigations into he hours claimed by the agency worker and the reasons that the hirer has refused to sign a timesheet in respect of those hours. 9. Termination 9.1 Subject to any provisions in the relevant assignment schedule, any of Total Facilities Recruitment Ltd, the agency worker or the hirer may terminate the agency worker’s assignment at any time without prior notice or liability.”[25]The claimant’s case is fundamentally that he entered into a contract of employment with the first respondent. He seeks to advance an argument that he was guaranteed 40 hours per week for six months. I find that the claimant did not enter into a contract of employment with the first respondent. I find that it was an agreement for the claimant to be placed by the respondent as an agency worker for a hirer. Consequently, I find that the claimant was not employed for a guaranteed period of 6 months with 40 hours per week guaranteed.[26]On 4 October 2023, the claimant was messaged as follows:- “Hi Grenville, I really need your Level 4 Food Safety to pass over to the client Please can you try and get the copy asap.”[27]At 17.26 on 4 October 2023, a message from MITIE (the hirer) was passed to Phoebe Ilott as follow:- “We have received the below from manager: “Can I please reiterate the importance on Grenville Dias L4 certificate. Would you please be able to chase for this and request submission by tomorrow please.””[28]As a result of that, Phoebe Ilott WhatsApped the claimant to state:- “Ok great we really need it. Please try aim to get a copy by tomorrow as they want it then.”[29]And later: “Well as mentioned at the start of this a Level 4 is required. Are you able to get a copy of your original one you done.”[30]At 8.20am on 5 October 2023, MITIE emailed Phoebe Ilott as follows:- “Can I please reiterate the importance on Grenville Dias L4 certificate. Would you please be able to chase for this and request submission by tomorrow please.”[31]On the back of that, Phoebe Ilott WhatsApped the claimant:- “Any updates with the certificate. We urgently need it.”[32]At 4.34 MITIE contacted Phoebe Ilott as follows:- “We have requested the below from the manager: “Please chase as a matter of urgency as if Grenville fails to produced confirmation of his qualification by 5pm tomorrow he won’t be able to continue with us.”[33]On the back of that Phoebe Ilott WhatsApped the claimant again:- “Hi Grenville. I know we just spoke on the phone but we urgently need the qualification by 5pm tomorrow.”[34]On 6 October 2023 at 07.03, the claimant was messaged:- “Ok we urgently need this certificate.[35]And at 09.33: “Please try to get the certificate as this is what the role requires.”[36]At 4.15 on 6 October Mitie emailed Phoebe Ilott as follows:- “We have received the below update from the manager: “We had to send Grenville home without pay today as we cannot confirm his credentials.”[37]The claimant accepts that he was told by Phoebe Ilott not to go in thereafter. The claimant disputes that he was told to go home by a Mitie/Watford General Hospital manager. I find that the email is probably accurate, and he was told to go home by a manager because he had not produced his L4 Food Hygiene Certificate.[38]On 8 October the claimant provided a certificate. Phoebe Ilott received a message from Mitie on 9 October as follows:- “We have just received the below update: “We do not believe this to be the genuine certificate obtained via reputable training organisation.”[39]The claimant was asked by Phoebe Ilott what hours he had worked and replied:- “Day 1 09:00 to 17:30 Day 2 06:40 to 17:00 Day 3 08.00 to 16:30”[40]The claimant accepted that he had 30 minute unpaid breaks a day. The claimant was therefore claiming 24.5 hours work.[41]The claimant’s hours were put to the hirer and the information supplied was that the claimant worked as follows:- Wednesday 4th October: 9-15.30 Thursday 5th October: 7-17.00 Friday 6th October: 8-16.30.[42]Deducting the half hour breaks, according to the hirer, the claimant was due to be paid for 23.5 hours work.[43]In my judgment, the hirer’s figures are more likely to be accurate and, consequently, I find that the claimant worked for 23.5 hours.[44]On 12 October 2023, the following exchange took place between Phoebe Ilott and the claimant:- “BTW [By The Way] do you have any other clients besides Mitie. Phoebe Ilott: I do but I haven’t got any permanent roles available at the moment but I will keep you updated if anything comes through. Claimant: Ok, even temp roles would be a welcome, for the time being.”[45]This exchange confirms to me that the claimant did not regard himself as a fulltime employee of the first respondent and knew that the first respondent was a recruitment agency that placed agency workers with hirers.[46]Also on 12 October 2023 the claimant received the following message:- “Hi Grenville, you will get a call from Clipper to register for your payment so please answer the call or call them back if you have missed it.[47]On 12 October 2023, the second respondent submitted various documents to the claimant and the claimant provided information such as his National Insurance Number and banking details for payment.[48]It is the second respondent’s case that the claimant entered into a contract of employment with the second respondent on 12 October 2023. The nature of the agreement produced before me is that it is, in effect, a zero hours contract which allowed the claimant to elect to have his holiday pay paid on a rolled up basis of 12.07% of his gross earnings. The claimant totally refutes that he entered into any agreement with the second respondent. On 29 November 2023, the claimant was informed that as he had undertaken no work employment was terminated and the claimant was sent a P45.[49]Notwithstanding the second respondent’s case, the claimant’s contract of employment with it began on 12 October 2023, that the P45 records his earnings for the 4,5 and 6 October 2023 and states that his employment terminated on 8 October 2023.[50]The claimant was adamant that he was not owed anything by the second respondent. The second respondent’s case is that the claimant was engaged on a zero hours contract with rolled up holiday pay, that he did not undertake any work and that consequently nothing is due and payable to him. Consequently, whether or not the claimant entered into a contract with the second respondent, on both cases the claims against the second respondent must be dismissed.[51]The second respondent paid the claimant. The second respondent deducted from the claimant’s gross pay the Employer’s National Insurance Contribution, an apprenticeship levy and a management company margin. The second respondent must have been paying that money on behalf of the first respondent. I have seen no agreement in writing that authorised the first respondent to make those deductions. No relevant assignment schedule has been shown to me. Consequently, I find that they were unauthorised deductions of the claimant’s wages.[52]All parties agree that the claimant was entitled to 12.07% on his gross earnings to reflect holiday pay on a rolled up basis.[53]Consequently, I find that the claimant was entitled to be paid the following:- 23.5 x £20.46 = £480.81. X 12.07% = £58.03 Total: £538.84 (Gross: subject to Tax and National Insurance)[54]The claimant has been paid £370.89 net and must give credit for that sum. Approved by: