Ms M J Matondo v Kingsland Nursery Ltd: 3321255/2019

EMPLOYMENT TRIBUNALS

Case No 3321255/2019

Between

Ms M J MatondoClaimant

Kingsland Nursery LtdRespondent

Before

Employment Judge K J Palmer

Ms U Delpino-Mark (instructed by Solicitor) for claimant

Date 29 December 2025

JUDGMENT

[1]It is the Judgment of this Tribunal that the Claimant’s claim in unlawful deduction of wages under the Employment Rights Act 1996, fails.

[2]The Claimant’s claim for a payment in lieu of accrued untaken holiday at termination of employment under the Working Time Regulations 1998, succeeds and the Claimant is awarded the sum of: £435.80

[3]The Respondent must pay to the Claimant the sum of: £435.80. 25 November 2020 _____________________________ Employment Judge K J Palmer Sent to the parties on: ....................... For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision Case No: 3321255/2019 1 EMPLOYMENT TRIBUNALS Claimant Respondent Ms Mathy Jorine Matondo v Kingsland Nursery Limited Heard at: Bury St Edmunds On: 18 November 2020 Before: Employment Judge K J Palmer Appearances: For the Claimant: Ms U Delpino-Mark, Volunteer with FRU For the Respondent: Mr K Ubah, Officer of the Respondent JUDGMENT having been sent to the parties on 8 December 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunal Rules of Procedure 2013, on 20 December 2020 and that request having been passed to

REASONS

Introduction

[1]This matter came before me today and is brought by the Claimant who worked at the Respondent’s between 2 July 2018 and 31 July 2019. She resigned and brings claims based upon an unlawful deduction of wages under s.13 and s.23 of the Employment Rights 1996 and she also pursues claims for unpaid holiday, that is essentially accrued holiday pay in lieu under the Working Time Regulations 13 – 16 1998, accruing on termination of her employment.

[2]I have before me a comprehensive Bundle running to some 180 pages. I also have various other documentation that had been submitted to the Tribunal this morning which came in dribs and drabs and which was emailed to me during the course of the Hearing. I had before me the Claimant and her representative Ms Delpino-Mark and also had a representative from the Respondent, Mr Keith Ubah.

[3]I heard from them both and I also had before me a witness statement produced by the Claimant which I only saw for the first time this morning. I put some questions to the Claimant myself during the course of the Hearing. Case No: 3321255/2019 2

[4]Essentially, the claim is a straight forward one in law, but as is often the case with these types of claims it is very complicated in terms of the facts. The claim that is pursued by the Claimant is a claim for unlawful deduction of wages and then secondly a claim for unpaid holiday pay.

[5]Dealing with the unlawful deduction claim first of all, I was greatly assisted by a very helpful schedule of loss that I had before me which was in the Bundle and that was produced by Ms Delpino-Mark who was acting for the Claimant. It was an up to date schedule of loss as at 18 November 2020. In that schedule of loss was set out what the Claimant says are the payments owing to her. In fact, she has been through each and every month from July 2018 through to July 2019 setting out the hours that she says she worked, the amount that she said she was owed as a result, the amount that she was paid and therefore the shortfall that she says are owing to her.

[6]In total the Claimant calculates a gross figure of £880.48 which she says she was underpaid.

[7]I must point out that in a case such as this it is for the Claimant to prove her case. Therefore, I have to be satisfied that on the balance of probabilities the Claimant has done that. I therefore have to look at the evidence that is in front of me to enable me to determine whether she has discharged that burden of proof. I asked and was given and directed towards documents in the Bundle by Ms Delpino-Mark which set out the calculations which sat behind the Claimant’s claims and these were essentially calculations which the Claimant had done herself, but which are on everyone’s admission were not contemporaneous. I questioned the Claimant myself on this and she said that she produced the calculations based upon the hours that she was working at that time and that is what led to the schedule which is in front of me.

[8]Essentially, she says that it is the overtime pay that she was not paid during the course of her employment that has amounted to the £880.48.

[9]The Respondents on the other hand, in the shape of Mr Ubah who is a Director of the Respondent, have said that the schedule produced by the Claimant is essentially a schedule based upon a predictive amount of hours and in fact, he also produced a spreadsheet which was in front of me in the Bundle, setting out timesheets running from July 2018 to July 2019.

[10]He says that the whole calculation of the Claimant’s pay was rather skewed by the fact that at the commencement of her employment the Claimant failed to appreciate that she was going to have to work a month in arrears. A very common thing when employees commence their employment, that they have to work a month in arrears before they are paid. In fact, in the Contract of Employment that I had in front of me in the Bundle, paragraph 5, it is clearly stated that the rate of pay would be £21,500 per annum and that she would be paid 4 weeks in arrears. However, it is Mr Ubah’s evidence that that did not happen and that in fact, when the Claimant asked for a payment at the end of July, a payment was made to her. This means that thereafter every months’ payment was Case No: 3321255/2019 3 somewhat skewed because it was based on the hours that she was expected to work rather than the hours that she did work.

[11]Mr Ubah then explained today in his evidence that he went through the time sheets which sit behind the Claimant’s payments. Those timesheets actually show the hours that the Claimant did work.

[12]The difficulty with that was that he did not produce those and we only saw one of them that was sent through during the course of these proceedings. For him to rely upon those, it is unacceptable for those to be produced at the eleventh hour and in fact during the course of this process. I do accept however, that he went through an exercise where he compared the predicted payments and hours worked based on his spreadsheet, against the actual hours worked. The actual hours worked is recorded in hand written timesheets for each employee working at the Respondents and that is recorded by the Manager and Deputy Manager.

[13]I accept that he went through that process but I cannot accept him producing evidence during the course of the Hearing, nor indeed at the eleventh hour as he did this morning. That is unfair to the Claimant and Ms Delpino-Mark did not have the opportunity of seeing that documentation and therefore being prepared to respond to that part of the Respondent’s case.

[14]Having said that, the failure of the Respondents to produce that documentation does not, in my Judgment, make any difference to the outcome of this unlawful deductions claim.

[15]In light of the evidence that I have before me, I am simply not convinced that the Claimant has produced sufficient evidence to show that she actually did work the hours which she is claiming. The schedule which has been produced in the schedule of loss, is very closely aligned to the predicted timesheet spreadsheet that the Respondents have produced and as the burden of proof is on the Claimant to show that she did actually work the hours which she said she worked, I am not convinced that she has been able to do that. The figures which she has given to her very well prepared advocate, Ms Delpino-Mark, to produce the well put together schedule of loss are based on her memory and her supposition. She does not have any definitive evidence that supports her claim and therefore I am bound to come to the conclusion that she has not succeeded in convincing me on the balance of probabilities that she was underpaid the sum of £880.48.

[16]Therefore, her claim for unlawful deduction of wages fails.

[17]In respect of her holiday pay claim, she claims that she had asked to take four days holiday in July 2018. It is worth mentioning that the Respondent’s holiday year runs from 1 September every year to 31 August the following year. Therefore, the holiday that she asked to take in July 2018 was in the holiday year which ended in August 2018. She says that she was refused that holiday and that she was not allowed to take holiday because she was told that she could not take holiday in a probation period. Case No: 3321255/2019 4

[18]Mr Ubah refutes that and says there is no evidence that she requested that holiday. It is also the Claimant’s case that there was then an agreement that she would be allowed to carry over those four days that she was not allowed to take in July. Mr Ubah referred me to the Contract of Employment which quite clearly states that holiday that is not used is lost, from one holiday year to the next, unless there is written evidence that the Respondent’s consent in writing to that holiday being carried over, paragraph 9 of the Contract of Employment.

[19]I was referred by Ms Delpino-Mark to some telephone texts, in fact the Claimant herself referred me to an exchange of texts between herself and Verity Sharp, one of the employees of the Respondent (a Manager). At page 125 of the Bundle was a text which clearly suggests that there was an agreement that those four days could be carried over in to the holiday year commencing on 1 September 2018 and I therefore am convinced that that was agreed and that those four days could be carried over.

[20]The Respondent makes the point that the text is some time after the event, dated 25 March 2019, well after the beginning of the holiday year which relates to the carry over of those four days. That, in my Judgment, does not make any difference, the agreement was clearly made and it is evidenced in writing as per the text of 25 March 2019.

[21]I therefore make a finding that the Respondents did agree that those four days be carried over.

[22]The rest of the holiday pay claim relates to a calculation of holidays untaken at the date of termination which was 19 July 2019 and I will not repeat the detail of those calculations but they are well set out in the schedule of loss.

[23]Essentially, they calculate that at the date of termination, the Claimant was entitled to pay in lieu of untaken holiday of 13.71 days; that becomes 14 days as we round up holidays in such calculations.

[24]Interestingly, in August 2019, the Respondents actually made a payment to the Claimant and the Claimant and her representative have before this Tribunal, accepted that the Claimant received such a payment, but did not understand how that payment was calculated.

[25]Mr Ubah, amongst the documents that he produced at the eleventh hour this morning, there is a document that I have now looked at which sets out not entirely how that payment was calculated, but at least sets out that the payment that was made in August included a sum relating to wages which he says was unpaid at that time. That was £494.06. And also, a sum relating to 13 days holiday. It is clear to me that a payment was made for accrued and untaken holiday of 13 days.

[26]On the evidence before me, I am happy to accept that the Claimant was in fact owed 14 days and that therefore that payment is one day short. Case No: 3321255/2019 5

[27]Equally, there are the 4 days that were carried over which should also have been paid, which were not. On that basis, I make a finding that the Claimant is entitled to be paid for 5 days accrued untaken holiday up to the date of termination. That is a payment that I am going to Order to be paid gross, it is then for the Claimant to account for her own tax.

[28]I therefore make an award in the holiday pay claim in the sum of £435.80 to be paid by the Respondent to the Claimant as soon as possible and I reiterate that the unlawful deductions claim fails. 4 May 2021 ___________________________ Employment Judge K J Palmer Judgment sent to the parties on ...................................................... ...................................................... For the Tribunal office Case Number 3321255/2019 EMPLOYMENT TRIBUNALS Claimant: Ms Mathy Jorine Matondo Respondent: Kingsland Nursery Limited CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Judgment sent to the parties on 8 December 2021, is corrected as set out in block type at row 6 Ms U Delpino -Mark, Volunteer for the Free Representation Unit _____________________________ Employment Judge K J Palmer _____________________________ Date 12/10/21 SENT TO THE PARTIES ON ........................................................................ ........................................................................ FOR THE TRIBUNAL OFFICE Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. Case Number: 3321255/2019 EMPLOYMENT TRIBUNALS Claimant: Ms Mathy Jorine Matondo Respondent: Kingsland Nursery Limited Heard at: Bury St Edmunds On: 18 November 2021 Before: Employment Judge K J Palmer Appearances For the Claimant: Ms U Delpino -Mark, Volunteer for the Free Representation Unit For the Respondent: Mr K Ubah, Officer of the Respondent CORRECTED JUDGMENT Pursuant to a CVP Full Merits Hearing 1. It is the Judgment of this Tribunal that the Claimant’s claim in unlawful deduction of wages under the Employment Rights Act 1996, fails. 2. The Claimant’s claim for a payment in lieu of accrued untaken holiday at termination of employment under the Working Time Regulations 1998, succeeds and the Claimant is awarded the sum of: £435.80 3. The Respondent must pay to the Claimant the sum of: £435.80. _____________________________ Employment Judge K J Palmer Date: 12/10/2021

[1]This case has a considerable history. It first came before me on 18 November 2020. At that time it was a claim for unlawful deduction of wages under s13 and 23 of the Employment Rights Act 1996 and a claim for payment in lieu of accrued untaken holiday at termination of employment under the Working Time Regulations 1998 as amended. It was listed as a one day Hearing.

[3]I gave a Judgment finding for the Claimant in respect of her holiday pay claim in the sum of £435.80. I dismissed the Claimant’s claim for unlawful deduction of wages.

[4]At that Hearing the Claimant was represented by a different volunteer from the Free Representation Unit (FRU). The Respondents were represented by Mr Ubaht. Case Number: 3321255/2019. 2

[5]My Judgment was sent to the parties on 8 December 2020. Pursuant to an Application for written Reasons on 20 December 2020, which was not referred to me until 23 April 2021 by the Administration, I produced those written Reasons to be sent to the parties on 4 May 2021.

[6]At that original Hearing, I had a Bundle before me running to some 180 pages and some additional documents. I had a Witness Statement from the Claimant. Pursuant to those written Reasons the Claimant appealed my Judgment and the Appeal was heard on 27 June 2024 in the Employment Appeal Tribunal (EAT) before His Honour Judge Auerbach. Judge Auerbach allowed the Appeal and remitted the case back to the Tribunal to be reheard. Regional Employment Judge Foxwell, assigned it to me to re-hear.

[7]I do not propose to repeat the judgment of the EAT save to say that HHJ Auerbach concluded that my analysis of the evidence before me in that hearing had been flawed and it was necessary for a re-hearing to reconsider the evidence on the basis of a fact and evidence sensitive evaluation of the overall evidence presented. HHJ Auerbach took the view that I had incorrectly required additional evidence to corroborate the Claimant’s oral evidence instead of holistically assessing the strength of the Claimant's case in light of all the evidence I had before me.

[8]Since that time, the evidence before me has somewhat expanded in that I now have a Supplementary Witness Statement from the Claimant, a Witness Statement from Mr Ubaht and a Bundle which has increased to some 417 pages.

[9]The matter was originally listed to be heard on 22 August 2025 with a one day Hearing but unfortunately that had to be postponed due to the paucity of the Claimant’s CVP connection and the fact that she did not have all the necessary documents before her to enable her to give live evidence properly.

[10]It was relisted for 8 December 2025, for one day but it quickly became apparent that one day was going to be insufficient to deal with this Remitted Hearing and a further two days were set aside on 10 and 11 December 2025.

[11]I heard live evidence from the Claimant, from Mr Ubaht and extensive detailed submissions from both Representatives, including a helpful written Skeleton Argument from Mr Moisoi.

The Issues

[12]There is a List of Issues in the Bundle before me at page 206 and these issues are again set out by Mr Moisoi in his very helpful Skeleton Argument. Case Number: 3321255/2019. 3

[13]The issues are as follows: 13.1. Did the Respondent breach s.13 of the Employment Rights Act 1996 (“ERA”) by making unauthorised deductions from the Claimant’s wages? This will require the Tribunal to decide two sub-issues: 13.1.1. What hours did the Claimant in fact work? and 13.1.2. What was the Claimant’s hourly rate of pay? (Whilst this was not part of the Agreed List of Issues it is a contested point in these proceedings) 13.2. If the Respondent made an unauthorised deduction from the Claimant’s wages, is the Claimant entitled to a re-payment of that deduction under s.24(1)(a) ERA 1996? 13.3. If so, is the Claimant to adjust this amount to account for inflation under s.24(2) ERA 1996?

[14]Previously and in the Agreed List of Issues, the question put by the Claimant was whether the Claimant could adjust this amount to account for interest under s.35A of the Senior Courts Act 1981 and s.69 of the County Courts Act 1984. However, the Claimant now considers a claim for inflation under s.24(2) ERA 1996 to be more appropriate and pursues only this argument. Brief Factual Background

[15]The Claimant was employed by the Respondent as a Nursery Practitioner from 2 July 2018 to 19 July 2019 when she resigned.

[16]Excluding overtime, she was employed to work 41 hours and 15 minutes per week. That is 8 hours and 15 minutes per day.

[17]Her contract of employment clarifies that this meant she would work from either 0745 to 1700, 0815 to 1730 or 0900 to 1815, including a one hour lunch break.

[18]She was employed under a contract of employment which she signed and entered into on 24 September 2018. There is a dispute as to the nature of her employment. The Claimant argues (albeit she resiled from this when giving live evidence) that she was only employed for 51 weeks of the year. The Respondents say she was employed for the entire year on a rolling basis and there was no break in that continuity of employment. The relevance of this is that if the Respondents are correct and the Claimant’s salary at £21,500 was on the basis of her being employed for a full year, then her hourly rate would have been £10.02. If the Claimant is right and she was employed for only 51 weeks of the year and there was then a one week break before she started work the next year, her hourly rate would be £10.22. I deal with this later on in this Judgment. Case Number: 3321255/2019. 4

[19]Her annual salary without overtime is specified in her contract to be £21,500 per year.

[20]On two occasions, one in July of 2018 and the second in January of 2019, the Claimant met with her Manager Ms Verity Sharp and agreed that she should work certain additional hours by way of overtime. The first time she discussed this with Ms Sharp was in July 2018 and it was agreed that the Claimant would work overtime on Thursdays and Fridays. On those days it was agreed she would work 9 hours and 30 minutes as opposed to 8 hours and 15 minutes.

[21]Whilst there was some confusion as to whether initially Mr Ubaht accepted that such an agreement had been put in place, as matters progressed during the course of the Hearing, he accepted that it had and in fact all the evidence of hours worked (much more of which later) evidences overtime being worked on Thursdays and Fridays. The Respondents therefore accept that such an agreement was entered into.

[22]We have no evidence in front of us from Ms Verity Sharp in terms of a Witness Statement and we have not heard from her.

[23]This first agreement or variation to the Claimant’s hours, is described in the Claimant's written evidence as the “July Agreement”.

[24]Consequently, in January of 2019 the Claimant met with the Respondent’s Verity Sharp again and agreed a further change to her overtime hours in that she would continue to work the same overtime hours on Friday but would work 30 fewer minutes on Thursdays and 30 more minutes on Wednesdays. This is described as the “January Agreement”.

[25]As I say above, the Respondents accept that these variations occurred and it is not a matter of dispute. The difficulties incurred when the Claimant started work

[26]The Claimant commenced work on 2 July 2018. The Respondents pay their employees a month in arrears. That is very common in employment. That typically means that someone who works for a month during, say the month of June, does not receive payment for hours worked in June until the end of July. It is common ground between the parties that the Claimant was unhappy with this and in fact during the course of her giving live evidence before me in this Remitted Hearing, I conclude that the Claimant still does not fully understand what a “month in arrears” payment means. She continually answered questions in cross examination to the effect that a month in arrears is that if you worked a month of hours in July you got paid for those hours at the end of July. Typically that is not the case.

[27]The reason for this is that payrolls are generally undertaken by employers on or about the 20th to 25th of each month and therefore it is not possible for payrolls commenced at that time to include all the hours that would be worked during that same month. They can only deal with hours worked in Case Number: 3321255/2019. 5 the previous month. That is why there is a long standing tradition of payment being in arrears.

[28]The Claimant expressed dissatisfaction at this when she started and the Respondents sought to assist her by agreeing to pay her in respect of the month she worked at the end of that month.

[29]Mr Ubaht in his evidence explained that that gave rise to certain difficulties. As payroll is triggered several days before the end of the month, it is impossible to pay employees for hours worked in that month in that month’s payroll. Accordingly, to assist the Claimant the Respondents adopted a wholly different approach with the Claimant as against any other employee. They devised a system whereby based on the Claimant's forecasted working hours, they produced time sheets at the beginning of each month and then paid the Claimant at the end of the month based on those forecasted time sheets. This meant that when payment was made towards the end of the month, the Claimant was being paid for work which included the last few days of the month which she had yet to work. Mr Ubaht accepted that this meant that there would need to be adjustments to payments made to the Claimant from time to time as the payments were made on the basis of predicted hours.

[30]Throughout the Claimant's employment she continually queried the amounts that she was paid and many meetings were undertaken to address this. In utilising an unusual method of payment to accommodate the Claimant’s wishes, the Respondents always accepted that there would need to be adjustments to the Claimant’s pay, up or down, based on the forecast or predicted nature of the way in which hours worked were calculated.

[31]The dispute rumbled on and in fact led to the Claimant deciding to stop working overtime on the basis of the January Agreement in mid April of 2019 and caused her to leave employment in July of 2019. The Claimant also pursued a Grievance and the Respondent’s evidence is that they attempted to engage with the Claimant to compare records but that at that point the Claimant disengaged and pursued these proceedings. We accept the Respondent’s evidence on this point. Discussions broke down with some of the Claimant’s communications to the Respondent being quite unpleasant and threatening. Ultimately, there was an impasse on the hours which the Claimant had worked between the parties which has led to this long running saga.

[32]In August of 2019, Mr Ubaht set about attempting to reconcile his records prior to making a final payment to the Claimant.

[33]This document we looked at extensively during the course of this three and a half day reconvened Hearing. This appeared at page 374 in the bundle.

[34]Mr Ubaht was closely questioned by Mr Moisoi and by myself as to how he had produced it. Case Number: 3321255/2019. 6

[35]Essentially he set the predicted hours based on the monthly predicted or forecast time sheets against actual payments made to the Claimant throughout her employment. This resulted in an uplift in the number of hours worked to 2,308.25 which triggered a balancing payment made in August to the Claimant of £494.36. This accompanied an annual leave payment made at the same time and constituted the final payment made to the Claimant.

[36]Interestingly, this was not before me at the first Hearing in 2020 and had not been taken into account by those representing the Claimant at that time.

[37]This has meant that the amount being pursued by the Claimant has changed since that time to account for both this and the dispute that has subsequently arisen relating to the hourly rate.

[38]It emerged, however, and was pointed out by Mr Moisoi in cross examination of Mr Ubaht, that the figures used by Mr Ubaht in the spreadsheet at 374 as being those hours worked taken from the forecasted time sheets, were incorrect and in fact, understated the hours set out in the forecast time sheets by 8.75 hours. Under cross examination and in submissions, Mr Ubaht accepted that this had been an error and he said that he had tried to feed into that spreadsheet at page 374 the hours set out in the forecast time sheets drawn on a monthly basis but for some reason the true figures had not fed in and the total was some 8.75 short. Thus, on the basis of Mr Ubaht’s methodology, the true total of predicted or forecast hours worked throughout employment should have appeared in that spreadsheet at page 374 of the Bundle as being 2,317. The evidence before me of the hours that the Claimant actually worked

[39]I had a variety of sources of evidence before me to assist me in determining the hours the Claimant worked throughout her employment. This employment spanned 13 months from July 2018 to July 2019. The Claimant’s evidence

[40]I had two Witness Statements before me from the Claimant and heard live evidence from her during the course of Monday 8 December 2025.

[41]I also had documentary evidence provided by the Claimant which was in the Bundle. After the end of her employment the Claimant compiled a series of time sheets based on her recollection of hours worked and these were before me at pages 81 – 103 of the Bundle. These specify the hours that the Claimant estimated she worked on a daily basis. Without fail, they recreate the amount of hours the Claimant would have worked had she worked her full contracted hours with further hours added for overtime on the basis of the July Agreement and the January Agreement up to when she ceased to do overtime in April of 2019 and thereafter continued on the basis that she worked a full day based on her contractual hours. Nowhere in the estimate is any allowance given for absences or other times when the Claimant might not be at work, such as illness or medical appointments. In the Claimant’s latest Schedule of Loss submitted for this reconvened Case Number: 3321255/2019. 7 Hearing on 8 December 2025, the total hours specified as being worked pursuant to the Claimant’s recollection totals 2,355.75 hours.

[42]It is unclear when the Claimant produced these schedules but what is certain is that she did so after the end of her employment and potentially considerably after the end of her employment, in the course of this litigation. In his submissions, Mr Moisoi could only indicate that the Claimant’s estimated time sheets had been produced some time between July 2019 and November 2020 when this case was first before me. The Claimant’s oral evidence is that she produced these sheets from memory. In her Supplementary Witness Statement at paragraph 26 she explains that in compiling them she had included overtime pursuant to the July and subsequently January Agreements. It is accepted by the Claimant that these were not contemporaneous records kept throughout her employment but were produced after her employment and potentially, some considerable time after for the purposes of this litigation.

[43]The Claimant’s case as put now in the Remitted Hearing is put in the alternative. That was not the case at the original Hearing before me.

[44]The alternative approach pursued by Mr Moisoi is that foremost the Claimant seeks payment on the basis of her estimated schedules, that is 2,355.75 hours throughout the course of her work. Alternatively if I am not persuaded to accept the Claimant’s evidence in this respect she should at least receive payment on the basis of hours in the Respondent’s forecast or predictive time sheets which were produced monthly during the course of her employment, as described above.

[45]This alternative approach was first before me in this Remitted Hearing in August of 2025 and is further pursued in this Hearing.

[46]The amount claimed has changed between August and this Hearing in December because Mr Moisoi accepts that the figures in the Schedule before me in August had not taken into account the fact that Mr Ubaht had made a balancing payment, as set out at page 374, in August of 2019. Thus, the sums sought have changed. It must be remembered that throughout the course of her employment, the Claimant’s hours were paid at a rate of £10.02 and the Claimant now argues that those hours should have been paid at the rate of £10.22. So not only is it the Claimant’s case that she was paid for less hours than she should have been assessed as having worked, on the basis of her estimated time sheets but that the hourly rate was also wrong. This effectively produces the latest Schedule which was before me today which shows adjusted figures from the Schedule that was before me in August.

[47]On the basis of the Claimant’s estimated time sheets, it is argued she has suffered an unlawful deduction of £1,441.49 less the balancing payment of £494.36 leaving an unlawful deduction of £947.13. Case Number: 3321255/2019. 8

[48]The alternative claim based on the Respondent’s predicted time sheets leaves an unlawful deduction of £1,045.46 less the balancing payment of £494.36 leaving an unlawful deduction of £551.10.

[49]Both of these figures are calculated on the basis of an hourly rate of £10.22. The Respondent’s evidence

[50]The Respondent was represented by Mr Keith Ubaht who is a Director of the Respondent company. Mr Ubaht also gave a written Witness Statement and was subject to lengthy cross examination by Mr Moisoi.

[51]The Respondent’s case is based on the fact that they say the Claimant’s hourly rate is based upon her basic salary divided by normal none overtime hours over 52 weeks (the Claimant argues over 51 weeks) and therefore that gives an hourly rate of £10.02 as opposed to £10.22 if divided over 51 weeks.

[52]In terms of the hours worked, Mr Ubaht undertook an exercise evident to us in his spreadsheet at page 374, which sought to ensure that the Claimant had been paid on the basis of the number of hours worked set out in the predicted time sheets. It is the Respondent’s case that this gives a very generous assessment of hours worked, for reasons I set out below. At page 374 Mr Ubaht then sought to top up the Claimant’s payment on the basis that the predicted hours worked, over and above what she had actually been paid throughout the period of her employment. This resulted in the balancing payment of £494.36. However, it emerged during the course of this Hearing and is now accepted by the Respondents, that the hours placed in that spreadsheet as being the total hours arrived at by adding up the predictive time sheets, which were in the Bundle before me, was 8.75 hours short. On that analysis the balancing payment should have been slightly higher as Mr Ubaht was attempting to pay the Claimant on the basis of the predicted hours which resulted in the balancing payment uplift.

[53]Thus, the total of the hours worked based on the predictive time sheets, was 2,317. Handwritten contemporary timesheets

[54]The Respondents also produced, which were in the Bundle before me, handwritten contemporary timesheets which I accept were compiled in real time during the course of the Claimant’s employment. These appear in the Bundle between pages 211 and 317. The predictive or forecast time sheets appear between pages 139 and 160.

[55]The handwritten staff signing in sheets at pages 211 to 318, are sheets which log all employees in and out of the Nursery, including in and out lunch break times. They are completed by the Manager on duty on that day and no input from the employee concerned features in them. They are handwritten and include the names of each employee, the time they arrive, Case Number: 3321255/2019. 9 the time they leave at lunch and the time they return after lunch and the time they leave in the evening.

[56]Mr Ubaht, in his evidence, was at great pains to express, however, that these sheets do not reflect hours worked but only time at the premises and that therefore hours worked would be less as individuals arrive at the premises prior to starting their shift and invariably remain on the premises on certain occasions when not working.

[57]Totalling up these signing in sheets throughout the period of employment of the Claimant’s employment gives a lower figure than either the Claimant’s estimate of hours worked, or the forecast time sheets of hours worked. Mr Ubaht very helpfully, in the Bundle, did a comparison between the two, namely the predicted time sheets as against the signing in sheet as to when the Claimant was present at the Respondent’s premises and it shows that the predicted time sheet gives a total of some 61.65 hours more than the actual signing in sheets.

[58]It is the Respondent’s case that the most accurate document before me has to be the contemporary handwritten signing in and signing out sheets completed by the Managers on each day, albeit that the Respondents have actually paid the Claimant on the basis of the predicted or forecast time sheets, which show 61.65 hours more. The Respondent’s case is therefore they have been extremely generous to the Claimant and that as against the most contemporary record available, she has been overpaid to the tune of 61.65 hours save for the mistake of 8.75 hours mentioned above. The Claimant’s Evidence

[59]I have heard extensive evidence from the Claimant in these proceedings and she was very ably cross examined by Mr Ubaht.

[60]The Claimant did display some considerable confusion about certain matters. In particular she did not seem to understand the meaning of “payment in arrears” and when questioned about her estimated time sheets, she was very clear in specifying that these estimated time sheets recorded hours actually worked, rather than hours for which she should be paid, which might be the case when for example she was off on holiday but still be due to be paid for that day.

[61]She was uncertain in many of the answers she gave but in other aspects her recollection was good. She clearly had a good recollection of entering into the July Agreement and the January Agreement with Verity Sharp.

[62]However, she was extensively cross examined by Mr Ubaht in respect of the estimated time sheets that she had produced, after the end of her employment and in the course of this litigation. He highlighted a considerable number of obvious discrepancies between the hours the Claimant estimated she had worked on given days and the hours she did actually work. He was able to do this by referring her to a number of obvious examples where her estimated hours on a given day must have been Case Number: 3321255/2019. 10 incorrect. I do not propose to repeat each and every one in this Judgment but for example, there was a day when she claimed to have worked from 9am to 6:15pm when that day was clearly a Bank Holiday. When questioned about this, she said, “because we get paid for Bank Holidays”. This did not square with her evidence that the estimated time sheets reflected hours worked. Later in her summary, the same day which was a Bank Holiday is actually reflected in her estimate summary as being a Bank Holiday. So there is conflict there in the way in which she has produced the Schedules.

[63]Mr Ubaht then exploited several examples which illustrated errors in the estimated Schedules, mostly in respect of medical appointments she had attended but which she had not accounted for in her estimate of hours worked. These were illustrated by referring to the handwritten contemporary signing in sheets which showed when she was actually on the premises and when she was not. In many instances her absences accorded with requested appointments she had made and therefore her daily hours should not have included the times when she was attending medical appointments. There was also a day when she was absent and this was shown in the contemporary signing in sheets but on her estimated time sheets she had claimed for a full day’s hours of work.

[64]It is also very clear in looking at the Claimant’s estimated time sheets that she has simply, on a blanket basis, estimated that she worked every single hour that she could have done, including the full overtime pursuant to the July Agreement and the January Agreement. Mr Ubaht in cross examination was able to show that this could not possibly have been the case.

[65]In all, Mr Ubaht was able to highlight eight separate occasions where the Claimant’s estimated time sheets could not possibly have been accurate.

[66]Mr Moisoi, in submissions, asks me to accept that whilst the Claimant does accept that on these occasions the estimate was not an accurate reflection of hours worked, the bulk of the estimated time sheets would be accurate.

[67]I have to conduct a balancing exercise and consider all the evidence before me both oral and written on the balance of probabilities. I am very conscious of the fact that I must look at all the evidence in the round, including the documentary evidence produced by the Claimant and the oral evidence I have heard from her over the course of this Hearing. Taking all of that into account and weighing it against the evidence I have heard from the Respondents, on the balance of probability I consider it likely that the least reliable evidence before me of the Claimant’s hours worked throughout her employment, is her own recollection set out in her estimated time sheets. The Respondent’s Evidence

[68]As for the Respondent’s evidence, clearly the predicted time sheets produced early in each month predicting the hours the Claimant would work during that month, which as and when appropriate do include overtime as Case Number: 3321255/2019. 11 agreed under the July and January Agreements, was also only an estimate. The most reliable evidence before me of hours worked on the basis of all the evidence I have before me including all the oral evidence I have heard, are the handwritten signing in time sheets produced by the Respondents and signed contemporaneously by Managers on the day. Even these time sheets do not reflect accurately hours worked as they reflect time in the building. Hours worked would of necessity be less.

[69]Based on the evidence I have heard on the balance of probability and weighing all that evidence, I conclude that the most compelling is that showing the Claimant’s presence or otherwise in the building as contemporaneously recorded by Managers on a daily basis.

[70]Mr Moisoi attempted to cast doubt on the veracity of those documents but I accept the evidence of Mr Ubaht that these are documents that are produced as a result of regulatory requirements and to ensure safeguarding of children based upon knowing the number of staff as against the number of children in the building at a given time and an accurate record of who is in the building and when.

[71]In my judgement, therefore, it is likely that that is the best evidence before me.

[72]On the basis of those time sheets the most the Claimant could have worked during her employment was 2,256.65 hours. She was actually paid for 2308.25 hours being the Respondent predicted hours of 2317 less the 8.75. The Correct Hourly Rate

[73]The Claimant argues that she was only employed for 51 weeks every year and was then not employed for a week at Christmas and New Year and restarted her employment thereafter. This is based on paragraph 7 of the Claimant’s contract of employment which reads as follows: “Your normal hours of work are from 0745 to 1700, or 0815 to 1730, or 0900 to 1815 on Monday, Tuesday, Wednesday, Thursday and Friday with a one hour lunch break. You are employed to work 51 weeks per year.”

[74]The Respondents, however, say that that is merely an error and that it is illogical to suggest that anyone is employed for 51 weeks, effectively then not employed for a week before being employed again. They rely on paragraph 5 of the contract of employment which reads as follows: “Your rate of pay will be £21,500 per annum and you will be paid monthly by automated credit on the last working day of each month. You will be paid four weeks in arrears.”

[75]They also rely on the wording in the covering letter which attached the contract of employment, which reads as follows: Case Number: 3321255/2019. 12 “Your basic salary at the commencement of your employment will be £21,500 per year payable monthly in arrears by automated credit on the last working day of each month.”

[76]Mr Moisoi urges me to accept that paragraph 7 is the correct position and that the reason for 51 weeks as opposed to 52, is that the Claimant was required to take five days between Christmas and New Year as non-paid days and that this was why the Respondents engineered a break in continuity of employment in the contract.

[77]Mr Ubaht says that this is simply not true. The Claimant was continuously employed throughout 52 weeks each year as per the contract and the use of the words “per year” and “per annum” in the covering letter and paragraph 5 of the contract. He said that in any given year employees were required to take some holiday during the Christmas period and some unpaid leave and that in the year in which the Claimant worked over Christmas and New Year she was only required to take two days of unpaid leave. This is evidenced in a document we have before us at page 95 in the Bundle showing the Respondent’s estimation of two days unpaid on 3 and 4 of January.

[78]I agree with Mr Ubaht. It does not seem likely to me that the intention was that the Claimant was only to be employed for 51 weeks each year and that there would be a gap of a week in her continuity of employment. There is a contradictory clause in the contract which opposes paragraph 7 and the covering letter also makes it clear that the salary is paid per year. The contract at paragraph 5 states per annum. I accept Mr Ubaht’s suggestion and evidence that the reference to 51 weeks has to be no more than a typo.

[79]In my judgement, the Claimant was employed at a salary of £21,500 per year or per annum. That means 52 weeks. Any calculation of hourly rate must be based upon 52 weeks and not 51.

[80]Accordingly, it is my judgement that the hourly rate applicable is as the Respondent’s argue £10.02. Final Conclusion

[81]Therefore, having considered all the evidence in the round including all the oral evidence and written evidence before me, I conclude that the most likely accurate estimate of hours worked is that contained in the contemporaneous handwritten time sheets completed by managers daily and that gives a generous assessment of the hours actually worked as it records time in the building. The most hours the Claimant could have worked in her employment was therefore 2,256.65.

[82]The Claimant was paid for 2,308.25 hours after the adjustment in August of 2019 and has therefore been paid for more hours than she worked. She was paid at the correct hourly rate which was £10.02.

[83]There has been no unlawful deduction of wages under s 13 of the ERA. Case Number: 3321255/2019. 13

[84]I therefore make a declaration there has been no unlawful deduction of wages. The Claimant’s claim fails and is dismissed. Approved by: