Miss Orietta di Quinzio v Marsh Bears Nursery: 3324492/2019 and 3301558/2020
JUDGMENT
[1]The judgment of the tribunal is that: 1.1. The claimant’s claim for unauthorised deduction of wages is well founded and the respondent is ordered to pay her the gross sum of £918.76 (subject to relevant tax and National Insurance). 1.2. The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay her the gross sum of £43.45 (subject to relevant tax and National Insurance). 1.3. The respondent’s contract claim is dismissed.REASONS
[1]The parties agree that the claimant earned £3,387.90 gross between 25 March and 18 July 2019. The parties agree she was paid £2,783.55 net between those dates. The difference is £604.35. The respondent paid the claimant the sum of £566.11 gross for underpayment of wages in August 2019. £604.35 - £566.11 = £38.24. I find that the respondent made unauthorised deduction of wages in the sum of £38.24 gross.[2]The claimant’s contract of employment provided that she worked 5 days a week, 35.75 hours per week at a rate of £8.21 per hour. The school holidays began on 18 July 2019. There is nothing in the claimant’s contract Case Number: 3324492/2019 (v) 3301558/2020 of employment that states she was not entitled to be paid in the school holidays or that her term time earnings should be amortised and paid over the holidays. I find that she was entitled to be paid during the school holidays.[3]The respondent claimed that the claimant has resigned with effect 18 July 2019. Ms Malik’s statement did not appear to substantiate this. The claimant disputed it. I am not prepared to accept Mrs Malik’s statement.[4]The claimant spoke to Ms Malik on 29 July 2019 to say she had been offered another job. In an email dated 5 August 2019 she resigned to say she was due to start a new job on 19 August 2019 and stated her last day would be 16 August 2019. However, in her claim form she states she started a new job on 12 August 2019. The claimant tells me this was an error but I am not prepared to accept this and will rely on her pleaded case. I find she is entitled to 3 weeks pay. 35.75 x 3 x £8.21 = £880.52. I find that unauthorised deductions from the claimant’s pay in this sum have been made.[5]Holiday pay: The claimant calculates that she is due £632.17 based on 20 weeks employment. The respondent’s figure is £557.11 based on 16 weeks employment. I have found 19 weeks employment. 28 x 7.15 per day ÷ 52 x 19 x £8.21 = £600.56. £600.56 - £557.11 = £43.45.