Ms P Fallowfield v Bauhaus Educational Services Ltd: 3325529/2019

EMPLOYMENT TRIBUNALS

Case No 3325529/2019

Between

Ms P FallowfieldClaimant

Bauhaus Educational Services LtdRespondent

Before

Employment Judge M Warren

In person for claimant

Date 17 July 2020

JUDGMENT

[1]The Claimant’s claim for notice pay fails and is dismissed.

[2]The Claimant’s claim for holiday pay succeeds; the Respondent shall pay the Claimant £221.52.

[3]The Claimant’s claim for unpaid wages succeeds; the Respondent shall pay the Claimant £300.

[4]The Respondent having failed to provide the Claimant with written terms and conditions of employment as required by sections 1 and 4 of the Employment Rights Act 1996, the Respondent is ordered to pay the Claimant £369.22 pursuant to section 38 of the Employment Rights Act 2002.

[5]For the avoidance of doubt, the total payable by the Respondent to the Claimant under the terms of this Judgment is £890.74 Case Number: 3325529/2019 V 2

[6]Written reasons have been requested and will follow in due course.

REASONS

[1]In this matter, Ms Fallowfield brings claims of unpaid wages, for notice pay and for holiday pay. Although she had ticked the box on the ET1 to say that she was claiming unfair dismissal, she understood that she is not able to pursue an unfair dismissal claim because she did not have the required two years’ service and that claim was not accepted.

[2]The Respondent provides educational tuition. Ms Fallowfield was employed by them as a Business Manager. Her employment began on 3 January 2018 and ended with her resignation on 30 September 2019, (see below).

[3]Acas Early Conciliation took place between 15 October 2019 and 24 October 2019. The claim was issued on 12 November 2019 and was therefore issued in time.

[4]Ms Fallowfield’s claims are for accrued but untaken holiday pay, for notice pay and for wages for the month of September: she says that she was paid only £500, should have been paid £800 and so is owed an extra £300. Case No: 3325529/2019 (V) 2

Evidence

[5]This hearing was conducted by the HMCTS Cloud Video Platform without objection from the parties.

[6]I had before me in advance of the hearing a copy of the ET1 and ET3, a bundle prepared by the Respondent and a witness statement from Mrs Adetutu Alaka. At the outset of the hearing, it transpired that Ms Fallowfield herself had emailed the Tribunal her documents and statement, but these had not been provided to me. We broke whilst she emailed those documents to the Clerk, who forwarded them on to me. I read them before resuming. They included a statement by Ms Fallowfield which was primarily focused on casting aspersions on the Respondent and had little bearing on the issues as to wages, holiday pay and notice pay.

[7]Upon resuming after reading Ms Fallowfield’s documents, Mr Alaka informed me that he had not seen her statement, but he had seen the documents. I proceeded on the basis that I would make no reference to or have regard to Ms Fallowfield’s statement but would take oral evidence from her on the key points that I needed to know about for the issues at hand.

[8]Ms Alaka did not attend the hearing today in order to give oral evidence, which was not therefore challenged under oath. I have read and taken into account the content of her statement but have treated it with circumspection and have attributed to it such weight as I consider appropriate, bearing in mind that she was not here to be challenged.

[9]Mr Alaka, who had not provided a witness statement, did give oral

evidence.

[10]I therefore heard oral evidence from Ms Fallowfield followed by Mr Alaka. I gave each the opportunity to comment on and challenge the evidence of the other. Both gave evidence under Oath.

The Law

[11]Section 38 of the Employment Rights Act 2002 provides that if an Employment Tribunal has found in favour of an employee in respect of relevant proceedings and that employee has not been provided with a written statement of terms and conditions of employment as required under Section 1 and Section 4 of the Employment Rights Act 1996, the Tribunal must make an award for a minimum amount of 2 weeks’ pay (or may if it considers it just and equitable in all the circumstances, award the higher amount of 4 weeks’ pay).

[12]These proceedings for unpaid wages, (Section 23 Employment Rights Act 1996 applies) and for holiday pay, (Regulation 30 of the Working Time Regulations 1998) are relevant proceedings for the purposes of Section 38. Case No: 3325529/2019 (V) 3

[13]The Working Time Regulations 1998 provide that an employee is entitled to a minimum of 28 days holiday per year, to include bank holidays. An employee is entitled to payment in lieu of accrued but untaken holiday as at the date of termination of employment.

[14]Section 23 of the Employment Rights Act 1996 provides that an employee may bring proceedings in an Employment Tribunal for unpaid wages.

Background facts

[15]Ms Fallowfield was not issued with a written contract of employment or a written statement of terms and conditions of employment.

[16]Ms Fallowfield and the Respondent company fell out over a period of holiday which she took in September 2019. She says that her holiday was verbally approved by Ms Alaka. In a statement provided by Ms Alaka she said, “yes, but not for three weeks”.

[17]The holiday dates approved were, says Ms Fallowfield, 23 September to 4 October 2019 and I find that was in fact the case. Ms Fallowfield resigned on 30 September 2019 whilst she was on holiday.

[18]Her rate of pay was £800 per month. The Respondent says that was structured by way of £700 plus £100 expenses. The payment for expenses was not reimbursement for specific expenses incurred; this extra £100 per month came about when she pointed out the travelling that she was doing and the Respondent agreed to pay her an extra £100 per month to help cover that. The fact of the matter is that her monthly salary was £800. That equates to £184.61 per week, or £36.92 per day.

Conclusions

[19]Against that background, I make the findings of fact and reach the conclusions on each head of claim as set out below. Holiday Pay

[20]The holiday year was the calendar year. There is no provision for the amount of holiday that may be taken, I find therefore that Ms Fallowfield is entitled to the statutory minimum of 28 days per year, which includes bank holidays.

[21]Ms Fallowfield worked Monday to Friday, 3 o’clock to 7 o’clock. That is 20 hours per week. I accept her evidence in that regard.

[22]The Respondent says that at a meeting on 22 June 2018, it was verbally agreed that staff, including Ms Fallowfield, could take all the holiday that Case No: 3325529/2019 (V) 4 they wish, but that it had to be taken during the school holidays. Ms Fallowfield denies that any such meeting or agreement took place and in the absence of any documentary evidence on such a critical point, I accept Ms Fallowfield’s evidence that no such agreement was reached.

[23]In respect of holiday entitlement for 2019, Ms Fallowfield accepts that before September, she had taken five days leave. She had also received paid leave on bank holidays for New Year, Good Friday and Easter Monday. She could not recall whether or not she had worked the May Day and Spring Bank Holidays; I find that she had paid leave on those days. That means that during 2019, before the September leave, she had taken a total of 10 days holiday. During September, between 23 and 27 September, she had five more days’ holiday, which means a total of 15 had been taken by the time she resigned on 30 September 2019. Up to 30 September 2019, she had accrued due an entitlement of 21 days holiday, (that being 9/12 x 28). Of those 21 days accrued due, she had taken 15 days (including that week in September) leaving 6 days holiday accrued due but unpaid. 6 x 36.92 = £221.52.

[24]Ms Fallowfield is entitled to holiday pay of £221.52. Unpaid Wages

[25]Ms Fallowfield worked for the month of September, in respect of which for 5 days she was on holiday and was entitled to payment. Her monthly pay would be £800, she received £500 and is therefore owed a sum of £300 in wages. Notice Pay

[26]The Respondent sent Ms Fallowfield an email on 29 September 2019 dismissing her. By email dated 30 September 2019, Ms Fallowfield resigned her employment. She was candid enough to accept that she had not received the email from the Respondents of 29 September 2019 purporting to dismiss her. As the notice of dismissal had not come to her attention, it was of no effect. Mr Alaka, therefore, made the correct point that technically speaking, she resigned and she did so without notice, on 30 September 2019. Ms Fallowfield is therefore not entitled to notice pay. Absence of Written Contract

[27]It is acknowledged by Ms Alaka that Ms Fallowfield was not provided with written terms and conditions of employment as required by Section 1 of the Employment Rights Act 1996. As Ms Fallowfield has succeeded in her claims for holiday pay and unpaid wages, pursuant to Section 38 of the Employment Rights Act 2002, I am required to make an award in Ms Fallowfield’s favour whether she asks for it or not. The amount that I award in that regard is two weeks’ pay in the sum of £369.22. Case No: 3325529/2019 (V) 5 Sums Awarded

[28]I therefore give Judgment in Ms Fallowfield’s favour in the sum of £300 for wages, £221.52 for holiday pay and £369.22 because she had not been provided with written terms and conditions of employment. This amounts to £890.74.