Mr N James v Quest Pay Solutions NE Ltd: 3326211/2019
JUDGMENT
[1]I will therefore make judgment in this case for the sum of £130.15 by this respondent to this claimant.REASONS
[1]The issue in the claim before me is one of unlawful deduction from wages, a claim under s.13 of the Employment Rights Act. This hearing has been conducted by CVP. The claimant, Mr James, represented himself and Ms Dawson represents on behalf of the respondent. I have been provided with a bundle of documents running to 127 pages only a few of which I have been taken to with reference during the course of this hearing. I have also received a bundle of additional documents from the claimant and 1 additional document from the respondent. In addition, I have seen and read a witness statement from Mr James on his own behalf and a witness statement from Mr Findley on behalf of the respondent. I have heard oral evidence from both of these witnesses and have heard submissions on behalf of both sides.The facts
[2]The facts of this matter are that the claimant started working on 2 September having agreed by a contact with a recruitment agency by the name of LNS to undertake work as a Lagger. The agreement, as the claimant understood it, was that he would be paid £20 per hour gross as an employee. However, he was not paid the money that he was entitled to after his first week of work. Therefore, on 10 September, he asked once again to be paid and, indeed, to be paid as an employee. At that point he was told that if he wanted to be paid as an employee he would be paid £15.33 gross. It had been assumed by the recruitment agents LNS that the claimant would be paid as a CIS contractor. This misunderstanding was due in no small part to a lack of communication between the claimant and LNS.[3]The claimant, as I have said, claims that he should have been paid £20 per hour gross and also as an employee and not a contractor.[4]The law on this situation where there is no agreed formal written term between the parties at the commencement of the agreement states that I must consider what reasonable people in the position of the parties at the time would have agreed. I have reminded myself of the case of Marks & Spencer v BNP Paribas [2015]. I am asked therefore to adjudicate on what terms were agreed between Mr James and LNS on 28 August 2019 with regard to his start of work on 2 September 2019 and then subsequently what terms there were from 10 September onwards.[5]The respondent has accepted that both by its actions and by way of the evidence of the schedule of assignment which I have seen, that the employment with the respondent started on 2 September 2019.[6]In my judgment, it is reasonable to conclude that the discussion between the claimant and the recruitment agent at LNS was with regard to a gross amount. And, on that basis, I find that the claimant was due to be paid £20 per hour gross from 2 September until 9 September. I also rely upon the emails which I have been shown in the bundle which clearly indicates the recruitment agent referring to the amount of £20 per hour.[7]Turning then to what happened from 10 September onwards. The claimant was told, at that point, that if he was to be considered and paid as an employee that the amount that he would be paid would be £15.33 per hour gross. Therefore, I find that a contract of employment did occur on 2 September 2019 at the rate of £20 per hour gross for the first week. During that time the claimant worked for 45.5 hours, an amount from the schedule that he has provided to me in the bundle of £910 gross. On a very rough calculation that would equate to approximately £820 net. From the claimant’s own schedule. once again, I acknowledge that he was in fact paid £689.85 for the week, albeit on a gross basis. Therefore, in my calculation, the loss which has been incurred by the claimant for that week was £130.15.[8]From there on the respondent, undertaking the duties of a reasonable employer and in accordance with the terms that were made clear to the claimant on 10 September, had paid the claimant in accordance with those terms at the rate of £15.33 gross per hour. I therefore find that there is no other sum due and owing to the claimant on the basis that he has been paid at that rate for all hours thereafter that he has worked.[9]I will therefore make judgment in this case for the sum of £130.15 by this respondent to this claimant.