Miss P Ross v Mr O Opiah and London Recruitment Ltd (T/a LDN Recruitment) and others: 3327048/2017
JUDGMENT
[1]The claimant’s claim for unlawful deduction of wages is upheld. This amounts to £2,349.60 for wages due between November 2016 and July 2017.[2]The claimant’s claim for notice pay of two weeks is upheld. This amounts to £692.[3]The respondent is ordered to pay to the claimant the sum of £3,041.60.REASONS
[1]In order to explain my decision to order that the judgment given in this case on 25 June 2018 be reconsidered, I need to set out a little of the procedural history of this case.[2]The claimant brought a claim against the First Respondent only in August 2017. She alleged that she had not been paid the National Minimum Wage at any time during her employment, that there had been a breach of contract, or unlawful deduction from wages (namely the failure to pay her notice monies) and that she had been unfairly dismissed because “He fired me as I asked for NMW”. The claimant accepted that she lacked the required two years continuous service in order to make an “ordinary” unfair dismissal claim. Case Number: 3327048/2017 ph judgment + 2 cm Nov 2014 wip version[3]The response, filed on behalf of the First Respondent, did not deal with the question of unfair dismissal and did not assert that the true employer was the Second Respondent.The issues
[4]A preliminary hearing was conducted by Employment Judge Heal on 29 January 2018. She gave the claimant 14 days to say why no strike out of her unfair dismissal application should take place having regard to her lack of two years’ continuous service. The claimant failed to supply those particulars, because she accepted that she had not been employed for two years, hence her claim for unfair dismissal was struck out on 12 February 2018.[5]On 15 February 2018, a document containing the preliminary hearing orders was sent to the parties by post. It shows the case to be listed for consideration of the other claims on 25 June 2018. It records that the First Respondent was present at the hearing. However, having heard from him it is unclear to me whether the date was fixed in his presence, or (even if it was) he understood this.[6]On 22 June, as part of its usual exercise to ascertain whether the parties intended to attend the hearing, a representative of the tribunal telephoned the respondent. He explained that he was unaware of the hearing to take place the following Monday and that he could not attend. He was advised to write to the tribunal as a matter of urgency explaining this and asking for an adjournment. At 15:39 that afternoon, he wrote to the tribunal, by email, in the terms requested.[7]On the same day the tribunal wrote to the claimant advising her that the respondent had indicated that he was unaware of the hearing and wanted a postponement, but had not written to the tribunal. That letter also noted that the unfair dismissal claim had been struck out. That letter appears to have been sent to both parties by post. I accept that the First Respondent did not receive it until some days after the hearing had taken place on 25 June.[8]On 25 June Employment Judge Palmer QC gave judgment in the claimant’s favour and in the absence of the First Respondent in respect of the National Minimum Wage and unlawful deductions claims. She also ordered particulars of the unfair dismissal claim to be given with a view to that being heard in due course on the basis that what was being alleged was an automatically unfair dismissal in respect of which there was no required qualifying period.[9]On 6 July the claimant gave the required particulars (but did not copy them to the respondent). She there asserted that she had been dismissed because of her National Minimum Wage claims, but also noted that she had been dismissed without reason and by a Skype message.[10]On 16 July, having received Employment Judge Palmer’s judgment, the First Respondent wrote to the tribunal complaining of its going ahead in his absence having regard to his having done what the tribunal asked of him in terms of applying for an adjournment. Case Number: 3327048/2017 ph judgment + 3 cm Nov 2014 wip version[11]On 19 July 2018 Employment Judge Manley wrote to the First Respondent asking whether his email of 16 July should be seen as an application for reconsideration of the judgement and raising the question as to whether the correct respondent ought to be the Second Respondent.[12]From the tribunal file it is clear that a great deal of time was then taken in exchanges of correspondence between the tribunal and Employment Judge Palmer and that, eventually (possibly after the file was lost for a period), the matter was listed for 13 November 2019 for three matters to be considered:12.1 Whether the First Respondent had received notification of 25 June 2018 hearing.12.2 Whether the correct respondent ought to be the Second Respondent.12.3 For consideration of the unfair dismissal claim.[13]I note that at this stage the First Respondent was someone who had been informed that the unfair dismissal claim had been struck out (whether or not he had received any earlier notification, this was made clear in the tribunal’s letter of 22 June), he had not received the particulars given by the claimant in response to Employment Judge Palmer’s order and no directions had been given in respect of disclosure or witness statements regarding the unfair dismissal claim. Furthermore, his application to postpone the 25 June hearing had never been considered.[14]Against that background I turn to consider those three issues which are before me today.[15]I deal first with the question of whether or not the First Respondent received notification of the hearing on 25 June. Having considered that matter, I will then turn to consider whether or not the judgment given on that day ought to be reconsidered.[16]I have set out the procedural history above. It is clear that as at the beginning of the hearing on 25 June, the First Respondent had made the application to the tribunal which he had been advised to make and that the tribunal had not responded. The letter of the same date was not a response. I am satisfied that it was written and sent (by post) without the tribunal realising that the apparently absent application to which it refers had indeed been made. I am also satisfied that Employment Judge Palmer QC was unaware of the existence of the application to adjourn, hence she did not consider it.[17]Having heard from the respondent, I am satisfied, on balance, that he did not receive any notification of the hearing of 25 June until the Friday beforehand. Some support for his contention in that regard is found in the fact that in all other regards, when contacted by the tribunal he did respond and he has attended today. Case Number: 3327048/2017 ph judgment + 4 cm Nov 2014 wip version[18]The First Respondent disputes the claimant’s entitlement to the sums awarded at that hearing. I shall not seek to encapsulate what he told me in that regard. Making a determination as to where the truth lies will be a matter for the tribunal which considers these matters in due course. Suffice it to say that it is the First Respondent’s case that once the written contracts of employment supplied to the claimant are understood in the context of the working pattern and payment regime, then it will be seen that the National Minimum Wage was paid. He also points to the fact that a review took place by HMRC some two months after the claimant’s departure and that this review established compliance with National Minimum Wage requirements during the previous year. In due course I will make appropriate orders for the disclosure of relevant documents, including any correspondence with HMRC in this regard.[19]On 16 July the respondents wrote to the employment tribunal by email following his receipt of the judgment sent to him on 3 July. He pointed out that he had done what had been asked of him and questioned why the tribunal had then proceeded in his absence. I regard that as an application for a reconsideration of the judgment appropriately made under rules 70 to 72 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. It was made within the appropriate 14-day time limit. In any event, in the above circumstances (and having regard to what I shall conclude, below, with regard to the Second Respondent) I consider that I should, on my own initiative, order a reconsideration of that judgment. In particular, an application to adjourn had not been dealt with.[20]I now turn to the issue of the correct respondent in these proceedings.[21]As I have already noted the First Respondent submitted a response in his own name alone. He made no mention of the Second Respondent. However, he now maintains that the claimant was employed by the Second Respondent.[22]On being questioned, the claimant accepted that her employment was by the Second Respondent. She produced two contracts of employment (being those referred to in her claim form) both of which are in the name of a limited company. I note that the second such contract purports to describe the relationship between the company and the claimant as being one of self-employment. The First Respondent (who is the sole Director, so he told me, of the Second Respondent) does not advance any case to the effect that the relationship was one of self-employment. Hence, I accept that the claimant was an employee, the question remains of whom.[23]The claimant says that she had intended to claim against the Second Respondent, but had been advised by Acas that the relevant person to claim against was the First Respondent, having regard to the fact that he is the sole Director of that company and that it has no shareholders. She also told me that “he” (being the First Respondent) had been “liquidated” on two occasions. Case Number: 3327048/2017 ph judgment + 5 cm Nov 2014 wip version[24]I have not probed the First Respondent as to when the shareholders which it must have had at incorporation ceased to be so (if they ever did). The status of the company at the time it purported to issue a contact of employment to the claimant will have to be considered at the further hearing, as will the impact of that status upon the identity of the employer and upon the identity of the appropriate respondent to these proceedings. For present purposes I go no further that to add the company as Second Respondent and to make appropriate orders for disclosure and the provision of information in this and other regards.[25]Finally, I turn to the claim for unfair dismissal. I have already noted that it was struck out in accordance with the order of Employment Judge Heal. I have also noted that that strike out was consequent upon the claimant’s deliberate failure to provide the particulars ordered. Of course, that failure was in the context of her lacking two years qualifying service, a requirement which had specifically been pointed to (as a likely reason why the claim could not proceed in this regard) in the order of Employment Judge Heal. Yet, the claimant’s ET1 had made clear that she considered that she had been dismissed for asserting her National Minimum Wage rights. If she was correct, the requirement for qualifying service would not apply.[26]I have also noted above, that the respondent had been informed of the striking out of that part of the claim, then (confusingly no doubt) saw an order which referred to the claimant being given an opportunity to provide particulars, but no particulars were provided to him. In those circumstances, even leaving aside the lack of disclosure and witness statements, I do not believe that the interests of justice would be served by hearing that matter today.[27]It appears to me that Employment Judge Palmer QC implicitly set aside the strike out which had followed from the order of Employment Judge Heal and extended time for compliance with the order to supply particulars by a further 14 days from the sending out of her order. In any event, I consider the earlier order to be a case management order which can be set aside under Rule 29 and I do so. I would further note that the interests of justice require that order to be set aside, because it expressly proceeded on a false premise, namely that the claim which the claimant asserted was one which required her to have qualifying service (which she knew that she lacked).[28]The issue of whether the claimant was automatically unfairly dismissed in accordance with either s.104 or s.104A of the Employment Rights Act 1996, will be considered at the hearing of the claims against the Second Respondent and the reconsideration of the National Minimum Wage and unlawful deductions claims against the First Respondent. Case Number: 3327048/2017 ph judgment + 6 cm Nov 2014 wip version 29th November 2019 Employment Judge Andrew Clarke QC Sent to the parties on: …29th November 2019 For the Tribunal: ………………………….. Case Number: 3327048/2017(V) 1 EMPLOYMENT TRIBUNALS Claimant Respondents Ms P Ross v 1. Mr O Opiah 2. London Recruitment Ltd (T/A LDN Recruitment) Heard at: Watford (by CVP) On: 9 February 2021 Before: Employment Judge Alliott (sitting alone) Appearances For the Claimant: In person For the 1st & 2nd Respondents: Mr O Opiah COVID-19 Statement on behalf of Sir Keith Lindblom, Senior President of Tribunals This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was by Cloud Video Platform (V). A face to face hearing was not held because it was not practicable during the current pandemic and all issues could be determined in a remote hearing on the papers.[1]The second respondent has made unauthorised deductions from the claimant’s pay and is ordered to pay her the gross sum of £2,625.[2]The claimant’s claim for notice pay is upheld and the second respondent is ordered to pay her the gross sum of £600.[3]The claimant’s claim that she was automatically unfairly dismissed is well founded. (For the avoidance of doubt, no award or a basic award or a compensation award is made). Case Number: 3327048/2017(V) 2[4]On 25 June 2018 Employment Judge Palmer QC gave judgment against the first respondent in the claimant’s favour and in the absence of the first respondent. At that stage, based presumably upon what the claimant had told her, she calculated the unauthorised deduction of wages in the sum of £2,349.60 and two weeks’ notice pay in the sum of £692.00. No reasons have been given or requested as to how those amounts were calculated. I have Employment Judge Palmer QC’s handwritten notes of the hearing which give a monthly breakdown of the wages due that she awarded but I have been unable to ascertain the basis from which she came to thoseconclusions.
[5]Today the claimant has placed before me some documents that indicate that the claimant took County Court proceedings against Mr Opiah in January 2019 based on Employment Judge Palmer’s judgment. She obtained judgment in the County Court and instructed bailiffs to enforce it. It would appear that those proceedings came to a halt when Mr Opiah was able to show the bailiffs that an application for reconsideration of Employment Judge Palmer’s judgment was proceeding in this jurisdiction.[6]The unfair dismissal claim had been struck out by Employment Judge Heal on the basis that the claimant did not have two years’ qualifying service. However, Employment Judge Palmer QC left open the prospect of her continuing her claim in relation to an automatically unfair dismissal. As Employment Judge Andrew Clarke QC observed, she implicitly set aside the strike out which had followed from the order of Employment Judge Heal.[7]On 13 November 2019 Employment Judge Andrew Clarke QC directed that the judgment of Employment Judge Palmer QC of 25 June 2018 will be reconsidered (together with the issue of the claimant’s alleged unfair Case Number: 3327048/2017(V) 3 dismissal) on a later date. Employment Judge Andrew Clarke QC set out the issues and made case management orders. These included joining the second respondent to the case. Orders were made for the respondents to disclose company documents and information relating to the directors of the second respondent. It does not appear that the second respondent has complied. A schedule of loss was ordered by 20 January 2020, requiring the claimant’s claim to be set out and, in particular, setting out the claimant’s claim for compensation in respect of unfair dismissal. A counter-schedule was ordered for 23 March 2020 and witness statements were to be exchanged on 11 May 2020. None of these appear to have been complied with.[8]On 29 May 2020 Employment Judge Heal listed this hearing. She made further orders for disclosure of a schedule and counter-schedule of loss, documents for the hearing and witness statements.[9]The first respondent did not comply with the order for his witness statement by 26 June 2020 and, in the face of complaints from the claimant, Employment Judge Heal made a further order on 6 August 2020 requiring the respondent to send to the claimant his witness statement by 28 August 2020 along with a written explanation as to why he had not done what he had been ordered to do and giving an explanation as to why his response should not be struck out. It would appear that the respondent did send a form of witness statement on 28 August 2020 but does not appear to have complied with paragraphs 2 and 3. On 31 December 2020 the first respondent was written to indicating that Employment Judge Heal directed that the claimant must comply with orders 2 and 3 of the order sent on 6 August 2020. On 8 January 2021 Employment Judge Vowles directed that any outstanding default in complying with the tribunal’s orders can be considered at the start of the hearing.[10]Mr Opiah sought to explain any defaults on the basis that he had sent emails with attachments to the tribunal but there may have been a fault somewhere that meant they did not get through. Be that as it may, I decided to proceed with this hearing and hear from both parties rather than striking out the respondent’s response.[11]The first issue I need to consider is who was the claimant’s employer. Although the claim was originally brought against Mr Opiah, it was based on an early conciliation certificate that named London Recruiting Ltd as the prospective respondent. The claimant’s witness statement says that when she went for an interview she told the receptionist that she had an interview with LDN Recruitment. In June and July 2017 the claimant’s employer produced two forms of contract of employment, both of which recited that her employer was London Recruitment Ltd. The respondent has disclosed payslips for the claimant in the name of London Recruiting. I find that the claimant’s employer was London Recruiting Ltd t/a LDN Recruitment, the second respondent. Case Number: 3327048/2017(V) 4[12]When she began her employment the claimant was not issued with a contract of employment. The claimant states that Mr Opiah told her on recruitment that she would be earning £18,000 plus commission. The advert that the claimant has shown me does state “salary: £18,000 to £25,000 per year”. Mr Opiah told me that this was intended to include commission payments and was the total package potentially available. On this issue I accept the evidence of Mr Opiah that the claimant was not offered the job at £18,000 with commission in addition. A salary of £18,000 translates into £1,500 gross per month. The payslip for December 2016 sets out a salary of £1,000. I find that if the claimant had been expecting a salary of £1,500 per month I would have expected to see contemporaneous complaints from her.[13]The information provided to me by both parties was confusing as to precisely what the claimant’s entitlement to pay was. However, Mr Opiah told me that the claimant was entitled to be paid at a rate of £7.50 per hour as long as she hit her sales targets. It was agreed between the parties that in order to hit her monthly sales target the claimant would have to make 15 sales. It was further agreed between the parties that having reached the sales target, the claimant would be entitled to commission of £30 per sale. In addition, the claimant would be entitled to a £25 bonus if she was the top sales person for that month.[14]With the exception of November, between December 2016 and June 2017the respondent has asserted that the claimant worked 130 hours per month (excluding April for which 89 hours is recorded). The claimant has contended that she was entitled to be paid for 160 hours per month. Both parties have worked on a four week month and although that may not reflect the actual number of weeks, both indicated they were prepared for me to adopt their reasoning and work on a four week calendar month. Mr Opiah suggested that his monthly hours were based on observations and records, none of which have been placed before me. I reject his evidence as inherently unlikely seeing as he has repeatedly asserted 130 hours per month. The form of contract that has been shown to me indicates that the claimant’s hours of work were 10-6pm. There is no reference in the contract to not being paid for a lunch hour. Accordingly I find that the claimant’s contract of employment entitled her to be paid eight hours per day at an hourly rate of £7.50. The claimant’s contract of employment was for five days a week, and consequently I find that she was entitled to be paid 40 hours per week at £7.50. There is nothing in the contract of employment that entitled the respondent to reduce the hourly rate from £7.50 in the event that the claimant did not reach her target. I find that the claimant was not entitled to be paid a bonus if she failed to reach her monthly target of 15 sales. The claimant told me that he reduced the amount of hours paid to the claimant for April 2017 due to the fact that she missed her sales target and to take account of the bank holidays over Easter. I find that the respondent was entitled to not pay because the claimant did miss her sales target in April 2016. However, I find that the claimant was entitled to be paid for four weeks at 40 hours per week in April. Case Number: 3327048/2017(V) 5[15]It is common ground that the claimant began work on 14 November 2016. There was a dispute between the parties as to whether she ceased work on 19 or 26 July 2017. Neither party could put a dated text message before me and I have taken it that the claimant was employed for eight months between 14 November 2016 and mid-July 2017. Working on a four week calendar month and taking eight months in all probability benefits the respondents. However, the claimant has been content that I work with these figures.[16]It is common ground that the claimant made 101.5 sales during her employment. Each of those would have earned her commission of £30. Further the respondent told me that the claimant was top sales person approximately six times.[17]Accordingly I find that the claimant was entitled to be paid the following amounts during her employment:-(1) 8 months @ 160 hours per month = 1,280 hours @ £7.50 = £9,600(2) 101.5 sales @ £30 per sale = £3,045(3) Sales bonus: 6 x 25 = £150 Total gross pay: £12,795[18]The wage slips indicate that the claimant was paid a total of £10,170 during her employment. £12,795 - £10,170 = £2,615.[20]Accordingly, I find that the claimant has been subjected to unauthorised deduction of wages in the gross sum of £2,615 and judgment will be entered for that sum against the second respondent.[21]Although the basis upon which Employment Judge Palmer QC found unauthorised deduction of wages in the sum of £2,349.60 is unclear to me, I note that the figure I have arrived at is not that dissimilar. I record that the claimant was unable to explain to me how Employment Judge Palmer QC’s figure had been arrived at although, from the note on file, the claimant said it was correct.[22]I find that the claimant’s dismissal was wrongful and that she was entitled to two weeks’ notice. Two weeks’ notice is £600 and accordingly there will be judgment for this sum.[23]I now turn to consider the claimant’s termination of employment. It is common ground that the claimant was requesting written terms and conditions of employment and that forms of contract were provided in June and July 2017. Further I find that the claimant was questioning the basis of her pay and how it was calculated. I find that this was against the background where she was alleging that the pay was below the National Minimum Wage. In due course the claimant went to ACAS and the date of Case Number: 3327048/2017(V) 6 notification is 19 July 2017. The respondent states that he received a call from ACAS about not paying Priscilla the minimum wage. The respondent tells me that he was very angry at the whole situation. It was Mr Opiah’s case that he had paid the claimant the National Minimum Wage and that, if anything, she had been overpaid. In any event it is clear that there were text messages between the two about the issue. Mr Opiah told me that his attitude was that if the claimant was unhappy then she could leave. He denied having terminated her contract of employment and suggested that she had resigned.[24]Nevertheless, the background to the exchanges between the claimant and Mr Opiah was that she was asserting that she had not received the National Minimum Wage. Mr Opiah has acknowledged that he was angry about this. I have seen a text message from him stating: “This month is your last month”. In addition I have seen the following exchange:- “Mr Opiah: Are you leaving from today or end of the month Claimant: You said I’m not getting paid this month so today.”[25]On this issue I prefer the evidence of the claimant and find that Mr Opiah, angry at the intervention of ACAS and questions concerning payment of the National Minimum Wage, told the claimant that he would not be paying her for July. I find that to be a fundamental breach of the claimant’s contract of employment and that in response to that threat the claimant resigned. As such I find that the claimant was constructively dismissed.[26]I have gone on to consider what the reason for the dismissal and/or the principal reason if more than one was. I find that the reason was that the claimant had taken action with a view to enforcing or securing the benefit of the National Minimum Wage by contacting ACAS and getting them involved. Consequently, I find that the dismissal was automatically unfair.[27]Despite numerous directions that the claimant should set out in a schedule of loss and in a witness statement any compensation that she was claiming as a result of the unfair dismissal, she has not done so. Indeed the claimant told me that her principal claim in this matter was the unauthorised deduction of wages. No evidence has been placed before me upon which I could make a finding in respect of a compensation award. The claimant did not have one full year’s employment and consequently was not entitled to a basic award. As such the claimant’s remedy is limited to the declaration that she was automatically unfairly dismissed.[28]It follows that I have decided the judgment of Employment Judge Palmer QC dated 25 June 2018 should be varied.