Miss L Petetti v Randstad Student Worker Support and Randstad HR Solutions Ltd: 3332500/2018
JUDGMENT
[1]The claimant’s claim to be assigned further work by the respondents is struck out under rule 37;[2]The claimant’s claim that the tribunal recommends how the second respondent allocates support work is struck out under rule 37; and[3]The claimant’s claim that the tribunal recommends a fair pay rate for support workers is struck out under rule 37.REASONS
[1]The second respondent provides, amongst other services, recruitment services to universities who require non-medical helpers to support students who may be 1 of 4 disabled or require additional support. The first respondent is not a legal entity. It is the trading name for the second respondent. The claimant was engaged under a contract for service by the respondent as a non-medical helper. By a claim form presented on 31 August 2017, following a period of early conciliation from 13 July 2018 to 13 August 2018, the claimant brought complaints of unpaid wages and claims for various other matters that are explained in more detail in what follows. In summary, the respondent’s defence is that all wages claims have already been met in full and that the rest of the claims brought against it are not within the jurisdiction of the tribunal.[2]On 4 December 2018, this hearing was converted by Employment Judge McNeill QC from a full merits hearing into an open preliminary hearing. An application by the respondent to strike out the claimant’s claims could be made at the hearing, and subject to that, case management would be considered at the conclusion of the hearing. The claimant did not attend the hearing due to death of her father. The tribunal were informed by the claimant of this development at 06:38 on the morning of the hearing. The claimant asked for the hearing to be postponed. I did not consider it to be in the interests of justice to postpone the hearing, so I refused that application. There appeared to me to be a number of matters that could be fairly and justly dealt with in the claimant’s absence. I therefore decided to proceed with the hearing in the claimant’s absence under rule 47.The issues
[3]The claimant makes the following complaints in her claim form:3.1 a claim for unpaid wages, holiday pay and loss of earnings including claims for months during which she says she received the incorrect amount of pay;3.2 a claim for the tribunal to direct that the respondents allocate further work including laboratory work that she is qualified to do;3.3 a claim that the tribunal becomes involved in the internal management process whereby the respondents match support workers to students; and3.4 a claim that the tribunal recommends a fair pay rate that the respondents should pay to its support workers.[4]On any view, only the wages claims are capable of being decided by this tribunal. This tribunal simply has no power to make any decisions about the internal management affairs of the respondents. Those issues are matter entirely for the respondents to determine as they see fit. The tribunal does have a power to consider claims for equal pay, but that is an entirely different thing to fair pay. I gave considerable thought, both at and after the hearing, as to how best to deal with these matters. Since they are not justiciable issues, they are not matters that could ever be considered by this tribunal. Nevertheless, I decided to make a strike out order in respect of all three claims on the grounds 2 of 4 that they have no prospect of success whatsoever. This makes it clear to all parties that the tribunal cannot consider them. The wages claim[5]The wages claim is in three parts. First, a claim that the claimant wasn’t paid for work she says she did in June and July. The claimant’s case is that she received no pay at all in June 2018. Secondly, payment for support work she undertook in respect of four anonymised students who have been referred to throughout as students A, B, C, and D. Thirdly, a claim for holiday pay.[6]At the hearing, the respondents produced the claimant’s payslips for both June and July. This evidenced a payment to the claimant of £199.60 for the month of June and a payment of £1,487.88 for the month of July. The written evidence that I saw was therefore not consistent with the claimant’s case. The respondent also pointed out that the sum of £570.52 (after compulsory tax and National Insurance deductions) that the claimant claims has been deducted was in fact an adjustment to reflect the fact this this sum had already been paid in advance as an exceptional “off-payroll” payment. That sum was then recovered by way of an adjustment when it was included in a subsequent payroll payment to the claimant. In other words, there hasn’t been a deduction in respect of that amount because it was no longer properly payable to the claimant. It had already been paid to her.[7]The respondents submit that the claimant was paid in full for the hours she worked supporting students A, B, C and D. Indeed, the respondent says that the claimant was paid in full even though the approval process whereby hours are validated had not always been completed. In other words, the claimant was given the benefit of any doubt. The work in respect of students A and B was paid on 15 March 2019. The work in respect of student C was paid in December 2018. The work in respect of student D was paid in July 2018.[8]The respondents’ position on holiday pay is that everything that should have been paid has already been paid. The claimant says that she was not paid holiday pay in August 2018, whereas the respondent’s records show that the claimant was paid for 109 hours as holiday pay in that month. The claimant described its practice of contacting all of its workers in November and December (the end of the holiday year) to ensure accrued holiday is taken. In 2017 the claimant was contacted in this way and 22.5 hours were paid to the claimant.[9]On 2 April 2019, the respondent sent an email to the claimant pointing out that it believed that all the claims had been satisfied. The respondent had also sent its witness statement on 22 March 2019 to the claimant as ordered (with an agreed extension between the parties) by the tribunal but had not received the claimant’s witness statement(s). The respondent asked the claimant whether she was still pursuing her claim. It received no response. Case management: Deposit Order 3 of 4[10]I gave considerable thought, both at and after the hearing, as to how best to deal with the wages claims by way of case management. I decided to make a deposit order under rule 39. On the basis of the documentary evidence that I considered at the hearing it seemed to me that the claimant’s wages claim have been satisfied and accordingly have little reasonable prospect of success. There was also no clear evidence that the claimant has been engaging with the process in the significant period leading up to this preliminary hearing.[11]In the light of the claimant’s non-attendance I was unable to make direct enquiries into the claimant’s ability to pay. However, I could see from the papers that claimant is a science graduate with MSc qualifications with laboratory skills in addition to her skills as an experienced graduate support worker. I therefore ordered the claimant to pay a deposit order of £200 as a condition of continuing to advance the allegation that she is entitled to unpaid wages, holiday pay or any other form of compensation from the respondent. For the avoidance of doubt, this deposit order applies to the entirety of the claimant’s remaining claims, the other claims having been struck out.[12]The terms of the deposit order are set out in a separate document accompanying this judgment and reasons. Other matters[13]The attention of the parties is drawn to the Presidential Guidance on ‘General Case Management’, which can be found at: www.judiciary.gov.uk/publications/employment-rules-and-legislation-practicedirections/[14]The parties are reminded of rule 92: “Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of “cc” or otherwise)…”. If, when writing to the tribunal, the parties don’t comply with this rule, the tribunal may decide not to consider what they have written.[15]The parties are also reminded of their obligation under rule 2 to assist the Tribunal to further the overriding objective and in particular to co-operate generally with other parties and with the Tribunal.The issues
[1]The claimant was ordered to pay a deposit of £200.00 following a preliminary hearing held on 05.12.19. The Order was sent to the claimant on 20.07.20. The claimant has failed to pay this deposit. The complaints of unpaid wages, holiday pay and loss of earnings are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. The other complaints made by the Claimant were struck out following the Open Preliminary Hearing on 5.12.10 in a judgment sent to the parties on 20.7.20.[2]The Tribunal has had regard to the claimant’s correspondence of 16.9.20 and 22.9.20. The Deposit Order had to be paid no later than 21 days from the date it was sent to the parties (i.e. by 10.8.20). It was not paid. The claimant’s correspondence was sent to the Tribunal after that deadline had elapsed.