Employment Judge McFatridgeMs P Janeckova for claimantDaughter for claimantMrs C Barrett for respondentDaughter for respondentDate 20 December 2024
JUDGMENT
[1]The claims of a failure to provide itemised pay slips is not well-founded and is dismissed.[2]The claim relating to payment for stress and anxiety caused by chasing up pay slips is not well-founded and is dismissed.[3]The claim for payment in lieu of holiday pay is not well-founded and is dismissed.
REASONS
[1]In this case the claimant submitted a claim form in which she set out a history of having worked for the respondent since June 2015 until going off on long term sick leave in February 2023. She stated she had been E.T. Z4 (WR) incapable of working since then and had provided fit notes to her employer. She stated that she had received SSP from her employer but that her employer had failed to provide her with pay slips from September 2023 onwards. She also claimed that she was due a sum in holiday pay. She stated that her employer did nothing and she started sending him messages. She indicated that he had dealt with matters in an unsatisfactory way. She stated that she was seeking financial compensation including compensation for psychological damage and time spent sending messages to the employer and communicating with HMRC, ACAS etc. She also indicated she wanted her P60 for the year ending 5 April 2024. The employers submitted a response in which he denied the claims. He set out his understanding of the position which was that he had paid the claimant the SSP she was due in full. He accepted that the claimant would have accrued holiday pay during her sickness absence but stated that he was awaiting advice from his accountant in relation to this. A hearing was fixed and at the hearing the claimant gave evidence on her own behalf. Her husband Petr Janecka also gave limited evidence on her behalf. Having heard the claimant’s evidence the respondent’s representative indicated she did not seek to lead any evidence herself. The claimant had helpfully produced a bundle of productions for the hearing. This is referred to by page number below. On the basis of the evidence and the productions I found the following essential matters to be proved or agreed. Findings in fact[2]The respondent is Patrick McGroarty who trades as Caledonia Highland Dress. The claimant worked for him from 2015 onwards. She is still employed by him. The claimant last attended work in February 2023. At that time she worked 30 hours per week for which she was paid at the rate of £12 per hour. Her normal pattern was to work a five day week. The claimant’s contract of employment was not lodged but I accepted that the leave year ran from 1 January to 31 December in each year. In the period prior to calling off sick in February 2023 the claimant had taken three days’ paid holiday.[3]The claimant was paid statutory sick pay by the respondent from February 2023 until September 2023. The claimant provided pay slips during this period. The claimant was entitled to SSP payable by the employer for 28 weeks but the 28 week period expired on 6 September 2023.[4]The claimant considered that she had been underpaid SSP and contacted HMRC. They wrote to the claimant on 7 February 2024 (document 3.0). They confirmed that the respondent had paid SSP amounting to £2319.28 up to September 2023 whereas the actual amount of SSP he ought to have paid was £2510.17. This left an underpayment of £190.89. The respondent paid this sum shortly after they were advised of it by HMRC. The payment was made without any deductions being made. It is unclear whether a payment slip was handed to the claimant along with this payment but in any event the sum was paid in full without any deductions being made.[5]At some point there was an issue between the parties with regard to the claimant’s pension contributions however this was resolved and the respondent paid all contributions due to the pension provider by the time of the tribunal.[6]From September 2023 onwards the claimant and her family contacted the respondent on numerous occasions asking for itemised pay slips. These were not provided. Apart from the payment of £190.89 which was made without deduction no payments were made by the respondent to the claimant after September 2023. Given that no payments were being made the respondent was under no obligation to provide a payslip in terms of s8 of the Employment Rights Act 1996[7]The claimant did not take any holidays during the period from February 2023 onwards. Her position is that she was off sick during this period. Matters arising from the evidence[8]The factual state of affairs in this case appears to be one agreed between the parties. I accepted the evidence of the claimant and my findings of fact are essentially based on what she said. She was quite clear that she had not taken any holiday since February 2023 but had been off on sick leave during the whole period. It was also clear that she had not received any payments. My understanding was that the claimant wanted to receive a pay slip from the respondent as evidence that she was on nil pay so that she could show this to the benefits agency and other relevant bodies. Similarly, the claimant wanted her P60 for similar reasons. She did not make any complaint about not receiving a payslip for the one payment of £190.89 for unpaid SSP and other than the fact that this was paid without deduction I heard no evidence as to how or when it was paid and what paperwork if any accompanied it. Mr McGroarty was present at the hearing but did not give any evidence. During submissions his representative indicated that he is 74 years old and in extremely poor health. The business is not in a good way and he has found it very difficult to keep this going himself during the period whilst the claimant has been off ill. I was advised that the business is in financial difficulty and will be shut down but I did not hear any direct evidence on this point. Discussion and decision[9]I should start off by saying that this is an unfortunate case. Both parties struck me as straightforward, hard working people who are in a difficult situation due to their ill health. I have no doubt that the claimant was concerned at what she felt were failures by the respondent to provide her with information she felt she was entitled to and to deal with things in the way she felt he ought to. Equally I accept that the respondent was concerned that the claimant was seeking very substantial sums as compensation for stress for which she had absolutely no legal entitlement. The respondent indicated in his ET3 response that he finally stopped reading the claimant’s letters given that they were solely full of threats. The legal position in respect of all of these matters is not at all straightforward and it is unfortunate that neither party was in a position to obtain proper legal advice. I quite accept that neither of them were in a position to pay for this however it may have prevented the situation dragging on.[10]With regard to the failure to provide pay slips the tribunal’s jurisdiction is set out in paragraphs 8 to 12 of the Employment Rights Act 1996. The first point that is important to state is that where a tribunal finds that there has been a failure to provide pay slips there is no right to compensation. The remedy the tribunal can give is essentially to make a declaration of what ought to have been in the pay slip. If any unnotified deductions have been made then the respondent can be ordered to repay them.[11]Other than that, there is absolutely no right to compensation. The second point is that the right to an itemised pay statement is itself limited to situations where the payment of wages or salary is made. The position in this case is that according to the claimant‘s own evidence no payments at all had been made of wages or salary since September 2023. She had received pay slips up to that time. The only payment made after that was the payment of arrears of SSP which was made some time after the respondent was advised of it by HMRC around February 2024. The claimant’s own evidence was that this payment had been made in full with no deduction. It would be open to me to make a finding that the respondent ought to have provided an itemised pay slip showing zero deductions but I felt this inappropriate since the claimant did not say in her claim form that she was seeking a payslip for this sum and also I heard no evidence positive or negative as to whether any kind of payment slip was sent to the claimant. Given that the claimant had been told the amount of payment by HMRC and given that no deductions were made such a payslip would only legally have required to confirm the amount and I simply do not know whether this was provided or not. In any event the point is entirely academic.[12]In my view the claim which the claimant makes of a failure to provide itemised pay slips showing a nil payment for each month since September 2023 is not well-founded. The tribunal has no power to order the employer to provide such statements where no payment is being made.[13]That having been said I can quite see that given that the claimant still remains employed it may well have been useful to her to have received some kind of statement from the respondent confirming the position. It would have been good practice for the employer to provide this on a voluntary basis. The tribunal does not have any power to force this however.[14]With regard to the P60, I advised the parties on the day that I was unaware of any provision in the Employment Rights Act which gave the tribunal jurisdiction in the matter. It may well be that there is something in the Taxes Acts which obliges an employer to provide a copy P60 to a member of staff. The enforcement of this is however not a matter for this tribunal but one which can only be dealt with by HMRC.[15]Moving on to the holiday pay claim the respondent’s position was that it had come as a shock to them to be advised that they were due to pay holiday pay to the claimant for periods when she was off on long term sick leave. The respondent’s representative indicated that the respondent now accepted that this was the case and was prepared to pay whatever sums were due but indicated that given the company’s current financial position they could not say when they would be able to afford this. I was told that at present the business had £82 in the bank. I would point out that it would appear that Mr McGroarty trades as a sole trader and not as a limited company and that therefore any obligation due by his business would presumably be enforceable against all his assets not just his business bank account.[16]With regard to holiday pay this can be due either as a matter of contract or if the contract is silent it may be due in terms of the Working Time Regulations 1998 which provides a minimum entitlement to holiday pay. The claimant did not lodge her contract and I have therefore proceeded on the basis that the claimant was claiming payment of the holiday pay she is entitled to under the Working Time Regulations 1998 (as amended)[17]It is now well established law following the cases of Stringer and others v Revenue and Customs Commissioners and Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] ICR 932 that workers absent on long term sick leave are still entitled to benefit from their paid annual leave entitlement under the Working Time Regulations. The law has developed over the last few years and is now clear on this point. There was previously an issue in relation to whether this entitlement applied to the full entitlement of 5.6 weeks pay for year or only to the 4 weeks paid leave mentioned in the original EU directive but I consider that following the change in regulations earlier this year the matter is settled.[18]I had absolutely no doubt that the claimant accrued an entitlement to annual leave which continued to accrue whilst she was off sick. She is entitled to 28 days’ paid leave per year and I calculate her week’s pay as being £360 gross per week. She had already taken three days’ paid leave in the leave year 2023 and is therefore entitled to a further 25 days for the leave year 2023. She continues to accrue annual leave while she remains in the respondent’s employment and off sick.[19]The difficulty for the claimant is that apart from in one particular circumstance the right which is granted in the Working Time Regulations is to take time off and to be paid for it. There is no provision for payment in lieu to be paid instead of taking the time off. The only exception is when an employee leaves employment in which case they’re entitled to be paid all of their accrued but untaken annual leave to date under regulation 14. There is provision that where an employee is unable to take their leave by virtue of being unable to work through sickness then they are entitled to carry this any unused annual leave forward into the next leave year.[20]In the normal course of events what usually happens when an employee is off on long term sick is that when they become fit enough to return to work they will usually be encouraged to take the annual leave accrued to them before they actually physically return to work. If and when the claimant returns to work she will be entitled to take paid leave for the five weeks she accrued in 2023 which she is allowed to carry over as well as any further paid leave she has accrued in the leave year 2024.[21]My analysis of the current legal position therefore is that the claimant is still employed and is therefore not entitled to a payment in lieu of her accrued leave in terms of regulation 14. The position is that she continues to be employed and continues to accrue annual leave. She is entitled to carry forward five weeks’ annual leave from the leave year 2023.[22]It may be that if the claimant were to request that she go on leave and the respondent accepted that for a particular period the claimant was on leave rather than off sick then the claimant would be entitled to be paid for that period of leave. Such payment would be at the claimant’s normal rate (i.e. £360 per week) and not at the rate based on her sick pay. In any event that would be a matter for the future since at present the claimant has not taken any annual leave and therefore was not entitled to be paid for it.[23]I appreciate that this is a situation both parties may find difficult. I have however no option but to approach the matter in terms of the law as it is. The claimant is not entitled to any payment at the moment for holiday pay. This could change if either the claimant was to leave employment in which case she would be entitled to a payment under regulation 14 or if the claimant were to take some weeks’ leave which she would then be entitled to be paid for on the basis that she was on leave rather than off sick.[24]This however should not be regarded as advice by either party since unfortunately whilst I have outlined the position in broad terms there may be other issues depending on the precise factual position at the time..[25]Given that although I have found in favour of the respondent in this matter the background position is that the respondent continues to accrue a liability to pay the claimant holiday pay including arrears from 2023 there is no doubt that it would be helpful for the parties to discuss matters with each other with a view to reaching an amicable solution. I McFatridge