Ms R Martin v The Greenhouse Community CIC: 4107270/2020
JUDGMENT
The Judgment of the Tribunal is that:(i) The respondent has made an unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996 and is ordered to pay to the claimant the sum of ONE THOUSAND SIX HUNDRED AND SIX POUNDS STERLING AND FIFTEEN PENCE (£1,606.15) in respect of wages relating to untaken holiday accrued between 1 August 2019 and 19 August 2020. This sum in item (i) is expressed gross of tax and national insurance. It is for the respondent to make any deductions lawfully required to account to HMRC for any tax and national insurance due on the sums, if applicable;(ii) the respondent is ordered to pay to the claimant the sum of TWO HUNDRED AND TWENTY-EIGHT POUNDS STERLING AND SIXTY EIGHT PENCE (£228.68) as damages for breach of contract in respect of unpaid employer pension contributions outstanding on the termination of the claimant’s employment;(iii) the respondent is ordered to pay to the claimant the sum of TWO HUNDRED AND EIGHTY EIGHT POUNDS STERLING AND TWENTY EIGHT PENCE (£288.28) as damages for breach of contract in respect of employee pension contributions outstanding on the termination of the claimant’s employment which had been deducted from the claimant’s pay but not paid into the claimant’s pension scheme;(iv) the claimant was unfairly dismissed. The respondent shall pay to the claimant, subject to the Employment Protection (Recoupment of Benefits) Regulations 1996, a monetary award of FIFTEEN THOUSAND FIVE HUNDRED AND THIRTY-SEVEN POUNDS STERLING AND TWENTY FIVE PENCE (£15,537.25). The prescribed element is TWELVE THOUSAND NINE HUNDRED AND SIXTY POUNDS STERLING AND THIRTY-TWO PENCE (£12,960.32) and relates to the prescribed period from 19 August 2020 to 31 August 2021. The monetary award exceeds the prescribed element by TWO THOUSAND FIVE HUNDRED AND SEVENTY-SIX POUNDS STERLING AND NINETY THREE PENCE (£2,576.93); and(v) the claimant’s claim for a protective award is dismissed pursuant to rule 52 of the Employment Tribunal Rules 2013, the claimant having informed the Tribunal of its withdrawal in the course of the hearing.REASONS
[1]The claimant presented claims for unfair dismissal, a protective award, unauthorized deductions from wages relating to holiday pay and breach of contract relating to pension contributions. She also sought an uplift in any unfair dismissal award under section 38 of the Employment Act 2002 on the basis that the respondent had failed to provide a compliant statement of employment particulars. The claims were originally lodged against two respondents, but it was determined at a Preliminary Hearing that the Greenhouse Community CIC was the claimant’s true employer, and the other respondent was dismissed from the proceedings.[2]The respondent entered a response, but it was subsequently dismissed following the respondent’s failure to comply with an ‘Unless’ Order. The respondent failed to attend the two earlier preliminary hearings. The respondent was not present or represented at the final merits hearing. A Notice of the Final Hearing was sent to the respondent on 22 October 2021.[3]Having considered all information available to the Tribunal, it was determined to proceed with the hearing in the absence of the respondent pursuant to Rule 47 of the Employment Tribunal Rules 2013. When the claimant joined, she provided a telephone number for the respondent’s café and the hearing was briefly adjourned to allow the Clerk to attempt to make contact with the respondent in order to provide the respondent with details of the link for the CVP hearing, the respondent being entitled to attend the hearing. However, no answer was obtained. No other enquiries were practicable on the morning, the respondent not having provided an email address or phone number in their (dismissed) response.[4]The hearing went ahead on 2 December 2021 via cloud video conferencing, there being no objection to this format by the claimant.[5]During the hearing, the claimant confirmed that she was withdrawing her claim for a protective award.[6]The remaining claims presented by the claimant were determined. Oral reasons were given at the hearing. Written reasons will not be provided unless they are asked for by a party within 14 days of the sending of this written record of the decision.[7]The claimant said that originally the respondent had wanted her to start work on the 16th and she had explained, during the interview, that she could not because she had made arrangements in relation to her brother’s birthday. She arranged to start on 1 7 July when she would be back in 5 Glasgow. Her brother lives approximately one hour outside of Glasgow where he runs a hotel. I accept the claimant's evidence that she did not say that she could not start until 21 st and I accept that she did start on 1 7 July. In any event the contractual agreement was that she was employed from 16 July 2018.[8]I accept the claimant's evidence that Greenhouse Services (second respondent) was never mentioned at the interview.[9]I accept that there was no mention of the first respondent forming a new company. The claimant could recall that the owners of the first respondent said that they were expanding the first respondent.[10]The only indication that the claimant was ever employed by the second respondent is that its name appears on the claimant's payslips. I do not accept that this indicates in any way there was ever an offer (as the respondent claims in its pleadings there was) made to the claimant by the !0 second respondent which she accepted. There is simply no evidence that any such offer was made or that it was accepted. 1 1 . The respondents also rely on the fact that the claimant used the human resources portal and claim that the main terms and conditions from the second respondent were issued by that portal to the claimant. The claimant denied this and I accept that evidence. Despite claiming in the pleadings that there was evidence of such terms and conditions the respondent simply never produced any of it. I accept that the claimant has in fact asked since her dismissal for documents from that portal. I accept that documents were not sent to the claimant's personal email address and in particular payslips were not sent to her personal email address and I accept that she lost access to any such documentation that may have existed on the human resources portal at latest at the point at which she was dismissed.[12]The claimant accepts that she noted that the second respondent's name was on the payslips but told me and I accept her evidence that it is not uncommon to have a payment company dealing with the payslips in the catering industry. Her experience is that regardless of who you were nominally working for you may get payslips from some service company.[13]The claimant was taken to the second respondent's pension scheme document and said very frankly that she did not think about the significance of that at the time. In any event it makes no difference to the question of whether she was employed by the first respondent or second respondent. There was never any offer from the second respondent. I also asked the claimant about the allegation made by the respondent that the claimant must have realised who she was working for because she was engaged with the second respondent's suppliers. The claimant said that the suppliers always use the same accounts. It did not make any difference who the supplier was supplying to it was the same supplier for all the accounts. I readily accept that there was nothing in that situation to put anyone on notice that it might ultimately be suggested that the second respondent was the claimant's employer. Indeed the suggestion appears to have no foundation whatsoever.[14]I therefore found that the first respondent was the employer of the claimant. I dismissed the second respondent from the proceedings. Employment Judge: Declan O'Dempsey Date of Judgment: 02 August 2021 EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4107270/2020 Claimant: R Martin Respondent: The Greenhouse Community CIC