[1]the claim under Regulation 30(1 )(b) of the Working Time Regulations 1998 is well-founded and the respondent shall make an interim payment, pending final determination of the claim, to the claimant of the sum of One Hundred and Eighty-Seven Pounds and Fifty Pence (£187.50), as a payment in lieu of annual leave; and[2]the case is continued to the Final Hearing on 1 August 2024. E.T. Z4 (WR)
REASONS
[1]I conducted a Case Management Preliminary Hearing in this case on 2 May 2024. The Note which I issued following that Hearing is referred to for its terms.[2]The respondent has failed to comply with my Directions. Accordingly, in terms of para. 5 of my Note, I shall issue an interim Judgment against the respondent Company for £187.50 being the sum admittedly due in respect of outstanding holiday pay.[3]The case should now proceed to the Final Hearing on 1 August 2024.[1]the claim under section 23 of the Employment Rights Act 1996 is well- founded and the respondent shall pay to the claimant the sum of One Hundred and Thirty-One Pounds and Twenty-Five Pence (£131.25), as unlawful deductions of wages;[2]the claim under Regulation 30(1)(b) of the Working Time Regulations 1998 is well-founded and the respondent shall pay to the claimant the sum of Thirty- E.T. Z4 (WR) Seven Pounds and Fifty Pence (£37.50), as a payment in lieu of annual leave;[3]the respondent shall pay to the claimant the sum of Seven Hundred and Twenty-Four Pounds (£724), in respect of the respondent’s failure to provide the claimant with a written statement of particulars of employment; and[4]the Tribunal shall consider whether or not a Preparation Time Order should be made.[1]The claimant, Emilio Morales, brought complaints of unlawful deduction of wages and for payment of lieu of annual leave. The claim was denied by the respondent
The evidence
[2]I first heard evidence from the claimant, Mr Morales. I also heard evidence on his behalf from his representative, Nicholas Narrower. Documentary productions were also submitted by the claimant (“P”).[3]I then heard evidence on behalf of the respondent from its representative, Ian Dixon. Surprisingly, I did not have the benefit of hearing evidence from his daughter, Ms Nyomi Dixon, the sole Director of the respondent Company, despite the fact that she ran the business where the claimant worked and featured prominently in the evidence. Observations on the evidence[4]Mr Morales gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. His evidence was consistent with and corroborated, to an extent, by Mr Narrower, who also presented as credible and reliable. In so far as there were any conflicts in the evidence, I preferred the evidence of Mr Morales.
The facts
[5]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact. This case has an unnecessarily long and complicated history, out of all proportion to the issues and the sums involved in the case. This was due, in no small measure, to the involvement of Ms Nyomi Dixon.[6]In his claim form, Mr Morales sought payment of the sum of £356.25 in respect of 28.5 hours he had worked with the respondent Company, at the rate of £12.50 per hour. At the outset, Ms Dixon, offered £187.50 in respect of 15 hours’ accrued annual leave. However, that sum was never paid and the respondent failed to comply with the Direction to do so, in the Note I issued following a case management Preliminary Hearing on 2 May 2024 which Ms Dixon did not attend. Accordingly, on 23 May 2024 I issued an “Interim Judgment” against the respondent for £187.50, “pending final determination of the claim”.[7]The claimant continued to maintain that he was due to be paid more by way of unpaid wages and accrued annual leave. I was satisfied that his claim was well-founded. Unpaid wages[8]I am satisfied that Mr Morales is due the sum of £131.25 in respect of unpaid wages. This comprises a total of 10.5 hours he worked at the rate of £12.50 per hour, comprising 2 hours worked when he should have had breaks, and 8.5 hours when he worked on 19 September 2023 for which he was not paid.[9]The respondent’s representative disputed that he had worked on 19 September. However, I heard clear evidence that he had from Mr Morales which was corroborated by Mr Harrower.[10]The sum of £131.25 requires to be paid by the respondent to the claimant, therefore, by way of unlawful deductions of wages. Payment in lieu of annual leave[11]Mr Morales worked for the respondent Company as Manager at its “Coffee Shop” in Inverness from 26 August 2023 to 1 October 2023 when he resigned. He had accrued 18 hours’ holiday pay at that time. He received no such payment from the respondent Company. I have already issued a Judgment awarding Mr Morales payment in respect of 15 hours’ holiday pay. There is a balance, therefore, due of 3 hours which amounts to £37.50. This sum requires to be paid to the claimant by the respondent. Written employment particulars[12]Mr Morales claimed that he was not provided with a written statement of his terms and conditions of employment, as he should have been when he started work with the respondent Company. This was disputed by the respondent. It was alleged, that a contract of employment was shown to him by Ms Dixon on her laptop. However, this was denied by the claimant.[13]Mr Morales was a credible and reliable witness. I did not hear evidence from Ms Dixon and a copy of the alleged contract was not produced. On the evidence, therefore, I find that he was not provided with a written statement of his employment particulars, as he should have been, in terms of s.1 of the Employment Rights Act 1996.[14]Tribunals must award compensation to an employee where, upon a successful claim being made under any of the Tribunal jurisdictions listed in Schedule 5 of the Employment Act 2002, it becomes evident that the employer was in breach of its duty to provide full and accurate written particulars. Mr Morales’ successful claims are listed in Schedule 5. Amount of award[15]A Tribunal “must” award a “minimum amount of two week’s pay in respect of this failure, in addition to the other awards. Mr Morales earned £362 per week when he was employed by the respondent Company (P1). He is entitled to a payment, therefore, of £724 (£362 x 2) in this regard. Enforcement[16]It remains unclear whether the respondent will satisfy the two Judgments which I have issued. Although the respondent Company remains “Active”, so far as the Companies House records are concerned (P4), its representative, Mr Dixon, who is Ms Dixon’s father, advised at the Hearing that the business where the claimant worked closed on 1 May and, “has debts of £50,000”. Preparation Time Order[17]I am persuaded that the response in this case was misconceived. The respondent continued to defend the claim all the way to a Hearing when liability was clear cut. The respondent also failed to make payment of a sum admittedly due which left me with no alternative other than to issue a Judgment. Also, the respondent’s Director, Ms Dixon, has been uncooperative, on occasions, and has failed to comply with Tribunal Directions. This has caused delays and extensive correspondence, disproportionate to the issues and the sums involved in the case. I decided, therefore, that I should consider whether it would be appropriate to issue a Preparation Time Order, in favour of the claimant, in terms of Rules 75-79 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[18]I direct the claimant’s representative, within 7 days of receipt of this Judgment, to provide details, in writing to the Tribunal, of the number of hours he has spent preparing this case. I further direct the respondent, within 7 days of receipt of this Judgment, to advise the Tribunal, in writing, whether or not it objects to a Preparation Time Order being issued and, if so, why. Parties are also reminded that, in terms of Rule 92 of the Tribunal Rules of Procedure, all correspondence with the Tribunal must be copied to the other party.[19]On receipt of these representations, I shall consider the issue “on the papers” and issue a written Judgment.