B Pradzynska v Hotel in the Skye Ltd: 4108206/2022
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim succeeds, and that the respondent is ordered to pay to the claimant the sum of Three Thousand Three Hundred and Sixty Three Pounds and Sixty One Pence (£3,363.61) in respect of wages of which she was unlawfully deprived.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 20 December 2022, in which she complained that she was unlawfully deprived of wages by the respondent.[2]No ET3 was submitted by the respondent. ETZ4(WR)[3]A Hearing was listed to take place on 2 March 2023 by Cloud Video Platform. The claimant appeared on her own behalf, assisted by Ms M Broka, who provided translation services in the Polish language.[4]The Tribunal had established in advance of the Hearing that the government of Poland has given permission for an individual to give evidence under oath remotely by CVP, a necessary precursor to the Hearing proceeding.[5]The claimant gave evidence, briefly, on her own account, and reference was had to documents which she had produced to the Tribunal in advance of the Hearing. Findings in Fact[6]Based on the evidence given and the information provided, the Tribunal was able to find the following facts proved.[7]The claimant, whose date of birth is 13 March 1965, commenced employment with the respondent at the Flodigarry Hotel Flodigarry, Portree (“the Hotel”) on 12 August 2022. Her employment ended on 21 September 2022.[8]She worked as a Housekeeper and Cleaner for the respondent. Her weekly hours varied according to the number of shifts she was required to work, depending on the number of guests staying at the Hotel. She would start at 8am. and would clean the rooms which required to be cleaned, until 2 or 3pm. At 5pm she would start cleaning the kitchen at the instruction of the chef.[9]The claimant was paid £10.50 per hour. She was paid for some of the work which she did, namely 151 hours, on 20 September 2022. However, she calculated that she worked 269 hours and 35 minutes for which she was not paid. She kept a diary of the hours which she worked, and also logged on each time she started a shift, and logged off when she completed her shift, on a laptop held by the respondent.[10]She was not given any holidays during her period of employment with the respondent, and received no holiday pay from the respondent. 11.Finally, the claimant maintained that she was promised by the respondent that when cash tips were left in rooms for her by guests, they would be collected in a central pot, and at the end of each month they would be divided among the staff. She received no tips from the respondent. She estimated that she would have been paid £408 in tips. Her evidence was that some guests would provide tips which were larger than others, but her estimate was based on what another worker, Kamila Stefanko, was paid for IO 245 hours’ work.[12]The claimant’s claim succeeds. There is no defence submitted by the respondent to this claim. 13. 1 found the claimant to be an honest and credible witness. Accordingly, I am prepared to make an award to her in respect of her losses on the following basis:(a) The respondent unlawfully deprived the claimant of pay, to which she was entitled, in respect of 269 hours and 35 minutes (269.58), at £10.50 per hour. Accordingly, the respondent is ordered to pay to the claimant the sum of £2,830.59. This is a gross figure. The respondent shall be liable to account for any income tax or national insurance contributions which may be due.(b) The respondent unlawfully deprived the claimant of pay in respect of annual leave to which the claimant was entitled but which was unpaid at the end of her employment with them. The claimant calculated that she was entitled to holiday pay on 420.58 hours (correcting the precise figure), amounting to £533.02. This is a gross figure. The respondent shall be liable to account for any income tax or national insurance contributions which may be due.[14]The claimant’s claim in respect of tips is rejected. There is too much uncertainty as to whether or not there was a system operated by the respondent in relation to the distribution of collected tips to the staff in the Hotel. Further, and more significantly, the claimant is unable to prove or accurately demonstrate the sum taken in tips which would be distributed to her according to her share, since she is unaware of the exact sums given in tips by guests. She accepted that guests gave varying amounts in tips, and that it could not be said that there was a standard amount which would therefore correlate to the number of hours worked. As a result, I have found io that the claimant has failed to prove her loss in this regard, and that it cannot be said that she has been unlawfully deprived of pay in respect of tips by the respondent.