Mr A Smillie v ABEXX Ltd (formerly) KVR Compliance Electrical Testing Services Ltd: 4118256/2018
JUDGMENT
[1]As the respondent changed its name and address prior to the date of issuing of this judgment, the respondent’s name and address is changed to ABEXX Limited, 272 Bath Street, Glasgow G2 4JR[2]The respondent is ordered to pay the claimant the following:-(1) Two Thousand, Six Hundred and Six Pounds, Sixty Seven Pence (£2,666.67 gross) in respect of notice pay E.T. Z4 (WR)(2) Twenty Nine Pounds, Forty Five Pence (£29.45) in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of March(3) Forty three Pounds, Twenty eight Pence (£43.28) in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of April(4) Forty Three Pounds, Twenty Seven Pence (£43.27) in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of May(5) Twenty Three Pounds, Fifty Six Pence (£23.56) in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of March 2018.(6) Fifty One Pounds, Ninety Four Pence (£51.94) in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of April 2018.(7) Fifty One Pounds, Ninety Three Pence (£51.93) in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of May 2018.(8) Eighty Hundred and Eighteen Pounds, Forty Six Pence (£818.46) in respect of 1.33 week’s holiday pay due to the claimant.(9) Sixty Four Pounds, Forty Eight Pence (£64.48) in respect of expenses the claimant paid on behalf of the respondent.REASONS
[1]This case called as a final Hearing to determine the claims that had been raised. The claimant was in attendance. The respondent had not lodged a Response Form and was not in attendance. The claimant had brought a bundle of productions with him to the Hearing.[2]The Hearing began by firstly clarifying the identity of the respondent. The claimant had lodged a claim against KVR Compliance Electrical Testing Services Limited. He noted, however, that the company had changed its name while he was in employment (his employer being KVR Compliance Limited). It appeared that the company had again changed its name. From companies house it appeared that the company which had that company name (which had company number SC54977) appeared to have changed its name on 4 October 2018 to ABECC Limited. The claimant was given 14 days to write to the Tribunal to confirm the position.[3]The claimant wrote to the Tribunal by email dated 28 November 2018. In that email he stated that the respondent, which was his employer, was a company with company number SC549770. That company had changed its name by resolution on 3 October 2018 and on 8 November 2018 the respondent became ABECC Ltd with a registered address at 272 Bath Street, Glasgow. As this is the correct name and address of the respondent, the respondent’s name and address is changed accordingly. Only the name has changed, the legal entity that was the claimant’s employer has not altered.[4]The claimant’s claims related to sums that were outstanding upon cessation of his employment. He maintained that he was due to be paid certain sums and these were not paid by the respondent. He also argued that the respondent had retained sums that it ought to have paid to the relevant pension scheme in the claimant’s name.[5]The claimant gave evidence and the Tribunal makes the following findings in fact in light of the evidence it heard and the productions to which reference was made. Findings in fact[6]The Tribunal makes the following findings in fact in light of the evidence it heard and the productions to which reference was made.[7]The claimant was employed by the respondent from 5 June 2017 to 31 March[8]The claimant entered into a contract of employment with the respondent which required the respondent to give the claimant one month’s notice of termination in the event it wished to terminate the claimant’s employment (absent a fundamental breach of the contract by the claimant).[9]The claimant was not in material breach of contract.[10]The respondent brought the claimant’s employment to an end summarily (i.e without any notice). No notice pay was accordingly paid to the claimant.[11]The claimant earned £32,000 gross a year which amounted to a monthly sum of £2,666.67.[12]The claimant did not secure another job within the month following the ending of his employment.[13]In terms of the claimant’s contract of employment the respondent had agreed to pay a sum into a pension scheme in the claimant’s name. The respondent paid a sum into the scheme and the respondent also remitted a % of the claimant’s gross monthly salary into the scheme. The claimant had agreed that the respondent deduct from his salary the relevant pension contribution and pay that into the pension scheme.[14]For the month of March 2018 the respondent’s contribution into the pension scheme was £29.45 and the claimant’s contribution was £23.56. The respondent claimed (in the claimant’s pay slip) that these sums were paid into the relevant pension scheme. The sums were not paid into the pension scheme. Instead the respondent retained these sums. These sums were outstanding and due as at the end of the claimant’s employment.[15]For the month of April 2018 the respondent’s contribution into the pension scheme was £43.28 and the claimant’s contribution was £51.94. The respondent claimed (in the claimant’s pay slip) that these sums were paid into the relevant pension scheme. The sums were not paid into the pension scheme (and instead the respondent retained these sums).These sums were outstanding and due as at the end of the claimant’s employment.[16]For the month of May 2018 the respondent’s contribution into the pension scheme was £43.27 and the claimant’s contribution was £51.93. The respondent claimed (in the claimant’s pay slip) that these sums were paid into the relevant pension scheme. The sums were not paid into the pension scheme (and instead the respondent retained these sums).These sums were outstanding and due as at the end of the claimant’s employment.[17]The claimant was entitled to overtime at the daily rate of £192 gross in terms of his contract of employment.[18]On 19 and 20 May the claimant worked overtime. This was a weekend. He was due to be paid 2 x £192 (i.e. £384) in his wages that were paid at the end of May 2018. The overtime payment was not paid to the claimant by the respondent.[19]In terms of the claimant’s contract of employment with the respondent, he was entitled to 5.6 weeks’ holiday a year. As at the date his employment ended, 5/6th of the holiday year had passed. He was therefore entitled to 5/6 x 5.6 weeks which is 2.33 weeks as at the end of his employment. He had taken one week’s holiday as at the date of termination. He was therefore due to be paid in lieu of 1.33 weeks which amounts to £818.46 (as a week’s pay for the claimant is £615.38). The respondent did not pay this sum which was due to the claimant.[20]The claimant had also tried to pay for fuel for his company vehicle using the company credit card. This was declined and he required to use his own credit card. He paid £64.48 in respect of fuel for the respondent’s vehicle from his own account. This was not repaid to the claimant by the respondent.Law
[21]Section 13 of the Employment Rights Act 1996 makes it unlawful to pay to a worker a sum less than that which is properly payable under the contract of employment. Section 23 of the Employment Rights Act 1996 gives the Tribunal the power to consider a complaint that there has been an unlawful deduction of a wage. Deductions are only permitted where consent has been obtained.[22]In terms of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 a Tribunal has the power to award damages in respect of breach of a contract of employment where the claim arises or is outstanding upon termination of employment.[23]Regulation 13 and Regulation 13A of the Working Time Regulations 1998 together entitle a worker to 5.6 weeks’ paid holidays each year. Regulation 14 states that where a worker’s employment ends and holidays have accrued, the employer should pay the worker a sum that represents the value of the accrued leave. Submissions[24]The claimant submitted that he should be paid each of the sums that he is owed. These are sums that were outstanding upon termination of his employment and had been deducted from the salary that was due to him. He maintained that these were sums due to him under his contract. Discussion and Decision[25]The sums the claimant seeks are sums due to be paid to him in terms of his contract of employment. The pension contributions were sums that the claimant had consented to being deducted from sums due to the claimant for the purpose of paying into his pension. The respondent’s failure to do that amounts to an unlawful deduction (since the deduction that took place did not have the claimant’s consent – the deduction was made for the respondent’s benefit and the sums retained by the respondent). The sums that are outstanding are sums that stem from the respondent’s failure to pay sums due to the claimant (a breach of contract) and result in the claimant receiving a sum of money in his wages which was less than the sum properly payable (which amounts to an unlawful deduction of wages). The claimant is contractually due each of the sums sought. They are sums that are outstanding upon termination of the claimant’s contract of employment.[26]The respondent is therefore ordered to pay the claimant the following sums:(1) £2,666.67 gross in respect of notice pay.(2) £29.45 in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of March 2018.(3) £43.28 in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of April 2018.(4) £43.27 in respect of the respondent’s agreed contribution that ought to have been paid into the NEST pension scheme in respect of the claimant for the month of May 2018.(5) £23.56 in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of March(6) £51.94 in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of April(7) £51.93 in respect of the claimant’s contribution that the respondent deducted from the claimant’s salary but did not pay into the NEST pension scheme in respect of the claimant for the month of May(8) £818.46 in respect of 1.33 week’s holiday pay due to the claimant.(9) £64.48 in respect of expenses the claimant paid on behalf of the respondent[27]The relevant tax due should be deducted from the above gross sums. RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL The respondent’s application for reconsideration of the Judgment dated 11 December 2018 entered on the register on 17 December 2018 is successful. The respondent’s designation is therefore changed to KVR Compliance Limited (in liquidation) care of Scott-Moncrieff, Chartered Accountants, Exchange Place 3, Semple Street, Edinburgh EH3 8BL.Law
[1]This case called as a reconsideration hearing following an application on behalf of the respondent. At the Hearing the respondent was represented by Mr Brownlie. The claimant was not in attendance. I asked my clerk to telephone the claimant to ascertain whether or not he intended to attend. The Notice of Hearing had been issued to both parties. A message was left with the claimant and a call back was sought but no response was received. I decided that the hearing would proceed in the absence of the claimant following a reasonable period of time having passed. E.T. Z4 (WR)The issues
[2]The hearing began by summarising the position to date. The claim had been lodged against KVR Compliance Electrical Testing Services Limited. No response had been lodged by that respondent.[3]At the hearing to determine the issues only the claimant attended. Evidence was led by the claimant which suggested the claimant’s employer was ABECC Limited (the new name of KVR Compliance Electrical Testing Services Limited). It was in the interests of justice to amend the respondent’s designation to reflect the correct legal entity which appeared to be the claimant’s employer.[4]Following receipt of the Judgment, the respondent applied for a reconsideration on the basis that ABECC Limited were never the claimant’s employer. Mr Brownlie had sent to the Tribunal (and the claimant) documents that purported to show ABECC was never the claimant’s employer and KVC Compliance Limited was the claimant’s employer (and had been for the duration of the claimant’s employment). The claimant had submitted emails which appeared to show him being instructed by Mr Brownlie on behalf of KVC Compliance Electrical Testing Services Limited.[5]Mr Brownlie gave evidence and referred to a number of productions that he produced (some of which the claimant had produced at the hearing). I find the following facts proven on the balance of probabilities. Findings in fact[6]The claimant entered into a contract of employment with KVR Compliance Limited.[7]The claimant worked for KVR Compliance Limited for the duration of his employment.[8]Mr Brownlie was the director and founder of KVR Compliance Limited (and line manager of the claimant). He also set up a separate company, KVR Compliance Electrical Testing Services Limited. Both companies were separate and carried out separate works.[9]On occasion Mr Brownlie would email the claimant to provide him with instructions. Mr Brownlie’s email signoff would state ‘KVR Compliance Electrical Testing Services Limited’. That sign off was not an indicator that the claimant’s employer had changed. It was not a formal instruction on behalf of another company. It was an instruction by Mr Brownlie who was also a director of KVR Compliance Limited.[10]The claimant continued to be employed by KVR Compliance Limited at all times during his employment. The claimant did not work for KVR Compliance Electrical Testing Services Limited (which became ABECC Limited).[11]KVR Compliance Limited paid the claimant for work done and the wage slips reflected this.[12]Correspondence sent to the claimant, such as a letter in relation to a disciplinary matter dated 29 June 2018, all had KVR Compliance Limited as the claimant’s employer.[13]HMRC communications also had as the claimant’s employer KVR Compliance Limited.[14]There was no other connection between the claimant and KVR Compliance Electrical Testing Services Limited, aside from the emails the claimant received from Mr Brownlie which were occasionally sent emails from his KVR Compliance Electrical Testing Services Limited email account.[15]The claimant was never employed by ABECC Limited (nor KVR Electrical Testing Services Limited). The claimant’s employer throughout the duration of his employment was KVR Compliance Limited.[16]The claimant made a claim for the sums due to him in this matter as part of the liquidation of KVR Compliance Limited. Observations on the evidence[17]I do not consider any of the points made above to be controversial from the claimant’s perspective. The claimant himself produced the contract of employment and some of the other documents relied upon by Mr Brownlie (which show KVR Compliance Limited as his employer).[18]The claimant’s main contention at the Hearing was that he was instructed by Mr Brownlie who appeared to be instructing him via ABECC Limited and that as a result ABECC Limited had become his employer. That was explained by Mr Brownlie.[19]There were no other evidential links to ABECC Limited.[20]I am satisfied that Mr Brownlie was truthful. He presented as a reliable and credible witness. I put the points to Mr Brownlie which had been established at the original hearing (together with the correspondence the claimant had sent to the Tribunal) and he answered those questions candidly. Decision and Reasoning[21]In all the circumstances, it is necessary and in the interests of justice to grant the respondent’s application to change the name of the respondent from ABECC Limited to KVR Compliance Limited (in liquidation).[22]From the evidence that was presented, it is clear that KVR Electrical Testing Services Limited (which became ABECC Limited) did not employ the claimant at any time. Whilst the claimant may have understood that there was a connection between both companies because of the email signature within Mr Brownlie’s emails, that connection did not result in his employer changing.[23]Mr Brownlie accepted the emails he sent to the claimant had his KVR Electrical Testing Limited sign off but that did not alter the identity of the claimant’s employer. I accepted his evidence in that regard. At all times the claimant’s employer was KVR Compliance Limited.[24]It is necessary and in the interests of justice to amend the respondent’s details to ensure that the correct entity is set out as the claimant’s employer.[25]In all the circumstances therefore, this reconsideration application is granted and the Judgment of the Employment Tribunal is that the respondent’s name be changed to KVR Compliance Limited (in liquidation) care of ScottMoncrieff, Chartered Accountants, Exchange Place 3, Semple Street, Edinburgh EH3 8BL.