Ms S Espinosa v Centaur Overland Travel Ltd: 6003909/2024
JUDGMENT
[1]The claimant’s complaint that the respondent made unauthorised deductions from her wages throughout her period of employment by failing to pay her for between £12.50 and £13.50 per hour at 4 hours per day not inclusive of holiday pay and by failing to pay her overtime in terms of actual hours worked is not well founded and is dismissed.REASONS
[2]The claimant, Ms Espinosa, was employed by the respondent, Centaur Overland Travel Limited, as a home-to-school minibus driver from 05 September 2023 to 23 May 2025 when she resigned. The Tribunal understood the transport to be a service for disabled children. The company employed both drivers and personal assistants (PAs). The Tribunal understood that the PAs would help children onto the buses and be there on board to attend to their needs but would not drive. The claimant was a driver, not a PA.[3]The claimant claims that, in accordance with the job advertisement for the job for which she was engaged, which she alleged had advertised the remuneration for the job to be £12.50 to £13.50 per hour, she was due remuneration for the actual number of hours that she worked, which she says was 20 hours per week or 80 hours in a 4-week month corresponding to 2 hours for each “run” (one “run” being one journey to school or one journey back from school). In addition, she claims that holiday pay at the statutory rate of 12.07% for casual workers was due to be paid on top of (as opposed to inclusive of) the hourly rate quoted. Finally, she claims that overtime (namely hours worked over and above the advertised and agreed 4 hours of daily shifts) that she worked was only ever partially paid. She claimed that those terms of engagement were recorded in the only contract she had ever received from the respondent, which was only supplied to her in January 2024.[4]The respondent contests the claim. It says that payment was only ever due strictly on a “fixed fee per journey” basis starting at a rate of £20 per journey and increasing to a rate of £23.50 per journey. It says that a “normal” 4-week working month on this basis (“normal” meaning excluding weekends and school holidays and not including any hours of overtime) initially represented £800 of remuneration which included rolled up holiday pay of 12.07% equating to £96.56 (rolled up meaning that the £96.56 was included within that £800 being 12.07% of £800) rising to £940 and £113.60 respectively in November 2023[5]The respondent’s case is that the pay arrangements in paragraph 4 above were predicated on a “run” time that was an average time value for the particular route that the driver was assigned to, based on distance and average traffic conditions. It says that for the route to which the claimant was assigned, this average time was 1.5 hours per “run”. It further says it was agreed between the company and its drivers that actual journey times may vary according to unforeseen circumstances or issues with children and their PAs and unforeseen or unusual traffic conditions, and that drivers were required to keep a written record of actual hours worked and to submit that to management monthly. Finally in relation to overtime it says that if a school run took longer than 1.5 hours in the case of the claimant’s route, overtime was payable at the rate of £10.50 per hour, or the National Minimum Wage, whichever was higher (in effect this meant that the overtime rate of pay for the Claimant was £10.50 per hour for the period 5 September 2023 to 31 March 2024, then £11.44 per hour for the period 1 April 2024 to 31 March 2025, then £12.21 per hour for the period 1 April 2025 to 23 May 2026).[6]The claimant claims that the pay arrangements as alleged by the respondent would entail her working below the National Minimum Wage. The respondent says that the arrangements it put forward (as above in paragraph 4) meant that the claimant worked an effective wage of £11.72 and £13.77 per hour which was above the national minimum wage in force between April 2023 and March 2024.The hearing
[7]I heard the claim on 02 December 2025. The claimant was not represented and gave sworn evidence. She was assisted by a Spanish interpreter, Ms Almut Gadow. The respondent was represented by Ms Stella English of solicitors, who called sworn evidence from Mr P Sims, the operations director. I considered evidence from a 217-page of documents which the respondent introduced in evidence. Whilst the claimant disagreed as to the interpretation of some of the documents in that bundle, she made no application for anything in the bundle to be excluded from evidence. In addition, at the start of the hearing the Tribunal Office sent me 3 further documents which had been previously served upon the Tribunal but which I had not previously received, namely “MM10 GPS timings”, a “minibus driver wages payroll” excel spreadsheet and a “pay breakdown spreadsheet” in respect of the claimant. In addition, the respondent’s representative sent me the signed witness statement of Mr Partick Sims which I had not seen before, and the claimant sent me a 2-page statement of terms entitled “Centaur Overland Travel Ltd” and signed by her hand with the handwritten date in the signature block being 19/06/23, and an updated schedule of loss that included the alleged losses for November 2024 to May 2025 that had been missing from pages 199 to 202 of the bundle. No party objected to those additional documents being admitted into evidence.Preliminary matters
[8]At the beginning of the hearing, before I heard any evidence, I dealt with two preliminary issues as follows. Preliminary issues – strike out[9]On 27 September 2024 the respondent had made an application to strike out the claimant’s claim on the grounds that the claimant had failed to comply with Orders of the Tribunal and was not actively pursuing her claim. On 21 November 2024 Judge Martin considered that application and required the claimant to set out in writing how much she was claiming and how that sum was calculated and to send the respondent documents relating to her claim on which she was relying, both within 7 days of 21 November 2024.[10]On 28 November 2024 the respondent wrote again to the Tribunal stating that the claimant had still not provided documents on which she wished to rely and that they therefore wished to pursue their application to strike out her claim.[11]The application for strike out was not pursued at the hearing. A hearing bundle had been prepared and at the hearing the claimant did not dispute that anything in that bundle should be included for the purposes of the determination of the claim. At pages 199 to 202 of that bundle there appeared a schedule of the claimant’s alleged loss which broke down the amount allegedly unpaid month by month from September 2023 to March 2025. However, the entries for November 2024 to March 2025 were left blank. The claimant initially conceded that were she to succeed, she could rely only on what data pages 199 to 202 showed. She mentioned that her notebook of notes times at pages 24 to 33 of the bundle might assist with the records missing from pages 199 to 202 but on inspection of the notebook entries they did not show timings for the months missing from pages 199 to 202. However, she then during the hearing did send me an updated schedule of loss that showed the entries for November 2024 to May 2025 that had been missing from pages 199 to 202 of the bundle.[12]In the circumstances that the claimant had provided a schedule of loss and had provided (both within the bundle and as an addition to her ET1) a detailed explanation for the basis of her case, the Tribunal did not probe the respondent as to any strikeout application. The respondent was content to proceed with a substantive hearing of the case and the Tribunal in any event would have refused any renewed strikeout for the reasons given in this paragraph. Preliminary issues – time limits and jurisdiction[13]The claimant’s ET1 form was presented on 14 June 2024. ACAS early conciliation was commenced on 23 April 2024, and the ACAS certificate was issued on 04 June 2024. The claimant’s addendum to her ET1 (repeated at pages 176 to 179 of the bundle as internal correspondence between the claimant and the respondent) mentioned disputes over pay relating to September and November 2023.[14]The latest case management order for the case dated 24 June 2025 by Judge Ramsden noted that “given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 24 January 2024 may not have been brought in time”. As above, the claimant’s schedule of loss stated losses starting from September 2023. The Tribunal therefore had to address the question of time limits because they went to jurisdiction to hear the case.[15]The respondent conceded, rightly in my view, that the claim was presented in time because it had always been clear that the claimant was alleging uninterrupted deductions from an uninterrupted series of monthly wages stretching from September 2023 to at least October 2024 and all linked by an identical and unchanging basis of claim. Therefore, the respondent conceded, and I agreed, that the claim had been presented in time and that the Tribunal therefore had jurisdiction to hear it. Issues for the Tribunal to decide[16]The list of issues was helpfully, clearly and succinctly set out in the case management order for the case dated 24 June 2025 by Judge Ramsden as follows: “2.1 What were the pay arrangements for the Claimant? Specifically:2.1.1 Was the Claimant paid by the ‘school run’ or by the hour for her nonovertime work?2.1.2 What was the Claimant’s rate of pay for that non-overtime work?2.1.3 Was that rate inclusive or exclusive of holiday pay (which the parties agree was to be paid at the rate of 12.07% for gross monthly pay)?2.1.4 What was the Claimant entitled to be paid for overtime work (and for which period)? 2.2 What were the arrangements for the approval of the Claimant’s overtime work? 2.3 What hours of overtime did the Claimant inform the Respondent she had worked in each month of her employment? 2.4 Were those hours of overtime all authorised by the Claimant’s line manager, Steve? 2.5 If so, were sums payable by the Respondent to the Claimant because of those overtime hours? 2.6 Were unauthorised deductions made from the sums payable to the Claimant in respect of the period 5 September 2023 to 23 May 2025? 2.7 If so, in what amount? 2.8 Did the Claimant suffer financial losses as a result of any unauthorised deductions from the sums payable to her? 2.9 If so, in what amount?”.[17]At the outset of the hearing, the parties agreed that the above list of issues remained the correct issues which fell to be decided by the Tribunal at this final hearing.Findings of fact
[18]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the bundle of documents provided by the respondent.[19]Mr Sims’ witness statement cited the claimant’s first school run as having taken place on 06 September 2023. The claimant’s written evidence at page 2 is that she started work with the respondent on 05 September 2023. No oral evidence was given on this point, but the discrepancy is not material.[20]There was a dispute over when the claimant(a) first received and(b) signed, a contract and(c) what terms she signed up to. According to Mr Sims’ witness statement, the claimant signed her contract of employment on 19 June 2023 but her start date was in September 2023 due to the school summer holiday period. The claimant’s written evidence at page 18 said that she was “at first” “told” that the “contract was £800 (holidays should be paid as part of this salary), they told me that it would be increased”, and that (at page 19) “I attach a screenshot indicating in my contract that Nathalie sent me back in the day, after asking for it and waiting many weeks, even months, to obtain it”. This screenshot is at page 21 but does not contain a signature and date block.[21]The screenshot referred to in paragraph 20 above contained (in the final paragraph that was photographed) a clause entitled “wages payments” stating as follows (the bold type replicated as per the document in the bundle): “Wages are normally made on the second week or each month. Payment is made strictly on a per journey basis at a rate of [space with handwritten figure £23.50] for each complete school journey. A normal full four week month will total £[space with handwritten figure 940] (£ [blank space unfilled] plus holiday pay £[blank space unfilled]) and is based on an average of [space with handwritten figure 20] estimated duty hours. Holiday pay which is shown separately on your payslip and represents 12.07% of the total pay. Actual journey times may vary from day to day and will depend on a number of factors e.g. traffic, absent children etc. To enable us to monitor the contract and employment regulations you should keep a written record of actual hours worked each day and return this to us no later than the end of each month.”[22]The complete page of the incomplete screenshot of the document referred to in paragraph 20 above appears at page 58 following equal opportunities monitoring information, medical mandate and next of kin details forms completed by the claimant.[23]In cross-examination the claimant was taken to page 52 where the contractual terms of her employment are found. She was shown pages 53 and 54 where at the bottom of each page her signature and handwritten full name “SANDRA GALAN ESPINOSA” appear alongside the handwritten date “19/06/23”. Page 54 appears to be a continuation of the terms started at page 52, whereas page 53 is a page detailing the “Centaur Accident Policy” which it is stated that is “To Be Read and Signed by all new drivers”. At page 52, at the penultimate clause heading, there is the same clause, with the same text, as set out in paragraph 21 above, but with the following differences:(a) the handwritten per journey basis rate is “£20”,(b) the handwritten normal full four week month total is “800”,(c) the blank spaces are filled in by hand with “703.44” and “96.56” and(d) the handwritten average estimated duty hours are “60”. It was put to the claimant that pages 52 to 54 inclusive form part of a single unit of contractual terms that she signed on 19 July 2023 and that the original page numbers of those (disregarding the bundle pagination numbers) were sequentially 3, 4 and 5, indicating a set of pages from a single document. The claimant’s oral evidence in cross-examination was in summary as follows: (a) She did not recognise page 52 and had never at any time either seen or signed or received it. (b) The figure of £800 as it appeared on page 52 was something that she recalled, but only as a temporary measure that was told to her initially in the office when she had started, but never as a written term that she had ever signed up to. (c) She had only ever seen and received page 58 which corresponds to the screenshot mentioned at paragraph 21 above, and that was first when Nathalie sent it to her in January 2024 as a pdf attachment to an email. (d) What she had signed on 19 July 2023 was a combination of pages 53, 54 and 58.(e) Her allegation now at the Tribunal hearing was that the respondent had “unilaterally altered” her contract without her knowledge. Her implication was that the respondent had done this so as to make it look as though what she signed up to on 19 July 2023 was page 52 when in reality it had been page 58 that she had signed up to on that date. She said there were “multiple” “page 3” pages of the relevant page of contractual terms. The implication strongly suggested by the claimant in evidence was that the respondent had dishonestly “doctored” the contractual evidence after the event to cover their tracks.[24]In support of her contentions at paragraph 23(a), (b) and (c) above the claimant sent the Tribunal, during the hearing and during her evidence, a pdf document of 2 pages comprising a first page mirroring page 58 and a second page mirroring page 53.[25]I find as a fact that on 19 June 2023 the claimant signed terms and conditions in a document that comprised pages 52, 53 and 54 sequentially. In support of my finding, I note that in oral evidence the claimant did not deny having initially been aware, even if according to her only orally, of the £800 normal full four-week month figure. Her admission of having been aware of that figure is fundamentally inconsistent with her denial at paragraph 23(a) above and her assertion at paragraph 23(d) above. I find that, even if it is true that the claimant was never actually sent page 52 in writing, that does not preclude her having signed a document that contained that page on 19 June 2023. It would not be abnormal for her memory of detailed pages of terms seen by her at a glance on 19 June 2023 to have faded between that date and September 2023 when she started work. The complete set of documents between pages 50 and 58 is consistent with a human resources record storing a sequential set of papers with(a) an application form,(b) contractual terms to be signed,(c) ancillary documents (i.e. equal opportunities monitoring form, medical mandate, next of kin details and(d) an update in contractual terms later in time showing an uplift in pay rate compared to the starting pay rate, in that chronological order. In oral evidence in answer to the proposition that there was an initial contract (page 52) which was active before a new contract (page 58) took effect, the claimant did not deny this but merely said she “did not understand that”.[26]I also find that, even if it is true that Nathalie sent the claimant the document referred to in paragraph 24 above in January 2024, that does not prove that it was page 58 that the claimant signed in June 2023. It is clear from evidence in the bundle that there was a long running complaint from the claimant to the respondent management about pay calculations, and it is reasonable for me to conclude that the document referred to in paragraph 24 above was sent to the claimant in January 2024 as an illustration of terms initially agreed to by the claimant in June 2023 and then enhanced thereafter. If Nathalie sent the claimant a combination of pages 54 and 58 in January 2024, it would have been reasonable given the conversations they had been having for Nathalie to have made and sent a combination of those two pages as an illustration of the pay position as it was in January 2024. The claimant’s allegation of malice on the part of the respondent in “doctoring” the contractual evidence has no evidential foundation. Instead, I prefer the evidence of Mr Sims in his witness statement that initially the claimant was contracted for a normal full working month totalling £800 at a rate of £20 for each complete journey including rolled-up holiday pay of £96.56 representing 12.07% of the total pay, and that in November 2023 this increased to £940 and £113.60 respectively at a rate of £23.50 for each completed journey. That evidence is supported by the concessions made in oral evidence by the claimant that her initial contract (even if she said she was only aware of it initially orally) was for £800, that she had been told that rate would increase, and that she was later aware that the rate had increased to £23.50.[27]The job advertisement on which the claimant relies is at page 22. This states materially as follows:(a) “a H2S route takes approximately 1.5-2.5 hours and operate in the morning and afternoon, term-time only” and(b) “this role is Monday through Friday during school term time only. The hours are typically between 7:30-9:30 and 14:30-16:30” and(c) “Pay: £12.50-£13.50 per hour”.[28]Going back to the terms of engagement that I have found above that the claimant signed, those record initially that the normal full four-week month is based on an “average of 60 estimated duty hours” then subsequently an “average of 20 estimated duty hours”. The claimant’s oral evidence was that the “20” at page 58 is correct and means “20 per week” indicating 4 hours per day, with 2 hours for each “run”, or alternatively that “20” is an error that was intended to read “80” to indicate 80 hours per month. The respondent’s evidence was that all of the details in the “wages payments” clause at page 52 were correct, and that at page 58 the £23.50 hourly rate and £940 monthly average rate were correct as from November 2023, but that at page 58 the average number of duty hours was incorrectly and in error stated as 20 but should have said “60”, thus indicating an average “run” of 1.5 hours. In light of my finding at paragraph 25 above, I prefer the respondent’s evidence, with the consequent finding that the intended number of contractual average monthly duty hours was 60 at all times corresponding to an average of 1.5 hours per run. I find that the job advertisement that the claimant relies upon does not as a matter of linguistic construction conflict with the respondent’s evidence as to the monthly duty hours because it indicates hours “between” the two daily shift band parameters.[29]The notebook completed by the claimant at pages 24 to 33 contains times that almost invariably span periods of what could be called “round” numbers such as, typically, “07:30-09:30” and “14:30-16:30”, with some (but few) variations such as “14:00”, “13:45” and a few instances of intermediate periods such as “11:15-12:45”. On the right-hand side of the pages is written in various places periods of “min extra”, denoting time worked outside of the typical shift bands. Only at page 33 are there records of times that could be described as not “round numbers” where records note “07:23-09:35 // 14:23-16:37” for 13/05/2024, “07:23-10:35 // 14:27- 16:37” for 21/05/2024, “07:23-09:37 // 14:31-16:38” for 22/05/2024, “07:23-09:36 // 14:23-16:39” for 23/05/2024 and “07:24-09:36 // 14:24 // 16:42” for 24/05/2024. The claimant resisted in cross-examination the proposition that her “run” took on average 1.5 hours, maintaining instead that her notebook recorded the actual journey times. However, in conflict with that position, she also accepted under cross-examination the following:(a) Regardless of what terms she signed (page 52 or page 58), in any event she knew that she had signed terms that made clear that the journey length varied and was based on an estimated number of duty hours.(b) The advertisement at page 22 was indicating bands of core hours during which a journey could vary in time.(c) She only started recording times after her line manager Steve told her to. When she began logging times in her notebook, she was logging generic shift times as opposed to precise journey times, and she only started recording exact journey times when her colleagues told her she should record in detail because her pay was not correct.[30]The respondent produced in evidence GPS timings for the claimant’s route between 17 June 2024 and 20 May 2025. Within that range, between 11 October 2024 and 13 March 2025, then on 15-16 March 2025, 22-23 March 2025 and 29- 30 March 2025, no data was recorded. But taking together all the dates on which data was recorded, the average journey time indicated by GPS for the claimant’s route was 1 hour and 35 minutes for the morning run and 1 hours and 34 minutes for the afternoon run. In his witness statement Mr Sims stated that in June 2024 he was made aware that the claimant had provided a journey log that did not align with the expected route times for her route nor with the times reported by other drivers operating the same route, that for this reason the claimant was allocated a vehicle fitted with a high precision GPS tracker, and that following collection and analysis of GPS data it was determined that the claimant’s reported journey times were inaccurate. The oral evidence that Mr Sims gave was that most buses did not have GPS trackers but that after the claimant started ACAS conciliation in relation to this claim, he thought it sensible to ascertain the exact hours that the claimant was working. He therefore issued her with a bus that had a GPS tracker. The GPS tracker switched on when the ignition was switched on and turned off when the ignition was switched off. Because the GPS tracker was ascertaining that the claimant was using the bus for a large amount of private use, Mr Sims made adjustments to the GPS records to arrive at the total average journey times recorded in the document produced in evidence. He was able to do this because from the GPS data he knew the correct ultimate start and finish times and places and was able to isolate and extract the times between which the bus deviated from the contractual, planned route, then subtract those from the total in between the “starting ignition on” and “finishing ignition off” times. In the spreadsheet that he provided to the Tribunal, he listed the instances and time periods where the claimant had stopped during the journeys for personal use, for example at the shops or at a PA’s address.[31]The claimant disputed the GPS data, saying that they had nothing to do with the actual times that were recorded in her notebook. She said that she had often discussed these discrepancies with her line manager Steve in the office and had asked to see CCTV.[32]I find as a fact that the GPS timings are reliable and that the claimant’s notebook times are not reliable. The respondent’s explanation of why he sought GPS records and his explanation of how the average times were arrived at is cogent. The average time values derived by the GPS log are consistent with the language in the job advertisement relied upon by the claimant as well as with the contractual data at page 52 and with the claimant’s own concessions in cross-examination at paragraph 29(a) to (c) above. The individual GPS timings for each journey in the log provided by the respondent appear to be realistic in that they do not use consistent “round” numbers. In contrast, the claimant’s notebook entries are almost wholly “round numbers” and largely identical for each journey on each day, which in my view cannot be realistic. On this basis, I find as a fact that, in reality, the claimant’s “run” took on average 1.5 hours, making an actual, real average of 3 hours work per day. This accords with the documentary contractual evidence at page 52 of 60 estimated duty hours per month.[33]As to the state of mind of the claimant relating to the contractual terms, I find that the language of the terms that she signed, regardless of whether they were the page 52 terms or the page 58 terms, is unambiguous. I find that it is therefore inconceivable that she could have misunderstood the meaning of the words “payment is made on a per journey basis at a rate of £xx for each complete school journey”, and that even if she relied on the figure of “20” (meaning 80 per month) average duty hours at page 58, it is inconceivable that she could have misunderstood the clear contractual language that those duty hours were always intended to be “estimated”. Indeed in cross-examination when taken to the relevant contractual term in the bundle, the claimant had no conceptual difficulty understanding the “payment per journey” language and did not appear to be taken at all by surprise by that language. I find that, whatever the content of the job advertisement quoted at paragraph 27 above, that advertisement was in any event on the claimant’s own evidence (whichever of page 52 or 58 is applicable) not the vehicle that expressed the contractual terms under which she was engaged, that in any event the terms of that advertisement were not in actual fact in material conflict with the terms of the contract that the claimant knew she was working under (whether that be the page 52 or the page 58 document), and that it is inconceivable that the claimant would have genuinely understood or believed the terms of the advertisement and the terms of her contract (whether that be the page 52 or the page 58 document) to be in material conflict.[34]The meaning of the contractual documents as to payment “per journey” rather than “per hour” is corroborated by the minibus driver wages payroll excel spreadsheet that the respondent supplied in evidence. This has two initial columns, month by month starting September 2023 for the claimant, showing “skl rate” and “no of journeys”. The “skl rate” is shown as £20 for September and October 2023 and £23.50 thereafter. The values in these two columns are multiplied together to produce a “school total” column. The totals in the “school total” column show explicitly that the total pay per month is arrived at by multiplying the “per journey rate” by the number of journeys completed in the month. This is consistent with all the contractual evidence that the Tribunal has seen.[35]Returning to the issues at paragraph 16 above at items2.1.1 and2.1.2 therefore, the conclusions of the Tribunal based on all the findings of fact above are that:(a) For her non-overtime work the claimant was contracted to be paid by the ‘school run’, not by the hour.(b) The applicable rate under her contract was initially £20 for each completed school run, rising to £23.50 for each completed school run.(c) The claimant as a matter of fact was fully aware of (a) and (b).(d) In any event, in contrast to her handwritten log which inaccurately purported otherwise, the actual hours that she worked for each “run” averaged in reality 1.5 hours.(e) The hourly rate that the claimant in reality worked for was initially £13.33 (2 runs at £20 each totalling 3 hours = 40/3 = 13.33) then £15.66 (2 runs at £23.50 each totalling 3 hours = 47/3 = 15.66) which in any event is in accordance with the rate set out on the advertisement.[36]I have already found above that the claimant began working under the terms of the contact at page 52 and progressed onto the terms at page 58, and that she was aware of both. The language at the “wages payments” clause of page 52 is very clear that the normal full four-week monthly wage of £800 quoted was made up of £703.44 base pay plus £96.56 attributable to holiday pay and that the holiday pay element represented 12.07% of the total pay (12.07% of 800 being 96.56). The claimant’s written evidence was that the 12.07% should be added on top of the basic monthly wage and her evidence in cross-examination was that the contract that she signed said that holiday pay was to be set out separately from basic monthly pay. For this she relied on the “blank” spaces in the “wages payments” section of page 58. Her case was that if you construe the language “holiday pay which is usually shown separately on your payslip, and represents 12.07% of the total pay” without the amounts filled in parentheses, it is capable of being construed as meaning that holiday pay is(a) separate from and(b) calculated on top of, the monthly pay figure. In light of my finding above that the claimant was contracted initially under the page 52 document and knew this, I do not accept the claimant’s case in this regard. Even if I accepted (as I do not) that the claimant could rely solely on the page 58 document, I still would not accept her case. This is because in my judgment the language “A normal full four week month will total £940 (£ [blank] plus holiday pay £[blank])” clearly indicates that the “blanks” are sub-totals of the £940. I see no reason why the words “shown separately on your payslip” must be construed as “paid on top of”. In my judgment, it is not realistic to conclude that the claimant could reasonably have misconstrued this.[37]Again, the fact that the 12.07% holiday pay was at all times intended by the respondent to be a part of, and included within, the total monthly pay (as opposed to being added on top of the total monthly pay) is evidenced by the minibus driver wages payroll excel spreadsheet that the respondent supplied in evidence. The spreadsheet has at the far-right hand end a final column headed “total pay” which has the same values as the “school total” column. The “total pay” column is broken, in previous columns, into sub-totals of “basic pay”, “extra hours”, “extras rate” and “HPAE” all of which are headed as items to be entered into the payslip. The “HPAE” value in each row equates to 12.07% of the “total pay” value in each row. This is evidence that corroborates the intended meaning of the contractual documents and on which in my judgment the Tribunal is entitled to rely on as conclusive.[38]Therefore, returning to the issue at paragraph 16 above at item 2.1.3, the conclusion of the Tribunal based on all the findings of fact above is that the claimant’s rate of pay for non-overtime work was inclusive of holiday pay.[39]As to overtime work, the respondent’s evidence in the witness statement of Mr Sims was that the claimant was entitled to be paid for overtime work at a rate of £10.50 for payments before April 2024 and then £11.44 afterwards, for all extra time agreed, and that this was in accordance with the National Minimum Wage which was £10.42 per hour between April 2023 and March 2024. His oral evidence was that in practice overtime would arise if a driver worked for any time over and above their contractual estimated duty hours, which might arise for example through unexpected traffic or breakdown or issues that PAs had with collecting children. This tallied with the provision in the contract, identical at page 52 and 58, that says “actual journey times may vary from day to day and will depend on a number of factors e.g. traffic, absent children etc. To enable us to monitor the contract and employment regulations you should keep a written record of hours worked each day and return this to us no later than the end of each month”. Mr Sims’ oral evidence was that the claimant did not comply with this requirement but instead her extra hours worked were agreed verbally with her manager. The claimant’s evidence that she had started recording her journey times, including her overtime, when Steve her manager had asked her to, was not materially divergent from the respondent’s evidence on this point.[40]As mentioned above, the claimant in her notebook at pages 24 to 33 noted on the right of the book values in “min extra” which she said constituted overtime, in addition to what she said were the actual core 2-hour shift times during the entirety of which she said was actually physically driving. In the minibus driver wages payroll excel spreadsheet that the respondent supplied in evidence, there is a column headed “extra hours”. The oral evidence of Mr Sims was, as above, that this column represented overtime that the claimant had agreed with her manager Steve in good faith. The claimant did not disagree in oral evidence with the values in that column. In the spreadsheet, those times total up to 29.5 hours between September 2023 and May 2025. I have found above that the claimant’s notebook log was not reliable as to the average route time. This would tend to support the proposition that the amount of worked overtime eventually agreed between the claimant and the respondent as shown in the minibus driver wages spreadsheet was correct whereas the claimant’s notebook entries as to amount of overtime worked were not correct.[41]Returning to the issues at paragraph 16 above at items 2.1.4 to 2.5 therefore, the conclusions of the Tribunal based on the above evidence are that:(a) The claimant was entitled to be paid for overtime at a rate of £10.50 per hour for payments before April 2024 and then £11.44 per hour afterwards.(b) The arrangements for approval were that supposed to be that the claimant reported overtime to the management at the end of each month.(c) The claimant at some point in time started her notebook log in which she purported to record her overtime, but in reality, those overtime times were agreed verbally in good faith between herself and her manager Steve.(d) The overtime hours that were eventually agreed between the claimant and her manager Steve totalled 29.5 hours between September 20-2023 and May 2025 and all of those were authorised.(e) Sums in respect of the overtime hours that had been authorised by the claimant’s manager Steve were payable to the claimant.[42]The final question is whether the sums that I have found to be payable above to the claimant under the contract for both non-overtime work inclusive of holiday pay, and in addition for overtime work that was agreed and authorised, were actually paid. The minibus driver wages payroll excel spreadsheet that the respondent supplied in evidence proves that those sums were paid. In that spreadsheet, for each month between September 2023 and May 2025 payment is evidenced as follows:(a) The column “school total” shows that the total non-overtime pay was paid on the basis of the hourly completed journey rate multiplied by the number of journeys completed.(b) The “school HPAE” and “payslip HPAE” columns are 12.07% of the “school total” values.(c) Overtime pay is paid at a rate of £10.50 per hour rising to £11.40 per hour from April 2024.(d) The “extras HPAE” column shows that holiday pay of 12.07% is added on top of overtime pay.(e) The total paid is (i) the basic pay inclusive of 12.07% holiday pay plus (ii) overtime calculated at the number of hours overtime agreed and authorised plus (iii) 12.07% of that overtime value[43]Payslips supplied by the respondent illustrate payments made to the claimant in accordance with the total pay values shown on the minibus driver wages payroll excel spreadsheet less any tax or national insurance or other deductions (for example penalty charges) that were applicable from time to time. Relevant law and conclusionsRelevant law
[44]Section 13 of the Employment Rights Act 1996 (“the Act”) provides as follows: “13 Right not to suffer unauthorised deductions (1) An employer shall not make a deduction from wages of a worker employed by him unless- (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”[45]The deductions that are “authorised” by way of “statutory provision” for the purposes of section 13(1)(a) are set out in section 14 of the Act. They are not relevant to this case.[46]Case law is clear that a total denial of pay amounts to a “deduction”.[47]“Wages” for the purposes of section 13(1) of the Act are defined in section 27 of the Act. Section 27(1) has as wages “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”.Conclusions
[48]It is not in dispute in this case that the claimant was worker for the purposes of section 13(1) off the Act.[49]It is not in dispute in this case that the sums that the claimant claims were not paid to her would be “wages” in the meaning of section 13(1) and 27(1) of the Act.[50]The claimant’s case is that she was not paid her full wages and all of the overtime that she worked.[51]The claimant’s case in respect of non-overtime wages is that the contractual arrangements under which she worked (which she alleged to be remuneration of two 2-hour shifts per day) were not honoured or in the alternative that, even if they were honoured, the hourly wage as cited in the job advertisement trumped the written contractual arrangements. I do not accept either. The findings of fact above show that it is unambiguously and unmistakeably clear that the contractual arrangements under which the claimant was working (and, I have found, knew she was working) were(a) that she was due a fixed amount per completed school journey,(b) that any notional usual monthly amount was based on an average journey time of 1.5 hours per journey (not on actual driving times) and(c) that holiday pay of 12.07% was always and clearly intended to be included within the total monthly pay as calculated by the fixed amount per journey (not added on top of that total monthly pay). It is also clear from the analysis above that the language of the advertisement on which the claimant relies was in any event not inconsistent with the contractual terms under which I have found she was working. The evidence is also clear that as a matter of fact the amounts due under those calculations were in fact paid. Therefore, no wages were “deducted” from the claimant’s non-overtime pay within the meaning of section 13(1) of the Act. In addition, I have found that in reality the claimant worked an average of 1.5 hours per journey. Since I have found that her claim to have worked 4 hours of fixed shift time per day was not accurate, there can have been no deductions on that basis either.[52]The claimant’s case in respect of overtime is that she worked many hours overtime, that being time over and above the core shift hours of 4 hours per day, and that the amount she was paid by way of overtime was less than the amount of overtime that she actually worked. I have found that “overtime” calculation was based on any time worked over the contractual average of estimated duty hours per month (this comprising 1.5 average hours multiplied by the number of journeys completed in the month). I have found also that the number of overtime hours recorded in the claimant’s handwritten notebook was inaccurate and that as a matter of fact the claimant accepted a good faith agreement with her line manager as to number of overtime hours worked, which was then authorised and paid. For these reasons, there were no deductions from overtime pay within the meaning of section 13(1) of the Act. M Da Costa