Mr P Slevin v B Ikin and Originate (Manchester) Ltd: 6004120/2024
EMPLOYMENT TRIBUNALS
Case No 6004120/2024
Between
Mr P SlevinClaimantB Ikin and Originate (Manchester) LtdRespondent
Before
Employment Judge ChildeIn person for claimantNot represented for respondentDate 31 March 2025
JUDGMENT
[1]The complaint of unauthorised deductions from wages is well-founded. The second respondent made an unauthorised deduction from the claimant's wages in the period:a.1 October 2023 until 11 October 2024, in connection with unpaid wages.b. August 2022 until 11 October 2024 in connection with unpaid pension contribution. Case number: 6004120/2024 2[2]The second respondent shall pay the claimant £19,112.30, which is the gross sum deducted. The claimant is responsible for the payment of any tax or National Insurance.
REASONS
[1]The claim was presented in the Manchester Employment Tribunal on 16 June 2024 for unlawful deduction from wages.[2]The claimant identified Smarter Power UK Limited in his ET1 form as the respondent and his employer, and provided the Tribunal with two addresses for the respondent, as follows:a. Westminster House, Westminster Road, Macclesfield, Cheshire, SK10 1BX.b. Unit 42-43, Cariocca Business Park, 2, Helidon Close, Manchester, M12 4AH.[3]On 28 June 2024 the Tribunal served the claim on the respondent at the address given in paragraph 2.a above. The respondent failed to present a valid response on time or at all. Case Number: 6004120/2024[4]On 5 August 2024 the claimant told the Tribunal that his employer was either Ben Ikin, or Originate (Manchester) Ltd. The claimant gave the address for both respondents as set out in paragraph 2.a above.[5]The claim form was therefore re-served on Ben Ikin and Originate (Manchester) Ltd (the first and second respondent) on 2 January 2025 at the address given in paragraph 2.a above, by the Tribunal. The first and second respondent failed to present a valid response on time or at all.[6]A final hearing took place on 5 February 2025.[7]The claimant attended the hearing and provided oral evidence to support his claim. The respondents did not attend.[8]Under rule 22 (3) of the Employment Tribunal Procedure Rules 2024 (“the Rules”) the respondents had no right to participate in hearing, without my permission. No permission was sought. Relevant Law, Analysis and conclusion The Employment Tribunal Procedure Rules 2024 Rule 22. Effect of non-presentation or rejection of response, or case not contested[9]The relevant part of the Rules which apply when a respondent has not submitted a response at all are as follows:(1) This rule applies where— (a) the Tribunal has not received a response by the time specified in rule 17(1) (response), or by an extension of time granted under rule 21 (applications for extension of time for presenting response), (b) … Case Number: 6004120/2024 (c) ...(2) The Tribunal must decide whether on the available material (which may include any further information which the parties are required by the Tribunal to provide), a determination can properly be made of the claim, or part of it. To the extent that a determination can be made, the Tribunal must issue a judgment accordingly, otherwise, a hearing must be fixed. Where the Tribunal has directed that a preliminary issue should be determined at a hearing, a judgment may be issued by the Tribunal under this rule after that issue has been determined without a further hearing.(3) The Tribunal must provide the respondent with notice of any hearing or decision of the Tribunal but the respondent may only participate in any hearing on that claim to the extent permitted by the Tribunal.[10]The Rules state that the Tribunal shall decide whether on the available material (including any further information which the parties might be required to provide) a determination can properly be made of the claim or part of it (my emphasis).[11]The relevant part of the Rules which apply to reconsideration of judgments are as follows: 68. Principles[12](1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. Employment Rights Act 1996- Protection from Wages[13]The relevant part of section 11 of the Employment Rights Act 1996 is as follows: 13. Right not to suffer unauthorised deductions Case Number: 6004120/2024(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.(2) …(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. Analysis and Conclusion 13 I decided that a determination could properly be made of the claim in accordance with rule 22 of the Rules. 14 I find that the claimant was employed by Originate (Manchester) Ltd and they are the correct respondent in this case. The reason I have come to that conclusion is because I have accepted the claimant’s evidence that he was given a contract of employment in June 2022 which said on it that Originate (Manchester) Ltd were his employer (“the Contract of Employment”). Whilst there may have been issues with HMRC regarding tax and national insurance not being paid, at no time was the claimant told anything other than he was employed by Originate (Manchester) Ltd. Case Number: 6004120/2024 15 I heard and accepted evidence from the claimant that the Contract of Employment originally provided him with 37 ½ hours work per week at £14.00 per hour. The claimant said that from the time of Covid, so around 2020, his hours of work reduced to 27 ½ hours per week and his hourly rate reduced to £12 an hour. 16 I find that that the claimant’s contractual entitlement was to work 27 ½ hours per week at an hourly rate of £12 an hour. This equates to a gross monthly income of £1,430. This is calculated by taking the claimant’s gross weekly income of £330 (27.5 (hours) x 12 (£ per hour), multiplying it by 52 to get an annual gross income of £17,160 and then dividing this by 12 to get a gross monthly income of £1,430. 17 I have accepted the claimant’s evidence and find that he did not receive any wages at all from the second respondent from the period 1 October 2023 to the final day of his employment, which was 11 October 2024, a period of 12.4 months. 18 The claimant’s contractual entitlement during this period was to be paid £17,732.00 in wages calculated as follows: 12.4 (months) x 1430 (gross monthly income). The claimant received no income during this period. I conclude that the total amount of wages paid between 1 October 2023 and 11 October 2024 by the second respondent to the claimant is less than the total amount of the wages properly payable to the claimant. The amount of the deficiency is an unlawful deduction made by the second respondent from the claimant’s wages. 19 I accept the evidence of the claimant that he was also entitled to a pension contribution from the second respondent, on top of his income, between 1 Case Number: 6004120/2024 January 2022 and 11 October 2024 of £32.10 per month. There are 33 months in this period. The claimant is entitled to £1,059.30 based on the following calculation: 33 (months) x £32.10 (employer’s pension calculation per month). 20 The claimant received no pension contribution during this period. I conclude that the total amount of wages paid between 1 January 2022 and 11 October 2024 by second respondent to the claimant is less than the total amount of the wages properly payable by him to the claimant. The amount of the deficiency is an unlawful deduction made by the second respondent from the claimant’s wages. 21 In conclusion the second respondent has unlawfully deducted a total of £18,791.30 from the claimant’s wages calculated as follows: £17,732.00 (unpaid wages calculated as per paragraph 18 above) plus £1,059.30 (unpaid employer pension contributions calculated as per paragraph 19 above). 22 I have noticed two relevant points in producing these reasons:a. First, the original Judgment issued on 5 February 2025 (the Original Judgment) incorrectly recorded the pension loss as being from August 2022, rather than from 1 January 2022.b. Second, the claimant said in oral evidence the period between 1 January 2022 and 11 October 2024 was 43 months. This is incorrect as the period is 33 months. Case Number: 6004120/2024[14]Due to this error, I originally wrongly calculated the pension loss as £1,308.30 based on the following calculation: 43 (months) x £32.10 (employer’s pension calculation per month) and set this out in the Original Judgment. I have therefore, on my own initiative, reconsidered the Original Judgment and decided to replace it with this judgment as this now contains the correct amount of pension loss owed to the claimant, by the second respondent, by reference to the correct time frame. 23 I have dismissed the claims against the first respondent as I have found that the first respondent was not the claimant’s employer for the purposes of the Employment Rights Act 1996.