Mr A Duka v Radisson Hotel Stansted Airport Ltd: 6006288/2024
JUDGMENT
[1]The complaint of unauthorised deductions from wages pursuant to section 13 of the Employment Rights Act 1996 is not well-founded and is dismissed.[2]The complaint of breach of contract pursuant to section 3 Employment Tribunals Act 1996 (“ETA”) and article 3 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623 (“EJO”) is not well-founded and is dismissed.REASONS
[1]By way of claim form dated 21 July 2024 the claimant, Mr Duka, brings a claim for unauthorised deduction of wages and breach of contract against the respondent, Radisson Hotel Stansted Airport Ltd.[2]The claimant was employed as Food and Beverage Manager with the respondent between 13 March 2023 and 13 March 2024. He says that he regularly worked over 12-hour shifts and on his notional days off, and is entitled to be recompensed for that work. He says that his line manager(s) orally agreed that he was so entitled. His claim form raised a separate unfair dismissal claim which he withdrew on 12 December 2024. I need say no more about that or about evidence within the bundle which goes only to that claim.[3]The respondent resists the wages and contract claims, saying that Mr Duka’s employment contract requires managers to work additional hours from time to time without any additional payment. Any time in lieu can only be accumulated if authorised in advance by the line manager, and overtime can only be paid if agreed in advance with the general manager. No such agreement was entered into orally or otherwise. The respondent further submits that neither claim was made within the time limits in section 23 ERA / article 7 EJO. In respect of wages, these are not a series of deductions and any TOIL claim made before 31 January 2024 would be out of time. The hearing – preliminary matters[4]Ms Charalambous raised a preliminary matter concerning the claimant’s failure to file a witness statement and evidence in accordance with the directions of Judge Shore on 12 December 2024. She initially submitted that he should not be permitted to give evidence. After discussions with Mr Duka, she adopted a pragmatic approach of agreeing that his claim form, emails, and spreadsheet could stand as his evidence in chief.[5]Ms Charalambous did express concern that the claimant may seek to give oral evidence of matters on which he had failed to provide written evidence in accordance with the case management directions. I return to this below.Evidence
[6]The evidence before the Tribunal consisted of a 343-page bundle, plus a witness statement from Mr Magdy Moussa (served by the claimant) and a witness statement from Mr Dinesh Kunder for the Respondent.[7]There are a number of matters in the bundle that are not relevant to the claims I have to consider (including internal grievance documents, complaints, and concerns raised about various individuals). I have not taken these into consideration as they do not assist me in determining the comparatively narrow issues in this case.[8]I heard evidence on affirmation from the claimant and Mr Kunder. Both were crossexamined and asked questions by the Tribunal. Mr Duka did not have anything to add at re-examination stage. Mr Kunder was asked some questions in reexamination. Mr Moussa was not attending to give evidence and neither party submitted that his evidence bore any relevance to the issues I had to decide.[9]I heard submissions from both parties and I am grateful for their assistance.Law
[10]The right not to suffer an unauthorised deduction from wages is contained in section 13(1) of the Employment Rights Act 1996: “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.”[11]Per section 13(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.”[12]Per section 23,[23]Complaints to employment tribunals.(1) A worker may present a complaint to an employment tribunal — (a) that his employer has made a deduction from his wages in contravention of section 13 (including a deduction made in contravention of that section as it applies by virtue of section 18(2)), (b) that his employer has received from him a payment in contravention of section 15 (including a payment received in contravention of that section as it applies by virtue of section 20(1)), (c) that his employer has recovered from his wages by means of one or more deductions falling within section 18(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or (d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with section 20) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under section 21(1).(2) Subject to subsection (4), an employment tribunal shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with— (a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or (b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.(3) Where a complaint is brought under this section in respect of— (a) a series of deductions or payments, or (b) a number of payments falling within subsection (1)(d) and made in pursuance of demands for payment subject to the same limit under section 21(1) but received by the employer on different dates, the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. (3A) Section 207A(3) (extension because of mediation in certain European crossborder disputes) and section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2).(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable. (4A) An employment tribunal is not (despite subsections (3) and (4)) to consider so much of a complaint brought under this section as relates to a deduction where the date of payment of the wages from which the deduction was made was before the period of two years ending with the date of presentation of the complaint. (4B) Subsection (4A) does not apply so far as a complaint relates to a deduction from wages that are of a kind mentioned in section 27(1)(b) to (j).(5) No complaint shall be presented under this section in respect of any deduction made in contravention of section 86 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deduction of political fund contribution where certificate of exemption or objection has been given). 13. The relevant statutory law for the breach of contract claim is in Articles 3 and 7 of the EJO: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; (b) the claim is not one to which article 5 applies; and (c) the claim arises or is outstanding on the termination of the employee’s employment. Time within which proceedings may be brought 7. Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented— (a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or (b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b). (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable. 14. The burden of proof is on the claimant and the standard is the balance of probabilities. The substantive hearing 15. Mr Duka’s evidence was that he worked some 688.33 hours in overtime at the direction of Mr Kunder and Mr Dewan during his employment. “In exchange” for that overtime, he reached a verbal agreement to be given 160 hours as time off in lieu (TOIL). Mr Duka agreed that he had signed the contract in the bundle and that it included part 2 of the Team Member Handbook. 16. Mr Duka further agreed that he was not contractually entitled to overtime payments. His claim appeared to be that, having been promised 160 hours TOIL and then denied it, he now wished to exercise his right to be paid for all of the 688.33 hours of overtime. 17. As to his entitlement to TOIL, Mr Duka stated that it was not tied to a payroll period. He agreed that TOIL has to be used or paid within 30 days. However he sought to draw an analogy between carried over holiday pay and TOIL, stating that both could be carried over with the consent of a line manager. 18. Mr Kunder’s evidence was that he was unaware of Mr Duka’s having worked an additional 688.33 hours. He knew that Mr Duka was coming into work earlier than required. This was not necessary as his assistant manager Mr Moussa would be on shift. Mr Kunder spoke to Mr Duka, who informed him that this was a personal choice as Mr Duka’s family transport, work, and school commitments made this arrangement convenient. Mr Kunder therefore saw no reason to interfere in Mr Duka’s arrangements. Mr Duka set his own shift patterns and rotas for the team he managed. Mr Kunder was not aware of any agreement (oral or otherwise) to pay Mr Duka for TOIL or overtime. He exhibited records showing where TOIL requests should appear; these show no requests were made. Analysis and decision 19. I shall set out the evidence only so far as is necessary to give my findings of fact relevant to the issues in the case and reasons for them. However, I have carefully considered all the admitted documentary evidence, oral evidence, and submissions made, where relevant. The contract of employment 20. Despite considerable correspondence on the subject, it became evident that the parties were in agreement that the claimant’s contract of employment consisted of:a. The Manager Contract he signed electronically, consisting of 6 pages and 23 clauses. I do not have a date of signature but the parties agreed that this was the written contract Mr Duka and the respondent entered into that governed the period of his employment from 13 March 2023 to 13 March 2024 (save that Mr Duka says he also had the verbal agreement discussed below) andb. Part 2 of the Handbook 21. The relevant parts of the contract + Handbook are as follows. Contract preamble “This Agreement together with the section of the Team Member Handbook which is stated as contractual constitute a statement of your main terms and conditions as required under S.1 of the Employment Rights Act 1996. Please read this contract in conjunction with the Team Member Handbook.” Clause 8 of the contract states: “Hours of Work You are required to work the hours that are necessary to fulfil your duties under these Terms and Conditions. Your basic hours are a minimum of 40 per week. You will be required to participate in Duty Management Shifts as per the Hotel rota which will require night working, weekend working and work on a bank or public holiday but you will not be entitled to receive overtime pay for this work. Please refer to the Team Member Handbook for further information regarding hours of work.” The preamble to the Handbook states “Part 2 (Contractual Terms and Conditions) of this handbook does form part of the terms and conditions of your employment and is to be read in conjunction with the terms and conditions set out in your individual staff contract. Together, Part 2 of this handbook and your individual staff contract form your contract of employment. Where there is any inconsistency between your staff contract and this handbook, your contract will have precedence.” Part 2.4 of the Handbook, which is part of the contract, states “OVERTIME Due to the operational peaks and troughs in our business, there may be occasions when you will be asked to work overtime or to work on one of your rest days. The Company requires, as a condition of your employment, that you comply with reasonable requests of this nature. Overtime is not guaranteed and can only be requested by your line manager. For Team Members on a Zero Hour or Staff contract, the rate of pay for any overtime will be your usual hourly rate. Some senior team members on Manager Contracts are expected, from time to time, to work additional hours without any additional payment. Please refer to your contract of employment for further details. Please make sure that all overtime is authorised by your Line Manager so that it is processed in accordance with your contract of employment.” Per para 2.6, which is part of the contract, “PAY What activities are “working time” and should be paid for as work? During your employment, you may undertake a number of activities as well as doing your normal work. You should be paid for all of the following activities: - All induction periods; - All training (including online training); - Travel undertaken for work purposes during the working day (including travel to a hotel or other location at the start or at the end of the day, if it is not your normal place of work); - Reasonable time spent changing in and out of special work clothes (such as chef’s whites or other uniform) at the start and end of the day. The following activities are not working time, and will not usually be paid for as working time. - Travelling to and from your normal place of work - Time spent on Company premises as a matter of your own choice before or after your shift; and - Lunch breaks or other breaks to which you are entitled under your contract. If you are unsure whether any activity should be treated as working time, please consult with your Line Manager. … Staff contracts – Fixed hours If you have fixed contractual hours each week you are deemed to be carrying out “salaried work”, because the number of hours you will work in each year can be determined at the beginning of that year. This means that under the relevant regulations, when calculating NMW we take an average of payments made over the course of the year. Particular care should be taken in relation to overtime, as this must be paid for in line with the accrued payroll cut off. If it is accepted that lieu time will be provided in compensation of additional hours worked in accordance with the Lieu Time Policy.” 22. The Lieu Time Policy, which is not part of the contract, relevantly provides: “3.26 LIEU TIME The Company recognises that the nature of its work means that there will be occasions when employees will need to work outside of their regular working hours. The Company also acknowledges, however, its duty to protect the health and safety of its employees by ensuring they do not work excessive hours and that any additional hours are agreed in advance and monitored appropriately as outlined within this lieu time policy. The policy is a guideline for Managers to assist them in planning and organising the working hours of their employees who are asked to work additional hours when there is a busy period or specific event. This applies to all current Team Members who are on an Executive, Manager or a Staff Contract. Team Members on a zero-hour contract are not covered by this policy as contractually and under National Minimum/ Living Wage legislation, they should be paid for any hours they work at their standard rate of pay, rather than be granted time off in lieu. Staff Contract Time in Lieu will be accrued for any Team Member who works in excess of their weekly contracted hours and where their Line Manager has agreed with them that there is a business requirement to do so. Any lieu time which is accrued must be used or paid within a 30-day period. Executive and Manager Contract Within the terms of this contract Time in Lieu can only be accumulated when a Team Member who works in addition to their normal scheduled working week (which is usually 5 days). Time in Lieu should only be accumulated within an agreed plan between the Team Member and their Line Manager. The Team Member must make their Line Manager aware that they will be accumulating lieu time ahead of the time that it will be accrued and that there is a business need to work above their five-day week. This must be authorised by their Line Manager. There should be other options considered when this happens such as overtime for agreed hours paid within the proposed calendar month in line with payroll. This is at the discretion of the General Manager and must be authorised in advance. Any lieu time which is accrued must be used within a 30-day period of the accrued date. If payment is agreed this should be done in line with the payroll dates. All lieu lost and lieu earned hours must be recorded correctly within EPS to allow us to accurately monitor the working hours of each team member.” Was there an agreement? 23. Mr Duka says that “The agreement concerning the payment was that any overtime working hours were to be given in time back as a form of Lieu Day.” I have struggled to reconcile this with his evidence that he only sought TOIL of 160 hours whereas he had worked 688.33 hours overtime.[24]I am mindful that arrangements of the sort Mr Duka relies upon are not always evidenced in written form. I have given anxious consideration to any evidence that supports the existence of a verbal arrangement. I am unable to conclude that there was any such arrangement. Mr Duka claimed that he had reached a “gentleman’s agreement rather than a formal agreement” with “Dinesh Kunder and Samir Dewani”. He was not able to provide any details that I would expect to accompany evidence of such an agreement. For example, when and where this occurred, did it happen once only, before each shift or at the start of each month, was it with one or both of them, who else was present (if anyone), what led to the conversation(s) (e.g. was it a scheduled meeting or a chance conversation), what was said, was there any negotiation or exchange of views/proposals, how did Mr Duka expect to receive his TOIL if it was not recorded on the system.[25]I accept that Mr Duka appears genuinely to believe that he is owed more money than he has received for his work, but that does not come close to establishing an agreement by the respondent to pay that money.[26]Mr Duka relies upon the respondent’s treatment of holidays as support for his claim that TOIL could accrue over many months. I have seen emails relating to the holidays in question. The circumstances were unusual and Mr Kunder personally arranged with payroll to have the holidays carried forward for an extra month. I do not find the analogy with holidays helpful to the claimant; they are governed by different terms of the contract. In any event the holiday email correspondence I have seen strongly indicates that any alterations to pay and pay periods needed to be put in writing and needed to be authorised by Mr Kunder. Taken with §§2.4 and 2.6, and §3.26 of the Handbook, it is reasonable to infer that this practice would apply to TOIL and overtime as well. The absence of any such evidence strengths my conclusion that no agreement was made of the type claimed by Mr Duka.[27]In cross-examination of Mr Kunder, Mr Duka sought to suggest that he (Mr Duka) had had a conversation with Mr Dewan. Ms Charalambous objected to this line of questioning because, she said, Mr Duka had not made his case clear in accordance with the case management directions and consequently Mr Dewan was not in attendance as a witness.[28]In my judgment little turns on this point for either party. It may be said that, Mr Duka having named Mr Dewan from an early stage, the Respondent might reasonably have taken steps to secure his evidence. It may also be said that if Mr Duka had specific evidence of an agreement with Mr Dewan, he would have given that detail at a stage prior to cross-examining the respondent’s witness. As it was, this crossexamination of Mr Kunder did not shed any further light on when or how the agreement had been made (with Mr Kunder or Mr Dewan) and I do not consider it added to Mr Duka’s case. As I said during the hearing, in the circumstances I do not draw any adverse inference from Mr Dewan’s absence. The hours worked[29]The respondent provided a spreadsheet of clock-in and clock-out times for the claimant. This showed some 44 occasions on which it appears the claimant did not in fact clock-in and clock-out. The claimant has added columns to the spreadsheet showing what he says are the hours he was contracted to work (8 hours per shift), the additional hours he did work, and who authorised it. On all occasions Mr Duka has simply written that approval was given by “Dinesh Kunder/Samir Dewani”. He was unable to be more specific.[30]I am bound to say that I found Mr Duka’s explanation of the hours he claims to have worked difficult to understand.[31]In cross-examination Mr Duka agreed that his contract did not specify that each shift was 8 hours in length. He also agreed that he had not allowed for break times in his calculations. Where there was no start or end time he could not explain how he had calculated the additional hours. At one stage he said that there was a missing page of the printout provided by the respondent and suggested that it could be “cut or altered”. Ultimately, Mr Duka suggested that his calculations were not accurate representations of time worked, but instead reflected “time spent on premises”.[32]He further agreed that under the provisions of his contract (extracted above) he was not entitled to any overtime payment or TOIL payment unless agreed in advance with a line manager or general manager. In fact, Mr Kunder and Mr Dewan had not occupied the roles of general manager and line manager respectively for the whole of the dates on the spreadsheet, meaning that there were some dates at the start of the claimant’s employment when neither could have approved the hours.[33]In his closing submissions to me Mr Duka said, “the calculation might be incorrect. I just ask for the hours I am owed as a person and what I have given to the company. I had requested only 160 and that was denied 3 times and so that is why I am asking 688 hours. The Tribunal is to order whatever the correct amount is as time in lieu.”[34]I observe that case management orders were made directing the claimant to set out: 44.1 Every date and time that he worked additional hours at the request of either Mr Dewan or Mr Kunder; 44.2. Details of the agreement made with Mr Dewan or Mr Kunder about TOIL in compensation for the additional hours; 44.3 The dates of any TOIL or additional leave he had booked under any such agreement; 44.4. Details of any periods of TOIL or additional leave that were cancelled or for which the claimant was not paid; 44.5. The number of hours of pay that he had lost in respect of every cancellation or failure to pay.[35]I bear in mind the nature of this Tribunal, the provisions of the Equal Treatment Bench Book, and I acknowledge that the claimant is a litigant in person. These orders were designed to avoid legalese. They merely asked the claimant to identify what he has not been paid for and how he has reached that conclusion. The fact that he could not do so at the end of the hearing reinforces my conclusion that there was no agreement to pay overtime or TOIL and no records of any such hours were kept by the claimant or respondent.[36]Mr Duka’s own answers in an internal meeting (7 June 2024) make the position quite clear: Q: You state that you frequently worked over 12-hour shifts, can you remember when this started? AD: Since July 2023. Joined March 2023. GP: What changed? AD: Just business demand. Shortage of staff. Dinesh came in April or May. GP: What hours were you working before July 2023 AD: 8 or 9 hours per shift GP: Were you specifically requested to work these hours, if so by who? AD: No, I wasn’t asked directly but indirectly was required to be asked to be attending morning meeting which starts 11am and you need to know your figures beforehand and be evening service. GP: What was the reason you did so AD: Business demand, I had to be on shift and ensure duties covered, and shortage of staff. Had to attend meetings in morning and ensure night duties performed. Work required attention of management to be present. GP Were the staff shortages a recruitment issue? AD: Always at Stansted, due to location of where it was. Big issue when I started. 10 members of staff left at the time I was recruited. GP: Were you in charge of recruitment? AD: Yes, I was part of process of applicants as every HOD, GP: Were you provided with lieu time where this took you over 40 hours per week? AD: No lieu time or payment discussed. Dinesh and Samir knew that I was working these hours as they see the EPS reports.[37]In the same interview he stated that he “had to” reply to messages on his days off and that he did not raise concerns with Mr Kunder or Mr Dewan because they should have been “aware of the policies and procedures” and he “should not have to speak to them about it”.[38]Mr Kunder’s evidence on this point is summarised above, namely that Mr Duka would often stay longer on the premises for personal reasons but was not required to work those hours. In respect of the meetings, he told Mr Duka he did not need to come in for the morning meetings, which only required a representative from the department who had been on the night shift. He stated that Mr Duka would come in anyway, sometimes because Mr Duka was dissatisfied with the performance of the assistant manager, Mr Moussa. Mr Kunder further stated that Mr Duka had never raised with him any issues about being asked to work excessive or unhealthy hours. Mr Kunder’s evidence is supported by contemporaneous documentation showing that he asked Mr Duka to review the rotas and to reduce the numbers of supervisors and hours being worked. There are also messages relating to Mr Moussa’s performance.[39]I have seen a number of screenshots containing messaging between Mr Duka and Mr Kunder/Mr Dewan. In my judgment these show a friendly working relationship. The evidence before me does not support Mr Duka’s contention that he was “relentlessly disturbed with a barrage of messages and phone calls” on his days off. Nor is there evidence to support his contention that he was required to work 688.33 hours overtime over a period of 9 months.[40]The messages I have seen do contain several requests of Mr Duka in respect of additional tasks or work. None strike me as inappropriate or unreasonable. On one occasion in January 2024 Mr Dewan asks him to work and Mr Duka replies that he is “off”. On another occasion, a Friday, Mr Kunder asks, “are you off today” Mr Duka replies “Off, is there anything I can do.” Mr Kunder replies by asking “are you working sunday” Mr Duka says “Yes I am in.” Mr Kunder then messages on the Saturday evening asking Mr Duka to make an enquiry about a matter in respect of which Mr Duka’s assistant manager, Mr Moussa, had not responded.[41]I find that these and other exchanges demonstrate that Mr Duka was able to and did set boundaries on his working life and that the respondent respected them. In my judgment, none of the messages from Mr Kunder or Mr Dewan go beyond appropriate requests of someone in Mr Duka’s managerial role. They are requests for work within the scope of his contractual obligations and in respect of which no additional wages are properly payable.[42]I find that the spreadsheet largely reflects that Mr Duka did not always clock in and out, and spent time on the premises that was not authorised or requested by the respondent. This is not time spent under his contract of employment or in connection with his employment. No wages are properly payable in respect of it.Conclusion
[43]I find that there was no agreement to pay Mr Duka for overtime or TOIL.[44]I find that the hours recorded on the spreadsheet are not hours in respect of which wages are properly payable. The complaint of unauthorised deduction from wages is therefore dismissed.[45]I agree with Ms Charalambous that in respect of TOIL there is arguably no contractual claim at all. However, in any event I find that there was no agreement to pay Mr Duka for overtime or TOIL. Consequently there is no breach of contract in respect of either and that claim is also dismissed.