Mr C Spiridon v Oxford Aunts Care Ltd: 6006905/2024

EMPLOYMENT TRIBUNALS

Case No 6006905/2024

Between

Mr C SpiridonClaimant

Oxford Aunts Care LtdRespondent

Before

Employment Judge Milner-Moore

In person for claimant

Ms Hatch (instructed by Counsel) for respondent

Date 10 February 2025

JUDGMENT

[1]The complaint of unauthorised deduction from wages was presented within the applicable time limit.

[2]The complaint of breach of contract was not presented within the applicable time limit. It was not reasonably practicable to do so. The complaint was presented within such further period as was reasonable.

[3]The complaint of unauthorised deductions from wages is not well-founded and is dismissed.

[4]The complaint of breach of contract is not well-founded and is dismissed.

REASONS

[1]This case was listed for a one-day hearing to consider complaints of unauthorised deduction from wages and breach of contract in relation to the respondent’s failure to pay on call payments which the claimant considered due to him. The claimant considers that the respondent should have paid him the amount of £12,696, relating to on call payments in relation to the period between 9th January 2023, when the claimant began his employment with the respondent, and 31st October 2023, when he was placed on the respondent’s on call rota for “live in” care. The claimant has not provided any written schedule or explanation of how he arrived at the figure of £12,696 but stated that he had arrived at this by applying the evening and weekend on call rates paid by the respondent to staff on the live in care rota and multiplying those rates by the relevant number of working days and weekends in that period (excluding any days of annual leave).

[2]The issues that arose for determination were as follows:a. Time limit unauthorised deduction from wages: Was the unauthorised deductions complaint made within the time limit in 23 of the Employment Rights Act 1996? i. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the date of payment of the wages from which the deduction was made etc? ii. If not, was there a series of deductions and was the claim made to the Tribunal within three months (plus early conciliation extension) of the last one? iii. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? iv. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

b. Unauthorised deduction from wages i. Were the wages paid to the claimant up to 18 November 2024 less than the wages they should have been paid? ii. Was the claimant entitled to receive on call payments at the rate paid to those participating in the live in care on call rota of £17 per evening and £135 per weekend iii. How much is the claimant owed?

c. Breach of Contract - Time Limit: i. Was the claim brought within 3 months of the effective date of termination ii. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? iii. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period?

d. Breach of Contract: i. Did this claim arise or was it outstanding when the claimant’s employment ended? ii. Was the claimant contractually entitled to receive on call payments at the rate paid to those participating in the live in care on call rota of £17 per evening and £135 per weekend. iii. Did the respondent act in breach of that contractual entitlement? iv. If so, how much should the claimant be awarded as damages? Preliminary matters and case management

[3]The claim form and the claimant’s witness statements made brief reference to discrimination but there was no articulated complaint of discrimination under the Equality Act 2010. The claimant confirmed that he was not pursuing any complaint of discrimination.

[4]The claimant's witness statement indicated he wished to exclude two pieces of evidence: the copy of his contract of employment which appeared in the bundle (on the basis that it was unsigned) and a copy of an absence management policy relating to hourly carers. The claimant confirmed that he was not suggesting that the copy of the contract of employment which appeared in the bundle was in any material way different to the copy that he had signed. It was simply that he objected to the fact that the respondent had failed to produce the signed copy. The contract for employment was a relevant document and I did not consider that it should be excluded merely because it was unsigned, particularly given that there did not appear to be any dispute as to its contents. I could not see the relevance of the absence management policy to the issues that I had to determine. However, I did not exclude it, I said that the parties could make submissions as to its relevance if they wished. In fact, neither party referred me to that document at any point during the hearing. Evidence

[5]I received a bundle of documents consisting of 261 pages. I received witness statements and heard evidence from the claimant and, for the respondent, from Kelly Fox (the respondent’s commercial operations director) Marta Bednarz (its central operations manager and the person who heard the claimant’s grievance) and Hannah Morgan (its chief operating officer and the person who heard the claimant’s grievance appeal). During the cross examination of Ms Bednarz, the claimant suggested that the respondent had not disclosed all relevant documents, and he pointed to three email exchanges with the respondent which he had located amongst his own records, but which had not formed part of the respondent’s initial disclosure as evidence of this. He was not, however, able to point to any specific material that he believed must exist but had not been produced. Facts

[6]The respondent is a company providing hourly care in the home for adults requiring care and support with daily living. The respondent’s business as a provider of hourly care was relatively newly established. The respondent was also associated with another company (The Good Care Group) which provides care for clients requiring live in care 24 hours a day 7 days a week. The Good Care Group had approximately 80 clients and a large number of carers on its books during the period of the claimant’s employment. It operated a formal on call rota covering the live in care clients under which care managers would cover one evening a week and one weekend every four to six weeks. Whilst providing this on- call service, the managers were required to answer phone calls and take appropriate action in response to any emergency issues that arose outside normal office hours. They were therefore required to be available by phone and to be in a location with working internet during periods when they had committed to be on-call.

[7]When the claimant joined the respondent, the only clients receiving hourly care at that time were already clients of The Good Care Group in receipt of live in care. The respondent provided additional hourly care to cover carers’ breaks. It was only in late April / early May 2023 that the respondent got its first “standalone” hourly client. The number of hourly clients and of carers grew gradually over the succeeding months. By 31st October 2023 (which is the end of the period covered by the complaint) the respondent had 13 clients and was employing 8 carers delivering around 54 hours of care a week. Until May 2023, all care visits were conducted during normal office hours (8.30 am to 4.30 pm). After May 2023, some care visits ended after 4.30 p.m. The respondent’s hourly care manager did not participate in the on-call rota for The Good Care Group. However, it was envisaged that this might become part of the hourly care manager’s role in future.

[8]On 29 December 2022, the claimant was issued with a contract of employment engaging him as an “hourly care manager”. In that role, he earned a gross salary of £40,000 per annum. His normal working hours were 40 hours per week and he was expected to work those hours during the respondents office hours which were 8:30 am to 4:30 pm. Clause 5 of the contract provided as follows “the employee’s normal working hours shall be 40 hours per week to meet the needs of the business which may mean working weekends and such additional hours as are necessary for the proper performance of his duties. During these hours the employee shall be allowed a discretionary interval of 45 minutes for lunch at such times as should be fixed by Oxford Aunts. The employee acknowledges that he shall not receive furthis (sic) remuneration in respect of such additional hours, with the exception of the on-call service should that undertaking form part of his role.”

[9]Shortly after the claimant began his employment there was some discussion as to on-call hours and work completed outside the standard contractual hours. An e-mail was sent clarifying the respondent’s position. “On call: it is intended that you will take part in the on-call rota with the OA operations team. It will typically be 1 evening a week and a full weekend (time frame likely to be circa every four to six weeks). You will be paid for this extra work and it will be processed as part of monthly expenses submitted ahead of time and then included in your pay. Overtime can be treated in two ways. If you find that you are working in excess of your hours, perhaps on a specific project or element of the role that is requiring more time we would ask that you raise it with Kelly or Louise. Overtime can then be agreed and logged on Timetastic which is our absence management system. You will then be given time off in lieu tracked through Timetastic and taken within 4 weeks. If you find yourself in a situation where you end up working delivering hands on care, perhaps to ensure safety, then we would agree this is paid as overtime and again submitted through the monthly expense process. As we said to you we would see this as an extreme exception and not normal or accepted. As we have said there is a clear expectation that you will manage your time effectively and raise with either of us any concerns about time management prioritising etc we can then help and ensure the appropriate support is put in place.” The claimant emailed in reply expressing himself to be content with that clarification.

[10]There was a further exchange of emails between the claimant and Kelly Fox in April 2023 in which she asked the claimant for his thoughts about the oncall arrangements now that the respondent had its first standalone client and was growing. The claimant could not recall whether or how he responded to that email. The claimant was not added to the existing on-call rota at that time. I found that this was because neither party considered this necessary given the small number of hourly clients.

[11]During July and August 2023, the claimant took some annual leave and provided some handover notes so that any issues that in his absence outside office hours could be covered by the live in care on call service. However, he was not added to the on-call rota at this time. It appeared that the live in care on-call team were nervous about taking on responsibility for the hourly care service. The issue of whether the claimant should receive any separate on-call payments for performing the hourly care manager role was considered by Kelly Fox in September. She submitted a proposal internally that the claimant be paid £50 per week as an interim position until he joined the Good Care Group live in care on-call rota. However, this was not progressed and no agreement to that effect was ever reached with the claimant.

[12]It was not until the 1st of November 2023, that the claimant joined the oncall rota operated by the Good Care Group live in care staff. Once he did so, he was eligible to receive the on-call payment of £17 for evenings and £135 for weekends. This also meant that any issues in relation to the hourly care service which arose outside normal office hours would be picked up by the on-call service rather than being the claimant’s responsibility.

[13]The dispute between the parties concerns what the claimant’s entitlement to on-call payments was in the period January 2023 to 31 October 2023 before he joined the live in care on-call rota. The claimant's position is that, because he was the hourly care manager, he was expected to deal with any issues that arose, including issues arising outside normal working hours. He therefore considered that he was the sole person on call in relation to the hourly care service being operated by the respondent and that his responsibility to ensure that the service was “kept safe” meant that he had to be on-call at all times.

[14]The respondent maintains that the claimant was not part of an on-call arrangement until he joined the live in care on-call rota on the 1st of November 2023 and he had no entitlement to be paid the on-call rate before that date. The respondent accepted that the claimant would be expected to deal with occasional calls in relation to the hourly care service outside normal office hours. The respondent’s considered that answering such occasional calls was something that formed part of the job of the hourly care manager and fell within the flexibility referred to in the claimant's contract. However, the respondent expected that such calls would be infrequent. First, until May 2023, most of the hourly care that was being provided by carers was being provided during office hours so it was unlikely that any issues would arise in evenings or at weekends. The respondent also expected the requirement to be infrequent because of the small number of clients and carers engaged by the hourly care service and because the client’s support needs were more limited than those of the clients receiving live in care.

[15]The evidence showed that the claimant had only needed to step in to provide care personally on a couple of occasions during his employment and that this had been paid for as overtime where it fell outside his normal working hours. The claimant did not suggest that calls outside office hours occurred frequently. The respondent denied that it ever required the claimant to be constantly on call or sought to restrict his activities at evenings or weekends. In fact, there are emails in which the respondent made clear that this was not what was required. The respondent encouraged the claimant to manage his staff effectively so that there were contingency plans in place in case of illness and encouraged him to manage staff and client expectations regarding out of hours contact and to make clear that this should be limited to genuine emergencies.

[16]After the claimant joined the on-call rota in November he remained dissatisfied and considered that he should be paid for having been effectively on call (as he saw it) throughout the period January to November 2023.

[17]On 7 November 2023, the claimant resigned but a day later agreed that he would withdraw his resignation and that a meeting would be convened to discuss his concerns.

[18]On 26 February 2024, Kelly Fox wrote to the claimant making proposals as to payment for the period January 2023 to 31 October 2023. Her response reminded the claimant that the hourly care manager position was a flexible role the claimant might be required to deal with occasional issues outside normal working hours, that he was entitled to take time in lieu. Her response also noted that the claimant had been encouraged to manage clients and cares expectations regarding contact out of hours and that this should only relate to emergency issues. It noted that there had been a delay in placing the claimant on the general on-call rota but claimed that this delay had been caused in part by the claimant’s failure to provide a suitable briefing document so that those on call could cover the hourly service, The letter recorded that she had considered the claimant’s schedule and had reviewed it to see whether the service had been providing care visits outside working hours. She noted that, before May 2023 there was no provision of hourly care outside the normal office hours and therefore should be no real likelihood of the claimant being disturbed or needing to check his phone or emails outside office hours during that period. As a compromise she proposed that the claimant should receive half of the usual on call payment (so £8.50) or for any days where hourly care was taking place outside normal office hours and a quarter of the usual on call payment (£33) for each occasion where care was being delivered at weekends. She considered this to be a fair amount given the numbers of clients and carers covered by the hourly service as compared to the numbers of clients and carers being covered by the live in service and the likely frequency with which the claimant would be contacted out of hours. The total sum offered amounted to £612. An additional payment of this amount was made on 18 March 2024.

[19]The claimant did not consider this to be a reasonable approach. He accepted that he and the respondent had never reached any agreement as to what he should be paid for what he considered to be his on-call duties in the period January to 31 October 2023.

[20]The claimant resigned for a second time on the 11th of January 2024 and his employment came to an end on 11 March 2024. During his notice period, he brought a grievance, and that grievance was heard by Ms Bednarz on 4 March 2024 but was not upheld. Ms Bednarz did not accept that there was any agreement that the claimant should be entitled to on -call payments before he joined the on-call rota on 1 November 2023, and she regarded the proposal made by Ms Fox as a reasonable one. The grievance outcome was sent to the claimant on 5 April 2024. The claimant appealed on 11 April 2024 and an appeal hearing before Hannah Morgan took place on 18 April 2024. Ms Morgan issued her decision on the appeal in a letter dated 14 June 2024. She upheld the appeal in one respect. The claimant had suggested that the schedule used by Ms Fox to calculate the figure of £612 was incomplete. After some investigation, Ms Morgan identified two further dates which should have been included and so a further payment of £17 was made.

[21]During the appeal hearing the claimant mentioned having contacted his trade union and a solicitor for advice. In fact, the Trade Union declined to assist the claimant as he was no longer a member, and the claimant had been unable to afford the solicitor’s proposed fee and so received no substantive legal advice.

[22]The respondent paid staff on the 18th of the month and so any claim that the claimant was underpaid for the period up to 31 October 2023 would, the respondent maintained, have crystallised on 18 November 2023, when the payment for October was made. The claimant’s final payslip was issued on 18 March 2024 and contained the further payment of £612. The claimant was issued with a further payslip on 18 July 2024 reflecting the appeal outcome which was that he should be paid a further £17.

[23]The claimant sought advice from ACAS in June and was then advised of the three-month time limit. However, he understood from that advice that time would run from his final pay slip on 18 March 2024 and that he was therefore in time in starting ACAS conciliation on 14 June 2024. ACAS conciliation closed on 10 July 2024 and the claim was filed with the Tribunal on 21 July 2024. Law

[24]Section 23 of the Employment Rights Act 1996 states (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 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies 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.

[25]Where there is an actual deduction or a shortfall in pay, time for bringing an unlawful deduction from wages claim starts to run from the date on which the payment from which the deduction is made was tendered (Arora v Rockwell Automation Ltd

UKEAT/0097/06

)). When considering whether a deduction forms part of a series, the word “series” is to be given its ordinary meaning. Whether something forms part of a series is a question of fact to be determined after consideration of all relevant circumstances, including the extent of any similarities in the deductions, their frequency, size and impact, why and how the deductions were made and whether there any matters that link them. It is necessary to identify whether there is a “common fault” that led to the deductions. It is not necessary for any series of deductions to be unbroken (though breaks may be a relevant factor in determining whether there is a series). The making of a lawful payment, or of a gap of more than three months, will not necessarily mean that a series has been broken.

[26]When considering the not reasonably practicable test it is for the claimant to show both that it was not reasonably practicable to comply with the original time limit and that the claim brought within such further period as reasonable. Ignorance of legal rights, or of applicable time limits, does not render it not reasonably practicable to comply with those time limits unless that ignorance was reasonable in all the circumstances. Erroneous advice from a skilled adviser (such as a solicitor) is unlikely to render it not reasonably practicable to comply with time limits. However, advice from other sources, including an ACAS adviser, may do so, depending on the circumstances.

[27]What constitutes an unlawful deduction from wages is set out in section 13 Employment Rights Act 1996 (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.

[28]In determining a complaint under section 13, the following principles apply.a. The ET should consider all relevant circumstances, including the contractual position and looking at the terms of the contract of employment and other contractual documents (Agarwal v Cardiff University

[2018] EWCA Civ 2084

)). Consideration should be given not only to any express terms but also to any implied terms,

b. The employee must have a legal, but not necessarily a contractual, entitlement to the wages claimed (New Century Cleaning ltd v Church

[2000] IRLR 27

c. The sums claimed must be for a specific sum of money capable of quantification. A claim for an amount which is unquantified, or which would require an employment tribunal to determine for itself the value to be attributed to the payment cannot properly be brought as an unlawful deductions claim (Kingston upon Hull CC v Schofield [2012 WL 4888821])

d. Payments which are contingent on a condition which has not been satisfied are not “properly payable”. So, if the payment of an allowance is conditional on an employee doing work of a certain type and the employee has not done so, an unlawful deduction from wages claim cannot succeed. That will be the case even if the reason why the condition has not been satisfied is that the employer has prevented the employee from doing so. (Lucy v British Airways [2009] WLUK 93).

[29]The Tribunal’s jurisdiction in relation to complaints of breach of contract is set out in the Employment tribunals Extension of Jurisdiction (England and Wales) Order 1994 4. Proceedings may be brought before an employment tribunal]in respect of a claim of an employer 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; (c)the claim arises or is outstanding on the termination of the employment of the employee against whom it is made; and (d)proceedings in respect of a claim of that employee have been brought before an employment tribunal by virtue of this Order 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. Conclusions Time limits unlawful deduction from ages and breach of contract

Conclusions

[30]The Respondent’s position was that any complaint of unlawful deduction from wages should have been brought within three months (plus the ACAS conciliation period) of 18 November 2023, the date on which any payment for on-call payments (if they were due) for the period up to 31 October 2023, should have been made. However, as I have found, the parties continued discussing the issue of on-call payments after that date. The respondent’s position crystallised with the sending of the letter dated 28 February 2024 proposing a payment of £612. Payment of that sum was eventually made on 18 March 2024.

[31]Applying the principles that I have referred to above, I considered that, if the failure to pay any on-call payment for the period up to 31 October 2023 could be viewed as a deduction, there was a series of deductions which continued until 18 March 2024 when the respondent made the final payment in respect of what it considered due to the claimant for on call pay. On that basis any unlawful deduction from wages complaint was in time.

[32]The claimant’s employment terminated on 11 March 2024 and so any complaint of breach of contract should have been brought within three months (plus ACAS conciliation) of that date. For a complaint of breach of contract to be in time, ACAS conciliation would have had to commence by 10 June 2024. The claimant began ACAS conciliation on 14 June 2024 and filed his claim on 21 July 2024. The claimant’s explanation for not bring a claim earlier was that he had not been successful in obtaining legal assistance from his trade union or a legal representative. He had spoken to ACAS in June 2024 and had been informed that time for bringing a claim would run from 18 March 2024, the date of his last payment from the respondent. I considered that erroneous advice from an ACAS adviser, combined with the claimant’s inability to obtain other legal advice, did render it not reasonably practicable for the claimant to have brought his claim of breach of contract in time. I considered that the claim was brought within such further period as was reasonable. ACAS conciliation had begun only a few days late. On that basis, I considered it appropriate to extend time. Unlawful deduction from wages

[33]I did not consider that the claimant had shown that he had any legal entitlement to receive the on-call rates claimed in relation to the period 9 January 2023 to 31 October 2023. The claimant was claiming that he was entitled to be paid the rates applicable to the live in on-call rota during that period. However, he never satisfied the conditions for such a payment because he never participated in that rota until November 2023.

[34]The claimant considered that it must be implied that, because he was the only manager for the hourly care service and so solely responsible for dealing with any out of hours emergencies, that he was required to be constantly on call and so was to be held to be entitled to the on-call rates paid for the live in rota. I did not consider that this was correct or consistent with the claimant’s contract of employment.

[35]The claimant’s contract stated that he was required to work any additional hours necessary in the performance of his duties and was not entitled to any further remuneration “with the exception of the on-call service should that undertaking form part of his role.” This sentence indicates that “on call” duties were not regarded as part of his role at that time.

[36]The reference to “the on-call service” was a reference to the on-call rota operated by the staff of The Good Care Group for those receiving live in care. I did not consider that the reference to “the on-call service” could be properly understood as a requirement for the claimant to engage in occasional work out of hours in his management capacity. The contract was clear that some such additional work might be necessary and that this did not constitute being “on call”.

[37]It is clear from the email exchanges that took place shortly after the claimant joined the respondent that the expectation was that the claimant would join that rota at some future point and that any ad hoc extra work could be claimed as overtime or TOIL. It is also clear that there was no requirement on the part of the respondent for the claimant to be on call at all times, nor was the claimant in practice contacted frequently or required to perform significant amounts of work out of hours.

[38]There was a delay in adding the claimant to the live-in on-call rota but that is not a matter that is material to the determination of the unlawful deduction from wages claim. Once it is established that an individual has not met the conditions for a payment to be made, an unlawful deductions claim must fail. It is not material that the conditions have not been met because the employer has prevented this, though that may be relevant to a claim for breach of contract (Lucy v British Airways).

[39]Once it became clear that the claimant was unhappy with the arrangements the respondent agreed to revisit matters and to consider what it would be prepared to offer the claimant as an interim arrangement pending his joining the live in on-call rota. The parties had various discussions, but no agreement was ever reached as to the amount that was properly payable The respondent offered and paid an amount which it considered fairly reflected the likely demands of the role and the extent to which out of hours contact might occur. The respondent did not, however, accept that the full on-call rate applicable to the live-in care rota should apply. The claimant disagreed with the respondent’s assessment. However, it is not for the Employment Tribunal, when determining a claim of unlawful deduction from wages, to arbitrate between the parties and try to decide what a fair sum would have been. Breach of Contract

[40]For the reasons given above, I did not consider that the claimant had any contractual entitlement to be paid at the on-call rate claimed until such time as he joined the relevant on-call rota, which he did only in November 2023.

[41]I considered whether it could be said that the respondent was in breach of contract in failing to make arrangements for the claimant to join the on-call rota at an earlier stage. I did not consider that there was any breach of contract in this respect. There was no agreement that the claimant would join the on-call service within in a particular period and so it was a matter for the discretion of the respondent. The respondent appeared to have exercised that discretion reasonably and to have added him to the rota once necessary handover arrangements were in place so that the live in care service staff would be able to deal with any issues that arose, out of hours, in relation to the hourly care clients. Approved by