Ms A Tipactipac v IANS Domiciliary Care Ltd: 6007568/2024
JUDGMENT
[1]The claim for breach of contract, holiday pay and unauthorised deduction of wages was not presented within the applicable time limit, but it was not reasonably practicable to do so. The claim for breach of contract, holiday pay and unauthorised deduction of wages was presented within a further reasonable period. The claim for breach of contract, holiday pay and unauthorised deduction of wages will therefore proceed.[2]The claimant’s claim for unauthorised deduction of wages is well-founded. The respondent made an unauthorised deduction from the claimant’s wages by failing to pay the claimant the full amount of her wages from October 2023 to February 2024.[3]The respondent shall pay the claimant £1,724.22. The claimant is responsible for paying any tax or National Insurance.[4]The claimant’s claim for holiday pay is well-founded. The respondent made an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.[5]The respondent shall pay the claimant £931.66. The claimant is responsible for paying any tax or National Insurance.[6]The claimant’s claim for breach of contract is well-founded. The respondent breached a term of the contract by failing to pay the claimant her contractual pay for the period October 2023 to February 2024.[7]No additional remedy is awarded as there was no evidence of any additional loss or damage sustained by the claimant as a result of the breach.[8]The respondent’s counterclaim for employer’s breach of contract is not well-founded and is dismissed.REASONS
[9]This is a claim for holiday pay within the meaning of regulation 13 of the Working Time Regulations 1998 arising from the claimant being unable to take annual leave during the period of her employment and being unpaid for her accrued annual leave.[10]This is a claim for unauthorised deduction of wages within the meaning of section 13 of the Employment Rights Act 1996 (ERA 1996) arising from the claimant being underpaid wages she was owed for during the course of her employment.[11]This is a claim for breach of contract arising from the claimant not being paid her contractual wages during the course of her employment.[12]The respondent is a company supplying home care services to elderly and vulnerable clients. The claimant was employed by the respondent as a Home Care Assistant from 17 July 2023 to 16 February 2024. The claimant contacted early conciliation via ACAS on 12 June 2024 and the ACAS Certificate was issued on 3 July 2024. On 3 August 2024 the claimant presented a claim for breach of contract, holiday pay and unauthorised deduction of wages.[13]The case appeared before the tribunal for a on 31 January 2025 at Norwich by video for a final hearing. As a result of an error in the respondent’s email address the hearing was converted to a preliminary hearing where the list of issues was finalised. This included time limits for presentation of the claim, holiday pay and unauthorised deduction of wages. There is also an employer’s contract claim for breach of contract arising from the claimant not working her notice period.Preliminary Matters
[14]The respondent did not attend the final hearing. The notice of final hearing was sent to both parties on 18 July 2025. Enquiries were made of the respondent on the morning of the hearing and they indicated that they would not be attending the hearing. No other representations were made on their behalf. The tribunal was satisfied that every attempt had been made to contact the respondent and they had chosen not to attend the hearing. The tribunal proceeded in the absence of the respondent in accordance with rule 47 of the Employment Tribunal Procedure Rules 2024. The procedural background[15]At the start of the hearing the issue of time limits in respect of the claims was determined. The effective date of termination of the claimant’s employment was 16 February 2024 with final payment being due on or about 2 March 2024. The time limit was three months from the date the claimant’s final pay was due which therefore expired on 1 June 2024 with conciliation being entered into on 12 June 2024 outside of the expiry date. The time limit for the breach of contract claim was three months from the effective date of termination which gave the expiry period as 15 May 2024. There was, therefore, no early conciliation extension available to the claimant meaning that the claim was presented out of time. The tribunal found that the unauthorised deduction of wages and holiday pay claim was not presented within three months of the date her final pay was due. The tribunal found that the breach of contract claim was not presented withing three months of the effective date of termination.[16]The tribunal heard evidence from the claimant regarding why the claim was presented out of time and why there had been a gap of two to three months before the claim was presented to the tribunal.[17]The tribunal had regard to Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53, CA which encourages a ‘liberal construction in favour of the employee’ of time limits. The tribunal heard evidence from the claimant that as a result of the termination of her employment with the respondent her work visa for the United Kingdom was in jeopardy. The respondent had initially promised a work visa for five years but it transpired that the visa was for seven months which meant that the visa was due to expire in February 2024 which was around the time of the effective date of termination.[18]This resulted in the claimant having to find another job very quickly in order to maintain her work visa and her legalised status in the United Kingdom. The claimant asserted that she had contacted ACAS as soon as she was in secure employment. The tribunal was satisfied that it was not reasonably practicable for the claimant to have presented her claim in time given the stress caused to the claimant by the lack of a work visa and the urgent need to find work.[19]The tribunal then considered whether presentation of the claim was within a further reasonable period. As a foreign national, the claimant was unaware of and unfamiliar with the legal system and obtained advice from ACAS in relation to her claim against the respondent. The claimant was representing herself and was not legally represented at any stage of the proceedings. The tribunal had regard to Cullinane v Balfour Beatty Engineering Services Ltd and anor EAT 0537/10 which set out the need for an objective consideration of the factors causing delay and what would be a reasonable period in those circumstances as well as the need to progress litigation without delay.[20]The claimant contacted ACAS as soon as she had secured work and had a valid work visa. She engaged with ACAS and the respondent throughout the process. It was once that process broke down that the claimant presented the claim form to the tribunal. The tribunal took into account the fact that the claimant is a foreign national, is unfamiliar with the legal system in this country and had made attempts to engage with the respondent. The tribunal found that the claimant had presented her claim within a reasonable further period and all claims were allowed to continue namely holiday pay, unauthorised deduction of wages and breach of contract.Law
[21]Section 13 of the Employment Rights Act 1996 provides: 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.[22]Regulation 13 of the Working Time Regulations 1998 provides: 13.— Entitlement to annual leave (A1) This regulation applies to—(a) a worker in respect of any leave years beginning before 1st April 2024, and(b) a worker to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. (3) A worker's leave year, for the purposes of this regulation, begins– (a) on such date during the calendar year as may be provided for in a relevant agreement;… (5) Where the date on which a worker's employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under [paragraph (1)]5 equal to the proportion of that leave year remaining on the date on which his employment begins… (9) Leave to which a worker is entitled under this regulation may be taken in instalments, but– (a) [[subject to the exceptions in paragraphs (14), (15) and (17)]9 , ]8it may only be taken in the leave year in respect of which it is due, and (b) it may not be replaced by a payment in lieu except where the worker's employment is terminated. The evidence before me[23]I was not provided with a bundle for the final hearing but the claimant provided her contract of employment, the IANS Domiciliary Staff Handbook and her IANS Domiciliary payslips for the months October 2023 to February 2024. The claimant gave evidence before the tribunal.[24]Having heard the evidence and read such documents as were provided by the claimant I made the following findings of fact. My findings of fact[25]The claimant was employed as a Home Care Assistant by the respondent and commenced her employment on 17 July 2023 with her employment being terminated on 16 February 2024. The claimant asserted in evidence that she had worked her one week’s notice as she had resigned on 9 February 2024 and finished work on 16 February 2024.[26]The claimant signed a contract on 21 July 2024 with the respondent which provided that her hours of work would be 40 hours per week with remuneration of £22,360 per annum payable in arrears on the 2nd of each month. The contract also provided for 20 days holiday plus 8 bank holidays. In the Staff Handbook at paragraph 7.1 the entitlement to 28 days paid leave per year for full time staff was reiterated. The tribunal found that the claimant was entitled to a salary of £22,360 payable each month. The tribunal found that the claimant was entitled to 28 days paid leave per year as a full time member of staff. Unauthorised deduction of wages[27]The claimant provided evidence of her payslips as follows: 2 October 2023 £1595.36 (gross) 1 November 2023 £1605.69 (gross) 30 November 2023 £1249.69 (gross) 2 January 2024 £1601.75 (gross) 2 February 2024 £1539.94 (gross)[28]The claimant asserted that the two November payslips in fact covered November and December respectively at the request of the respondent. There were no payslips for the previous months and the claimant asserted that her wages for those months had been paid in full.[29]The claimant was entitled to £1863.33 gross per month as per the express term of the contract as to salary. From the payslips the tribunal found that there was a deduction in the claimant’s wages each month from October 2023 to February 2024. The total deductions amounted to £1,724.22 (gross) for the months worked. There was no explanation from the respondent for the deductions and there was no term of the contract entitling the respondent to make any such deductions. In the staff handbook the only permitted deductions were in relation to tax and national insurance. The tribunal found that these deductions were unauthorised. Holiday Pay[30]The claimant was entitled to 28 days holiday as a full time member of staff. The claimant asserted that she had not been permitted to take any holiday prior to the termination of her employment. The holiday period was set out in the contract as commencing on 1 April and finishing on 31 March of each year. The claimant’s employment commenced on 17 July 2023 and ended on 16 February 2024. This was six months of employment with the respondent which entitled her to 14 days paid leave which is her pro rata entitlement as provided for in the terms of the contract. The contract stated that: ‘If your employment commences or finishes part way through the holiday year, your holiday entitlement will be prorated accordingly.’[31]The tribunal found that the claimant is entitled to 14 days of holiday pay as she did not take any leave during her employment and she has not been paid for her accrued holiday as shown in the payslips provided by the claimant. Breach of Contract[32]There was an express term of the contract that the claimant would be paid £22,360 per annum at a rate of £1863.33 gross per month in arrears on the 2nd of every month. The respondent did not pay the claimant her full contractual pay for the period of October 2023 to February 2024. This was outstanding at the time that the claimant’s employment ended on 16 February 2024.[33]The failure to pay the claimant’s full contractual salary entitlement was a breach of the contract of employment by the respondent. Employer Breach of Contract[34]The respondent counterclaims for breach of contract against the claimant on the basis that she failed to work her one week notice period.[35]The contract provides for a notice period of one week where the employee is in the probationary period of the contract which is 6 months from the employment start date. The claimant’s probationary period expired on 16 January 2024 however the notice period remained the same namely one week’s notice.[36]There was no evidence from the respondent in respect of this issue and it was clear that in any event the employer had already fundamentally breached the contract such as to entitle the claimant to terminate the contract. The claimant asserted that she worked her one week’s notice period resulting in her leaving her employment on 16 February 2024 having resigned on 9 February 2024. The tribunal found that the employer’s claim for breach of contract was without merit and was not well-founded. The counterclaim was dismissed. Remedy Unauthorised Deduction of WagesRemedy
[37]The claimant is entitled to the difference between what she was paid and the contractually obliged sum for the period of October 2023 to February 2024. This amounts to £1724.22 gross. Holiday Pay[38]The claimant is entitled to be paid for the prorated 14 days leave to which she is entitled having been employed by the respondent for 6 months. This amounts to £931.66 (gross) which is 2 weeks at £465.83 per week as provided for in the contract. Breach of Contract[39]As a result of the above declarations the claimant has been put into the position she would have been but for the breach of contract.[40]There was no evidence before the tribunal in relation to any additional loss or damage sustained by the claimant. There is no separate remedy for the breach of contract.