M W Blackburn v J Scerri T/a Tiffin Tea Rooms: 6013592/2024
JUDGMENT
[1]The complaint of unauthorised deductions from wages contrary to Part II of the Employment Rights Act 1996 is well-founded. The Respondent made unauthorised deductions from the Claimant's pay in respect of July and August 2024.[2]The Respondent is ordered to pay the Claimant £376.63 which is the gross sum deducted. The Claimant is responsible for the payment of any tax or National Insurance.REASONS
[1]This is a claim for unauthorised deduction from wages contrary to section 13(1) of the Employment Rights Act 1996 (the "ERA 1996"). The Claimant worked for the Respondent as a cook. She was employed at Tiffin Tea Rooms from 04 December 2023 until 15 August 2024 when she walked out of her job.[2]The Claimant claimed Ms Penny had not paid her wages of £221.75 in July 2024 and that although she worked for 30 hours in August of that year she was never paid for this time.[3]The Respondent denied both allegations and that it had not made any unauthorised deduction from the Claimant's wages.Preliminary Matters
[4]As this was a wages claim, it was listed for a two-hour final hearing. Directions had been given to the parties for the exchange of documents and the production of witness statements with the Notice of Hearing dated 18 March 2025.[5]Neither party complied with the directions and there was little documentary evidence or witness statements before me. However both parties emailed documentation to the Tribunal prior to and during the hearing.[6]Therefore, having applied the overriding objective in Rule 3 of The Employment Tribunal Procedure Rules 2024, I conducted the hearing on the basis that:6.1 The statements made by the Claimant and the Respondent in their ET1 and ET3 forms respectively could be used as their witness statements; and6.2 The emailed documents which were relevant would be used my me to determine the Claimant's case.[7]The hearing proceeded and both parties put their cases in a bad-tempered series of exchanges.[8]I also asked questions of both parties to explore their positions and the extent of their factual disagreements. Evidence and Findings of Fact[9]The Claimant said she worked 24.5 hours a week and that her monthly take-home pay was £525. The Respondent said Ms Willis-Blackburn worked around 18 hours a week and that she was paid £700 a month before tax.[10]The Claimant who in July and August 2024 worked for £11.50 an hour produced two pay slips:10.1 31 July 2024 showing she had worked for 39 hours for which she was paid £448.50 and had taken holiday for a total of 18 hours for which she was paid £207; and10.2 31 August 2024 showing she had worked for 36 hours for which she was paid £414.00 and had taken holiday for a total of 24 hours for which she was paid £276;[11]Ms Wills-Blackburn also produced extracts from a notebook she used to record the number of hours she worked each month:11.1 For July 2024 she recorded she had worked: i. From 9am to 3pm on 08, 10, 11, 15, 17, 18, 22, 24, 25, 30 and 31 July. Adding these hours together comes to a total of 66 hours; ii. On 13 July for 6.5 hours, on 19 July for 3 hours, on 27 July for 6.5 hours. Adding these hours together comes to a total of 24 hours; and iii. A note also recorded that she had taken 18 hours in holiday leave, had worked 63 hours and "BANK 45hrs CASH 18.5hrs.11.2 For August 2024 she recorded she had worked: i. On 01 August for 6 hours, on 05 August for 6.5 hours, on 07 August for 6.25 hours, on 08 August for 6 hours, on 10 August for 6.25 hours, on 12 August for 6.25 hours, on 14 August 6.25 hours and on 15 August for 2.25 hours. Adding these hours together comes to a total of 45.75 hours; and ii. A note also recorded that she was owed 221.75 for July.[12]From the Claimant's notebook the total number of hours she worked in July 2024 was 82 hours which if correct means she should have received £943 in wages from the Respondent.[13]From the Claimant's notebook the total number of hours she worked in August 2024 was 44.75 which if correct means she should have received £526.13 in wages from the Respondent.[14]The Claimant also produced an extract from a WhatsApp conversation between her and Ms Penny apparently dated 06 August which read as follows: "Oh pearl I forgot to say today about my cash xx" "Shit! I completely forgot as well"[15]Following this exchange a voice call was recorded on WhatsApp. .[16]The Respondent's documentary evidence consisted of:16.1 Three contracts of employment – none of which were the Claimant's and which therefore I attached very little weight to.16.2 Pay slips for the Claimant from December 2023 to August 2024;16.3 Extracts from the Respondent's bank account showing debits which were amounts paid to the Claimant and which corresponded to the amounts in her pay slips; and16.4 WhatsApp messages between the two parties in respect of the times the Claimant was available to work as she had cleaning jobs.[17]In terms of the relevant oral evidence, the Claimant alleged she was paid from the Respondent's bank account and in cash.[18]Ms Kenny denied this she ever paid part of the Claimant's salary in cash. There was a significant amount of dispute between the parties in respect of how and why Ms Wills-Blackburn was part-paid in cash.[19]I find on balance I preferred the Claimant's account.[20]The reason for coming to this finding on the balance of probability is:20.1 The note written in the Claimant's notebook referencing a bank payment and a cash payment;20.2 The WhatsApp message from Ms Wills-Blackburn's documentary evidence showed Ms Kenny accepting she had overlooked a cash payment; and20.3 Ms Kenny's oral evidence was inconsistent in that on the one hand she accepted there was a reason why the Claimant's wanted part of her salary paid in cash which related to Ms Wills-Blackburn's domestic circumstances which she was sympathetic to but on the other hand she never paid her employee cash.[21]There was also substantial disagreement between the parties in respect of the Claimant's notebook entries.[22]Ms Kenny said the notebook was not good evidence of the times the Claimant worked, it was just pieces of paper with times on it and that in particular the entries for August had been completely fabricated. She said if the Claimant had not walked out of her job in mid-August, she would have therefore worked more than 80 hours for that month, something the Claimant had never done before.[23]She also said that where the Claimant had set out that her hours started at 8.30am or 8.45am this was completely invented because her shifts had always started at 9am.[24]I made three findings in respect of the Claimant's notebook entries. The first is that I was persuaded by Ms Wills-Blackburn's consistent oral evidence that she always used the notebook to record her working hours for the Respondent.[25]As a consequence of this first finding, I also find that the number of hours the Claimant recorded in her notebook for July and August 2024 were accurate save for the caveat set out in paragraph 27 (below).[26]I was not persuaded by Ms Kenny's oral evidence that the number of hours the Claimant worked never went above 80, especially in light of the Claimant's recorded worked hours for July being 82 (and where the documentary evidence showed (as agreed by both parties) Ms Wills-Blackburn took 18 hours of holiday leave). I therefore find on the balance of probability that the Claimant could have worked more than 80 hours in a month and did so in July 2024.[27]I was however persuaded by Ms Kenny's evidence that the Claimant's shifts started at 9am as this was consistent with all the other entries in the Ms WillsBlackburn's notebook. I therefore find that the Claimant was exaggerating in this respect.[28]In conclusion therefore I make the following further findings in respect of the Claimant's worked hours:28.1 For July 2024, she worked a total of 82 hours and was paid by the Respondent for 39 hours as set out in the pay slip and 18.5 hours in cash; and28.2 For August 2024, she worked for a total of 44.25 hours and was paid by the Respondent for 36 hours as set out in the pay slip.\[29]I make no further findings as to Claimant's calculations provided in her evidence. Applicable Law - Unauthorised Deductions from Wages[30]The right not to suffer an unauthorised deduction from wages is set out in Part II of the ERA 1996. Wages are defined widely in s27 of the ERA 1996 and means "in relation to a worker ...any sums payable to the worker in connection with his employment..."[31]Section 13(1) of the ERA 1996 provides: "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."[32]Section 13(3) of the ERA 1996 states that a deduction occurs when 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 wages properly payable by him to the worker..."[33]The remedy for an unauthorised deduction from wages is for the employer to pay the employee any such unauthorised deductions made to his or her wages. Conclusions and Remedy[34]In light of my findings, my decision is that the Respondent unlawfully deducted wages from the Claimant in July and August 2024.[35]The Claimant is therefore owned the following from the Respondent:35.1 For July 2024 she worked a total of 82 hours and was paid by the Respondent for 57.50 hours (calculated by adding 39 and 18.5). This leaves a balance of 24.5 hours which were unpaid. Multiplying 24.5 by an hourly rate of £11.50 is £281.75; and35.2 For August 2024 she worked for a total of 44.25 hours and was paid by the Respondent for 36 hours. This leaves a balance of 8.25 hours which were unpaid. Multiplying 8.25 by an hourly rate of £11.50 is £94.88.35.3 This comes to a total of £376.63. Approved by: