Mr P J Nsiah v LJ Sure Mercies Care Ltd: 6016847/2024
EMPLOYMENT TRIBUNALS
Case No 6016847/2024
Between
Mr P J NsiahClaimantLJ Sure Mercies Care LtdRespondent
Before
Employment Judge SmeatonIn person for claimantMs E Godwins (instructed by solicitor) for respondentDate 11 June 2025
JUDGMENT
[1]The Claimant’s claim for unlawful deductions of wages in respect of the period January 2024 to August 2024 is well-founded and succeeds.[2]The claims for unlawful deductions of wages prior to January 2024 have been brought out of time. The Tribunal does not have jurisdiction to consider them and they are dismissed.[3]The Claimant’s claim for breach of contract (notice pay) is well-founded and succeeds.[4]If the parties are unable to agree the amount owed to the Claimant, a remedy hearing will be listed in due course.
REASONS
[5]The Claimant was employed by the Respondent as a care worker. He says that his employment began on 1 August 2023 and ended on 15 August 2024.[6]By a claim form dated 30 October 2024, following a period of Acas Early Conciliation (‘EC’) between 22 August 2024 and 1 October 2024, the Claimant brings complaints of unlawful deductions of wages and breach of contract (notice pay). Hearing[7]The Claimant appeared unrepresented. The Respondent was represented by Ms Godwins.[8]I was provided with a bundle of documents from the Claimant of 158 pages and a bundle of documents from the Respondent of 199 pages. One of the witness statements in the Respondent’s bundle (for Janet Obeng, Field Supervisor) was incomplete. I was provided with a full copy of Ms Obeng’s statement during the hearing. The Claimant was given the opportunity to read the whole statement before Ms Obeng gave evidence.[9]I heard evidence from the Claimant and from his friend and ex-colleague (Mr Baidoo). Both were cross-examined by Ms Godwins. On behalf of the Respondent, I heard evidence from Linda Moffat (Registered Manager) and Ms Obeng. Both were cross-examined by the Claimant.[10]During the hearing, it became clear that there were disclosure issues on both sides. The Claimant referred to WhatsApp messages which had not been disclosed. There were also references to time sheets, printed rotas and minutes of meetings, which had not been disclosed by the Respondent. Neither party had made an application for specific disclosure in advance of the hearing and no application was made during the hearing to adjourn proceedings in order to obtain those documents. The parties were under a duty to disclose all relevant documents and, where appropriate, I have considered drawing an adverse inference from any failure to do so (applying the ‘common sense’ approach in Royal Mail Group Ltd v Efobi [2021] UKSC 33 and Sinha v Taylor and others [2022] EWHC 1096 (Comm)).[11]The evidence was not competed until the end of the Tribunal day. Accordingly, I made directions for closing submissions to be given in writing. My decision was reserved. The Tribunal received written submissions from the Claimant and the Respondent in accordance with the directions given at the hearing. I have taken those submissions into account when reaching my decision. Issues[12]The issues for determination were set out in the Case Management Order of Employment Judge Hawksworth dated 16 April 2025. The parties had 14 days from receipt of that order to raise any concerns about the way in which the issues had been framed. Neither party did so. At the outset of the hearing, however, the Respondent maintained that the list of issues was not correct. Specifically: 12.1. The Respondent now accepts that the Claimant was entitled to be paid for the period of one week from 31 December 2022 when he was suspended (‘the Second Deduction’). It also accepts that he was not paid for that period. The Respondent maintains, however, that the Claimant’s claim for unlawful deductions of wages in respect of that period has been brought out of time and that the Tribunal has no jurisdiction to consider it. No time point was raised in the pleadings, at the hearing before EJ Hawksworth or in response to EJ Hawksworth’s order. Notwithstanding that, it is a matter which I must address. Time limits go to the Tribunal’s jurisdiction. If the claim was brought out of time, the Tribunal will not have jurisdiction to determine it, even where not raised by the Respondent and even where, as here, the substantive claim is conceded. The claim for UDW for the period of one week from 31 December 2022 was brought more than three months after the date of the deduction. The Tribunal will only have jurisdiction to consider it if the deduction forms part of a series of deductions, the last of which was in time, or if I consider that time should be extended. 12.2. The Respondent now accepts that the Claimant was entitled to payment in lieu of notice (i.e. it no longer pursues the argument that the Claimant did something so serious that the Respondent was entitled to dismiss him without notice). The Respondent maintains, however, that the Claimant was entitled to be paid for 15 hours, not the 40 hours that he seeks.[13]During the evidence, it also became clear that the pleaded cases on a number of issues had changed since the ET1 and ET3 were lodged. Specifically: 13.1. In the grounds of resistance, the Respondent confirmed that the dates of employment given by the Claimant were correct. The Respondent now argues that the Claimant did not commence the agreed 40-hour per week contract until ‘around’ 6 September 2023 (as set out in its written submissions). It is unclear whether the Respondent’s position is that the Claimant’s employment began on 1 August 2023 but that he was not entitled to be paid until 6 September 2023 because he was undertaking unpaid training prior to that date, or whether it maintains that the Claimant’s employment did not commence until 6 September 2023. The reference to a period of unpaid training does not appear in the Grounds of Resistance. This is addressed as part of my findings below. 13.2. In the grounds of resistance, the Respondent accepted that the Claimant was originally working 40-50 hours per week but said that he was subsequently told that the number of hours for which he would be engaged would be reduced ‘due to matters beyond the Respondent’s control’. Specifically, the grounds of resistance state that a number of the Respondent’s service users had passed away or moved to a care home and that, accordingly, the Claimant’s working hours had to change. The legal basis for the alleged contractual change is not pleaded, nor does the Respondent explain in the pleadings what the contractual hours were changed to, although in evidence the suggestion was that the Claimant had moved onto a zero hours contract. During the hearing, the Respondent’s position changed. It was suggested to the Claimant that, whilst his contract did become a zero hours contract, there were always at least 40 hours of work available for him to do and that the reason he was not paid for 40 hours was because he was not ready and able to work. That is a fundamental change in the Respondent’s pleaded case. This is addressed as part of my findings below. 13.3. During the hearing, it became clear that the Claimant had not provided the Claimant with a copy of his particulars of employment and that a claim under s.38 of the Employment Act 2002 (‘EA 2002’) also arose. Awards under s.38 EA 2002 are not dependent on a claim having been brought under s.11 Employment Rights Act 1996 (‘ERA 1996’) for a breach by the employer of the duty imposed b s.1 ERA 1996. It is sufficient for me to make a finding that the employer was in breach of s.1 at the time the main proceedings were begun (s.38(2)(b) and (3)(b) EA 2002). 13.4. In his evidence, the Claimant suggested that he had not been paid enough because, up to December 2023, he regularly worked in excess of 40 hours per week without additional pay. He confirmed that this was not part of his pleaded case. He had not provided any explanation of exactly how many additional hours a week he claimed to have worked and did not apply to amend his claim. A claim for unlawful deduction of wages seeking more than 40 hours a week is not pursued and is not determined by me.[14]The issues for determination are accordingly as follows: 1. Time limits 1.1. Were the claims for unauthorised deductions from wages made within the time limit in s.23 ERA 1996? The Tribunal will decide: 1.1.1. 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? 1.1.2. 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? 1.1.3. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 1.1.4. 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? 2. Unauthorised deductions from wages (s.23 ERA 1996) 2.1. Were the wages paid to the Claimant during the period 1 August 2023 to 16 August 2024 less than the wages he should have been paid? 2.2. Specifically: 2.2.1. Was the Claimant entitled to be paid for 40 hours a week from 1 August to 6 September 2023? 2.2.2. Was the Claimant entitled to be paid during his one week’s suspension from 31 December 2023? N.b. this is not in dispute 2.2.3. Was there a valid contractual variation to the Claimant’s contract such that he was on a zero hours contract with effect from 6 January 2024? 2.2.4. Was the Claimant able and willing to work from 6 January 2024 until 16 August 2024? 2.3. Was any deduction required or authorised by a written term of the contract? If so, did the Claimant have a copy of the contract or written notice of the contract term before the deduction was made? 2.4. Did the Claimant agree in writing to the deduction before it was made? 2.5. If not, how much is the Claimant owed? 3. Breach of contract 3.1. The Respondent accepts that the Claimant was dismissed without notice and that he was entitled to notice pay. 3.2. What notice pay is the Claimant owed? The Respondent says that the Claimant was only entitled to 15 hours (calculated by reference to his average earnings over the previous 12 weeks), which has been paid. The Claimant says that he was entitled to 40 hours and ha only been paid for 15. 4. Failure to provide employment particulars (schedule 38 EA 2002) 4.1. When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars? N.b. this is not in dispute. 4.2. If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 EA 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay. 4.3. Would it be just and equitable to award four weeks’ pay? Applicable law[15]The question of what wages are ‘properly’ payable to a worker under s.13 ERA 1996 is critical to determining whether an unlawful deduction has been made. There must be some legal entitlement to the sum in question (New Century Cleaning Company Limited v Church [2000] IRLR 27, CA). In determining what is properly payable, the Tribunal can resolve any dispute as to the meaning of the contract relied on (Agarwal v Cardiff University and another [2018] EWCA Civ 204).[16]Where an agreement to vary the terms of a contact is shown to have been expressly agreed by employer and employee, it will be enforceable. An express variation may be made either orally or in writing. The employee must be aware of what he is agreeing to and must have agreed to any change in terms and conditions voluntarily. An employee will not be taken to have agreed to changes if consent was only acquired through duress. For there to be duress in the legal sense, there must be ‘no real alternative’ (Hepworth Heating Ltd v Akers and ors EAT 846/02).[17]An employee who is contractually entitled to work and pay but who does not work, must show that he or she is ready and willing to perform work to avoid a deduction from pay.[18]Whether a not a worker is ‘ready and willing’ to work involves an examination of the worker’s situation and intentions.[19]If the employee is ready and willing to work, and the inability to work is the result of a third-party decision or external constraint, any deduction may be unlawful depending on the circumstances.[20]S.23 ERA 1996 gives workers the right to complain to a Tribunal about deductions from wages and to seek reimbursement of the sums involved. In the case of straightforward deductions from wages, the relevant time limit for bringing a claim is contained in s.23(2)(a) ERA 1996. A complaint must be presented before the end of the three-month period beginning with the date of the payment of wages from which the deduction was made. In respect of complete non-payments, time begins to run when the contractual obligation to make a payment arises.[21]Where a claim is made in respect of a series of deductions, the three month time limit starts to run from the date the last deduction in the series was made (s.23(3) ERA 1996). Whether there is a series of deductions is a question of fact, requiring a sufficient factual and temporal link between the underpayments (Bear Scotland Ltd v Fulton and anor [2015] ICR 221, EAT and Chief Constable of the Police Service of Northern Ireland and anor v Agnew and ors [2023] UKSC 33, SC). All relevant circumstances must be taken into account, including the deductions’ similarities and differences; their frequency, size and impact how they came to be made and applied; and what links them together.[22]If the Tribunal is satisfied that it was not reasonably practicable to present a complaint within three months, it may be presented within such further time as the tribunal considers reasonable (s.23(4) ERA 1996).[23]Guidance for Tribunals on the question of time limits for protection of wages claims was provided by the EAT in Taylorplan Services Ltd v Jackson and ors [1996] IRLR 184, EAT as follows: 23.1. Is this a complaint relating to one deduction or a series of deductions? 23.2. If a single deduction, what was the date of payment of wages from which the deduction was made? 23.3. If a series of deductions, what was the date of the last deduction? 23.4. Was the relevant deduction under (2) or (3) within the period of three months period to the presentation fo the complaint (n.b. now taking into account Acas early conciliation)? 23.5. If the answer to question (4) is no, was it reasaonbly practicable for the complaint to be presented within the relevant three month period? 23.6. If the answer to question (5) is no, was the complaint nevertheless presented within a reasonable time? Credibility[24]In their closing submissions, both parties emphasised the relevance of credibility in this case and invited me to find that the other party’s evidence was not credible. Although I have judged all evidence in the round, and not assessed the evidence on binary conclusions about credibility, I note that I did not find the evidence given by either of the Respondent’s witnesses to be particularly reliable. In particular: 24.1. Mrs Obeng’s oral evidence, that it was agreed with the Claimant before he arrived in the UK that he would not get full pay for the month of August, does not feature in the grounds of resistance or in either of the Respondent’s witness statements. This is key evidence which I would reasonably have expected to see in the pleadings or statements, if the assertion was correct. 24.2. In oral evidence, Mrs Obeng said that the Claimant was offered 40 hours per week from 1 August 2023 onwards, until he refused the hours and said he did not want to work with the company. That is inconsistent with the Respondent’s pleaded case, as set out in its grounds of resistance, that the Claimant’s hours were reduced for matters outside of the Respondent’s control (in particular a reduction in service users). 24.3. In her statement, Mrs Moffat says that by April 2024 the Claimant still had a contractual obligation to work 40 hours minimum per week. That is inconsistent with the claim pursued at the hearing that he was on a zero hours contract by that date. 24.4. Neither Mrs Obeng nor Mrs Moffat gave any credible explanation (in their statements or in oral evidence) for why the Claimant would need to move onto a zero hours contract if, in fact, there were 40 hours per week of work available throughout his employment. Mrs Moffat’s evidence was that the Claimant was told that if he wanted more hours, over and above 40 hours a week, he would need to do them with another employer. In her oral evidence, Mrs Moffat said that the Claimant was told he could look for another job but that it would necessitate a contractual change with the Respondent because he would not be available to the Respondent to perform his contractual hours. That is nonsensical. If the Claimant was only looking for additional hours with another employer, it would not affect his contract with the Respondent. The Claimant was able to work an additional 20 hours per week in secondary employment under the terms of his visa. 24.5. In their statements, Mrs Obeng and Mrs Moffat both suggested that the Claimant was only complaining about a lack of overtime, but in her oral evidence Mrs Moffatt accepted that the Claimant had raised concerns with her about the Respondent employing more people when the company was in distress and not able to provide its employees with work. 24.6. In their statements, Mrs Obeng and Mrs Moffat both say that they were told by the Claimant on 24 June 2024 that he now worked for Portobello as his primary employer and the Respondent as his secondary employer. In her oral evidence, however, Mrs Obeng she said that she had told the Home Office as early as January 2024 that the Respondent was the Claimant’s secondary employer. She produced no evidence in support of her assertion that she had changed the details on the sponsorship app, as she asserted. In her oral evidence, Mrs Moffat said (contrary to her statement) that she could not recall whether the Claimant actually said that Portobello was his primary employer, but that he was not ever available to work for the Respondent. 24.7. In oral evidence, Mrs Moffat said that the Claimant was continuously cancelling shifts and she kept having to message him. Mrs Moffat also explained that the rotas are produced using a system called Roundsys and printed out. If someone cancels a shift, the rota is then amended by hand. Neither the messages allegedly sent by the Claimant cancelling shifts or being reprimanded for cancelling shifts, nor copies of the original rotas showing the hours allocated to the Claimant (and then not worked) were produced. These are documents which ought to be in the Respondent’s possession, if they exist as alleged and which ought to have been disclosed. No explanation was provided for the failure to disclose them.[25]By contrast, I do not accept the written submissions made by the Respondent about the Claimant’s credibility. Although the Claimant was not clear about what hours he had worked and been paid at all times (to some extent this was remedied in his closing submissions), I find that was a result of him not having access to the Respondent’s records, as opposed to him giving unreliable evidence. The suggestion that Mr Baidoo was not credible is also unfounded. He gave limited evidence on matters which were within his own knowledge and there was very limited cross-examination of him.[26]Accordingly, where there is a conflict in the evidence between the Claimant and the Respondent, I have generally preferred that given by the Claimant.
Findings of fact
[27]The Respondent is a small healthcare provider providing care and support in the community.[28]The Claimant, who was living in Ghana at the time of his interview, was employed by the Respondent on a skilled worker visa. The Respondent (which held a sponsorship licence from the Home Office allowing it to recruit staff from abroad) acted as his sponsor. In the Certificate of Sponsorship, his start date of employment is given as 15 July 2023 and his total weekly hours of work as 40. His role was stated to be ‘care worker and home carer’. In the offer letter dated 31 May 2023, the Respondent confirmed that the Claimant would be contracted to work 40 hours per week as a Care Worker (subject to certain conditions).[29]There is nothing in the offer letter, or any other correspondence, about a period of unpaid training. There is no reference to a period of unpaid training in the employee handbook. The offer letter confirms that four weeks accommodation will be paid for. There is no suggestion that that is in lieu of pay. Statement of particulars[30]The offer letter indicates that a full written contract of employment will be sent out once the skilled worker visa has been granted and a start date agreed. The parties agree that no such written contract of employment was ever sent out. I accept (as was agreed between the parties) that at the date this claim began, the Respondent was in breach of its obligation under s.1 ERA 1996. 1 August to 6 September 2023 (‘the First Deduction’)[31]The parties agree that the Claimant started doing some work with the Respondent on 1 August 2023. The Respondent suggested that this was a period of training and that there was a verbal agreement with the Claimant that he would not be paid prior that date. I do not accept that. If that were the case, I would expect it to have been reflected in the offer letter or otherwise in writing.[32]I find that the terms of the Claimant’s contract provided that 40 hours per week was properly payable to him from the day he commenced employment and that his employment commenced on 1 August 2023 when he started his induction and training. The Claimant was therefore entitled to be paid for 40 hours per week from 1 August 2023 onwards.[33]The Claimant’s first payslip is dated 15 September 2023. It is unclear from the payslip itself what period it relates to. The Claimant was unable to explain. The Respondent suggested it was for the period 6-15 September 2023. I accept, on the balance of probabilities, that the Claimant worked, but was not paid, between 1 August and 6 September 2023. That is a period of five weeks.[34]The Respondent has therefore made an unlawful deduction of the Claimant’s wages in the sum of 200 hours in respect of that period (‘the First Deduction’).[35]I deal with the question of whether the First Deduction formed part of a series of deductions and, if not, whether time should be extended, below. Deduction during suspension (‘the Second Deduction’)[36]Soon after the Claimant commenced his employment, he says that it became clear to him that the Respondent had more staff than it required. The Respondent was sponsoring ten employees from Ghana and also employed four employees who did not require sponsorship. The Respondent had only eight service users at the time. The Claimant says that Mrs Moffatt confirmed to him in August 2023 that the Respondent did not have sufficient work to meet his contractual hours as a Care Worker and that, instead, he was offered work as a driver for the Respondent.[37]The Claimant’s evidence on this has been consistent. It is supported by the fact that he complained about the Respondent employing more people without giving hours to existing employees (a fact accepted by the Respondent in evidence) and by the fact that an anonymous email was sent to the Respondent raising complaints that staff were not being provided with 40 hours a week work as required by their contracts. The concern raised by the employees was that they had only been given 40 hour contracts to satisfy the requirements of the Skilled Worker visa.[38]Further, the Respondent has had every opportunity to rebut this assertion by producing evidence showing the number of employees it had at the relevant time and the hours they worked over the relevant period. It has failed to do so. The Respondent could be expected to have material evidence to give on that issue, if the Claimant’s allegations were wrong and I draw an adverse inference from the failure to produce such evidence.[39]Further, the documents in the bundle from the CQC show that the Respondent only had 9 service users as at July 2023. The number of employees according to the Claimant (10 from Ghana and four without sponsorship) was not challenged by the Respondent. On the face of it, I accept that the Respondent had more employees than necessary. Mrs Obeng sought to explain this in evidence, suggesting that there were more service users but that they did not require personal care so were not listed by the CQC. No evidence has been provided by the Respondent in support of that assertion, notwithstanding that it has formed a key part of the Claimant’s case since the ET1 was lodged. To the contrary, in its pleaded case, the Respondent agreed with the Claimant that there was not enough demand to provide the Claimant with 40 hours of work per week.[40]Taking all of those matters together, I accept that the Claimant was told early on in his employment that there was insufficient care work for him to do, that he was upset about this and that he took on driving responsibilities in a bid to meet his contractual hours. I accept that the Respondent did not, as a matter of fact, have sufficient work to provide all of its employees with their minimum contractual hours.[41]Notwithstanding that, from early September 2023 until 6 January 2024, the Claimant was paid for at least 40 hours per week because he was carrying out driving work. There cannot, therefore, be any claim for a deduction of wages in respect of the period 6 September 2023 to 30 December 2023 (when he was suspended).[42]In December 2023, an anonymous email was sent to the Respondent raising serious allegations that the Respondent was breaching its employees’ employment contracts by not paying them in accordance with their contracts. In response, the Claimant says that the employees were invited to a meeting on 30 December 2023 at which a lawyer, Kofi Badu, was unexpectedly present. The Claimant was unhappy about the presence of Mr Badu. There are no specific claims about this meeting and it is not necessary for me to make any findings about it. It is agreed, however, that following this meeting, the Claimant was suspended, that he was entitled to be paid for that period of suspension and that he was not so paid.[43]The Respondent has therefore made an unlawful deduction of the Claimant’s wages of 40 hours for that period. The Claimant did not bring a complaint to the Tribunal about that deduction at the time.[44]I deal with the question of whether the Second Deduction formed part of a series of deductions and, if not, whether time should be extended, below. 6 January 2024 onwards – alleged variation of the Claimant’s contract[45]At the beginning of January 2024, whilst the Claimant was still suspended, he was invited to a disciplinary meeting to be held on 6 January 2024. There is a dispute between the parties as to what took place during this meeting. No notes have been produced. I consider this to be a failing on the part of the Respondent who should have had responsibility for producing such notes and who should have been aware of the need to disclose them, if they existed. I have not drawn an adverse inference from the failure to produce the notes because it is not clear to me that any such notes exist.[46]The Claimant says that the meeting was chaired by Mr Badu and that Mrs Moffatt and Mrs Obeng were both present. He claims that Mr Badu threatened to cancel his Certificate of Sponsorship, made clear that the Respondent did not have 40 hours of work per week to offer him, and said that the Claimant could only return to work if he agreed to accept whatever hours he was offered by the Respondent and to send an email to that effect. The Claimant says that the Respondent was worried about compliance with Home Office rules and that Mr Badu was trying to protect it. The Claimant says that he sent an email as requested out of fear of losing his job and that, as a result, he was put back on the rota for the next day.[47]Mrs Moffatt has a different account of this meeting. She says that the Claimant was remorseful about his alleged behaviour at the meeting on 30 December 2023. She says that the issue of overtime hours came up again, that the Claimant was told to look for a job elsewhere if he wanted extra hours, that he agreed to work whatever hours he was given by the Respondent and that he sent the email accordingly. As set out above, this is nonsensical. If the Claimant was only concerned about hours over and above 40 hours per week, there would be no need for him to agree to a zero hours contract. Moreover, it is inconsistent with the Respondent’s pleaded case, that the Claimant was told that the number of hours for which he would be engaged would be reduced due to matters outside of the Respondent’s control (in particular a reduction in the number of service users). No explanation has been given for this significant change in position which, I find, undermines the credibility of the Respondent’s defence.[48]Mrs Obeng’s evidence does not take matters further. She addresses the meeting only briefly.[49]In cross-examination of the Claimant, Ms Godwins suggested that, at the meeting, the Claimant made it clear that if the Respondent was not willing to give him overtime, he would only work as and when he was available. The Claimant denied this. This suggestion does not appear in either the Respondent’s pleaded case or in its evidence.[50]Having considered all of the evidence, I accept the Claimant’s account of this meeting and the circumstances leading to him sending that email. The Claimant has been consistent in his account. By contrast, the Respondent’s case has changed and is nonsensical. I find that the Respondent did not have 40 hours of work to give the Claimant.[51]I do not accept, however, that the email sent by the Claimant amounts to an agreement to vary the contract to a zero hours contract. The email reads ‘I wish to state that I am ready to work every hour assigned me by LJ sure mercies care limited management’. That cannot, on any reasonable interpretation, be an agreement to give up a contractual entitlement to 40 hours per week and to move onto a zero hours contract. I find that the Claimant simply agreed to send an email in terms dictated to him by the Respondent (via Mr Badu) so that he could return to work and that he had no real understanding of what he was agreeing to. Indeed, even the Tribunal does not understand what the email is said to achieve.[52]Even if I am wrong about that, and the email does amount to an agreed variation to a zero hours contract, I do not accept that the agreement was made voluntarily by the Claimant. I find that it was made under duress (in the legal sense). There was no real alternative for the Claimant. Given the complexities caused by his Certificate of Sponsorship, he could not simply resign in the face of the breach and claim breach of contract. Had he done so, he would have been left without employment and a right to remain in the UK.[53]Accordingly, I find that there was no contractual change. The Claimant remained entitled to 40 hours per week under the terms of his contract until his dismissal.[54]The Respondent accepts that, from 6 January 2024 onwards, the Claimant was not offered (or paid for) 40 hours per week of work. 6 January 2024 onwards – ready and able to work[55]As a secondary argument to the contractual variation point, the Respondent now argues that there were no unlawful deductions from 6 January 2024 onwards because the Claimant was not ready and willing to work, having taken another job with Berkley Care (Portobello Place) Ltd (‘Berkley Care’).[56]The emails in the bundle show that that the role with Berkley Care had not started by 3 April 2024, so cannot account for the failure to provide the Claimant with 40 hours work per week prior to that date. In her evidence, Mrs Moffatt suggested that the issue with the Claimant being available only began after 30 April 2024. There was no suggestion by the Respondent that the Claimant had cancelled shifts prior to April and no evidence that he was not ready and able to work prior to that date. Accordingly, I find that there has been an unlawful deduction of wages between 6 January 2024 and April 2024. The Claimant ought to have been paid for 40 hours a week during that period and was not.[57]The exact amount of the deductions is not easy to identify. The Claimant has not provided a clear schedule of loss detailing the hours he claimed as owed to him for this period (although in his written submissions he does include a table setting out the amounts he has received). The best evidence before me upon which I can properly make a conclusion on this issue are the Claimant’s payslips. In evidence, the Claimant suggested that the payslips were not accurate, but was unable to explain in what way they were inaccurate or what the correct figures should have been.[58]I have been provided with payslips dated between 19 January 2024 and 26 April 2024. There is nothing to suggest that the Claimant was paid 40 weeks in any given week during that period. In total, they show that the Claimant was paid for 327.60 hours. In the same period, he ought to have been paid for 560 hours. The payslips therefore suggest that the Respondent has made a deduction of wages equivalent to 232.40 hours during that period.[59]At the end of April 2024, the Respondent began working with Berkley Care. The Respondent suggests that, from that date onwards, the Claimant was no longer ready and able to work. The Respondent asserts that the Claimant started treating Berkley Care as his primary employer and cancelling shifts allocated to him by the Respondent in order to accommodate his new job. I do not accept that.[60]The contract with Berkley Care provides for only 18 hours a week. That is consistent with the requirements of the Claimant’s Skilled Worker visa. Accordingly, it remained entirely possible for the Claimant to undertake both roles.[61]No reliable evidence has been produced by the Respondent showing the shifts allocated to the Claimant and shifts cancelled by him. I do not find the document titled ‘shifts cancelled by Paul Nsiah to go and work for Berkeley Care Group’ (‘the list of dates document’) to be a reliable document and place little weight on it. Ms Godwins confirmed that it had been produced for the purpose of the hearing and it is not supported by any contemporaneous documents. I have explained above the documents I would have expected to see. At the very least, I would have expected to see copies of the rotas on the days the Claimant was due to work with amendments showing that he had cancelled those shifts. These are documents the Respondent said existed. It did not provide a good explanation for the failure to produce those documents, with Mrs Moffatt saying simply that they were not asked to do so. The Respondent has been legally represented throughout these proceedings and the documents are relevant to what has now become an important part of its defence.[62]The Respondent also relies on a 1-1 record from 24 June 2024 which purports to raise issues with the Claimant cancelling shifts. That document is signed by the Claimant. The Claimant accepts that it is his signature but denies ever having seen the contents of the form before. He maintains that the document is fraudulent and that he never attended a 1-to-1 on 24 June 2024. In assessing this document I take into account: 62.1. my general findings on the witnesses’ credibility, above and, in particular, the negative view I have taken of the Respondent’s witnesses; 62.2. the failure by the Respondent to mention the 1-1 in its ET3. Indeed there is no mention of the Claimant cancelling specific shifts in the ET3. The closest the Respondent comes to such an assertion is an allegation that the Claimant was unable to commit to specific dates and times; 62.3. the failure by the Respondent to mention cancellation of shifts in the dismissal letter; 62.4. the fact that the dates of shifts said to have been cancelled on the 1-1 form do not entirely match up with the list of dates document. Specifically, 16 April 2024 appears on that list but not on the 1-1 form and 17 May 2024 appears on the 1-1 but not on the list of dates document; 62.5. the absence of any reference in that 1-1 to issues about the Claimant’s conduct, notwithstanding that the Respondent says that by June 2024 the Claimant had been cautioned for his behaviour.[63]Taking all of that in the round, I do not place weight on that document.[64]I also note that the Claimant suggested in cross-examination of Mrs Moffatt that the dates the Respondent alleged he had cancelled shifts were wrong because on at least some occasions the shifts had been legitimately swapped with others. Mrs Moffatt did not accept that but did accept that she had not spoken to any other staff when compiling the list of dates and had simply relied on a printout of the rota.[65]I do not accept that the Claimant was not willing and able to work, nor that he consistently cancelled shifts from 30 April 2024 onwards. The evidence demonstrates, at most, that there was a need for the Claimant’s shifts with Berkley Care to be taken into account by the Respondent when arranging its rota and that, consistent with that, the Claimant informed the Respondent on a weekly basis of the two days he was due to work with Berkley Care, so that the Respondent’s rota could be organised taking into account his availability.[66]Accordingly, I find that the Respondent continued to make an unlawful deduction of wages from April 2024 until the Claimant’s dismissal.[67]Again, the best evidence before me as to the amount of the deductions is the Claimant’s payslips. I have been provided with payslips from 24 May 2024 (the next one after 26 April 2024) until 30 August 2024. There is nothing to suggest that the Claimant was paid 40 weeks in any given week during that period. In total, the Claimant received payment for 120.1 hours. That includes 15 hours in respect of notice pay.[68]In the same period (and discounting notice pay) he ought to have received payment for approximately 560 hours. There has therefore been a deduction of 454.90 hours during that period. Time limits[69]The Claimant did not make a claim in respect of the First Deduction at the time. He was paid properly from 6 September 2020 until his suspension on 30 December 2023. His suspension was not linked in any way to the First Deduction. I do not accept that the First Deduction formed part of a series of deductions, with a claim in respect of the last deduction made in time.[70]Acas early conciliation did not commence until 22 August 2024. The claim in respect of the First Deduction is therefore significantly out of time. No reasonable argument has been put forward for why it was not reasaonbly practicable for the Claimant to bring a complaint about the First Deduction within time. I do not accept that it was not reasonably practicable for him to do so. Accordingly, time is not extended. The Tribunal has no jurisdiction to consider the claim in respect of the First Deduction and it is dismissed.[71]Nor do I accept that the Second Deduction (during the period of suspension) forms part of a series of deductions, with a claim in respect of the last deduction made in time. Although there is a temporal link between the Second Deduction and the other, ongoing deductions, in the sense that there is no period after 30 December 2023 when the Claimant was paid what was owed to him, there is no sufficient factual link between them. The Second Deduction was due to the Respondent’s erroneous position on whether the Claimant was entitled to be paid during a period of suspension. The remaining deductions are said to have been due to the Respondent’s erroneous arguments that the Claimant was only entitled to be paid for the hours he worked or that he was not ready, willing and able to work.[72]Nor do I accept that it was not reasonably practicable for the Claimant to bring a claim in respect of the Second Deduction in time. No reasons have been put forward by the Claimant which would justify such an extension of time. Accordingly, time is not extended. The Tribunal has no jurisdiction to consider the claim in respect of the Second Deduction and it is dismissed.[73]I accept that the deductions from 6 January 2024 up to and including 15 August 2024 pay form a series of deductions. The deductions are continuous and are now said to have all been made on the same erroneous basis (i.e. that the Respondent was entitled to pay the Claimant only for the hours he worked or alternatively that the Claimant was not ready, willing and able to work). Those claims have been brought in time. Notice pay[74]The parties agree that the Claimant was entitled to notice pay. He was not provided with a contract specifying his notice period but was entitled under statute to one week’s pay. He was paid for 15 hours only. He ought to have been paid for 40 hours. The claim in respect of the outstanding 25 hours is in time. Conclusions (1) UDW
Conclusions
[75]On the basis of the above, I find that the Respondent has made an unauthorised deduction of wages in respect of (approximately) 687.30 hours.[76]I use the word approximately because I am conscious that the payslips and dates are not easy to follow and that the parties may wish to address the Tribunal on the exact calculations. I also note that, on 25 April 2025, the Claimant was paid a lump sum of £400 (before deductions) which may need to be accounted for.[77]In his claim form, the Claimant also seeks £6,000 as compensation for breach of contract. The basis for this claim was not set out and no evidence was given on it. The Claimant is not entitled to compensation for non-financial loss. In the circumstances, I make no order for additional compensation above and beyond repayment of the amounts unlawfully deducted. (2) Breach of contract[78]The Respondent has breached the Claimant’s contract by failing to pay him for his full entitlement to notice pay. A sum equivalent to 25 hours is outstanding. (3) Statement of particulars[79]At the date this claim began, the Respondent was in breach of its obligation under s.1 ERA 1996. There are no exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under s.38 EA 2002. Ignorance of the law is not an exceptional circumstance, particularly in circumstances where the Respondent had access to advice from a solicitor’s firm throughout the Claimant’s employment.[80]It is not just and equitable to make an award for four weeks’ pay. Although it did have access to legal advice, there is nothing before me to suggest that advice on this issue was in fact provided. The Respondent is a small organisation with limited resources. It does not have an internal HR department.
Remedy
[81]It should be possible, on the basis of my findings, for the parties to reach agreement about what is owed to the Claimant. The figures suggest a total deduction of 712.30 (including notice pay), subject to post-employment payments. National Minimum Wage for the relevant period was £10.42 (January to March 2024) and £11.44 (April 2024 onwards).[82]If it is not possible for agreement to be reached, a remedy hearing (3 hours) will be necessary.[83]In light of the above, the parties must write to the Tribunal within four weeks of the date this order is sent, confirming to the Tribunal: 83.1. whether a remedy hearing is required; 83.2. if so, what issues are in dispute; 83.3. each parties respective position on what is owed to the Claimant on the basis of the above findings only. This must take into account any relevant payments made to the Claimant by the Respondent since his dismissal.[84]A remedy hearing is not an opportunity to re-argue the points decided above. The periods of time in respect of which I have found deductions to have been made are binding on the parties. All that will be discussed at a remedy hearing, if such a hearing is required, is the exact amount owed in light of those findings. Approved by: