S Mgadri v E Osemwegie and Evago Global Capital Ltd: 6017817/2024
JUDGMENT
[1]This is a claim for unpaid wages under s.13 Employment Rights Act 1996 brought by Soukaina Mgadri against 2 respondents(1) Evans Osemwegie and(2) Evago Global Capital Ltd. The respondents counter-claim for losses due to breach by the claimant of the implied contractual duty by to exercise reasonable skill and care.[2]This is the written decision following oral judgment delivered at the hearing. Preliminary matters[3]The case was listed for 3 hours for a final merits hearing on the 18th of July. That listing was made following a preliminary hearing on the 23rd of May, which itself had originally been listed for a full merits hearing. Judge Smith decided on that occasion that the full merits hearing could not go ahead as it was recognised that the claim may not have been received by the respondents and it was postponed to 18th July. The respondents did not attend the hearing on 23rd May and Judge smith expressed concern at paragraph (vi) of the note of the hearing that the respondents were not prepared to attend given that they were aware of the hearing. The postponed hearing was listed for the 18th of July, the respondents having failed to provide any dates to avoid in their request for a postponement. Case management orders were made on that day, including the date of the final merits hearing, and were emailed to the respondents.[4]The respondents were directed to file an ET3 by the 20th of June 2025, accompanied by an application to extend time to present a response. The respondents subsequently provided an ET3 on the 19th of June without an application to extend time. That ET 3 was accepted under Rule 6(2) of the Employment Tribunal Rules of Procedure 2024 (“the rules”). No further documentary material was provided by the Respondents, such as a witness statement or evidence, despite having had ample time to do so. Respondents’ application for adjournment of the hearing of 18th of July.[5]Mr Osemwegie emailed the Tribunal at 4:26 on the 17th of July and asked for the hearing to be postponed due to an important business meeting that he was due to attend around the same time of the hearing. He provided no further explanation as to why he had failed to make any other arrangements for a meeting. He suggested no alternative dates for a future hearing. His application was opposed by the claimant.[6]I considered the postponement application on the morning of the hearing and found the reason provided by the respondents for their application for postponement to be inadequate. The respondents' application, as with their previous approach to the proceedings, showed that the respondents had not given due weight to the importance of these proceedings and had, on their own admission, chosen to prioritise other matters. The respondents had received ample notice of the hearing and given the procedural history of the matter, and in the absence of a compelling explanation from the respondents as to why the hearing should not proceed, the claimant’s objection to the application and readiness to proceed, the respondents' application for a postponement was rejected. That information was provided to Mr Osemwegie on the morning of the hearing who confirmed that he would not attend.[7]I determined it was in accordance with the overriding objective that the hearing should proceed in the absence of respondents in accordance with rule 47 of the rules. The hearing[8]I heard evidence from the claimant on oath and had a 136 page bundle as well as a witness statement from the claimant of the 9th of July.[9]In the absence of the respondents I gave full consideration to the respondents’ response as provided for in their ET3, including the counterclaim. I asked the claimant a considerable amount of questions regarding her claim, the evidence she had provided and the respondents case as set out in the ET3.[10]During the hearing the claimant provided a calculation of interest payable on loans she says she had taken out in the absence of salary from the respondent.[11]The claimant’s evidence was that she is experienced in the financial sector, having worked as a financial auditor, and in consultancy, including working for an African Bank in Europe. She was interviewed for a role with the second respondent, a financial services company, by the first respondent, a director of the second respondent, in February 2024.[12]The claimant received an offer of employment on the 2nd of April with a proposed start date of the 1st of May. This was subsequently varied to the 13th of May at the respondent's request. The offer was for a full time role and remuneration was £80,000 per year. The claimant accepted the offer and the parties entered into a contract of employment. The respondents in their ET3 indicate that the employment began on the 13th of May of 2024. The respondents allege that no formal employment relationship crystallised. It is unclear what they meant by this. I find that there was an employment relationship between the claimant and the second respondent from 13th of May 2024.[13]It is not disputed by the respondents that the claimant was never paid during her employment. The claimant has provided evidence that she received several assurances that payment would be made. The claimant's evidence is that she fulfilled her contractual obligations and I find there is no evidence to the contrary and wages were properly payable in accordance with the terms of the contract, for the duration of the contract.[14]Schedule 1 of the contract of employment provides the notice period is in accordance with statutory notice, which in the case of the claimant is one week. However, there is no evidence that notice was served on the claimant by the respondents. I find that the claimant did not resign and was not expressly dismissed. Her evidence before the tribunal and in her ET1 was that she remained working under the contract until the end of November 2024.[15]The respondents in their ET3 say that the employment ended on the 29th of July 2024. However, the evidence does not support this. On the 30th of August the respondents emailed the claimant attaching a document which states that she worked for the second respondent as an internal controller, in a permanent role, at a salary of £80,000 per year.[16]There is further material in the bundle which shows that the claimant was actively engaged in the respondents’ business during August 2024, for example, where she commented on a proposal to raise finance regarding an African investment.[17]The claimant worked from home throughout her employment with the second respondent until the claimant’s access to the company's IT systems was withdrawn on the 15th of October and never restored.[18]I find that the employment relationship had ended by 15th October 2024 as without access to the company’s IT systems the claimant was unable, and no longer required to, fulfil her contractual obligations.[19]I find that wages were properly payable in accordance with the terms of the contract between 13th May 2024 and 15th October 2024 at a rate of £6,666.67 per month, £307.69 per day, making a total of £27,282.06 unpaid wages properly payable. (The tribunal mistakenly calculated the claimant’s monthly salary as £5,000 per month when giving oral reasons. The correct monthly salary was £6,666.67 and the clerical error in the oral reasons is hereby corrected under rule 67 of the rules).[20]The claimant has suffered consequential loss due to the respondents’ nonpayment of wages properly payable. This includes penalties which she was required to pay for late payment of rent which amount to £1590.20 and for which she is entitled to be compensated.[21]The claimant was forced to take out two loans in the sum of €25,000 in the absence of the salary that she had expected to receive and is liable to repay the interest on those loans.[22]The Claimant has had the benefit of the capital sum and is not entitled to be compensated for that, but she is entitled to be compensated for the interest which amounts to a sum of £2828.[23]These consequential losses were properly documented in the evidence provided by the claimant to the tribunal.[24]Therefore the total amount payable to the Claimant is £31,700.26.[25]These are gross sums and it is the claimant’s responsibility to account to HMRC for deductions and liabilities due on monies received by her. The Respondents’ counterclaim[26]The Respondents’ ET3 included a counterclaim against the claimant in the sum of £15,000 for an alleged breach of the implied contractual duty to exercise reasonable skill and care. However, no evidence has been provided by the respondents to substantiate the counter claim, despite Judge Smith's case management orders of the 23rd of May that the respondents should do so. The claim is weak, unsubstantiated and contrary to the evidence in the case.[27]The respondents’ counter-claim is not well-founded and is dismissed. Removal of the first respondent[28]The claim was brought against 2 respondents, Mr Osemwegie and Evago Global Capital Limited.[29]The respondents objected to the joinder of Mr Osemwegie and stated that Mr Osemwegie acted solely as a company director, the claimant had no individual contract with him and he is not personally liable. The claimant confirmed in her evidence that her employment was with the second respondent, not with Mr Osemwegie personally, and I removed Mr Osemwegie as a party in accordance with rule 35(2).[1]The complaint of unauthorised deductions from wages is well-founded and succeeds.[2]I make an order of compensation of £31,700.26 to be paid by the second respondent to the claimant.[3]The respondents’ counter-claim is not well-founded and is dismissed.